State v. Mose B. Coffee ( 2020 )

2020 WI 53SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1209-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Mose B. Coffee,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 387 Wis. 2d 673,929 N.W.2d 246PDC No:2019 WI App 25 - Published
OPINION FILED: June 5, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 21, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: John A. Jorgensen
JUSTICES:
ROGGENSACK, C.J., delivered an opinion of the court, in which
ZEIGLER, J., joined. KELLY, J., filed a concurring opinion.
DALLET, J., filed a dissenting opinion, in which REBECCA GRASSL
BRADLEY, J., joined.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., withdrew from participation. HAGEDORN,
J., did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Frances Colbert, assistant state public defender. There
was an oral argument by Frances Colbert.
For the plaintiff-respondent, there was a brief filed by
John A. Blimling, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by John A. Blimling.
2020 WI 53NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1209-CR
(L.C. No. 2017CF542)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUN 5, 2020
Mose B. Coffee, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
ROGGENSACK, C.J., delivered an opinion of the court, in which
ZEIGLER, J., joined. KELLY, J., filed a concurring opinion.
DALLET, J., filed a dissenting opinion, in which REBECCA GRASSL
BRADLEY, J., joined.
ANN WALSH BRADLEY, J., withdrew from participation. HAGEDORN,
J., did not participate.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a decision
of the court of appeals1 affirming the circuit court2 denial of
1State v. Coffee, 2019 WI App 25, 387 Wis. 2d 673, 929
N.W.2d 245.
2The Honorable John A. Jorgensen of Winnebago County
presided.
No. 2018AP1209-CR
Mose B. Coffee's motion to suppress evidence obtained from a
search of a vehicle incident to his lawful arrest for Operating
While Intoxicated (OWI) that Coffee argues violated the Fourth
Amendment of the United States Constitution. The court of
appeals reasoned that the lawful arrest for OWI, in and of
itself, supplied a basis to search the passenger compartment,
and, specifically, a bag located behind the driver's seat that
contained marijuana.
¶2 We disagree that the lawful arrest for OWI, in and of
itself, supplied a sufficient basis to search the passenger
compartment of Coffee's vehicle. However, the search was lawful
because police had reasonable suspicion, based on the totality
of the circumstances, that the passenger compartment, and,
specifically, the bag, might contain evidence of OWI.
Accordingly, we affirm the court of appeals.
I. BACKGROUND
¶3 Officer Timothy Skelton works for the Oshkosh Police
Department. On August 30, 2017, at 11:17 p.m., he observed an
automobile driving on a city street that did not have a front
license plate. He instituted a traffic stop, "which was
eventually completed in the parking lot" of a restaurant or bar.
¶4 The automobile parked close to another vehicle.
Skelton testified:
As the vehicle had pulled into the parking lot, there
were other vehicles that were already
parked. . . . [I]n this case the vehicle as it pulled
in pulled in at an angle and very close to a vehicle
that was –- it would be on the driver's side. My
estimation was that it was no more than two feet from
2
No. 2018AP1209-CR
the other vehicle, making it very –- it was very close
to the other vehicle and somewhat at an angle.
Body camera footage shows that Coffee's vehicle was over the
yellow line on the driver's side.
¶5 Skelton explained why he found how the vehicle was
parked noteworthy:
Well, it was the fact that I was performing the
traffic stop and the vehicle continued into the
parking lot. And the way it had parked, the driver
immediately was getting out of his vehicle so it was
almost as if he was –- knew I was behind him and was
getting out quickly.
¶6 Skelton asked the driver, Coffee, to stay in the
vehicle. "When asked how much he had to drink and from where
was he coming, [Coffee] stated he was coming from a friend's
house and that he had not had that much."
¶7 Skelton believed that Coffee was intoxicated.
Coffee's speech was slurred, and his eyes were "very glazed over
and bloodshot." Skelton testified that the "glazed over look in
his eyes" was a sign that Coffee was "possibly impaired by
intoxicants and or other controlled substances." According to
the affidavit supporting the criminal complaint, "Skelton could
smell an odor of intoxicants coming from the vehicle." Skelton
also testified that after he had Coffee "sit down in his car" he
smelled "an odor of intoxicants coming from his person or from
the vehicle." Based on these observations, Skelton decided to
ask Coffee to step out of the vehicle, so he could administer
field sobriety tests.
3
No. 2018AP1209-CR
¶8 As Skelton walked with Coffee to conduct a test, he
realized that he met Coffee a few weeks prior. He recalled that
Coffee had been "very quiet at that time." Yet, Coffee was
presently "very talkative."
¶9 Coffee performed poorly on field sobriety tests. He
exhibited all six clues on the Horizontal Gaze Nystagmus test,
failed to complete the nine-step-walk-and-turn test and sang the
alphabet twice after being instructed to state the alphabet
twice in a row without singing. Skelton then administered a
preliminary breath test, which indicated that Coffee had a
prohibited alcohol level of .14.3
¶10 Skelton arrested Coffee and secured him in the back of
his squad car. Skelton then instructed two other officers at
the scene, Brenden Bonnett and Benjamin Fenhouse, to search the
passenger compartment. Skelton informed the two that Coffee had
been arrested "for operating under the influence of alcoholic
beverages."
¶11 Bonnett testified that "the subject was in custody for
impaired driving." Therefore, "I'd be looking for any substance
in the vehicle that could impair a driver's ability to operate
the motor vehicle safely." He further testified that he was
"looking for any substance, whether that could be prescription
medication, nonprescription medication, alcohol, illegal drugs,
or even up to possibly an inhalant such as Dust-Off –- can of
3 A blood test indicated Coffee's BAC was .17.
4
No. 2018AP1209-CR
Dust-Off I know has been used before also as a substance which
has impaired drivers."
¶12 Bonnett found a cloth bag "right behind the driver's
seat, whereas in the driver could have moved it with his arm
while seated in the driver's seat." "Inside that cloth bag were
two mason jars. Inside the mason jars were flakes of what was
suspected to be marijuana." Bonnett testified that he had to
"dig through the bag" before locating the jars because there
were other items on top that concealed them from sight.4
¶13 After Bonnett found the jars with what appeared to be
flakes of marijuana, Fenhouse searched the trunk of the vehicle.
Fenhouse found an additional 930.7 grams of marijuana and drug
paraphernalia.
¶14 The State charged Coffee with possession with intent
to deliver THC, possession of drug paraphernalia, second-offense
OWI and second-offense OWI with a prohibited alcohol
concentration. Coffee moved to suppress "all evidence obtained"
from the search.
¶15 After a contested hearing, the circuit court concluded
that the search did not violate the Fourth Amendment. The court
found that the search of the bag was permissible because it was
within reach from the driver's seat. The circuit court also
explained, "I'm really not putting much weight on the fact of
4Among these items were many cell phones. Additionally,
the bag also contained little plastic bags, though Bonnett could
not recall on the stand whether he saw the little plastic bags
before he saw the jars. The body camera footage is unclear.
5
No. 2018AP1209-CR
where exactly that bottle was found because it doesn't matter if
the defendant just threw it on top of the bag or to conceal it
pushed it down to the bottom or in the middle. That's easily
done."
¶16 After the circuit court denied Coffee's motion, he
reached a plea agreement with the State. He pled no-contest to
possession with intent to deliver THC and second-offense OWI.
The two other counts were dismissed. After sentencing, Coffee
appealed.
¶17 The court of appeals affirmed. State v. Coffee, 2019
WI App 25, 387 Wis. 2d 673, 929 N.W.2d 245. It stated:
[A]s a matter of law . . . when an officer lawfully
arrests a driver for OWI, even if alcohol is the only
substance detected in relation to the driver, a search
of the interior of the vehicle, including any
containers therein, is lawful because it is reasonable
to believe evidence relevant to the offense of OWI
might be found.
Id., ¶13.
