State v. Swanson

• Decision Date: 14 October 1991
• Docket Number: No. 90-0747-CR,90-0747-CR
• Citation: 164 Wis.2d 437,475 N.W.2d 148
• Parties: , 60 USLW 2315 STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Paul Lee SWANSON, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 148

475 N.W.2d 148

164 Wis.2d 437, 60 USLW 2315

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Paul Lee SWANSON, Defendant-Respondent.

No. 90-0747-CR.

Supreme Court of Wisconsin.

Argued Sept. 6, 1991.

Decided Oct. 14, 1991.

Daniel J. O'Brien, Asst. Atty. Gen., argued James E. Doyle, Atty. Gen., on the briefs, for plaintiff-appellant-petitioner.

John D. Lubarsky, Asst. State Public Defender, for defendant-respondent.

CALLOW, Justice.

This is a review under sec. (Rule) 809.62, Stats., of an unpublished decision of the court of appeals, which affirmed an order of the circuit court of Pierce county, Judge Robert W. Wing. The circuit court issued an order dismissing the criminal charges of felony escape under sec. 946.42(3)(a), Stats., ¹ and possession of a controlled substance under sec. 161.41(3), Stats., ² against the defendant-respondent Paul Lee Swanson (Swanson) on the ground that the search and arrest pursuant thereto of Swanson were both illegal, and thus, Swanson was not in "legal custody" at the time of the search nor when he eluded police. The court of appeals affirmed the dismissal order of the circuit court.

Two issues are raised on this appeal. First, the plaintiff-appellant State of Wisconsin (State) argues that the search of Swanson was justified because he was under arrest for fourth amendment purposes at the time of the search. Second, the State argues that, even if Swanson was not under arrest at the time of the search, the search was justified under the fourth amendment ³ as incident to a formal arrest that was supported by probable cause, even though the search preceded the arrest.

The relevant facts follow. At approximately 2:00 a.m. on December 31, 1989, city of Prescott police officers Rosenow and Toston observed an automobile drive onto the sidewalk in front of the No-Name Saloon. The automobile nearly hit at least one pedestrian. Officer Rosenow approached the vehicle as Swanson exited the driver's seat. He then asked Swanson to produce a driver's license. Swanson stated that he did not have his license with him, but could furnish a Minnesota state identification card.

As Swanson spoke, Officer Rosenow detected an odor of intoxicants on Swanson's breath and directed him over to the squad car for field sobriety tests. However, Rosenow testified that Swanson had no difficulty standing and did not have slurred or impaired speech. When Swanson arrived at the squad car, Officer Toston performed a pat down search of Swanson. Apparently, Officer Toston contemplated having Swanson take the field sobriety test inside the squad car. For the officers' own safety, departmental policy requires the officer to perform a pat down search prior to placing anyone in the squad car. During the search, Officer Toston discovered a bag of marijuana in Swanson's pocket and confiscated it.

The field sobriety tests were never taken because the officers then received a request for backup assistance at a domestic disturbance. ⁴ The officers immediately arrested Swanson, handcuffed him, and placed him in the back of the squad car. They then took Swanson along with them to the domestic disturbance, where Swanson escaped when left alone. He was apprehended later that evening.

Swanson was charged with felony escape under sec. 946.42(3)(a), Stats., and possession of a controlled substance under sec. 161.41(3), Stats. The circuit court dismissed the complaint by concluding that the search and the arrest pursuant thereto were both illegal and, consequently, Swanson was not in "legal custody" at the time of his escape.

The court of appeals affirmed the dismissal order of the circuit court. The court of appeals concluded that, at the time of the search, Swanson had not been placed under arrest and the police officers did not intend to place him under arrest at that time. The court of appeals also stated that the State failed to prove that the sequence of events in the case caused Swanson to believe he was going to be arrested prior to the search.

We agree with the trial and appellate courts, and hold that Swanson was not under arrest for fourth amendment purposes at the time of the search. Viewed objectively, a reasonable person in Swanson's position would not believe that the degree of restraint exercised to perform a field sobriety test during a routine traffic stop was similar to that of formal arrest.

We also hold that the extensive search of Swanson and the seizure of marijuana from him cannot be justified as incident to a formal arrest based on probable cause. A search incident to arrest is justified by the fact of the arrest. Here, Swanson was never arrested for any offense other than those related to the possession of marijuana. Furthermore, we refuse to adopt an exception to warrantless searches based solely on the existence of probable cause. Such an exception could lead to abuses of those rights guaranteed by the fourth amendment.

