State v. Pulver

• Decision Date: 11 November 1993
• Docket Number: No. 93-1117-CR,93-1117-CR
• Citation: 514 N.W.2d 55,180 Wis.2d 470
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Michael K. PULVER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 55

514 N.W.2d 55

180 Wis.2d 470

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

STATE of Wisconsin, Plaintiff-Respondent, v.Michael K. PULVER, Defendant-Appellant.

No. 93-1117-CR.

Court of Appeals of Wisconsin.

Nov. 11, 1993.

SUNDBY.

In this case, we¹ decide that the police's warrantless search of defendantMichael Pulver's automobile incident to his arrest did not violate the fourth amendment.We therefore affirm the order denying his motion to suppress the evidence found in his vehicle and his judgment of conviction.Our decision extends to the testimony of any of the officers as to his or her observations of the seized evidence.

Our decision requires that we undertake the difficult task of harmonizing decisions by the United States Supreme Court in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768cert. denied479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 586(1986), with the United States Supreme Court's decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685(1969).We are plainly instructed in both Belton, 453 U.S. 460 n.3, andFry, 131 Wis.2d at 166, 388 N.W.2d at 571, that the "fundamental principles" underpinning warrantless searches incident to lawful custodial arrests as established in Chimel remain unchanged.²

The "fundamental principle" governing a warrantless search of an automobile incident to a lawful custodial arrest is that the police may search any part of the interior of an automobile within an occupant's "immediate control."Chimel, 395 U.S. at 763, 89 S.Ct. 2034.This principle has been termed the "grabbable area" rule.SeeNew York v. Bell, 121 A.D.2d 455, 457, 503 N.Y.S.2d 145, 148(N.Y.App. Div.1986).See alsoChimel, 395 U.S. at 763, 89 S.Ct. 2034.The search is reasonable for the protection of the officer and to prevent the loss or destruction of evidence.

The state argues that the United States Supreme Court in Belton, and the Wisconsin Supreme Court in Fry, have established a "bright-line" automobile exception which makes reasonable any warrantless search of the interior of an automobile incident to a lawful custodial arrest, as long as the search is reasonably contemporaneous with the arrest.We agree that the dispositive language of those cases requires the result urged by the state.

We acknowledge, however, that the precise facts presented here may be grounds to distinguish this case from Belton and Fry.Pulver had been removed from his automobile, handcuffed, and placed in the locked "cage" of the squad.His keys to the car he was driving were inside the car and the car was locked.Three armed police officers were present to prevent Pulver from regaining access to the interior of his car.The Belton "bright-line" rule justifying this search as consistent with Chimel attributes superhuman powers to Pulver.SeeUnited States v. Vasey, 834 F.2d 782, 787(1971).We conclude, however, the facts of this case do not permit us to reach a result which we believe would be contrary to the dispositive language of Belton and Fry.SeeState v. Lossman, 118 Wis.2d 526, 533, 348 N.W.2d 159, 163(1984).

BACKGROUND

On April 19, 1992, at 4:53 a.m., City of Verona Police OfficerTheresa Schwoerer investigated a person sleeping or slouched over in an automobile parked in the city's business district.When Pulver rolled down his window in response to Schwoerer's request, she observed signs of intoxication.Pulver provided his name and date of birth to Officer Schwoerer, but became disruptive when she inquired if he had another place to sleep.Schwoerer's routine records check disclosed that Pulver had outstanding warrants for his arrest.

Two Dane County Sheriff's Department deputies arrived to assist with Pulver's arrest on the outstanding warrants.One of the officers opened the passenger side door and requested that Pulver exit the vehicle.Pulver refused and responded that he wanted the passenger side door closed; the officer complied and Pulver locked the door from the inside.He then unlocked and exited the car from the driver's side, threw his keys into the car, and relocked the driver's side door, securing the keys inside his locked car.