¶18 We granted Coffee's petition for review, which argued
that the court of appeals ignored the particular facts of the
case. Coffee argued that the court applied a bright-line rule,
and therefore, the search was not justified by the totality of
the circumstances. We agree that bright-line rules are
disfavored by the United States Supreme Court in its Fourth
Amendment jurisprudence; however, we affirm because the totality
of the circumstances provided the foundation for concluding that
the search was reasonable.
6
No. 2018AP1209-CR
II. DISCUSSION
A. Standard of Review
¶19 Review of a decision denying a motion to suppress
under the Fourth Amendment presents a question of constitutional
fact. State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857
N.W.2d 120. We employ a two-step inquiry when presented with a
question of constitutional fact. State v. Robinson, 2010 WI 80,
¶22, 327 Wis. 2d 302, 786 N.W.2d 463; see also State v.
Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786 N.W.2d 97.
¶20 First, we uphold the circuit court's findings unless
they are clearly erroneous. State v. Richter, 2000 WI 58, ¶26,
235 Wis. 2d 524, 612 N.W.2d 29. Second, we independently apply
constitutional principles to the facts. Id.; see also Dearborn,
327 Wis. 2d 252, ¶13. These principles require an objective
application of the facts, meaning we independently examine the
facts known to the officer at the time of the warrantless
search. We do not analyze what the officer subjectively
believed or what inferences he or she actually drew.
¶21 In the present case, we apply this two-step inquiry to
determine whether the search of the passenger compartment, and,
specifically, the bag, was unreasonable under the Fourth
Amendment.5 The burden is on the State to prove that the search
Article I, § 11 of the Wisconsin Constitution is nearly
5
identical to the Fourth Amendment. We normally interpret
Article I, § 11 consistent with the United States Supreme
Court's interpretation of the Fourth Amendment. E.g., State v.
Dearborn, 2010 WI 84, ¶¶14–17, 327 Wis. 2d 252, 786 N.W.2d 97;
State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752
(continued)
7
No. 2018AP1209-CR
was constitutionally permissible because police did not obtain a
warrant prior to searching the vehicle. State v. Johnston, 184
Wis. 2d 794, 806, 518 N.W.2d 759 (1994) (citing United States v.
Jeffers, 342 U.S. 48, 51 (1951)); State v. Phillips, 2009 WI App
179, ¶7, 322 Wis. 2d 576, 778 N.W.2d 157.
B. Fourth Amendment Principles
¶22 The Fourth Amendment of the United States Constitution
provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
As the text makes clear, "the Fourth Amendment does not
proscribe all state-initiated searches and seizures; it merely
proscribes those which are unreasonable." Tulberg, 359
Wis. 2d 421, ¶29 (quoting Florida v. Jimeno, 500 U.S. 248, 250
(1991); see also Riley v. California, 573 U.S. 373, 381 (2014)
(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
¶23 A search is unreasonable if the individual's privacy
interest in the area searched is not outweighed by "the
promotion of legitimate governmental interests."6 Virginia v.
N.W.2d 748. Coffee has not argued that we should decide this
case under the Wisconsin Constitution, and, therefore, we do not
address Article I, § 11.
6 We have considered the practices of the founding
generation to determine if a search was unreasonable. Virginia
v. Moore, 553 U.S. 164, 168 (2008) ("In determining whether a
(continued)
8
No. 2018AP1209-CR
Moore, 553 U.S. 164, 171 (2008) (quoting Wyoming v. Houghton,
526 U.S. 295, 300 (1999)). If a search was unreasonable,
evidence obtained from it is subject to exclusion. Mapp v.
Ohio, 367 U.S. 643, 655 (1961).
¶24 "A warrantless search is presumptively unreasonable,"
Tullberg, 359 Wis. 2d 421, ¶30, because "[w]hen the right of
privacy must reasonably yield to the right of search is, as a
rule, to be decided by a judicial officer, not by a policeman or
Government enforcement agent," Johnson v. United States, 333
U.S. 10, 14 (1948). "[S]earches conducted outside the judicial
process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment——subject only to a
few specifically established and well-delineated exceptions."
Katz v. United States, 389 U.S. 347, 357 (1967).
¶25 One such exception was announced in Arizona v. Gant,
556 U.S. 332, 335 (2009): "[C]ircumstances unique to the
automobile context justify a search incident to arrest when it
is reasonable to believe that evidence of the offense of arrest
might be found in the vehicle." Automobiles are movable, making
plausible an automobile's escape from a jurisdiction or
concealment before a warrant can be obtained. Carroll v. United
search or seizure is unreasonable, we begin with history.").
However, "the historical scope of officers' authority to search
vehicles incident to arrest is uncertain." Arizona v. Gant, 556
U.S. 332, 351 (2009) (Scalia, J., concurring) (citing Thornton
v. United States, 541 U.S. 615, 629–31 (2004) (Scalia, J.,
concurring in judgment)).
9
No. 2018AP1209-CR
States, 267 U.S. 132, 151–53 (1925). Therefore, people have a
lower expectation of privacy in an automobile, and the
legitimate governmental interest in a warrantless search is
stronger.7 The legitimate governmental interests, in this case,
are particularly strong given the havoc wreaked by intoxicated
drivers.8 Therefore, if the Gant exception is satisfied, the
search cannot be unreasonable because the exception articulates
a balancing of interests sufficient for this case.
C. Interpretations of Gant
¶26 The Gant exception has generated much discussion. One
issue concerned whether the nature of an offense of arrest, in
7 To further explain, an automobile's "function is
transportation and it seldom serves as one's residence or as the
repository of personal effects. A car has little capacity for
escaping public scrutiny. It travels public thoroughfares where
both its occupants and its contents are in plain view." United
States v. Knotts, 460 U.S. 276, 281 (1983) (quoting Cardwell v.
Lewis, 417 U.S. 583, 590 (1974) (plurality)).
Furthermore, police are required to be in "frequent contact
with automobiles" in the course of their duties. South Dakota
v. Opperman, 428 U.S. 364, 367–68 (1976). "Automobiles, unlike
homes, are subjected to pervasive and continuing governmental
regulation and controls, including periodic inspection and
licensing requirements." Id. at 368. "As an everyday
occurrence, police stop and examine vehicles when license plates
or inspection stickers have expired, or if other violations,
such as exhaust fumes or excessive noise, are noted, or if
headlights or other safety equipment are not in proper working
order." Id.8 "No one can seriously dispute the magnitude of the drunken
driving problem or the States' interest in eradicating it."
Missouri v. McNeely, 569 U.S. 141, 160 (2013) (quoting Mich.
Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990)).
10
No. 2018AP1209-CR
and of itself, can supply a basis for a search of a passenger
compartment, or whether the search must be analyzed by examining
the totality of the circumstances. The first approach is known
as the "categorical approach," and the second, the
"reasonableness approach."
1. The Categorical Approach
¶27 The categorical approach stems from two quotes in
Gant:
[1.] In many cases, as when a recent occupant is
arrested for a traffic violation, there will be no
reasonable basis to believe the vehicle contains
relevant evidence. But in others, . . . the offense
of arrest will supply a basis for searching the
passenger compartment of an arrestee's vehicle and any
container therein.
. . . .
[2.] Gant was arrested for driving with a suspended
license——an offense for which police could not expect
to find evidence in the passenger compartment of
Gant's car.
Gant, 556 U.S. at 343–44. Interpreting these quotes, a Florida
appellate court was the first to "reason[] that the [United
States] Supreme Court intended to give its imprimatur to a
system of classifying criminal offenses into two distinct
groups: those that 'by [their] nature . . . might yield
physical evidence' and those 'for which there is no physical
evidence.'" United States v. Reagan, 713 F. Supp. 2d 724, 731
(E.D. Tenn. 2010) (quoting Brown v. State, 24 So. 3d 671, 678
(Fla. App. 2009)). Under this interpretation of Gant, relevant
evidence of some crimes, such as the possession of a controlled
11
No. 2018AP1209-CR
substance, might be in the passenger compartment of an
automobile. Reagan, 713 F. Supp. 2d at 731 (citing Brown, 24
So. 3d at 677). However, relevant evidence of other crimes,
such as minor traffic violations, will not be in the passenger
compartment. Reagan, 713 F. Supp. 2d at 731 (citing Brown, 24
So. 3d at 677). A search of a passenger compartment is
permissible if a recent occupant was arrested for the former;
for the latter, a search is not permissible.
