State v. McDougal

Decision Date06 May 1975
Docket NumberNo. S,S
PartiesSTATE of Wisconsin, Plaintiff-in-Error, v. Bruce David McDOUGAL, Defendant-in-Error. tate 25.
CourtWisconsin Supreme Court

The state has appealed from an order suppressing evidence seized during an inventory search of an automobile driven by the defendant.

At about 3:40 a.m., on November 3, 1973, the defendant, Bruce David McDougal, was driving an automobile west on Highway I--90 towards La Crosse. He was traveling 65 miles per hour in a 60 mile per hour zone and was stopped for speeding by State Trooper Terry Knutson. Knutson also discovered an equipment violation, i.e., a faulty muffler. McDougal did not have his driver's license or any other identification with him.

Upon inquiry, McDougal told the officer he was on his way to La Crosse to get bail money for a friend, Peter Byrne, the owner of the vehicle, who had been arrested earlier in the evening and was in the Eau Claire county jail.

Knutson radioed to his headquarters to have the defendant's story verified. He was informed that Peter Byrne was in jail on charges of disorderly conduct and 'possession,' which Knutson took to mean possession of drugs, that he was intoxicated, that he did in fact own the car, but that he had no need for bail money since he had $750 on his person when arrested.

After receiving this information, Knutson asked the defendant how he came to be in possession of the Byrne car. McDougal replied that after Byrne's arrest the Eau Claire police had told him to take charge of the car.

Knutson shined his flashlight into the back seat of the car and observed a considerable quantity of loose clothing and some canned food. He asked the defendant to open the truck of the car. The defendant construed that to be an order and did so, unlocking it with a key. Inside were several items, including two firearms, a substantial amount of ammunition, duck decoys, clothing and two green suitcases. The defendant stated the suitcases were not his. When Knutson asked the defendant to open the suitcases, he tried but informed Knutson that they were locked. Knutson later testified he was curious as to what was in the suitcases.

Knutson gave the defendant a warning as to his speeding, a correction notice as to the faulty muffler, but arrested him for failure to carry a driver's license and ordered him to follow Knutson's patrol car to the La Crosse county sheriff's office, where they arrived at about 4:15 a.m. The car was parked on the street adjacent to the county jail. The defendant was charged with failure to carry a driver's license and operating a motor vehicle without the owner's consent because it allegedly could not be established at that time whether Byrne had consented to the defendant's use of his car. 1 McDougal could not post bond and was placed in a jail cell.

At about that time that La Crosse authorities called the Eau Claire police to determine whether Byrne would consent to a search of his car by the La Crosse sheriff's department. Eau Claire Police Officer James T. O'Dell inquired of Byrne but failed to get his consent and so informed the La Crosse officials. The defendant was never asked whether the car could be searched.

At about 6:45 a.m., the car was moved into the La Crosse courthouse garage and searched, with a detailed inventory made of all its contents. The two suitcases in the trunk, which were unlocked with keys found in the glove compartment, were found to contain a substantial quantity of marijuana. The suitcases were seized. No attempt was ever made to obtain a search warrant.

The defendant was charged with possession of marijuana with intent to sell, contrary to sec. 161.41(1m)(b), Stats.

At the hearing to suppress the evidence, La Crosse County Deputy Sheriff Gerald T. Clark, who conducted the search, testified with respect to the policy of the sheriff's department concerning vehicles when the owner has been arrested:

'We have to naturally secure it in some way so that it can't be stolen or anything by the general public, and we do this to protect it. In this particular case, this car couldn't have been locked or secured so it was moved into the garage area which is somewhat more secure and it was then inventoried, so we knew what the person had with him when he got there.'

He further testified that the vehicle could not be left in the courthouse garage for an extended period of time.

There was a conflict in the testimony as to what extent the car could be locked.