The police handcuffed and arrested Pulver, performed a pat-down search and placed him in a locked squad car.Within five minutes of the search, they forcibly opened the car and discovered a pellet gun and, in a cooler, a plastic baggie containing a substance which appeared to be marijuana.³

THE ISSUES

Pulver presents two issues: (1) Did Officer Schwoerer exceed the scope of the community caretaker function when she approached Pulver's vehicle and inquired as to his well-being and asked his name and birth date?; and (2) Did the police exceed the scope of a search incident to Pulver's arrest?We conclude that Officer Schwoerer did not exceed the community caretaker function.Pulver's arrest was lawful based on the information Schwoerer obtained in exercising the community caretaker function.We further conclude that under the Belton/Fry rule the police did not exceed the scope of a search incident to Pulver's lawful custodial arrest.

STANDARD OF REVIEW

In reviewing an order suppressing evidence, we will uphold the trial court's findings of fact unless they are against the great weight and clear preponderance of the evidence; in other words, unless they are clearly erroneous.State v. Guzy, 139 Wis.2d 663, 671, 407 N.W.2d 548, 552(1987).However, in this casewe decide a question of constitutional fact."Whether the interior of an automobile is an area from which a defendant might secure a weapon or evidentiary items is a question of constitutional fact which we review independently of the trial court."Fry, 131 Wis.2d at 171, 388 N.W.2d 573, 388 N.W.2d 565.

I.THE ARREST

A community caretaker action is one that is "totally divorced from the detection, investigation or acquisition of evidence" relating to criminal activity.State v. Ellenbecker, 159 Wis.2d 91, 96, 464 N.W.2d 427, 429(1973)).See alsoTerry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, ---, 20 L.Ed.2d 889(Ct.App.1987).Four factors must be considered in balancing the public need against individual privacy: (1) the exigency of the situation; (2) the particular circumstances surrounding the seizure (including time, location, overt authority, and force displayed); (3) involvement of an automobile; and (4) available alternatives.Anderson, 142 Wis.2d at 169-70, 417 N.W.2d at 414.

Assuming a "seizure" occurred, we reject Pulver's argument that Officer Schwoerer exceeded the community caretaker function.Officer Schwoerer's stop was unquestionably a bona fide caretaking action and the public interest outweighed the minimal intrusion which occurred.

Pulver was slumped over the wheel of his car at 4:53 a.m., across the street from a bar.Officer Schwoerer testified that she was concerned for his wellbeing.She unobtrusively stopped behind Pulver's car, knocked on the driver's side window, and, when Pulver rolled the window down, asked for his driver's license.He voluntarily provided his name and date of birth without protest.However, through the open window, Officer Schwoerer saw an open beer can, smelled alcohol, and noticed that Pulver's speech was slurred.These circumstances justified Officer Schwoerer's further inquiries.

The public's interest in preventing harm to, or by, Pulver substantially outweighed the minimal intrusion Officer Schwoerer made into Pulver's privacy.Ellenbecker states: "The public interest in asking for the license and conducting a status check outweighs the minimal intrusion involved."159 Wis.2d at 98, 464 N.W.2d at 430.Pulver may have been ill or injured, in which case he may have needed police assistance; or he may have been intoxicated, in which case the public had an interest in preventing his operation of a motor vehicle.Therefore, we conclude that Officer Schwoerer's contact with Pulver, properly initiated as a community caretaker action, was reasonable and does not provide grounds for suppressing the evidence subsequently obtained.

II.THE SEARCH

The fourth amendment to the United States Constitutionandarticle I, section 11 of the Wisconsin Constitution require that the police obtain a warrant based on probable cause before they conduct a search.⁴However, the warrant requirement is subject to several long-standing and well-established exceptions applicable to automobiles.SeeCarroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543(1976)(police may search an automobile in their custody without a warrant, to inventory its contents);Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502(1983)(police may search suspicious items in plain view within an automobile).⁵See also3 W. LAFAVE, SEARCH AND SEIZURE ch. 7, Search and Seizure of Vehicles (2nd ed. 1987 & Supp.1993).

A further exception to the warrant requirement is provided for searches incident to lawful arrests.In Chimel the United States Supreme Court defined the boundaries for searches undertaken incident to such arrests, expanding the doctrine first announced in Carroll:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated.In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as...