State v. Reed
| Decision Date | 14 September 2000 |
| Docket Number | 99-2108-CRP19_399 |
| Parties | NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Jimmy Reed, Defendant-Appellant._399 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I DECISION DATED AND FILED: |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Milwaukee County: TIMOTHY G. DUGAN, Judge. Affirmed.
Before Dykman, P.J., Roggensack and Deininger, JJ.
1. DYKMAN, P.J.
Jimmy Reed appeals from a judgment convicting him of possession of cocaine with intent to deliver. Reed pleaded guilty after the trial court denied his motion to suppress cocaine that a police officer found in his pocket. Reed argues that the trial court incorrectly concluded that cocaine found in his pocket was admissible under the inevitable discovery exception to the exclusionary rule. Reed further contends that the police subjected him to an unlawful detention. We disagree and conclude that the cocaine from Reed's pocket was admissible under the inevitable discovery exception to the exclusionary rule. We therefore affirm.
2. On December 1, 1997, Detective Peter Pierce, along with several uniformed officers, responded to a complaint of drug sales at an apartment. Upon arrival, the officers knocked on the door of the residence and spoke with Jannie Jackson, who identified herself as a resident of the apartment. The officers had not obtained a search warrant, but Pierce obtained Jackson's consent to enter and search the residence. During the officers' search of the residence, Pierce found a plastic bag containing cocaine base on the top of a china cabinet in the dining room. The officers also found more cocaine in the living room, three cocaine pipes, two boxes of open sandwich bags, and a spoon with white residue.
3. While some of the officers searched the premises, Reed was in the kitchen with Officer Victor Centeno. Because Reed was acting nervously and putting his hand in his left pocket, Centeno became concerned for his safety and patted down Reed for weapons. The pat down did not yield any weapons or other contraband. Centeno then asked Reed for permission to search him, and removed an asthma inhaler from Reed's pocket. Centeno opened the inhaler and found that it contained several baggies of cocaine. Reed was subsequently arrested, some time after Centeno found the cocaine in his pocket.
4. The State charged Reed with possession of a controlled substance with intent to deliver in violation of Wis. Stat. 961.41(1m)(cm)1 and 961.16(2)(b)(1) (1997-98).1 Reed moved to suppress the cocaine found in his pocket, arguing that he had not consented to the search of his pockets. The State argued that the search of Reed's pockets was consensual, and that even if it was not, the cocaine in Reed's pocket was admissible under the doctrine of inevitable discovery because Reed would have been lawfully searched incident to arrest. The trial court denied Reed's motion. While the trial court found that Reed did not consent to the pocket search, it agreed with the State that the cocaine in Reed's pocket was admissible under the inevitable discovery doctrine. Reed then pleaded guilty, and the court entered a judgment of conviction. Reed appeals.
5. We briefly address whether Reed consented to the search of his pockets. Our standard of review for consent to a search is stated succinctly as follows:
If the State relies on consent for the search, it has the burden of proving by clear and convincing evidence that consent was voluntarily given. Although the trial court's findings of fact will not be disturbed unless they are clearly erroneous, the application of these facts to constitutional principles is a question of law subject to our de novo review.
State v. Stankus, 220 Wis. 2d 232, 237-38, 582 N.W.2d 468 (Ct. App. 1998) (citations omitted). The trial court concluded that the State failed to prove by clear and convincing evidence that Reed consented to the pocket search. Reed, of course, does not contest the trial court's determination on this issue. Because we agree with the trial court that the State failed to show by clear and convincing evidence that Reed voluntarily consented to the search of his pockets, we must address whether the cocaine in Reed's pocket was nevertheless admissible under the inevitable discovery doctrine. We conclude that it was.
6. Inevitable discovery presents a question of constitutional law because it is an exception to the exclusionary rule protecting Fourth Amendment interests. See State v. Anderson, 160 Wis. 2d 307, 315, 466 N.W.2d 201 (Ct. App. 1991), rev'd on other grounds, 165 Wis.2d 441, 477 N.W.2d 277 (1991). We review constitutional questions de novo. See State v. Bollig, 224 Wis. 2d 621, 628, 593 N.W.2d 67 (Ct. App. 1999), aff'd, 2000 WI 6, 232 Wis.2d 561, 605 N.W.2d 1999. We agree with the trial court and conclude that the cocaine in Reed's pocket was admissible under the inevitable discovery doctrine.
