State v. Weide, 89-0331-CR

• Decision Date: 06 June 1990
• Docket Number: No. 89-0331-CR,89-0331-CR
• Citation: 155 Wis.2d 537,455 N.W.2d 899
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Pamela L. WEIDE, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 899

455 N.W.2d 899

155 Wis.2d 537

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Pamela L. WEIDE, Defendant-Appellant.

No. 89-0331-CR.

Supreme Court of Wisconsin.

Argued April 25, 1990.

Decided June 6, 1990.

Barry M. Levenson, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on the briefs, for plaintiff-respondent-petitioner.

Steven J. Luchsinger, argued, Steven J. Luchsinger, on brief, Watertown, for defendant-appellant.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals, 152 Wis.2d 89, 447 N.W.2d 540, reversing a judgment of conviction of the circuit court for Jefferson County, Judge John B. Danforth. The primary issue before this court is whether, under the circumstances of this case, it was unreasonable, and thus a violation of the Fourth Amendment to the United States Constitution and Article I, sec. 11 of the Wisconsin Constitution, for two officers of the Jefferson County Sheriff's Department (the Department) to inventory the contents of the purse of the defendant, Pamela L. Weide (Weide), after the purse was found on the backseat of the squad car of one of the officers. We conclude that the conduct of the officers was reasonable and thus consistent with the Fourth Amendment and Article I, sec. 11.

The facts and the procedural posture of this case can be briefly stated. On December 30, 1987, Deputy Tom Rue (Rue) of the Department transported Weide and a companion to Weide's home in his squad car after Weide's vehicle became disabled. Shortly after arriving at her home, Weide realized that she had left her purse on the backseat of Rue's squad car. Weide therefore called the police dispatcher, who instructed Rue to bring Weide's purse to the Waterloo Police Department, if he found it. Rue found a purse on the backseat of his squad car but, before taking the purse to the Waterloo Police Department, Rue met another officer, Deputy Tim Madsen (Madsen), in a parking lot. Together, they began to inventory the contents of the purse. During the inventory, they found a vial containing what was later determined to be cocaine.

Weide was charged with knowingly and unlawfully possessing a controlled substance (cocaine), contrary to secs. 161.16(2)(b)(1) and 161.41(3), Stats. Subsequently, Weide moved to suppress for use as evidence all articles obtained by police during the inventory of her purse. Weide's motion to suppress was based upon the Fourth and Fourteenth Amendments to the United States Constitution, Article I, sec. 11 of the Wisconsin Constitution, and Chapter 968 of the Wisconsin Statutes.

At the hearing on Weide's motion to suppress, Rue was the only witness who was called. Rue testified that he wrote on a piece of paper Madsen's recitation of the contents of the purse. Rue further testified that the inventory was not completed at that time; the inventory ceased when the contraband was found. Rue stated that the inventory search of Weide's purse was conducted pursuant to the Department's unwritten policy of inventorying the contents of a lost or stolen item that the Department subsequently finds or locates. According to Rue, the purpose of the inventory search policy is to protect the Department from claims of loss or theft. When an inventory is conducted, Rue testified, the practice is to have another officer present.

The circuit court denied Weide's motion to suppress. The circuit court concluded that the officers' inventory served to prevent Weide from claiming in the future that something was missing from the purse. ¹ After the motion to suppress was denied, Weide pled guilty to the charge. Weide was placed on probation for one year and was fined $250.00.

Weide appealed from the judgment of conviction entered on January 27, 1989. The court of appeals reversed. ² The court of appeals noted that, with respect to the reasonableness of inventory searches of purses and other containers under the Fourth Amendment to the United States Constitution, this court's decision in State v. Prober, 98 Wis.2d 345, 297 N.W.2d 1 (1980), was "arguably inconsistent" with the subsequent decisions of the United States Supreme Court in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), and Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). The court of appeals chose to follow this court's decision in Prober. According to the court of appeals, following Prober was appropriate because the court of appeals is primarily an "error-correcting" court and because the court of appeals is bound by Wisconsin Supreme Court decisions. The court of appeals reasoned that it is the role of this court to determine whether one of its decisions is valid in light of an intervening decision of the United States Supreme Court. After discussing this court's decision in Prober, the court of appeals determined that Prober compelled the conclusion that the inventory search of Weide's purse was unreasonable and therefore violated the Fourth Amendment to the United States Constitution and Article I, sec. 11 of the Wisconsin Constitution. This court granted the State's petition for review.