¶28 Following the Florida court's interpretation, some
courts have concluded that OWI is, by its nature, a crime for
which there might be relevant evidence in the passenger
compartment. State v. Cantrell, 233 P.3d 178, 185 (Idaho 2010)
("Cantrell was arrested for DUI, and the DUI supplied the basis
for the search."); People v. Nottoli, 130 Cal. Rptr. 3d 884, 902
(2011) ("Reid's arrest for 'being under the influence of a
controlled substance' supplied a reasonable basis for believing
that evidence 'relevant' to that type of offense might be in his
vehicle.").9
9 Compare Cain v. State, 373 S.W.3d 392, 396–97 (Ark. App.
2010) (reasoning that an arrest for DUI supplied the basis for a
search of an automobile under Gant because "an open container of
alcohol could have been found"), with id. at 399 (Brown, J.,
dissenting) ("Officers must be put on notice about what is
allowed following Gant, and the majority fails to define these
limitations. Instead, the majority sends the message that
nothing has changed and officers can continue to search a
vehicle incident to a lawful arrest without anything more to
prompt such a search.").
12
No. 2018AP1209-CR
¶29 These courts reason that relevant evidence of an OWI
might be located in the passenger compartment and any container
therein. For example, the court of appeals reasoned in this
case:
Not only could an officer find evidence related to the
offense of OWI, it indeed would not be surprising for
an officer to find such evidence as, for example, a
copy of a credit card receipt showing very recent
purchases of alcoholic drinks at a local bar, a
partially or fully consumed can of beer or bottle of
hard liquor, a prescription drug bottle, or drug
paraphernalia or residue.
Coffee, 387 Wis. 2d 673, ¶12. The court of appeals also stated:
We need not detail the copious cases across this state
and country in which a driver is arrested for OWI, a
search of the vehicle is conducted, and alcoholic
beverages and/or drugs are found. . . . "It is
certainly logical and reasonable to expect that items
related to alcohol or drug consumption, such as
alcoholic beverage bottles or drug paraphernalia,
might readily be contained in the intoxicated driver's
car."
Id., ¶12 n.6 (quoting People v. Evans, 133 Cal. Rptr. 3d 323,
336-37 (2011)).
2. The Reasonableness Approach
¶30 Other courts have interpreted Gant as imposing a
reasonableness approach. Though stated in various terms, the
approach involves "looking at common sense factors and
evaluating the totality of the circumstances" to determine
whether it was reasonable to conclude that evidence of the crime
of the arrest might be found within the vehicle. Reagan, 713
F. Supp. 2d at 728 (quoting United States v. Pruitt, 458
F.3d 477, 482 (6th Cir. 2006)).
13
No. 2018AP1209-CR
¶31 Courts so interpreting Gant have struggled with the
"quantum of suspicion required." State v. Eversole, 2017-Ohio-
8436, unpublished slip op., ¶23, 2017 WL 5127369 (Ohio Ct. App.
Nov. 6, 2017). Unlike the categorical approach, which does not
utilize facts particular to the case, the reasonableness
approach requires particularization. United States v. Taylor,
49 A.3d 818, 826 (D.C. Ct. App. 2012).
¶32 Determining the quantum of suspicion required is
difficult for at least three reasons. First, Gant stated the
exception four times, twice using the word "might" and twice
without using "might." Compare Gant, 556 U.S. at 335, 343("reasonable to believe that evidence of the offense of arrest
might be found in the vehicle"), with id. at 346, 351("reasonable to believe the vehicle contains evidence of the
offense of arrest"). Second, "reasonable to believe" is
language sometimes used to describe the quantum of suspicion
necessary for probable cause.10 And third, Gant provides little
explanation of the exception.
¶33 Most courts have concluded that the officer does not
need probable cause to believe evidence of the crime will be
found in the vehicle. Cantrell, 233 P.3d at 183. But see
United States v. Grote, 629 F. Supp. 2d 1201, 1203 (E.D. Wash.
2009). Otherwise, the Gant exception would be the same as
10Wayne R. LaFave, 2 Search & Seizure § 3.7(d) (5th ed.
updated Oct. 2019) (collecting cases that use "reasonable to
believe" to describe the quantum of suspicion necessary for an
officer to have probable cause).
14
No. 2018AP1209-CR
another simply known as the "automobile exception," and Gant
stated the two exceptions are distinct. United States v.
Vinton, 594 F.3d 14, 25 (D.C. 2010) (citing Gant, 556 U.S. at
347).
¶34 Some courts have equated the Gant exception with
reasonable suspicion but others have crafted a standard
somewhere between probable cause and reasonable suspicion.
Compare Taylor v. State [hereinafter Taylor Md.], 137 A.3d 1029,
1033-34 (Md. 2016) (equating the standard in Gant with
reasonable suspicion) and State v. Ewertz, 305 P.3d 23, 27–28
(Kan. Ct. App. 2013) (same), with Reagan, 713 F. Supp. 2d at 728(quoting Pruitt, 458 F.3d at 482) (noting the standard in Gant
does not require probable cause and stating that a "[r]easonable
belief is established by looking at common sense factors and
evaluating the totality of the circumstances"). At least one
United States Supreme Court justice believes the Gant exception
requires reasonable suspicion. Megginson v. United States, 556
U.S. 1230, 1230 (2009) (Alito, J., dissenting from a decision to
grant, vacate, and remand) ("This case thus appears to present
an important question regarding the meaning and specificity of
the reasonable suspicion requirement in Gant.").
¶35 Whatever the quantum, courts have considered a variety
of circumstances to determine whether the quantum was
satisfied: Whether the officer observed the driver using an
intoxicant;11 whether the officer observed an intoxicant in plain
11 United States v. Reagan, 713 F. Supp. 2d 724, 733 n.7
(continued)
15
No. 2018AP1209-CR
view inside the passenger compartment;12 whether an occupant made
a statement indicating that an intoxicant is in the automobile;13
whether the officer smelled an intoxicant emanating from the
passenger compartment;14 whether "the driver was traveling from a
location such as a recreational area or campground where alcohol
is not available unless it is transported in by private
vehicle;"15 whether the occupant made "furtive movements,"
indicating that the occupant might be trying to conceal
evidence;16 whether the occupant evidenced extreme intoxication;17
(E.D. Tenn. 2010).
12 Id.13Id.; see also United States v. Francis, No. 11-40064-01-
RDR, unpublished slip op., 2011 WL 5837182, at *3 (D. Kan. Nov.
21, 2011) (noting the driver made statements indicating she took
medication).
14Reagan, 713 F. Supp. 2d at 733 n.7; see also Francis,
2011 WL 5837182, at *3.
15Reagan, 713 F. Supp. 2d at 733 n.7; see also State v.
Wilson, No. 1 CA-CR 11-0292, unpublished slip op., ¶19, 2012 WL
1255151 (Ariz. Ct. App. Apr. 12, 2012) ("The police had received
prior tips about suspected drug activity at Appellant's
residence, Johnston had recently entered that residence before
leaving with Appellant in his vehicle . . . .").
16State v. Ewertz, 305 P.3d 23, 27 (Kan. Ct. App. 2013)
(quoting State v. Julian, No. 105,695, unpublished slip op.,
2012 WL 1759405, at *5 (Kan. Ct. App. May 11, 2012) (per
curiam), rev'd State v. Julian, 333 P.3d 172 (Kan. 2014),
overruled by State v. James, 349 P.3d 457 (Kan. 2015)).
