State v. Mitchell

• Decision Date: 26 November 1991
• Docket Number: No. 90-2267-CR,90-2267-CR
• Citation: 482 N.W.2d 364,167 Wis.2d 672
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John P. MITCHELL, Defendant-Appellant. . Oral Argument
• Court: Wisconsin Supreme Court

Page 364

482 N.W.2d 364

167 Wis.2d 672

STATE of Wisconsin, Plaintiff-Respondent, v. John P. MITCHELL, Defendant-Appellant.

No. 90-2267-CR.

Supreme Court of Wisconsin.

Oral Argument Nov. 26, 1991.

Opinion Filed April 20, 1992.

For the defendant-appellant there was a brief by Thomas E. Brown, Marna M. Tess-Mattner, Kathryn A. Keppel and Gimbel, Reilly, Guerin & Brown, Milwaukee, and oral argument by Thomas E. Brown.

For the plaintiff-respondent the cause was argued by Paul Lundsten, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

DAY, Justice.

This is an appeal, by John P. Mitchell (defendant), certified by the Court of Appeals from a judgment of conviction by the Circuit Court for Waukesha County, Roger P. Murphy, Judge, for possession of a controlled substance, cocaine, with intent to deliver contrary to sec. 161.41(1m)(c) 2, Stats., 1987-88 (Controlled Substances Act).

There are three issues in this case. First, whether the defendant was legally arrested. We hold that he was. Second, whether certain physical evidence and evidence of defendant's non-verbal conduct was admissible. We hold that both types of evidence were admissible. Third, whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that prior to interrogation a defendant be advised that he or she has the right to stop answering questions at any time. We hold that it does not. We therefore affirm the circuit court's judgment of conviction.

The court of appeals certified only the third issue to this court. This court may and will decide all three issues:

When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts certification. Section 808.05(2), Stats. 1983-84. Further, the court has jurisdiction over issues not certified because the court may review an issue directly on its own motion. Section 808.05(3), 1983-84.

State v. Stoehr, 134 Wis.2d 66, 70, 396 N.W.2d 177 (1986).

On June 27, 1988 at approximately 9:00 p.m., while on routine patrol near a commercial park in Brookfield, Wisconsin, Officer Scott Smith noticed two men seated in a parked car and decided to investigate. He parked behind the car and approached the driver's side on foot where, at the driver's window, he asked the occupants to identify themselves and asked if "there was any problem." Defendant, John P. Mitchell, seated in the driver's seat, and the passenger identified themselves and stated they had parked to eat some chicken.

Through the open window, Officer Smith smelled burned or burning marijuana and saw smoke inside the vehicle. He was able to identify the odor due to his training and experience. He asked both men to get out of the vehicle, and, at the rear of the vehicle advised both men that they were under arrest for possession of a controlled substance, marijuana.

After the arrests, Officer Smith informed defendant that he was going to search the vehicle and asked defendant if he would like to retrieve the marijuana himself prior to the search. It is unclear whether defendant responded verbally. Defendant walked to the driver's side of the vehicle where, through the open door, Officer Smith observed a plastic bag on the floor of the vehicle containing a scale and a white powdery substance which later proved to be cocaine and also observed defendant attempting to conceal the bag by pushing it under the seat.

When he saw defendant's actions, Officer Smith took possession of the bag. By that time a back-up officer arrived and defendant was placed in the back-up officer's squad car. Officer Smith then searched defendant's car and discovered two bags of marijuana, two marijuana pipes, and $230 in cash. At some point he acquired defendant's wallet--either from defendant or from the vehicle--in which he found a list of names and numbers.

Officer Smith approached defendant and, without consulting a written Miranda warning form, advised him that he had the right to remain silent; that anything he said could be used against him in court; that he had the right to an attorney and to have him present during any questioning; and that if he couldn't afford an attorney, the court would decide if he was entitled to one and appoint one without charge. He did not advise defendant that he could stop answering questions at any time.

After Officer Smith advised defendant of his Miranda rights, he asked defendant if he understood them and if he "wanted to speak to me now," to which defendant replied, "yes." Defendant then stated he and his friend bought some chicken and stopped and smoked some marijuana. Defendant admitted both bags of marijuana were his. Defendant also admitted that the cocaine was his, that he purchased it about a week before, that he believed it to be about an ounce, and that he planned to sell it to whomever wanted to buy it.