As to the trunk, Trooper Knutson testified that the defendant used a key to open it on the highway. Deputy Clark testified that the trunk, which was damaged, could be opened in two ways, either with a key or by pulling a small wire protruding from a hole in the trunk. Byrne, the owner of the car, testified that the trunk would open only with a key. When he went to retrieve his car in the area where it was stored, however, he testified that the trunk was damaged more than it had been previously and that it was possible to open it without a key, 'after a little bending.' An investigator testified that when he observed the car in storage the trunk was damaged and wired down and 'probably' could not be locked.

With regard to the car itself, Deputy Clark testified that it could not be locked. Trooper Knutson testified that when they arrived in La Crosse he was informed by the defendant that he could not lock the right front door. Byrne testified that all the doors on the car locked. The defendant testified that when he arrived in La Crosse he locked all the doors on the car. The investigator testified that he determined by examining the car, a two-door, that it could be locked, but only by locking the driver's side from the inside, and then exiting through the passenger's door and locking it with a key.

The car was taken to a junkyard in the nearby city of Onalaska and allegedly stored in a pole building.

Several days later, when Byrne tried to get his car, he found it outside at the junk-yard. It contained his clothing, canned food and several other items. The two guns, a pistol and a shotgun, together with the ammunition, were in the trunk of the car. Because of the inclement weather the water in the engine block had frozen and cracked the block making the car inoperable.

In its memorandum decision the trial court held that the search of the locked suitcases without a warrant, in the course of an inventory search conducted so that no claims of theft of loss could be made against the sheriff's department, was an unreasonable search and that the evidence so obtained should be suppressed.

Robert W. Warren, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., Madison, for plaintiff-in-error.

Patrick R. Doyle, La Crosse, for defendant-in-error.

BEILFUSS, Justice.

The issues raised on this appeal deal only with the existence and validity of an 'inventory search.' There is no attempt by the state to justify the intrusion into the automobile as a consent search, a search incident to arrest, a probable cause search, an exigent circumstances search, or anything other than an inventory search. The record clearly indicates that due to the lack of consent, the time and place of the intrusion, and the general lack of any other mitigating circumstances, no other justification can arguably be found.

The state contends that an inventory of a motor vehicle is not a 'search' in the constitutional sense, and that therefore state and federal restrictions and safeguards regarding searches and seizures are inapplicable. The defendant takes the opposite view, contending that the intrusion is a 'search,' and hence is subject to constitutional restraints, especially the requirement of reasonableness. 2

In State v. Dombrowski (1969), 44 Wis.2d 486, 171 N.W.2d 349, the defendant, an out-of-state police officer, had been taken into custody after he became intoxicated and ran his car into a ditch. The car was disabled and immovable. The local authorities were of the impression the out-of-state officer had his service revolver with him at all times and searched the car primarily to find the revolver so that it would not fall into unauthorized hands. During the search for the revolver in the trunk of the car the police found evidence that eventually tended to implicate the defendant in a murder charge.

The majority of this court concluded that such conduct did not constitute a 'search,' relying on Edwards v. State (1968), 38 Wis.2d 332, 338, 156 N.W.2d 397, 401, for the proposition that "A search implies a prying into hidden places for that which is concealed," and on Haerr v. United States (5th Cir. 1957), 240 F.2d 533, 535, for the statement:

'A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term (search) implies exploratory investigation or quest. . . .'

The majority's conclusion was upheld in habeas corpus proceedings before the Federal District Court for the Eastern District of Wisconsin. 3 However, both the Seventh Circuit Court of Appeals and the United States Supreme Court, in later proceedings in the same case, specifically refused to reach the issue because the state had conceded that a 'search' was involved. 4

In State v. McCarty (1970), 47 Wis.2d 781, 786, 177 N.W.2d 819, and Warrix v. State (1971), 50 Wis.2d 368, 376, 187 N.W.2d 189, this court expressly reaffirmed its holding in Dombrowski. In Warrix, at pages 376 and 377, 184 N.W.2d at page 194, however, the court stated with respect to searches of vehicles being kept for safekeeping by police while the owner or operator is in jail:

'. . . Many times claims against the police have been made by the accused that personal property has disappeared from his car while he and the car were in police custody. To protect the police from such claims, a custodial search and inventory may be made of the personal property in...

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