17Ewertz, 305 P.3d at 28 ("In addition to evidence that the
car Ewertz was driving swerved in its lane and crossed over the
fog line, that Tatro smelled alcohol in the car after he pulled
Ewertz over, that Ewertz failed field sobriety tests, that
Ewertz had glassy and bloodshot eyes, and that Ewertz slurred
(continued)
16
No. 2018AP1209-CR
whether the officer had knowledge of prior unlawful conduct by
an occupant involving an intoxicant in an automobile;18 whether
the officer had knowledge regarding the likelihood of locating
an intoxicant in an automobile driven by an intoxicated person.19
3. Our Approach
¶36 We interpret Gant as imposing the reasonableness
approach. Our conclusion is consistent with the principle that
bright-line rules are disfavored in United States Supreme Court
Fourth Amendment jurisprudence. Myron Moskovitz, A Rule in
Search of A Reason: Empirical Reexamination of Chimel and
Belton, 2002 Wis. L. Rev. 657, 679. Furthermore, the
her words, there is also evidence that Ewertz admitted to
drinking at least one alcoholic beverage before driving the car.
In light of these specific and articulable facts, as well as any
rational inferences that can be drawn from those facts, we
conclude the district court did not err in finding it was
'reasonable to believe' evidence relevant to the crime of
driving under the influence might be found in Ewertz'
vehicle.").
18United States v. Lopez, No. CR 18-120-BLG-SPW-TJC, slip
op., 2019 WL 7838283, at *8 (D. Mont. Dec. 18, 2019) ("Officer
Miner also testified that he knew drugs had been found in a safe
in Lopez's vehicle when Lopez was previously arrested for
driving under the influence of a controlled substance in
Montana. While law enforcement cannot rely on past criminal
history alone to find reasonable suspicion, it can be considered
as part of the totality of the circumstances.").
19Taylor v. State, 137 A.3d 1029, 1034 (Md. 2016). But see
United States v. Taylor, 49 A.3d 818, 827 (D.C. Ct. App. 2012)
("'[W]e know too little about Officer [Weber's] experience' to
place much weight upon his conclusory statement that 'typically
someone who is driving under the influence also has an open
container or multiple containers of alcohol in their vehicle.'"
(internal citation omitted)).
17
No. 2018AP1209-CR
categorical approach is analytically difficult. Lastly, the
briefings and result in Gant do not support the categorical
approach.
a. Bright-Line Rules Are Disfavored
¶37 Bright-line rules, such as the categorical approach,
are disfavored in Fourth Amendment United States Supreme Court
jurisprudence. Missouri v. McNeely, 569 U.S. 141, 158 (2013)
(plurality). This is because a strict application of a bright-
line rule could be used to justify a search even though, under
the particular facts, the search is unreasonable. Reagan, 713
F. Supp. 2d at 732. Case-by-case analysis is, therefore,
preferred. McNeely, 569 U.S. at 158. "Numerous police actions
are judged based on fact-intensive, totality of the
circumstances analyses rather than according to categorical
rules, including in situations that are more likely to require
police officers to make difficult split-second judgments." Id.(citing Illinois v. Wardlow, 528 U.S. 119, 123–125 (2000); Ohio
v. Robinette, 519 U.S. 33, 39–40 (1996); Tennessee v. Garner,
471 U.S. 1, 8–9 (1985)). Indeed, although, the legitimate
governmental interest in limiting the number of OWIs is
substantial, a plurality in McNeely rejected that this
legitimate governmental interest is so strong as to justify a
bright-line rule permitting warrantless blood draws when an
officer has probable cause to believe that an arrestee is
intoxicated. McNeely, 569 U.S. at 160.
¶38 Nevertheless, bright-line rules occasionally have been
adopted to provide clear guidance to officers. New York v.
18
No. 2018AP1209-CR
Belton, 453 U.S. 454, 458 (1981), abrogation recognized by Davis
v. United States, 564 U.S. 229, 234 (2011). Quoting Professor
LaFave, the Court in Belton explained:
A highly sophisticated set of rules, qualified by all
sorts of ifs, ands, and buts and requiring the drawing
of subtle nuances and hairline distinctions, may be
the sort of heady stuff upon which the facile minds of
lawyers and judges eagerly feed, but they may be
"literally impossible of application by the officer in
the field."
Id. (quoting Wayne R. LaFave, "Case-by-Case Adjudication" Versus
"Standardized Procedures": The Robinson Dilemma, 1974
S. Ct. Rev. 127, 141).
¶39 However, the Fourth Amendment generally requires
police to obtain a warrant because judges, and not police, are
better trained to determine whether a search will be
unreasonable. See Johnson, 333 U.S. at 14. "The preference for
warrants is premised on the expectation that magistrates will be
more likely than officers to perceive when justification for a
proposed search is inadequate." Thomas Y. Davies, Recovering
the Original Fourth Amendment, 98 Mich. L. Rev. 547, 576 (1999).
¶40 "While the desire for a bright-line rule is
understandable, the Fourth Amendment will not tolerate adoption
of an overly broad categorical approach that would dilute the
warrant requirement in a context where significant privacy
interests are at stake." McNeely, 569 U.S. at 158. Therefore,
the rationale for adopting a bright-line rule permitting a type
of warrantless search cannot be merely that police would benefit
from clear guidance. There has to be some reason that police
19
No. 2018AP1209-CR
need guidance in the same way that there has to be some reason
for police not to obtain a warrant.20
¶41 A bright-line rule might be justified "[w]hen officer
safety or imminent evidence concealment or destruction is at
issue, [because] officers should not have to make fine judgments
in the heat of the moment. But in the context of a general
evidence-gathering search, the state interests that might
justify any overbreadth are far less compelling." Thornton v.
United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring
in judgment). Justice Scalia, in his Thornton concurrence,
explained that when an arrestee is secured in the back of a
squad car, a search of the passenger compartment cannot be
justified on the ground that "the arrestee might grab a weapon
or evidentiary item from his car." Id. at 629. If the search
is justifiable, it is "simply because the car might contain
evidence relevant to the crime for which he was arrested." Id.To him, "[t]his more general sort of evidence-gathering search
[was] not without antecedent." Id. His comments are telling
because the majority in Gant purported it was following Justice
Scalia's suggestions from Thornton. Gant, 556 U.S. at 335.
¶42 In the case before us, Coffee was secured in the back
of a squad car; therefore, the search cannot be justified
For example, in United States v. Robinson, 414 U.S. 218,
20
235 (1973), the Court concluded that police have authority to
search an arrestee's person and that this authority stems from
the lawful arrest and the need for personal safety of the
officer.
20
No. 2018AP1209-CR
because of concerns over officer safety or imminent evidence
concealment or destruction. If the search was lawful, it must
be because a general evidence-gathering search is permitted
under these circumstances. Police did not need a bright-line
rule under the totality of the circumstances here because they
were not required to make split-second decisions. Thornton, 541
U.S. at 632 (Scalia, J., concurring in judgment).
b. Difficulty of the Categorical Approach
¶43 But even if police needed more guidance, the
categorical approach would not provide it. Some offenses are
not easily categorized, which makes the categorical approach
analytically difficult. "[A]ny attempt to categorize every
criminal offense as being either one that might yield physical
evidence or one for which there is no physical evidence runs
into interpretative problems." Reagan, 713 F. Supp. 2d at 732.
¶44 For example, a driver could be arrested for making
criminal threats. Evans, 133 Cal. Rptr. 3d at 336. "If the
threat in question was verbal, it is surely unreasonable to
expect evidence related to the crime to be contained in a
vehicle." Id. "But if the threat was made in a text message,
or amplified by means of props or a threatening drawing,
evidence might well be found in the car." Id.
¶45 To give one more example, a driver could be arrested
for battery or assault. Id. "If such crimes were committed
with fists alone, it would generally be unreasonable to expect
evidence of the offense in the arrestee's vehicle; if committed
with a brick or broken bottle, on the other hand, the opposite
21
No. 2018AP1209-CR
might be true." Id. "Even in the case of a fistfight, might it
be reasonable to expect to find blood, or perhaps a broken
fingernail, in the vehicle?" Id. To summarize, a problem with
the categorical approach is that "some offenses of arrest cannot
be meaningfully evaluated without reference to the specific
facts known to the officer." Id. The point of adopting a
bright-line rule is to provide definitive guidance; if that is
not being accomplished, a bright-line rule serves no useful
purpose.
c. The Briefings and Result in Gant
¶46 Lastly, the briefings and result in Gant suggest that
the United States Supreme Court did not create a categorical
approach. Gant involved a traffic stop for driving with a
suspended license in Arizona. Unlike many states, in Arizona,
driving with a suspended license is not a strict liability
offense.21 The State must prove that the driver either knew or
should have known his or her license was suspended.
