State v. Phillips

• Decision Date: 20 January 2023
• Docket Number: 2022AP350-CR
• Parties: State of Wisconsin, Plaintiff-Appellant, v. Lori Ann Phillips, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Appellant, v. Lori Ann Phillips, Defendant-Respondent.

No. 2022AP350-CR

Court of Appeals of Wisconsin, District IV

January 20, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for La Crosse County: Cir Ct. No. 2020CF364 ELLIOTT M. LEVINE, Judge. Reversed and cause remanded for further proceedings.

Before Blanchard, P.J., Kloppenburg, and Nashold, JJ.

PER CURIAM.

¶1 After the body of the deceased Mark Phillips was found next to a snowbank outside his house, police seized a pickup truck registered to his wife, Lori Phillips, which was parked at their shared residence.^[1]Police seized the pickup without obtaining permission from Phillips or a court order authorizing seizure. Police then held the pickup at a police impound lot before obtaining a search warrant authorizing its search. The search yielded evidence that the State now seeks to rely on at a trial against Phillips on a charge of hit and run resulting in the death of Mark Phillips.

¶2 The circuit court granted the motion to suppress the evidence from the search of the pickup, based on the circumstances of its seizure. Specifically, the court concluded that the State failed to show that the automobile exception to the warrant requirement of the Fourth Amendment applies to permit the warrantless seizure. The court also took the position that suppression is appropriate because police held the pickup in the impound lot for an unreasonable period of time before obtaining the search warrant and that this was contrary to the reasoning in United States v. Jones, 565 U.S 400 (2012). The State appeals the suppression order.

¶3 Following the reasoning in State v. Marquardt, 2001 WI.App. 219, ¶¶26-52, 247 Wis.2d 765, 635 N.W.2d 188, we conclude that the automobile exception to the warrant requirement applies to the seizure of the pickup. Separately we reject search-warrant delay as a basis to affirm the circuit court for multiple reasons, including lack of development by Phillips. Accordingly, we reverse the circuit court's suppression order and remand for further proceedings.

BACKGROUND

¶4 Now pending against Phillips is a criminal charge that she violated Wis.Stat. §§ 346.67(1) ("Duty upon striking person or attended or occupied vehicle.") and 346.74(5)(d) (2019-20) (violation of § 346.67(1) is a "Class D felony if the accident involved death to a person") in connection with an accident that resulted in the death of Mark Phillips.^[2] The alleged accident occurred near the family residence in the Town of Onalaska and involved Phillips operating a 2019 Dodge Ram pickup truck that was registered to her.

¶5 The following brief factual overview is undisputed for purposes of this appeal, with additional facts provided in the Discussion section below. Police responded to the family residence early on the morning of February 23, 2019. There they found Phillips standing outside in the driveway area and the body of the deceased Mark Phillips, face down, next to a snow bank adjoining the driveway. About 15 feet away from the body, lying on the driveway, was a pair of wraparound sunglasses. Nearby was parked a 2019 Dodge Ram, which is a full-sized pickup, registered to Phillips. Phillips told police, in part, that the two had argued the night before and that at one point, with Mark Phillips standing nearby and while the passenger door of the pickup was open, Phillips drove the pickup away in a hurry. She further told police that in the morning she discovered his body by the snowbank and called 911.

¶6 During the course of the initial investigation on February 23, while Phillips was being interviewed at a police station but without having been placed under arrest, police had the pickup hauled away from the residence on a flatbed truck and taken to a police impound lot. Phillips did not consent to this seizure and there was no warrant or other court order authorizing the seizure. On March 15, while the pickup was still in police custody, a circuit court judge issued a search warrant authorizing its search.

¶7 Shortly after the search warrant was issued, investigators with the Wisconsin Crime Laboratory conducted a forensic examination of the pickup. According to the criminal complaint, the search yielded "apparent hair" that was located near the pickup's front right passenger tire, front passenger suspension bar, and driver's step, and also yielded fibers in various locations that were "consistent with" the pants Mark Phillips was wearing when his body was discovered.