The critical determination in this case is whether the search of Swanson by Officer Toston was a search incident to formal arrest or merely a pat down frisk for weapons. In the well known case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court distinguished a search incident to arrest from a pat down frisk for weapons. The Terry Court explained that a search incident to arrest is not only necessary to protect the arresting officer but also to discover evidence of a crime and involves a relatively extensive exploration of the subject. Terry, 392 U.S. at 25, 88 S.Ct. at 1882. A pat down frisk for weapons, on the other hand, is only necessary for the discovery of weapons which might be used to harm the police officer or others nearby. Thus, it must be confined in scope such that the police officer should pat down the suspect in a manner which is minimally necessary for the discovery of weapons. Id. at 30, 88 S.Ct. at 1884.

It follows then, under Terry and its progeny, that if the search and discovery of marijuana occurred upon a mere pat down frisk for weapons during an investigatory stop, then the seizure of marijuana here was unlawful under the fourth amendment, the arrest of Swanson for the possession of a controlled substance was invalid, and the subsequent departure of Swanson from police custody cannot be characterized as a felony escape under sec. 946.42(3)(a), Stats. However, if the search and discovery of marijuana occurred incident to a valid arrest, then the search was legal under the fourth amendment as incident to a valid arrest and Swanson may be tried for felony escape.

I.

The State first argues that the search of Swanson was reasonable under the fourth amendment because he was in fact "under arrest" in a constitutional sense at the time of the search. Both the trial court and court of appeals concluded Swanson was not "under arrest" at the time of the search. However, where the facts are undisputed, "custody" is a question of law and this court shall review the issue ab initio, owing no deference to decisions of the lower courts on the subject. State v. Clappes, 117 Wis.2d 277, 280-81, 344 N.W.2d 141 (1984).

Under existing Wisconsin law, three elements are necessary to determine that a person is under arrest. First, his or her ability or freedom of movement is restricted. Second, the arresting officer intends, at that time, to restrain the person. Third, the person under arrest believes or understands that he or she is in custody. State v. Washington, 134 Wis.2d 108, 124-25, 396 N.W.2d 156 (1986). See also State v. Doyle, 96 Wis.2d 272, 283, 291 N.W.2d 545 (1980), and Huebner v. State, 33 Wis.2d 505, 516, 147 N.W.2d 646 (1967). These three elements comprise what is known as a subjective test because they assess the intent and understanding of the parties involved. For consistency and practical reasons, we now abrogate this subjective test and adopt an objective test which assesses the totality of the circumstances to determine the moment of arrest for fourth amendment purposes. An objective test will provide uniformity and consistency with cases decided by the United States Supreme Court, this court and other federal and state courts. ⁵ Furthermore, an objective test will alleviate the need to assess the subjective understandings of the parties and is not wholly dependent on the self-serving declarations of the police officers or suspects. Berkemer v. McCarty, 468 U.S. 420, 442 n. 35, 104 S.Ct. 3138, 3151 n. 35, 82 L.Ed.2d 317 (1984).

The standard generally used to determine the moment of arrest in a constitutional sense is whether a reasonable person in the defendant's position would have considered himself or herself to be "in custody," given the degree of restraint under the circumstances. See Berkemer, 468 U.S. at 441-42, 104 S.Ct. at 3151, and State v. Koput, 142 Wis.2d 370, 380, 418 N.W.2d 804 (1988). The circumstances of the situation including what has been communicated by the police officers, either by their words or actions, shall be controlling under the objective test. The officers' unarticulated plan is irrelevant in determining the question of custody. Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151.

The United States Supreme Court in Berkemer faced a situation similar to that faced here by this court. In that case, the Court held that persons temporarily detained pursuant to a routine traffic stop are not "in custody" for purposes of Miranda. Id. 384 U.S. at 440, 86 S.Ct. at 1610. It explained that a usual traffic stop is more analogous to a Terry stop than to a formal arrest. It is typically brief in duration and public in nature. Id. 384 U.S. at 439, 86 S.Ct. at 1609.

Like the routine traffic stop in Berkemer, here Swanson's erratic driving raised suspicions that he may be involved in criminal conduct. The State, however, argues that the severity of the erratic driving and the fact that Swanson nearly hit at least one pedestrian precluded the situation from being...