¶47 In Gant, Arizona admitted, "In most arrests for
traffic-related offenses, the preservation of evidence
justification for a search incident to arrest will not exist."
Pet'r Reply Br. on the Merits, at 26, Gant v. Arizona, 556 U.S.
332 (2009) (No. 07-542). However, Arizona argued:
That is not true in this case. Under Arizona law, a
person is guilty of driving on a suspended license
only if "the driver knew or should have known that the
21 State v. Williams, 698 P.2d 732, 734 (Ariz. 1985) (en
banc).
22
No. 2018AP1209-CR
license has been suspended." Officer Griffith
testified that "[l]icense paperwork from the court
system" could possibly be found in the vehicle.
Officer Reed testified that it would not be unusual to
find "notification from Motor Vehicle Division that
[Gant's] license has been suspended" or "a citation
for a suspended license that would show that he had
knowledge that his driver's license was suspended" in
the vehicle. Thus, Gant's assertion that the
"officers had no reason to believe that 'evidence
relevant to the crime of arrest might be found' in
[his] car" is inaccurate.
Id. at 26 n.7 (alterations in original) (internal citations
omitted); see also Pet'r Br. on the Merits, at 6–7, nn.1–2, Gant
v. Arizona, 556 U.S. 332 (2009) (discussing the testimony of the
officers).
¶48 Therefore, if the Gant exception were a categorical
approach, Gant should have permitted the search: the passenger
compartment might have contained relevant evidence of the
offense of arrest. But Gant concluded that the search was
unconstitutional. Gant, 556 U.S. at 351. Other courts, noting
this potential contradiction, have refused to apply the
categorical approach. People v. Chamberlain, 229 P.3d 1054,
1057 (Colo. 2010) (en banc); see also Andrew Fois & Lauren
Simmons, Thomas Jefferson's Carriage: Arizona v. Gant's Assault
on the Belton Doctrine, Am. U. Crim. L. Br., Winter 2009, at 4,
22 ("The Court . . . holds that in Gant there is no reason to so
believe . . . [that] the car could contain evidence of the crime
of suspended license. It is reasonable, however, to believe
that the license itself, the car registration, or other evidence
supporting the charge could have been found in the glove
compartment.").
23
No. 2018AP1209-CR
¶49 The only way to interpret Gant as imposing a
categorical approach is to assume that the justices did not
fully analyze the briefs: that is untenable. In combination
with the above, we interpret Gant as imposing the reasonableness
approach.
C. Application
¶50 We conclude that the reasonableness approach is the
correct interpretation of Gant. Here, the totality of
circumstances objectively demonstrates that Skelton had
reasonable suspicion that the passenger compartment, and,
specifically, the bag, might contain relevant evidence of OWI.
Therefore, the search was permissible under the Fourth
Amendment.
¶51 Coffee's counsel admitted at oral argument that "We
are talking about reasonable suspicion." We conclude that is
the correct understanding of the reasonableness approach.
Taylor Md., 137 A.3d at 1030; Ewertz, 305 P.3d at 27–28. First,
the Gant exception cannot require probable cause because then it
would merely repeat the automobile exception. Vinton, 594 F.3d
at 25. Second, one United States Supreme Court justice has
referred to the Gant exception as requiring reasonable
suspicion. Megginson, 556 U.S. at 1230 (Alito, J., dissenting
from a decision to grant, vacate, and remand).
1. The Passenger Compartment
¶52 Skelton had reasonable suspicion that the passenger
compartment might contain relevant evidence of OWI. First,
Skelton testified that when he had Coffee sit in the vehicle, he
24
No. 2018AP1209-CR
smelled "an odor of intoxicants coming from [Coffee's person] or
from the vehicle." Reagan, 713 F. Supp. 2d at 733 n.7.
Although he used a disjunctive "or" to describe where the smell
was coming from, his testimony offers support in favor of
reasonable suspicion. Furthermore, the affidavit does not use
the disjunctive, or. It states that a smell of intoxicants was
coming from the automobile.
¶53 Second, Coffee indicated that he was coming from his
friend's house. Generally, a private residence has alcohol only
if it is brought to the residence. Cf. id. Coffee might have
brought the alcohol that he consumed to his friend's house and
have retained some in his vehicle. The facts of this case are
different than, for example, a case where an officer observes a
patron drink at a bar and then immediately get into an
automobile. Id. at 732.
¶54 Third, after Skelton initiated the traffic stop Coffee
"continued into the parking lot," which could indicate that
Coffee was hesitant to pull over because he knew there was
something in the automobile that he should not have had. Cf.
Patel v. State, 522 S.E.2d 760, 761 (Ga. Ct. App. 1999)
(reasoning that the failure to "immediately pull over" can
inform an officer's probable cause determination); United States
v. Gonzalez-Guytan, 419 F. App'x 848, 849 (10th Cir. 2011)
(same).
¶55 Fourth, Coffee acted strangely upon pulling into the
parking lot because he hastily parked and immediately got out of
his vehicle. Ewertz, 305 P.3d at 27. Coffee's careless parking
25
No. 2018AP1209-CR
and hasty exit from his vehicle could indicate that he was
trying to distance himself from something in the vehicle that he
knew he should not have had. Stated otherwise, his actions
indicated that he did not want to interact with police near his
vehicle, perhaps because he did not want them to discover
something in it.
¶56 Fifth, Skelton had previously interacted with Coffee.
At that prior meeting, Coffee had been quiet, but on this
occasion, was talkative, about a variety of topics. From this,
Skelton could have believed Coffee was nervous because he had
something to hide. Cf. United States v. Vergara-Manzo, No. 13-
10179-EFM, unpublished slip op., 2014 WL 840722, at *5 (D. Kan.
Mar. 4, 2014) (reasoning that an occupant being "extremely
talkative" could contribute to an officer's determination to
search the automobile).
¶57 Sixth, Coffee was extremely intoxicated. Ewertz, 305
P.3d at 28. He exhibited all six clues on the Horizontal Gaze
Nystagmus test, failed to complete the nine-step-walk-and-turn
test and sang the alphabet twice after being instructed to state
the alphabet twice in a row without singing. Furthermore,
Coffee's speech was slurred, and his eyes were "very glazed over
and bloodshot." He also parked poorly. He was over the yellow
line on the driver's side. As Justice Scalia explained in his
Thornton concurrence, "it is not illogical to assume that
evidence of a crime is most likely to be found where the suspect
was apprehended." Thornton, 541 U.S. at 630 (Scalia, J.,
concurring in judgment). Similarly, when a person is extremely
26
No. 2018AP1209-CR
intoxicated, it is not illogical to assume intoxicants might be
close by.
¶58 Coffee has two arguments, neither of which cause the
search of the vehicle's passenger compartment to be
unreasonable. First, he argues that Skelton needed to know more
to have reasonable suspicion. Skelton did not observe a bottle
cap or open container nor was he tipped off that Coffee had been
using an intoxicant in the vehicle. But the quantum of
suspicion required is not probable cause: it is reasonable
suspicion. Although Coffee acknowledges that reasonable
suspicion is the correct quantum, his argument is phrased in a
manner that assumes probable cause is necessary.
¶59 Second, Coffee would have us conclude that his privacy
interest outweighs the legitimate governmental interests because
the probative value of evidence that might have been present in
the passenger compartment is minimal, i.e., the primary evidence
of OWI is the result of a blood test. We reject this argument
because the balancing of interests has already been done by the
United States Supreme Court in establishing the Gant exception.
Moreover, other courts have rejected Coffee's argument because
"a DUI trial does not start and end with a breathalyzer report."