¶8 Phillips moved for an order suppressing "all evidence recovered from the truck after it was seized." The motion acknowledged the automobile exception to the Fourth Amendment. See California v. Carney, 471 U.S. 386, 390-92 (1985) (under automobile exception to the warrant requirement, first recognized in Carroll v. United States, 267 U.S. 132, 153 (1925), police may seize a readily mobile vehicle and search it for contraband or evidence of a crime, without a warrant, consent, or other exception to the Fourth Amendment, when there is probable cause to believe that it contains contraband or evidence of a crime). However, Phillips argued that the automobile exception does not apply here because, at the time of the seizure: (1) there was not probable cause to believe that the pickup contained evidence of a crime; and (2) the pickup was not "readily mobile," because, she argued, "[n]obody was going to drive the truck from the home" and police "had ample time to pursue a warrant to seize and tow the truck."

¶9 The prosecutor argued in response that both of the required elements of the automobile exception are satisfied and that in order to rely on the automobile exception the State does not need to show that it would have been impractical for police to obtain a court order authorizing seizure of the pickup before doing so. See Marquardt, 247 Wis.2d 765, ¶¶27-31.

¶10 In the alternative, the prosecutor contended that, even if the automobile exception does not apply, evidence obtained during the search of the pickup is admissible under the reasoning in State v. Gaines, 197 Wis.2d 102, 539 N.W.2d 723 (Ct. App. 1995). In Gaines, this court applied the rule that an unlawful seizure does not necessarily invalidate the later recovery of evidence authorized by a search warrant if the connection between the unlawful seizure and the later recovery is attenuated and dissipates the taint. See id. at 113. Phillips responded to this argument by distinguishing the facts in Gaines and also argued that "it is unlikely that Gaines remains good law following the U.S. Supreme Court decision in U.S. v. Jones, 565 U.S. 400 (2012)."

¶11 The circuit court conducted an evidentiary hearing over the course of two days in February and March 2021. At a separate hearing in May 2021, the court made the following two rulings, memorialized in a June 2021 written order, resolving the automobile exception aspect of the suppression issue: (1) the State showed that the police had probable cause at the time of the seizure to believe "that the truck was involved with the death"; but (2) the State did not show that the pickup was then "readily mobile." Based on its not-readily-mobile determination, the court concluded that the automobile exception does not apply to justify the warrantless seizure of the pickup.

¶12 Separately, the circuit court allowed the parties to submit further briefing before resolving the suppression issue. The additional briefing was to address the prosecutor's alternative argument that, even if the automobile exception does not apply, evidence obtained during the search of the pickup is admissible under Gaines.

¶13 In addition, in its oral ruling (although not in its corresponding written order), the circuit court supported its suppression decision by making references to the Jones opinion, which we address in the Discussion section below.

¶14 At a hearing in January 2022, the circuit court rejected the prosecutor's alternative argument based on Gaines and, consistent with this ruling, issued a final written order on the suppression motion, directing "that the vehicle and all evidence from the vehicle are suppressed." At this hearing, the court again referenced the Jones opinion (but, as before, the court did not reference Jones in its corresponding written order).

¶15 The State now pursues a pretrial appeal, seeking reversal of the suppression ruling. See Wis. Stat. § 974.05(1)(d)2. ("appeal may be taken by the state from any" order, "the substantive effect of which results in" the suppression of evidence).

DISCUSSION

¶16 We first address the automobile exception and explain why we conclude that it applies here, which makes it unnecessary for us to address the State's alternative theory under Gaines.^[3] Then we explain why we reject the argument that Phillips now purports to raise on appeal based on the length of time police retained the pickup before obtaining the search warrant.^[4]

¶17 "This court analyzes the grant or denial of a suppression motion under a two-part standard of review: we uphold the circuit court's findings of fact unless they are clearly erroneous, and we independently review whether those facts warrant suppression." State v. Adell, 2021 WI.App. 72, ¶14, 399 Wis.2d 399, 966 N.W.2d 115.

I. AUTOMOBILE EXCEPTION

¶18 The Fourth and Fourteenth Amendments to the United States Constitution and article I, section 11, of the Wisconsin Constitution guarantee Wisconsin citizens freedom from "unreasonable searches and seizures." State v Griffith, 2000 WI 72, ¶25, 236 Wis.2d 48, 613 N.W.2d 72. "Warrantless searches of homes are 'presumptively unreasonable,' but warrantless searches of...