State v. Mata

Decision Date22 September 1999
Docket NumberNo. 98-2895-CR.,98-2895-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Juan MATA, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel P. Murray of Love, Voss, Murray & Goeschko of Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.

Before Brown, P.J., Nettesheim and Snyder, JJ.

NETTESHEIM, J.

The issue on appeal is whether a police search of a passenger in a motor vehicle based solely on the odor of marijuana is reasonable. Based upon our supreme court's decisions in State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387, cert. denied, 119 S. Ct. 1799 (1999), and State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992), we hold that such a search is proper. We therefore affirm the conviction of Juan Mata for the unlawful possession of a controlled substance with intent to deliver pursuant to § 961.41(1m)(h)1, STATS.

Facts

The controlling facts are not disputed. On November 12, 1997, at approximately 7:35 p.m., Racine County Deputy Sheriff Daniel Klatt and two other officers spotted a Cadillac being operated without a front license plate. The officers stopped the vehicle which contained three occupants. When Klatt approached the driver's side of the vehicle, the driver rolled down the window and Klatt immediately detected a strong odor of raw marijuana. The driver provided a name and stated that he did not have his operator's license with him. Further investigation revealed that the name provided by the driver was not on file with the Department of Transportation. The driver then exited the vehicle at Klatt's direction, and Klatt conducted a pat-down search. No weapons or other contraband were discovered.

Meanwhile, another of the officers was obtaining the identifications of the other two passengers. A record check revealed that one of the passengers was wanted on an outstanding warrant. The officers arrested and searched this person. Again, no weapons or contraband were discovered.

Mata was the remaining occupant of the vehicle. Klatt directed Mata to step out of the vehicle. He asked Mata whether he had any weapons or drugs on his person and Mata replied that he did not. Klatt then conducted a pat-down search of Mata and felt a hard object in Mata's right front jacket pocket. When he asked Mata what the object was, Mata responded that it was a bag of socks. Klatt was suspicious of this response because the object did not feel like a bag of socks. Klatt then reached into the pocket and extracted a clear plastic baggie that contained two similar baggies with green leafy material that Klatt believed to be unsmoked marijuana. Klatt described the marijuana as very compacted, as though it had been cut off a brick of marijuana. Mata was arrested. A further search of his person produced a pager. The vehicle was also searched, but no further incriminating evidence was discovered. The State charged Mata with unlawful possession of a controlled substance with intent to deliver. Mata brought a motion to suppress the evidence obtained as a result of the search. Mata contended that the search was invalid because it was conducted solely on the basis of the odor of marijuana. He also contended that the scope of the search exceeded the permissible limits of a Terry1 search. The trial court rejected these arguments and denied the motion to suppress. Mata then pled guilty to the charge and a judgment of conviction was entered. Mata appeals, challenging the trial court's rejection of his motion to suppress.

Discussion

[1]

Mata contends that the search violated his rights under the United States and Wisconsin Constitutions. When reviewing an order granting or denying a motion to suppress evidence, we will uphold a trial court's findings of fact unless they are clearly erroneous. See Secrist, 224 Wis. 2d at 207,

589 N.W.2d at 390. However, the question of whether those facts constitute probable cause is a question of constitutional fact, which we review independently of the trial court's holding. See id. at 208, 589 N.W.2d at 390.

In Secrist, the supreme court ruled:

[T]he odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons.

Id. at 204, 589 N.W.2d at 389. The court further ruled that the linkage between the odor and the person or persons "must be reasonable and capable of articulation." Id. at 217, 589 N.W.2d at 394. In assessing this "linkage" requirement, the court stated:

The strong odor of marijuana in an automobile will normally provide probable cause to believe that the driver and sole occupant of the vehicle is linked to the drug. The probability diminishes if the odor is not strong or recent, if the source of the odor is not near the person, if there are several people in the vehicle, or if a person offers a reasonable explanation for the ordor.

Id. at 218, 589 N.W.2d at 395 (emphasis added).

Mata relies on this qualification to the Secrist ruling. He contends that the probable linkage between the odor and him was substantially diminished because there were three occupants in the vehicle. The State responds, citing Mitchell. There the supreme court stated:

Based on the presence of both the odor of marijuana and the smoke, Officer Smith had reason to believe that defendant, his passenger, or both had been smoking marijuana, and thus possessing, marijuana. The fact that there were two occupants in the vehicle is not fatal to a finding of probable cause to arrest defendant because probable cause does not mandate that it is more likely than not that the defendant committed the offense.

Mitchell, 167 Wis. 2d at 684, 482 N.W.2d at 368 (emphasis added).