Cantrell, 233 P.3d at 185; see also Grote, 629 F. Supp. 2d at
1205. We agree. Just because the result of a blood test could
be sufficient evidence to secure a conviction does not mean that
it will be. Police do not have the luxury of knowing what will
happen at trial and must collect evidence without the benefit of
27
No. 2018AP1209-CR
hindsight. Police may search for relevant evidence; they are
not required to weigh its probative value.
2. The Bag
¶60 Coffee also argues, "[e]ven if it were reasonable to
search the vehicle, it was not reasonable to believe evidence of
the OWI would be at the bottom of the bag." To explain, Coffee
argues that Skelton did not see a furtive movement that would
have indicated Coffee tried to hide something in the bag.
Therefore, Coffee minimizes the circuit court's finding that
relevant evidence could have "easily" been pushed down because,
Coffee contends, if such an action occurred, it would have been
seen by Skelton.
¶61 Coffee's argument borders on an objection to the
circuit court's findings. Under the applicable standard of
review, we cannot disturb those findings because they are not
clearly erroneous. Richter, 235 Wis. 2d 524, ¶26. Moreover,
Coffee could have gotten intoxicated at his friend's house and
then put the intoxicant in the bag in order to carry it to his
car. Indeed, the United States Supreme Court has explained,
"[d]uring virtually the entire history of our country——whether
contraband was transported in a horse-drawn carriage, a 1921
roadster, or a modern automobile——it has been assumed that a
lawful search of a vehicle would include a search of any
container that might conceal the object of the search." United
States v. Ross, 456 U.S. 798, 820 n.26 (1982). "Contraband
goods rarely are strewn across the trunk or floor of a car;
since by their nature such goods must be withheld from public
28
No. 2018AP1209-CR
view, they rarely can be placed in an automobile unless they are
enclosed within some form of container." Id. at 820.
¶62 This case is unlike, for example, State v. Hinderman,
No. 2014AP1787-CR, unpublished slip. op. (Wis. Ct. App. Feb. 12,
2015), on which Coffee relied below. Hinderman was arrested for
OWI because she appeared drunk. Id., ¶¶2–3. Police searched
her automobile incident to the arrest. Id., ¶4. On the
passenger seat was her purse. Id., ¶3. Police "looked inside
the purse and found a closed, red zippered pouch, approximately
three-by-three inches in length and one-half inch to three
quarters of an inch wide." Id., ¶4. Inside the pouch was drug
paraphernalia and "a clear plastic bag containing marijuana."
Id. The State argued that the search of the pouch was
permissible because it might have contained a one-shot bottle of
alcohol, similar to what is commonly served on passenger jets.
Id., ¶12. In a one-judge opinion, the court of appeals rejected
this argument and concluded that the search violated the Fourth
Amendment. Id., ¶14. Its conclusion rested heavily on a
finding by the circuit court that the pouch was unlikely to
contain a one-shot bottle. Id., ¶12.
¶63 We need not decide whether Hinderman was correct. It
is sufficient to say, Hinderman presented on different facts.
In this case, the bag police searched was significantly larger.
It could have contained regular-sized bottles of alcohol.
Whether police can search a small pouch, on the ground that they
might find a one-shot bottle, or, as the court of appeals
mentioned in this case, a credit card receipt showing very
29
No. 2018AP1209-CR
recent purchases of alcoholic drinks at a local bar, is beyond
the scope of this case.
III. CONCLUSION
¶64 We disagree that the lawful arrest for OWI, in and of
itself, supplied a sufficient basis to search the passenger
compartment of Coffee's vehicle. However, the search was lawful
because police had reasonable suspicion, based on the totality
of the circumstances, that the passenger compartment, and,
specifically, the bag, might contain evidence of OWI.
Accordingly, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶65 ANN WALSH BRADLEY, J., withdrew from participation.
¶66 BRIAN HAGEDORN, J., did not participate.
30
No. 2018AP1209-CR.dk
¶67 DANIEL KELLY, J. (concurring). I concur with the
court's judgment. But I think the court handled Gant1 in a
fashion that brings less rather than more clarity to the law
controlling post-arrest evidence-gathering automobile searches.
The court suggests Gant addressed itself to this question:
"[W]hether the nature of an offense of arrest, in and of itself,
can supply a basis for a search of a passenger compartment, or
whether the search must be analyzed by examining the totality of
the circumstances." Lead op., ¶26. The literature, as well as
judicial opinions, generally refer to the former as the
"categorical approach," and the latter as the "reasonableness
approach." And in so referring, they have contributed to the
court's understanding that Gant created a new analytical
methodology that is taxonomically distinct from the extant
exceptions to the warrant requirement. But the Gant court did
not announce a new analytical model. Instead, it returned to
ancient principles governing searches incident to arrest and
applied them to the automobile context.
¶68 Gant's significance lies in it's effort to fix a
specific jurisprudential problem. The Supreme Court realized
that, after its decision in New York v. Belton, 453 U.S. 454(1981), abrogation recognized by United States v. Davis, 564
U.S. 229 (2011), police officers started conducting post-arrest
evidence-gathering automobile searches as a matter of course,
and in some quarters such searches were understood as a police
1 Arizona v. Gant, 556 U.S. 332 (2009).
1
No. 2018AP1209-CR.dk
officer's entitlement. See Arizona v. Gant, 556 U.S. 332, 335
(2009). There is good reason for the explosion of such
searches. Belton held that "when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile." 453 U.S. at 460 (footnotes
omitted). The test seemed pretty clear: Upon arrest of an
automobile's occupant, the police——without any additional
analysis or justification——may perform an evidentiary search of
the automobile.
¶69 Based on law enforcement's response to Belton, the
Gant court had to address two related questions. First, whether
an arrest always allows the police to perform an evidentiary
search of an automobile recently occupied by the arrestee. And
second, if not, whether an arrest can ever——without more——
justify an evidentiary automobile search. The latter question
is the one relevant to this case, but its answer won't make any
sense outside the context of the former.
¶70 The first question arose because automatic authority
for evidence-gathering automobile searches doesn't fit
comfortably with Belton's rationale. The basic substrate of the
Belton court's reasoning comes from Chimel v. California, 395
U.S. 752 (1969), abrogation recognized by Davis v. United
States, 564 U.S. 229 (2011), which addressed protective searches
(as opposed to evidence-gathering searches). The Court observed
that Chimel says
a lawful custodial arrest creates a situation which
justifies the contemporaneous search without a warrant
2
No. 2018AP1209-CR.dk
of the person arrested and of the immediately
surrounding area. Such searches have long been
considered valid because of the need "to remove any
weapons that [the arrestee] might seek to use in order
to resist arrest or effect his escape" and the need to
prevent the concealment or destruction of evidence.
Belton, 453 U.S. at 457 (citing Chimel, 395 U.S. at 763).
¶71 The Chimel rationale works when the arrestee is still
in the automobile or has ready access to it. But once the
arrestee is immobilized or taken from the scene of the arrest,
Chimel loses its justifying power because the arrestee can no
longer reach any weapons or evidence that might have been in the
automobile. And yet courts have regularly used Belton to
justify searches in those very circumstances. See, e.g., Gant,
556 U.S. at 346. The Gant court recognized that reading Belton
to authorize such searches would "untether the rule from the
justifications underlying the Chimel exception——a result clearly
incompatible with our statement in Belton that it 'in no way
alters the fundamental principles established in the Chimel case
regarding the basic scope of searches incident to lawful
custodial arrests.'" Gant, 556 U.S. at 343.
¶72 Gant's answer to the first question, therefore, was
that arresting an automobile's occupant does not always justify
an automobile search. So it returned Belton to its Chimel
moorings by rejecting the unjustifiably broad reading it had
accrued over the years. It held "that the Chimel rationale
authorizes police to search a vehicle incident to a recent
occupant's arrest only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of
the search." Gant, 556 U.S. at 343. That is, Chimel authorizes
3
No. 2018AP1209-CR.dk
police to conduct a protective search of an automobile as an
incident to the arrest of a recent occupant.