In this court, the State argues that the court of appeals, having recognized an inconsistency between Prober and Bertine, should have followed Bertine in accordance with the cases in which this court has held that it will conform the law of search and seizure in Wisconsin to the Fourth Amendment decisions of the United States Supreme Court. In addition, the State urges this court to overrule Prober in light of Bertine and to uphold the inventory of Weide's purse as a reasonable inventory search under Bertine. ³ Our analysis thus begins with a discussion of this court's decision in Prober and the decision of the United States Supreme Court in Bertine.

In Prober, after the defendant was arrested, a police officer inventoried the defendant's car, examining the car's interior and trunk, and the contents of a purse located inside the trunk. The officer had not obtained a warrant. Heroin was found inside the purse. At the suppression hearing, the officer testified that the search was conducted pursuant to the police department's regulations. Those regulations required an inventory of any valuables found in a suspect's car when the suspect was taken into custody and were designed to protect the suspect's property against loss. Prober, 98 Wis.2d at 348-49, 297 N.W.2d 1.

In this court, the state argued that the warrantless search of the locked trunk of the car and of the purse found inside the trunk was a constitutionally permissible inventory search. Quoting the decision of the United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), this court noted that inventory searches serve three vital functions: protecting the owner's property while it is in police custody; protecting the police department from claims that the property was lost or stolen while it was in police custody; and protecting the police from harm. Prober, 98 Wis.2d at 352, 297 N.W.2d 1. This court concluded that the car's locked trunk was within the permissible scope of an otherwise valid inventory search. Id. at 355, 297 N.W.2d 1.

However, this court determined that opening the purse to search its contents exceeded the permissible scope of an otherwise valid inventory search. In determining that it was improper to open the purse and to search its contents, this court balanced the need of the police department to conduct the inventory against the right of a member of the public to be free from warrantless intrusions into personal effects, concluding as follows:

The balance tips in favor of the privacy of personal effects because the purpose of an inventory can be adequately served by inventorying a container as a closed unit. It is thereby secured from theft, and exposure to claims of loss is reduced. Therefore, in conducting an inventory search of a vehicle, police officials may not open or search the contents of closed containers which could alternatively be removed from the vehicle and inventoried as an unit.

Id. at 356, 297 N.W.2d 1 (footnote and citation omitted). See also State v. McDougal, 68 Wis.2d 399, 412-13, 228 N.W.2d 671 (1975).

Bertine, a decision of the United States Supreme Court, was decided seven years after Prober. Bertine and Prober are virtually indistinguishable on their facts. In Bertine, the defendant was arrested and, after the defendant was taken into custody, a police officer inventoried the contents of the defendant's van. The officer came across a closed backpack, which he opened, discovering controlled substances, cocaine paraphernalia, and a large amount of cash. Bertine, 479 U.S. at 368-69, 107 S.Ct. at 739-40.

The defendant argued that the evidence found during the inventory search was suppressible because "the search of the closed backpack and containers exceeded the permissible scope of such a search under the Fourth Amendment." Id. at 369, 107 S.Ct. at 740. The Court rejected this argument. The Court began its discussion by noting that inventory searches are an exception to the warrant requirement of the Fourth Amendment. ⁴ Moreover, the Court cited its decisions in Opperman and Lafayette for the three strong governmental interests served by inventory searches:

[I]nventory procedures serve to protect an owner's property while it is in the custody of police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.

Id. at 372, 107 S.Ct. at 741.

In determining that the officer's actions in opening the defendant's closed backpack were reasonable under the Fourth Amendment, the Court emphasized that the officer was following standardized department procedures requiring the opening of closed containers and the listing of their contents. Id. at 372, 374 n. 6, 107 S.Ct. at 741, 742 n. 6. The Court further emphasized that there was no evidence that the...