State v. Sykes

• Decision Date: 22 April 2005
• Docket Number: No. 2003AP1234-CR.,2003AP1234-CR.
• Citation: 2005 WI 48,695 N.W.2d 277,279 Wis.2d 742
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael D. SYKES, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

695 N.W.2d 277

279 Wis.2d 742

2005 WI 48

STATE of Wisconsin, Plaintiff-Respondent, v. Michael D. SYKES, Defendant-Appellant-Petitioner.¹

No. 2003AP1234-CR.

Supreme Court of Wisconsin.

Oral argument November 12, 2004.

Decided April 22, 2005.

For the defendant-appellant-petitioner there were briefs by Jeffrey J. De La Rosa and Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn, and oral argument by Jeffrey J. De La Rosa.

For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. PATIENCE DRAKE ROGGENSACK, J.

Michael D. Sykes requests review of an unpublished decision of the court of appeals. The court of appeals affirmed an order of the circuit court for Washington County, Judge David C. Resheske, presiding, that denied his motion to suppress evidence of drug-related offenses. Sykes argues that his wallet was searched in violation of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution because the officer did not have probable cause to arrest him for the drug-related offenses prior to the search.

¶ 2. We conclude that the officer had probable cause to arrest Sykes for criminal trespass prior to the search of Sykes's wallet. We also conclude that whether the officer intended to arrest Sykes for criminal trespass prior to the search, or whether Sykes was actually arrested for and charged with criminal trespass, are not dispositive of whether the search was lawful. Rather, the search was lawful because law enforcement had probable cause to arrest Sykes for a crime prior to the search and also arrested Sykes immediately after the search, although for a different crime. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 3. Sykes was charged with possession of cocaine with intent to deliver, second or subsequent offense, contrary to Wis. Stat. §§ 961.41(1m)(cm)3 and 961.48(1) (2001-02).² Sykes moved to suppress the evidence.

¶ 4. His arrest arose out of a search that was conducted in the apartment of Stacy Hudson. At the hearing on Sykes's suppression motion, Hudson, William Downham, Officer Kenneth Kluck and Lieutenant Thomas Horvath testified. Hudson said she had leased an apartment in a building owned by Downham in Hartford, Wisconsin, but that she frequently stayed with friends and relatives rather than in her apartment. On one occasion when Hudson returned to her apartment, she found Sykes and his girlfriend inside. She said that Sykes refused to leave, that she never gave him permission to stay in her apartment, and that she did not want him living there.

¶ 5. Downham said that he learned there were people in the apartment whom Hudson did not want there and also that there was suspicious activity in the apartment, so he obtained Hudson's permission to enter the apartment and change the locks. At Downham's request, Kluck went to the apartment with Downham and a locksmith.

¶ 6. Kluck had been sent by Horvath, then a patrol sergeant. Horvath said he knew that Downham had requested law enforcement presence during the change of the apartment's locks for security reasons. Horvath also knew, and had informed Kluck, that unwanted individuals may be in the apartment and that if that was the case, Kluck should contact Horvath for more officers.

¶ 7. When Kluck and Downham knocked on the door, no one answered. When the locksmith started attempting to open the locks, a woman opened the door from the inside. When Kluck asked her what she was doing there, she tried closing the door, but Kluck had put his foot in the doorway to prevent the door's closing. The woman continued to push against the door, asking Kluck to wait because "her man was naked." Kluck responded, "That's all right, I have seen naked men before." She then ran down the hall of the apartment and entered the bathroom.

¶ 8. When Kluck entered the apartment, he found several other people in the living room, and he called for additional officers to assist him. Kluck directed the woman who answered the door and Sykes to sit down. After Horvath and another officer arrived at the apartment, Horvath asked Sykes for identification.

¶ 9. Horvath testified that he sought to obtain Sykes's identification as follows:

A I asked Mr. Sykes if he had any identification, he said not on him but he had it in his wallet. I then asked where his wallet was.

Q What happened then?

A He advised me that it was laying in the living room area underneath a, I believe it was a cedar chest, that was up on legs so there was a space underneath it, and pointed that his wallet was laying right there.³

Q What did you do?