¶73 Having held that arrests do not always justify
automobile searches, the Gant court then had to determine
whether they can ever, standing alone, provide a
constitutionally acceptable justification. I believe Gant says
they can. The Supreme Court recognized that the Chimel/Belton
line of reasoning is not the exclusive basis upon which officers
can search an automobile upon arrest of one of its occupants.
It said:
Although it does not follow from Chimel, we also
conclude that circumstances unique to the vehicle
context justify a search incident to a lawful arrest
when it is "reasonable to believe evidence relevant to
the crime of arrest might be found in the vehicle."
Thornton, 541 U.S. at 632 (SCALIA, J., concurring in
judgment).
Gant, 556 U.S. at 343. Gant's specific holding makes it clear
that Justice Antonin Scalia's Thornton2 concurrence played a
pivotal role in the court's reasoning:
Consistent with the holding in Thornton v. United
States, [] and following the suggestion in Justice
SCALIA's opinion concurring in the judgment in that
case, id. at 632, we also conclude that circumstances
unique to the automobile context justify a search
incident to arrest when it is reasonable to believe
that evidence of the offense of arrest might be found
in the vehicle.
Gant 556 U.S. at 335 (citation omitted); see also id. at 347("Unlike the searches permitted by Justice Scalia's opinion
concurring in the judgment in Thornton, which we conclude today
2 Thornton v. United States, 541 U.S. 615 (2004).
4
No. 2018AP1209-CR.dk
are reasonable for purposes of the Fourth Amendment, Ross[3]
allows searches for evidence relevant to offenses other than the
offense of arrest, and the scope of the search authorized is
broader."). So let's consider Justice Scalia's "suggestion."
¶74 Justice Scalia explained that the authority to search
an arrestee without a warrant does not necessarily depend on the
Chimel considerations. Instead, the justification can arise
from the arrest itself: "In United States v. Robinson, 414
U.S. 218, 235 [] (1973), we held that authority to search an
arrestee's person does not depend on the actual presence of one
of Chimel's two rationales in the particular case; rather, the
fact of arrest alone justifies the search." Thornton, 541 U.S.
at 631-32 (Scalia, J., concurring). The Robinson court was
quite explicit on this point:
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. It is the fact of the lawful arrest
which establishes the authority to search, and we hold
that in the case of a lawful custodial arrest a full
search of the person is not only an exception to the
warrant requirement of the Fourth Amendment, but is
also a 'reasonable' search under that Amendment.
Robinson, 414 U.S. at 235.
¶75 Justice Scalia's Thornton concurrence makes it clear
that once the authority to conduct the search exists (by virtue
of the arrest), the only remaining question is its scope. The
scope, he explained, depends on the nature of the search being
3 United States v. Ross, 456 U.S. 798 (1982).
5
No. 2018AP1209-CR.dk
conducted——protective versus evidentiary. Commenting on the
Robinson case, he agreed with the Court's rejection of the
District of Columbia Circuit's conclusion that "any protective
search would have to be limited by the conditions laid down in
Terry[4] for a search upon less than probable cause to arrest."
Robinson, 414 U.S. at 233. That is, the protective search is
comprehensive, and nothing about the arrest need suggest to the
officer that he is actually in danger or that he might actually
find anything in need of protection.
¶76 An evidentiary search performed after arrest, however,
requires a connection between the offense and the search.
Justice Scalia observed that "in the context of a general
evidence-gathering search, the state interests that might
justify any overbreadth are far less compelling." Thornton, 541
U.S. at 632 (Scalia, J., concurring). Therefore, he concluded,
"I would . . . limit Belton searches to cases where it is
reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle." Thornton, 541 U.S. at 632(Scalia, J., concurring). So Justice Scalia's Thornton
concurrence was not about the authority to search, it was about
the scope of the search. When conducting a protective search
consequent upon an arrest, the scope is comprehensive. When
conducting an evidentiary search consequent upon arrest, the
scope is limited to where evidence of the crime might be.
4 Terry v. Ohio, 392 U.S. 1 (1968).
6
No. 2018AP1209-CR.dk
¶77 Where that evidence might be located depends, to a
very large extent, on the nature of the offense of arrest.
There is good reason to believe that Gant considered the
automobile search as a question of scope, as Justice Scalia
plainly did, rather than one of authority, as our court does
today. By way of illustrating the Court's holding, Gant
juxtaposed a few illustrative cases in which the offense of
arrest would not extend the evidentiary search to the automobile
against a few cases in which it would:
[W]e also conclude that circumstances unique to the
vehicle context justify a search incident to a lawful
arrest when it is "reasonable to believe evidence
relevant to the crime of arrest might be found in the
vehicle." Thornton, 541 U.S. at 632 (SCALIA, J.,
concurring in judgment). In many cases, as when a
recent occupant is arrested for a traffic violation,
there will be no reasonable basis to believe the
vehicle contains relevant evidence.[5] But in others,
including Belton and Thornton, the offense of arrest
will supply a basis for searching the passenger
compartment of an arrestee's vehicle and any
containers therein.
Gant, 556 U.S. at 343-44. Gant did not assess the "totality of
circumstances" in each case to determine whether they indicated
there might be evidence relating to the offense of arrest in the
automobile at issue. It simply noted the type of offense (with
respect to Atwater and Knowles), and called out Belton and
Thornton without any further analysis. Of all the cases cited
in this illustration, Thornton is by far the most important in
judging the fidelity of our conclusion to Gant's paradigm.
See, e.g., Atwater v. Lago Vista, 532 U.S. 318,
5 324
(2001); Knowles v. Iowa, 525 U.S. 113, 118 (1998).
7
No. 2018AP1209-CR.dk
¶78 The court says that "[u]nlike the categorical
approach, which does not utilize facts particular to the case,
the reasonableness approach requires particularization." Lead
op., ¶31. If the automobile search in this case may not take
place without particularized suspicion "that the passenger
compartment, and, specifically, the bag, might contain relevant
evidence of OWI," id., ¶50, then Thornton does not belong in
Gant's illustration. In Thornton, there were quite literally no
particularized facts connecting the offense of arrest to Mr.
Thornton's car. The police pulled him over because the license
plate tags on the Chevrolet he was driving were actually issued
to a Ford. Thornton, 541 U.S. at 617. Mr. Thornton exited his
car, and then consented to the officer's request to search him.
Id. The search of his person netted several bags of illegal
narcotics. Id. The officer promptly arrested Mr. Thornton for
possession of illegal narcotics and placed him in the back seat
of the patrol car, whereupon the protective search justified by
Chimel came to an end. Id. Nonetheless, the officer
immediately commenced an evidentiary search of Mr. Thornton's
car, pursuant to which he discovered a handgun (which Mr.
Thornton was not allowed to possess). Id.¶79 The search in Thornton, Gant said, was appropriate
because "the offense of arrest . . . suppl[ied] a basis for
searching the passenger compartment of [Mr. Thornton's]
vehicle . . . ." Gant, 556 U.S. at 343. Conspicuous by its
absence is any mention of factors other than the offense of the
arrest. The opinion said nothing about particularized facts, or
8
No. 2018AP1209-CR.dk
totality of the circumstances, or any of the other phrases the
court uses to explain its holding today. Mr. Thornton was
arrested for drug possession ergo the police could search his
car for evidence. If Gant means what our court says it means,
then the Supreme Court erred pretty remarkably when it pointed
to Thornton as an example of its analysis. Other than the
offense of arrest, neither the Gant nor the Thornton court
identified a single fact suggesting the officer might have found
any evidence in the automobile. Consequently, it must
necessarily be true that the United States Supreme Court
believes that the offense of arrest, without more, can extend
the scope of a post-arrest evidentiary search to an automobile
recently occupied by the arrestee.