These cases are arguably in conflict. Secrist appears to support Mata's argument for suppression because there were three occupants in the vehicle, thereby diminishing the probable linkage between the odor and Mata. Mitchell appears to support the State's argument for admissibility because probable cause does not require that the evidence make it more likely than not that the defendant committed the offense.2

Assuming the cases are at odds, we need not resolve the conflict in this case. Both cases agree that the question of probable cause turns on the facts of the particular case. (Whether probable exists is "measured by the facts of the particular case." Mitchell, 167 Wis. 2d at 682, 482 N.W.2d at 368. Secrist speaks of "the particular circumstances," "the totality of circumstances" and "the quantum of evidence" which are perceived by the police. See Secrist, 224 Wis. 2d at 218,

589 N.W.2d at 394-95.) Here, it is significant that by the time the police searched Mata, the other two occupants of the vehicle had already been searched and no evidence of marijuana or other contraband had been discovered. Thus, under the particular circumstances of this case, the odds of Mata possessing the suspected marijuana had increased — not diminished. See Maine v. Smith, 593 A.2d 210, 211-12 (Me. 1991) (officer had probable cause to search the passenger of the car, especially after a search of the driver revealed nothing to link the driver to the fresh scent of marijuana which came from the car). Thus, the necessary linkage between the odor of the suspected marijuana and Mata had been sufficiently established for purposes of probable cause.3

[2]

Having held that probable cause existed to conduct a search, it follows that we must reject Mata's further argument that the search was unreasonable under the United States Supreme Court's decision in Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484 (1998). There, the Supreme Court held that the police could not search a motor vehicle incident to the issuance of a traffic citation not involving a custodial arrest. See id. at 118-19, 119 S. Ct. at 488. Here, while the initial stop of the vehicle was premised on a possible traffic violation, the ensuing observations made by Klatt established probable cause to believe that marijuana was in the vehicle or on the persons of the occupants. Thus, this is not a Knowles case.

Mata next contends that Klatt's initial feel of the object was not sufficient to raise a reasonable belief that the object might be a weapon. As such, Mata argues that Klatt's subsequent act of reaching into his jacket pocket exceeded the permissible scope of a search conducted pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and § 968.25, STATS., the statutory codification of Terry. However, as we have just noted, the search of Mata was not a "reasonable suspicion"/Terry search. Rather, it was a search based on full probable cause. "A search may immediately precede a formal arrest so long as the fruits of the search are not necessary to support the arrest." State v. Ford, 211 Wis. 2d 741, 749 n.5, 565 N.W.2d 286, 290 (Ct. App. 1997); see also State v. Swanson, 164 Wis. 2d 437, 450-51, 475 N.W.2d 148, 154 (1991)

(citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). Here, as we have already explained, Klatt had probable cause to search Mata. As a result, the fruits of the search were not necessary to justify the ensuing arrest of Mata. Even though Klatt expressed a Terry basis for the search, we are not bound by an officer's subjective reasons for a search or arrest. See State v. Kasian, 207 Wis. 2d 611, 621, 558 N.W.2d 687, 691 (Ct. App. 1996). The law provides that Klatt had probable cause to search Mata. We apply that law, not Klatt's subjective reasons for searching Mata.

Alternatively, even addressing Mata's Terry analysis, we reject his argument. Mata's real quarrel on this issue is with the...

To continue reading

Request your trial
35 cases
  • State v. Williams
    • United States
    • Wisconsin Supreme Court
    • March 13, 2001
    ...provide reasonable suspicion sufficient to justify an investigatory stop of a motor vehicle. In addition, in State v. Mata, 230 Wis. 2d 567, 576, 602 N.W.2d 158 (Ct. App. 1999), the court of appeals ruled a weapons search following a stop of a car with no license plates was properly based u......
  • Kees v. N. States Power Co.
    • United States
    • Wisconsin Court of Appeals
    • May 14, 2013
    ...argument might have, the Keeses have forfeited it by waiting until the final briefing stage to make it. See State v. Mata, 230 Wis.2d 567, 576 n. 4, 602 N.W.2d 158 (Ct.App.1999) (We do not address issues raised for the first time in a reply brief.). And they apparently did not present it to......
  • State v. Limon
    • United States
    • Wisconsin Court of Appeals
    • April 8, 2008
    ...stopped.'" State v. Allen, 226 Wis.2d 66, 76-77, 593 N.W.2d 504 (Ct.App.1999) (citation omitted); cf. State v. Mata, 230 Wis.2d 567, 574-75, 602 N.W.2d 158 (Ct.App.1999) (where, after conducting a routine traffic stop, the investigating officer detected odor of marijuana and subsequently se......
  • State v. Shallcross
    • United States
    • Wisconsin Court of Appeals
    • October 23, 2012
    ...568, 682 N.W.2d 433. Moreover, we do not consider issues presented for the first time in a reply brief. See State v. Mata 230 Wis.2d 567, 576 n. 4, 602 N.W.2d 158 (Ct.App.1999). ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT