State v. Vorburger

• Decision Date: 16 July 2002
• Docket Number: No. 00-0971-CR.,00-0971-CR.
• Citation: 648 N.W.2d 829,2002 WI 105,255 Wis.2d 537
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Bradley J. VORBURGER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

255 Wis.2d 537

2002 WI 105

648 N.W.2d 829

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Bradley J. VORBURGER, Defendant-Appellant.

No. 00-0971-CR.

Supreme Court of Wisconsin.

Oral argument November 8, 2001.

Decided July 16, 2002.

For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief and oral argument by David D. Cook, Monroe.

¶ 1. DAVID T. PROSSER, J.

This is a review of a published decision of the court of appeals that reversed the conviction of Bradley J. Vorburger on a charge of possession of cocaine with intent to deliver, and directed the circuit court to grant Vorburger's motion to suppress evidence.¹ Vorburger and a co-defendant, Amerie Becker, were stopped and detained in a motel by police conducting a drug investigation. During questioning by police, Vorburger consented to a search of his car and Becker consented to a search of the apartment in which she and Vorburger resided.

¶ 2. Vorburger moved to suppress the evidence discovered by police in the car and in the apartment. He claimed that he and Becker were illegally seized and arrested and that their consents to the searches were both involuntary and the fruit of illegal seizures.

¶ 3. Vorburger's motion to suppress was denied by the Circuit Court for Dane County, Steven D. Ebert, Judge. Vorburger then pled no contest to one count of possession of cocaine with intent to deliver as party to the crime, contrary to Wis. Stat. §§ 961.41(1m)(cm)2 and 939.05 (1995-96).² He appealed his conviction, alleging that the circuit court erred in denying his suppression motion. The court of appeals reversed, determining that Vorburger and Becker were unlawfully arrested. The court concluded that Vorburger's consent to search his car and Becker's consent to search their apartment were given as a result of unlawful arrests and, therefore, were invalid.

¶ 4. The State petitioned this court for review of the court of appeals decision as it relates to Becker's detention and consent to search. We now determine that Becker was properly and lawfully stopped and detained as part of a law enforcement investigation and that her detention did not constitute an unlawful arrest. We further determine that Becker voluntarily consented to the search of her apartment. Accordingly, we reverse the decision of the court of appeals.

I. BACKGROUND

¶ 5. The facts of this case are gleaned from testimony at a motion hearing held on April 2 and 3, 1998, and from documents in the record. The salient events occurred during the afternoon and evening of July 2, 1997, and the early hours of July 3. Between 4:00 and 4:30 in the afternoon of July 2, the manager of a Motel 6 east of Madison near Interstate 90 was inspecting rooms to ensure that they had been properly cleaned. As he entered room 230, the manager detected a strong smell that he suspected was marijuana. He also noted an unzipped bag about the size of a diaper bag on the floor next to the air conditioning unit. He picked up a sample of the substance he saw in the bag, placed it in a plastic bag, took the plastic bag to the motel office, and called the police.³

¶ 6. Dane County Deputy Sheriffs Jeffrey Thiel and Robert Lurquin were dispatched to the motel, and arrived separately at approximately 4:30. Deputy Thiel met with the manager and examined the substance that had been removed from room 230. The substance appeared to be marijuana. The manager showed Deputy Thiel a check-in slip. It revealed that room 230 had been rented to Corin Cramer and listed the driver's license number and license plate number (RZY-670) that Cramer gave when he checked in. Deputy Thiel checked the license plate number and learned that the plates were registered to Peter Kokoros and were associated with a four-door Buick.

¶ 7. Deputies Lurquin and Thiel contacted their supervisor, Sergeant David Ritter, who contacted Sergeant Randall Gaber,⁴ a supervisor with the Dane County Narcotics and Gangs Task Force (Task Force). Sergeant Gaber then contacted Detective Alix Olson of the Madison Police Department and instructed her to begin to prepare a search warrant affidavit.

¶ 8. Deputies Thiel and Lurquin then positioned themselves outside room 230 to wait for a warrant to search the room. From their vantage point, the officers could see the motel parking lot through a window. At approximately 5:45, a four-door vehicle with license plate number RZY-670 entered the parking lot. The driver parked the car and entered the motel. When the driver approached the door to room 230 and attempted to insert a key into the lock, he was approached by Deputy Thiel.

¶ 9. The driver identified himself as Peter Kokoros and acknowledged that room 230 was registered to Cory Cramer. Kokoros stated that Cramer had been in Kokoros' car that day and had left the motel room key in the car. Kokoros claimed that he found the key and stopped at the motel to use the bathroom.

¶ 10. At about 5:45 or 6:00, a number of other officers from the Task Force arrived at the motel. After leaving Kokoros with Officer Michael Montie, Deputy Thiel field-tested the contents of the plastic bag given to him by the motel manager. The substance tested positive for tetrahydrocannabinols (THC), the active ingredient in marijuana.

¶ 11. Officer Montie told Kokoros that he was not under arrest but was being detained. He asked him to go outside for questioning. Kokoros told Officer Montie that he had traveled to Madison from La Crosse the previous day and had stayed in room 215 of the motel that night. He said that he had checked out at around 10:00 a.m. and had met with Cory Cramer and another friend. Kokoros told Officer Montie that he was on his way back to La Crosse when he noticed the motel key in his car and remembered Cramer saying that he was staying in room 230. Kokoros claimed that he intended to drop off the key at the residence of Cramer's girlfriend, but first went to the motel to use the bathroom. Detective Olson subsequently checked Kokoros for warrants and learned that he was on probation for a drug offense.

¶ 12. Meanwhile, Officer Kevin Linsmeier learned from the front desk clerk that room 215 had not been rented since Kokoros had checked out, so he got a key for the room. When he entered room 215, he smelled marijuana and observed particles of marijuana, marijuana seeds, and other marijuana remnants. Officer Montie learned from a motel employee that Cory Cramer had arrived at the motel at approximately 2:30 that afternoon in a car with license plate number RZY-670, and had checked into room 230. Officer Montie continued to question Kokoros⁵ who told him that Cramer was likely driving a Grand Prix owned by Cramer's girlfriend. Officer Montie called the State Patrol and learned that the car registered to Cramer's girlfriend was a Grand Prix, and that Cramer had a Madison address.

¶ 13. While Officer Montie was questioning Kokoros, Deputy Thiel, Sergeant Gaber, and Officers Linsmeier, Christian Paulson, and Linda Kosovac entered room 229 to wait for the warrant.

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¶ 14. At around 9:20, Officer Montie was informed that two vehicles, one a Grand Prix, had arrived in the motel parking lot. Officer Montie drove his squad car into the parking lot and Kokoros identified one of the vehicles as the Grand Prix that Cramer had been driving. Kokoros also identified Cramer as he exited the Grand Prix. Cramer entered the motel office, told the front desk clerk that he had left his key in the room, and was given a new key.

¶ 15. A few minutes later, just after 9:20, the officers in room 229 observed three people, later identified as Cramer, Vorburger, and Becker, approach room 230. When they saw Cramer begin to insert a key into the lock, the officers exited room 229 and identified themselves as police officers. Sergeant Gaber handcuffed Cramer, and Deputy Thiel and Officer Kosovac handcuffed Vorburger. Officer Linsmeier handcuffed Becker, telling her that it was for officer safety and for her safety. Officers performed pat-down searches on Cramer, Vorburger, and Becker but found no weapons.

¶ 16. Vorburger, Cramer, and Becker were detained in the motel hallway, each separated from the others. Vorburger and Cramer were seated in chairs. Becker declined to sit.

¶ 17. Officer Linsmeier told Becker she was being detained and was not free to leave while the officers conducted an investigation, but she was not under arrest. Becker cried and appeared to be upset. She identified herself and told Officer Linsmeier that Vorburger was her boyfriend. She explained that she was going to room 230 to use the bathroom.

¶ 18. At around 9:40, about 15 minutes after officers first detained her, Becker asked to use the bathroom. Officer Linsmeier asked a female officer, Linda Kosovac, for assistance. Officer Kosovac told Becker that she would accompany her to the bathroom, and that she could use it, so long as Officer Kosovac was present. Becker chose not to use the bathroom.⁶

¶ 19. Detective Olson completed the search warrant affidavit at approximately 8:45 and drove it to the home of Dane County Circuit Judge Angela Bartell, who reviewed the affidavit and signed a warrant at 9:34. Detective Olson brought the signed warrant directly to the motel, arriving at around 10:05. At 10:17, Detective Olson, Sergeant Gaber, and three other officers entered room 230 to execute the warrant. ¶ 20. Inside room 230, the officers found the bag that the motel manager had described. It contained about 14 pounds of marijuana and a digital scale. The officers also found a box containing plastic bags.

¶ 21. Just after 10:30, Detective Olson and Sergeant Gaber directed Officer Kosovac to question Becker. Officer Kosovac took Becker into room 229 and removed her handcuffs. Approximately 70 minutes had passed since Becker was initially...