7. The primary purpose of the exclusionary rule is to prevent police exploitation of Fourth Amendment violations. See Mapp v. Ohio, 367 U.S. 643, 655-56 (1961); State v. Kraimer, 91 Wis.2d 418, 431, 283 N.W.2d 438 (Ct. App. 1979), aff'd, 99 Wis.2d 306, 298 N.W.2d 568 (1980). Under the exclusionary rule, if a law enforcement officer conducts an unconstitutional search, then the fruits of that search will normally be excluded from evidence. See Wong Sun v. United States, 371 U.S. 471, 484 (1963); State v. Armstrong, 223 Wis. 2d 331, 361, 588 N.W.2d 606 (1999). However, the inevitable discovery doctrine provides that otherwise excludable fruits of an illegal search may be admitted into evidence if the tainted fruits would have been inevitably discovered by other lawful means. See Nix v. Williams, 467 U.S. 431, 444 (1984); State v. Washington, 120 Wis.2d 654, 664, 358 N.W.2d 304 (Ct. App. 1984), aff'd on other grounds, 134 Wis.2d 108, 396 N.W.2d 156 (1986). In State v. Lopez and State v. Schwegler, we stated the inevitable discovery doctrine as a three-part inquiry. The State must demonstrate:
(1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct, (2) that the leads making the discovery inevitable were possessed by the government at the time of the misconduct, and (3) that prior to the unlawful search the government also was actively pursuing some alternate line of investigation.
State v. Lopez, 207 Wis.2d 413, 427-28, 559 N.W.2d 264 (Ct. App. 1996); see also State v. Schwegler, 170 Wis.2d 487, 500, 490 N.W.2d 292 (Ct. App. 1992). Applied here, the inevitable discovery doctrine first requires that the police had probable cause to arrest Reed even without the cocaine in his pocket, and therefore police would have lawfully been in a position to search his pockets incident to arrest. The doctrine also requires that the police had probable cause prior to the unlawful search of Reed's pockets. Finally, the doctrine requires that the police were obtaining evidence against Reed through the active pursuit of an alternate line of investigation. We conclude that each of these requirements was met. Therefore, the cocaine in Reed's pocket was admissible under the inevitable discovery doctrine.
8. Reed first argues that the cocaine in his pocket would not have inevitably been discovered by search incident to arrest because the police did not have probable cause to arrest him for the cocaine found in the dining room. We disagree, and conclude that the police had probable cause to arrest Reed by the time the illegal search of his pockets occurred.
9. Whether the facts of a given case constitute probable cause to arrest is a question of law that we decide de novo. See State v. Kasian, 207 Wis.2d 611, 621, 558 N.W.2d 687 (Ct. App. 1996). "Probable cause exists where the totality of the circumstances within the arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe that the defendant probably committed a crime." State v. Riddle, 192 Wis. 2d 470, 476, 531 N.W.2d 408 (Ct. App. 1995). The circumstances within the arresting officer's knowledge need not be sufficient to make the defendant's guilt more probable than not. See id.
10. The trial court made a key finding that the police found the cocaine in the dining room prior to the search of Reed's pockets. Reed argues that even so, the State did not have reason to believe that he exercised dominion or control over the apartment, therefore the State did not have probable cause to believe he possessed the cocaine in the dining room. We disagree. Persons are considered to possess drugs found in places immediately accessible to them and subject to their exclusive or joint dominion and control, provided that they have knowledge of the presence of the drugs. See State v. Allbaugh, 148 Wis.2d 807, 814, 436 N.W.2d 898 (Ct. App. 1989). The trial court found that after Pierce knocked on the door, Reed was the one who opened it. Pierce then asked who owned or was in control of the residence, and Reed replied that "Ma" was and called out to her.
11. Under these circumstances, the police reasonably could have believed that Reed exercised joint dominion and control over the premises. Specifically, the police reasonably could have believed at that time that Reed was related to "Ma" and lived on the premises with her. See State ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 236, 369 N.W.2d 743 (Ct. App. 1985) (). Reed correctly points out the police may instead...
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