State v. Pallone

• Decision Date: 30 June 2000
• Docket Number: No. 98-0896-CR.,98-0896-CR.
• Citation: 2000 WI 77,613 N.W.2d 568,236 Wis.2d 162
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert J. PALLONE, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

236 Wis.2d 162

2000 WI 77

613 N.W.2d 568

STATE of Wisconsin, Plaintiff-Respondent, v. Robert J. PALLONE, Defendant-Appellant-Petitioner.

No. 98-0896-CR.

Supreme Court of Wisconsin.

Oral argument April 7, 2000.

Decided June 30, 2000.

For the defendant-appellant-petitioner there were briefs by Steven J. Watson and Steven J. Watson Law Office, Elkhorn, and oral argument by Steven J. Watson.

For the plaintiff-respondent the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DAVID T. PROSSER, J.

Robert J. Pallone (Pallone) seeks review of a published decision of the court of appeals, State v. Pallone, 228 Wis. 2d 272, 596 N.W.2d 882 (Ct. App. 1999). The court of appeals affirmed the decision of the Circuit Court for Walworth County, Robert J. Kennedy, Judge, denying Pallone's motion to suppress evidence obtained when police arrested the driver of the vehicle in which Pallone was a passenger and searched a duffel bag belonging to Pallone. The circuit court concluded that the search was proper because it was conducted incident to an arrest.

¶ 2. The court of appeals affirmed, holding that the search of the duffel bag was valid pursuant to the decision of the United States Supreme Court in Wyoming v. Houghton, 526 U.S. 295 (1999). Under Houghton, officers with probable cause to search a motor vehicle also can inspect passenger belongings that are capable of containing the object of the search. The court of appeals distinguished a case upon which Pallone relied, Knowles v. Iowa, 525 U.S. 113 (1998). In Knowles, the Supreme Court held that police may not search a vehicle during a traffic stop when the driver receives a citation but is not arrested. The court of appeals underscored that in this case, the search was incident to an arrest, and therefore the Knowles prohibition did not apply to Pallone.

¶ 3. The issue before the court is whether police may conduct a warrantless search of the belongings in a motor vehicle when the driver of this vehicle is under arrest but police do not have probable cause to arrest or detain the passenger. We hold that the search of Pallone's duffel bag was constitutionally sound, on the facts presented, for two reasons. First, the search was valid under the "search incident to arrest" exception to the warrant requirements set forth in Fourth Amendment to the United States Constitution and art. I, § 11 of the Wisconsin Constitution. Second, the search was proper because police had probable cause to search the passenger compartment of Riff's truck and any containers capable of concealing the object of the search. We therefore conclude the search of the duffel bag was valid, and the evidence obtained from the search was admissible at trial. Accordingly, we affirm the decision of the court of appeals.

FACTS

¶ 4. Some of the facts in this case are in dispute. On June 27, 1997, James P. Riff (Riff) and his schoolmate, Pallone, embarked on a Friday-night drive from Illinois to Wisconsin in Riff's black Ford pickup truck. They were planning to meet a friend at a local roadhouse. Riff had consumed one alcoholic drink at his Barrington home before he and Pallone set off on the trip. At approximately 11:20 p.m., Riff and Pallone pulled into Municipal Parking Lot #1 in the Village of Fontana in Walworth County. They had with them a 12 pack of beer, which had been ripped open and contained both empty and full bottles. There is a dispute whether the 12 pack lay on the bench seat inside the pickup cab next to the driver, Riff, or whether it lay in the bed of the truck near the cab.¹ What is undisputed is that Riff grabbed a 12-ounce, short-neck bottle of Budweiser out of the pack as he was pulling into the lot, opened it, drank half of it, and stepped out of the truck with the bottle in his hand. ¶ 5. Village of Fontana Police Officer Jeff Recknagel was on duty that summer night and had parked his marked squad car in the same parking lot. Recknagel was standing at the north end of the lot with a fellow officer when he saw Riff pull in and park in a stall about 20 feet from the two uniformed officers. Riff exited the pickup holding the Budweiser, and he took two drinks as Recknagel approached the truck and pointed his flashlight on Riff. In Fontana, separate village ordinances prohibit open intoxicants in public and in motor vehicles. Seeing Riff exit the truck, Recknagel was concerned that Riff possessed open intoxicants in the truck.