A I went and got the wallet where he advised me that it was. I double checked and said, "Is this your wallet," and he said it was. And I double checked, asked if the identification was in the wallet, he said it was.

Q What happened then?

A I opened the wallet to look for identification, and immediately found a baggie that I pulled out that I believed to be crack cocaine.

Q Was the license also in there?

A Yes, it was.

Horvath then placed Sykes under arrest. Pursuant to consent from Hudson, a full search of the apartment was then conducted and more controlled substances were found ¶ 10. In an oral decision, the circuit court decided that

the search of Sykes's wallet was lawful:

Horvath . . . was making in my judgment an investigatory stop per se or, pat down, which he had a right to do under the circumstances to obtain the identity of the people in the apartment. The only reason he went to the item on the floor, the wallet, was because he was directed there by the Defendant in response to the question: Do you have any identification. He is entitled to ask for identification.

I think the items located within the wallet were located, in effect, in plain view while the officer was attempting to ascertain the identity of the Defendant, which he had lawful reason to do.

After pleading guilty to amended charges, Sykes appealed the circuit court's decision. The court of appeals affirmed, concluding that the search of Sykes's wallet was a reasonable search incident to a lawful arrest.

¶ 11. Sykes then petitioned this court for review, which we granted. Sykes asks us to review whether a search incident to arrest is lawful where there is probable cause to arrest for a crime, a search is conducted prior to that arrest, and the suspect is then immediately arrested and charged only with offenses based on evidence seized during the search.

II. DISCUSSION

A. Standard of Review

¶ 12. In reviewing the denial of a motion to suppress evidence, we will uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Vorburger, 2002 WI 105, ¶ 32, 255 Wis. 2d 537, 648 N.W.2d 829. However, we review de novo the circuit court's application of constitutional principles to those facts. Id.

B. Search Incident to a Lawful Arrest

¶ 13. The constitutional provisions cited by Sykes, the Fourth Amendment to the United States Constitution⁴ and Article I, Section 11 of the Wisconsin Constitution,⁵ provide protection from unreasonable searches and seizures. State v. Pallone, 2000 WI 77, ¶ 28, 236 Wis. 2d 162, 613 N.W.2d 568. These provisions' purpose is to safeguard individuals' privacy and security against arbitrary governmental invasions, which requires striking a balance between the intrusion on an individual's privacy and the government's promotion of its legitimate interests. State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990) (citations omitted). Historically, we follow the United States Supreme Court's interpretations when construing both constitutions' search and seizure provisions. Id. ¶ 14. As discussed in Chimel v. California, 395 U.S. 752, 762-63 (1969), a warrantless search of a person incident to a lawful arrest does not violate constitutional search and seizure provisions. See also Murdock, 155 Wis. 2d at 228. "`A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.'" State v. Fry, 131 Wis. 2d 153, 169, 388 N.W.2d 565 (1986) (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)).

¶ 15. A Chimel search incident to arrest must be contemporaneous to the arrest. Murdock, 155 Wis. 2d at 236. However, in Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), the Supreme Court explained that where a "formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa."⁶ Accord State v. Mata, 230 Wis. 2d 567, 574, 602 N.W.2d 158 (Ct. App. 1999) (citations omitted); see generally 3 Wayne R. LaFave, Search and Seizure § 5.4(a) (4th ed. 2004) (describing the evolution of the "search for evidence prior to arrest" case law). Therefore, "[a] search may be incident to a subsequent arrest if the officers have probable cause to arrest before the search." State v. Kiekhefer, 212 Wis. 2d 460, 484, 569 N.W.2d 316 (Ct. App. 1997) (citing Rawlings, 448 U.S. at 111). ¶ 16. The Court in Rawlings further explained that probable cause to arrest must have existed independent of the fruits of the search of the suspect's person. Rawlings, 448 U.S. at 111 & n.6; see also LaFave, supra, § 5.4(a). As the court of appeals has said, "A search may immediately precede a formal arrest so long as the fruits of the search are not necessary to support the arrest." Mata, 230 Wis. 2d at 574 (citation omitted). Accordingly, when a suspect is arrested subsequent to a search, the legality of the search is established by the officer's possession, before the search, of facts sufficient to establish probable cause to arrest followed by a contemporaneous arrest. See id.; Kiekhefer, ...