State v. Angelia D.B. ( 1997 )

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 42. (concurring). I agree with the majority opinion that the search was constitutional and that the evidence should not be suppressed.

¶ 43. I write separately because I conclude, as the State argued, that the officer possessed probable cause (the highest standard required by law) to detain Angelia D.B and that the search incident to that detention was reasonable. A well-accepted constitutional ground exists to support this search. It is therefore unnecessary for resolution of this case for the court to reach out to adopt a new lower standard to support the search.¹

¶ 44. The court should rarely if ever make a difficult and important constitutional determination in a case in which such a determination is unnecessary.² As a general rule, we should form constitutional rules only when, and only so far as, necessary to resolve actual controversies. In this case especially, when the facts support probable cause and the case law is sparse and inconsistent about standards other than probable cause, I think the court errs by reaching out and trying to formulate an all-encompassing rule.

¶ 45. For the reasons set forth, I write separately.

¶ 46. I am authorized to state that Justice Ann Walsh Bradley joins this opinion.

1 See State v. Richards, 201 Wis. 2d 845, 866, 549 N.W.2d 218 (1996) (Abrahamson, J., concurring), affirmed on other grounds 117 S. Ct. 1416 (1997); State v. Stevens, 181 Wis. 2d 410, 441, 511 N.W.2d 591 (1993) (Abrahamson, J., concurring).

2 In the following cases the court has stated, and followed, the rule that it will not reach a constitutional issue when the resolution of a controversy does not require it. City of Franklin v. Crystal Ridge, Inc., 180 Wis. 2d 561, 573 n.8, 509 N.W.2d 730 (1994); Ziegler Co., Inc. v. Rexnord, Inc., 139 Wis. 2d 593, 612-13, 407 N.W.2d 873 (1987); S.B. v. Racine County, 138 Wis. 2d 409, 412, 406 N.W.2d 408 (1987); Labor & Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984); Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47 (1981).