¶ 6. Recknagel directed Riff to hand over the bottle. Riff complied, and Recknagel noticed that the bottle still contained about one inch of liquid. Officer Recknagel remarked, "I got you," or words to that effect, and the two men walked to the back of the pickup, where Recknagel asked Riff for identification. While standing at the rear of the truck, Recknagel inquired whether there were any open beer bottles in the truck, and Riff replied in the affirmative. Officer Recknagel asked if he "could go and get it," or "take a look," and Riff answered, "Go right ahead."² The exchange between Riff and Recknagel was comfortable, polite, even relaxed.

¶ 7. Officer Recknagel explained that he then told Riff that he was under arrest. Recknagel believed Riff had violated the ordinance prohibiting open intoxicants in a motor vehicle. Riff, on the other hand, testified at the suppression hearing that Officer Recknagel did not state he was under arrest, did not handcuff him, and did not read Riff his Miranda rights.³ Rather, Riff presumed he only would be getting a "ticket" or citation for public consumption, not a "ticket" for possession of open alcohol in a vehicle. As a result, Riff thought he would only pay a fine and not be taken to the police station.

¶ 8. Passenger Pallone had stepped out of the pickup at the same time as Riff. While Recknagel and the other officer seated Riff in the squad car, Pallone stood unguarded between the squad car and the truck. Recknagel testified that at this point, no specific facts led him to believe that either Riff or Pallone posed a danger. Indeed, nothing about the situation made Recknagel believe that a pat-down search of either man was necessary.

¶ 9. As Recknagel reapproached Riff's pickup on the driver's side to conduct a search, he noticed that Pallone followed him by walking parallel to Recknagel along the opposite side of the vehicle. Pallone then stood by the passenger door.

¶ 10. Pallone put his hands on a zippered, blue-green duffel bag that rested on the middle of the truck cab's front bench seat. To Officer Recknagel, Pallone appeared nervous: He spoke in short sentences and kept looking up and down at the officer and the duffel bag. Pallone commented that he wished to remove the duffel bag. Recknagel directed him to leave the bag alone, adding that he planned to search the duffel bag because it was situated inside the vehicle. Recknagel later testified that Pallone's behavior, which suggested to the officer that the duffel bag contained something he "wasn't supposed to know about [] or see," caused concern for his own safety: "I didn't know what was inside of that bag, if there was a weapon possibly inside the bag, or maybe there could have been more open containers of alcohol inside the bag." Recknagel indicated that police are trained to assume that there is a potential for harm in similar encounters. When he saw Pallone reach for the duffel bag, Recknagel suspected Pallone might be reaching for a weapon.

¶ 11. Recknagel instructed Pallone to walk back to the rear of the truck, where the other officer kept an eye on Pallone while Recknagel searched the vehicle. Recknagel looked through the cab, in the glove compartment, and under the seats. During the course of the search, he found the ripped open, 12 pack of beer, with two or three bottles missing from it. Riff testified that Recknagel found the 12 pack of beer with open and full bottles at this point and placed it in the back of the pickup truck. Recknagel's testimony does not clarify what he did with the beer.

¶ 12. Officer Recknagel saw two airline luggage tags that identified Pallone as the duffel bag's owner. Recknagel then searched the duffel bag. He testified that he was looking for weapons and evidence relating to the open intoxicants charge. Upon opening the duffel bag, Officer Recknagel saw a number of personal items, including clothing, shoes, and hair care products. When he lifted up the clothing, Recknagel noticed that enough room remained in the two-and-one-half foot long duffel bag to conceal an open container of beer or, he reasoned, "[a]ny type of a knife, a handgun, any type of a weapon that could be used to hurt us."

¶ 13. Underneath the clothing, Recknagel also found an open, 150-count, box of clear sandwich bags. Although Recknagel testified that, based on his training and experience, plastic baggies usually are associated with narcotics or controlled substances, he also explained that the box, approximately eight to 10 inches long, potentially could contain a weapon.

¶ 14. In the open baggie box, a four-ounce, white plastic bottle labeled "Inositol Powder" caught Recknagel's eye.⁴ Officer Recknagel opened the bottle and saw that it was full, containing a large amount of white powder. Thinking the powder might be cocaine, Recknagel examined the inside of the baggie box. He testified that at this stage, he knew the baggie box did not contain a beer bottle and he was not looking inside the box for a weapon.

¶ 15. Recknagel noticed a plastic baggie tied into a knot next to the "Inositol Powder" bottle. The baggie contained a hard white ball, about one inch in diameter, comprised of a white powder. Assuming the ball to be cocaine, Recknagel seized the baggie, the bottle, and the duffel bag. Recknagel placed Pallone under arrest and transported him and Riff to the Fontana Police Department.

¶ 16. At the station, Pallone read the Miranda warnings from a...