Defendant was then taken to the Brookfield Police Department where at approximately 9:40 p.m. he was again advised of his Miranda rights in the same fashion as before. Defendant was asked if he "wanted to talk about what happened," and defendant replied, "yes." Defendant then repeated his initial statements adding that he purchased the cocaine for either $1,100 or $1,200, that the list in his wallet related, in part, to people who owed him money in drug transactions, and the scale found with the cocaine was his and used for drug transactions.

Defendant was then formally booked. At approximately 10:20 p.m., as a part of that procedure, defendant was given an "Interrogation--Advice of Rights" form to read and sign advising defendant of his Miranda rights. Under the "Your Rights" section, the form included the statement: "If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer." Under the "Waiver of Rights" section, defendant crossed out the sentence, "I do not want a lawyer present at this time." Defendant signed the form, made no further statements, and called his lawyer.

On August 16, 1988 a criminal complaint was filed charging defendant with possession of a controlled substance, marijuana, contrary to sec. 161.41(3r), Stats., 1987-88, and possession with intent to deliver a controlled substance, cocaine, contrary to sec. 161.41(1m)(c)2, 1987-88 (Controlled Substances Act).

Defendant filed a motion to dismiss for unlawful arrest, a motion to suppress physical evidence, and a motion to suppress statements made by defendant. On February 22, 1989, at the motion hearing, the circuit court denied defendant's motion to dismiss for unlawful arrest and his motion to suppress physical evidence and ordered briefs on the motion to suppress statements. On May 9, 1989 the circuit court filed a decision affirming its denial of the motion to dismiss for unlawful arrest and the motion to suppress physical evidence. The circuit court also denied defendant's motion to suppress statements. Defendant moved for reconsideration of the denial of the motion to suppress statements. On February 14, 1990, after briefs were filed and a hearing held, the circuit court filed its decision again denying defendant's motion to suppress statements.

On March 30, 1990 defendant entered a guilty plea to count two, possession with intent to deliver cocaine. Count one, possession of marijuana, was dismissed and read in for purposes of sentencing. Defendant was sentenced to four years probation, fines totaling $1,167 and six months in the county jail with good time. Defendant appealed his conviction. The sentence was stayed pending appeal and defendant is presently out on bail.

Defendant essentially makes three arguments. First, that Officer Smith lacked probable cause to arrest defendant and therefore the arrest was illegal. Second, that defendant's non-verbal conduct of attempting to hide the cocaine was testimonial in nature and inadmissable because it was obtained before defendant was advised of his Miranda rights. Further, defendant argues that the physical evidence, the cocaine, was inadmissable because it was obtained as the result of defendant's inadmissable non-verbal conduct. Third, that defendant's post-Miranda statements admitting possession with intent to sell the cocaine were inadmissable because Miranda requires a defendant to be warned that he or she may stop answering questions at any time and because defendant was not so warned. We consider these issues in turn.

The first issue is whether defendant was legally arrested. Probable cause is the sine qua non of a lawful arrest. Probable cause refers to the quantum of evidence which would lead a reasonable police officer to believe that defendant committed a crime. There must be more than a possibility or suspicion that defendant committed an offense, but the evidence need not reach the level of proof beyond a reasonable doubt or even that guilt is more likely than not. The information which constitutes probable cause is measured by the facts of the particular case. See State v. Richardson, 156 Wis.2d 128, 148, 456 N.W.2d 830 (1990); State v. Paszek, 50 Wis.2d 619, 624-25, 184 N.W.2d 836 (1971).

Defendant argues that Officer Smith arrested defendant solely because of the odor of marijuana. Citing People v. Harshbarger, 24 Ill.App.3d 335, 321 N.E.2d 138 (1974), People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978), and Kansas City v. Butters, 507 S.W.2d 49 (Mo.App.1974), defendant argues that Officer Smith lacked probable cause to arrest because, defendant argues, these cases stand for the proposition that marijuana odor alone is insufficient to establish probable cause.

Defendant also argues that Officer Smith testified that he smelled "burned" marijuana. Citing Hilber, defendant argues that the distinction between "burned," "burning," and "unburned"...