¶80 That principle (and its application to Thornton)
leads, almost mechanically, to the conclusion that in this case
the scope of the post-arrest evidentiary search appropriately
encompassed Mr. Coffee's car. In Thornton, the arrestee
possessed illegal drugs on his person, which was an offense
sufficient to bring his car within the scope of the post-arrest
evidentiary search. Here, Mr. Coffee possessed alcohol instead
of narcotics, and he possessed it inside his body instead of in
a plastic baggie inside one of his pockets. These distinctions
appear to have no constitutional significance, nor is any such
distinction on offer. Further, the offense of arrest in this
case is much more directly tied to the automobile than in the
Thornton matter——OWI cannot be committed without the automobile,
whereas possession of illegal narcotics can. Therefore, if
9
No. 2018AP1209-CR.dk
possession of illegal narcotics justifies the scope of search in
Thornton, it perforce justifies the search in this case.6
*
¶81 Aside from my disagreement with the majority's
understanding of Gant, I don't think the "reasonableness" test,
at least the way we have fashioned it, can be correct. The
court says "[t]hough stated in various terms, the
[reasonableness] approach involves 'looking at common sense
factors and evaluating the totality of the circumstances' to
determine whether it was reasonable to conclude that evidence of
the crime of the arrest might be found within the vehicle."
Lead op., ¶30 (quoting United States v. Reagan, 713
F. Supp. 2d 724, 728 (2010) (quoting United States v. Pruitt,
458 F.3d 477, 482 (6th Cir. 2006)). Frankly, I don't think
It
6 is theoretically possible that the Wisconsin
Constitution offers greater protection to drivers in Mr.
Coffee's circumstances, but no one has made that argument in
this case. Nor does any provision of our constitution come to
mind that might provide that protection. And if we were
addressing the application of the Gant/Thornton (concurrence)
analysis for the first time to a case such as this, I'm not
certain I would conclude that OWI is an offense of arrest
capable of expanding the scope of the post-arrest evidentiary
search to an automobile. But I believe the Supreme Court's
approval of Thornton authoritatively answers that question, and
this court certainly has no room to disagree. See generally,
State v. Felix, 2012 WI 36, ¶36, 339 Wis. 2d 670, 811 N.W.2d 775("We are bound to follow the United States Supreme Court's
interpretation of the Fourth Amendment that sets the minimum
protections afforded by the federal constitution." (citation
omitted)); and State v. Foster, 2014 WI 131, ¶57, 360
Wis. 2d 12, 856 N.W.2d 847 ("Our decisions interpreting the
United States Constitution are binding law in Wisconsin until
this court or the United States Supreme Court declares a
different opinion or rule." (quoted source omitted)).
10
No. 2018AP1209-CR.dk
that's actually a test. Saying that we will consider "common
sense factors" and look at the "totality of the circumstances"
is really nothing more than saying we won't be obtuse. It may
be right for us to disfavor "bright-line rules" in the Fourth
Amendment context,7 but this just seems like parameter-free ad-
hockery.
¶82 For all these reasons, I respectfully concur with the
court's judgment.
7 Missouri v. McNeely, 569 U.S. 141, 158 (2013) ("While the
desire for a bright-line rule is understandable, the Fourth
Amendment will not tolerate adoption of an overly broad
categorical approach that would dilute the warrant requirement
in a context where significant privacy interests are at
stake.").
11
No. 2018AP1209.rfd
¶83 REBECCA FRANK DALLET, J. (dissenting). In Arizona
v. Gant, 556 U.S. 332, 335 (2009), the United States Supreme
Court announced that the Fourth Amendment1 allows a warrantless
search of a vehicle incident to arrest "when it is reasonable to
believe that evidence of the offense of arrest might be found in
the vehicle."2 I agree with the lead opinion that under Gant,
the search must be analyzed by examining the totality of the
circumstances, a reasonableness approach, as opposed to applying
a categorical approach based solely upon the nature of the crime
of arrest. I part ways with the lead opinion, however, in the
application of the reasonableness approach to the facts and
circumstances of this case. I dissent because it was not
reasonable for Officer Timothy Skelton to believe that Mose B.
Coffee's vehicle contained evidence relevant to his arrest for
operating while intoxicated (OWI). The search of Coffee's
vehicle incident to arrest was therefore unconstitutional.
1 The Fourth Amendment to the United States Constitution
provides the right of citizens to be secure against unreasonable
searches and seizures:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV.
2 The Gant Court also clarified that a vehicle may be
searched incident to arrest when the arrestee is "within
reaching distance of the passenger compartment at the time of
the search." Arizona v. Gant, 556 U.S. 332, 351 (2009).
1
No. 2018AP1209.rfd
I. FACTS
¶84 The relevant facts are set forth in both the affidavit
in support of the complaint and the suppression hearing
testimony.
¶85 On August 30, 2017, shortly after 11:15 p.m., Officer
Skelton conducted a traffic stop of Coffee's vehicle for failure
to display a front license plate. "Immediately" after Officer
Skelton turned on his emergency lights, Coffee pulled over into
a parking lot of a bar and parked very close to another vehicle.
According to the testimony of Officer Skelton, upon parking,
Coffee "immediately was getting out of his vehicle so it was
almost as if he was—knew [Officer Skelton] was behind him and
was getting out quickly." Officer Skelton testified to the
following conversation with Coffee as he exited the vehicle: "I
indicated I was performing a traffic stop for the front license
plate and that I wanted him to stay with his vehicle," to which
Coffee "indicated that he had been stopped for that same
occurrence before and that was why he was getting out to show
[Officer Skelton] that he had a warning for it." Officer
Skelton described Coffee as "somewhat upset" about being stopped
again for failing to have a front license plate.
¶86 Officer Skelton observed that Coffee had a distinct
slur to his speech. He instructed Coffee to "sit down in his
car." As he approached Coffee, Officer Skelton "could smell an
odor of intoxicants coming from his person or from the vehicle."
He also noticed that Coffee's eyes were glazed over and
bloodshot, "consistent with the odor—-the strong odor of
2
No. 2018AP1209.rfd
intoxicants." The body camera footage showed that during
Officer Skelton's conversation with Coffee, Coffee was seated in
the driver's seat with the front door open and his legs outside
of the vehicle, while Officer Skelton stood several feet away.
When asked where he was coming from, Coffee responded that he
had been at a friend's house where he "had not had that much" to
drink.
¶87 Officer Skelton asked Coffee to step out of his
vehicle in order to complete some field sobriety tests "[d]ue to
the level of odors and [his] observations of [] Coffee." At
this point, Officer Skelton realized that he had met Coffee a
couple weeks earlier. Officer Skelton noticed that Coffee was
"very talkative" compared to the previous occasion where Coffee
had been "very quiet." While Coffee was performing the field
sobriety tests with Officer Skelton, several other officers
arrived on the scene.
¶88 Officer Skelton testified that he believed Coffee was
operating a motor vehicle while intoxicated: "[b]ased off my
observations of his person, the conversations I had with him,
the odor of intoxicants, the slurred speech, the field sobriety
tests that we did." On re-direct examination, Officer Skelton
reiterated that he had arrested Coffee based upon a "culmination
of my observations of his person, field sobriety tests, and
general odor that was coming from his person."
¶89 Officer Skelton stated that he informed the other
officers on scene, Officers Benjamin Fenhouse and Brenden
3
No. 2018AP1209.rfd
Bonnett, that Coffee had been arrested for "operating under the
influence of alcoholic beverages."
¶90 Both Officer Bonnett and Officer Fenhouse testified
that they were tasked with searching Coffee's two-door vehicle.
When asked what Officer Skelton told him about the nature of the
search, Officer Bonnett testified:
A.: I recall knowing the subject was in custody for
impaired driving and conducted my search relevant to
that.
Q.: And when you say you conducted your search
relevant to that, what do you mean?
A.: I'd be looking for any substance in the vehicle
that could impair a driver's ability to operate the
motor vehicle safely.
¶91 When questioned about whether there was any smell of
alcohol emanating from the vehicle, Officer Bonnett testified:
Q.: So upon your initially opening the door, your
police report doesn't mention any smells. Did you
smell any alcohol?
A.: I don't recall smelling any alcohol.
Officer Bonnett did not mention any smells of other intoxicants.
¶92 Officer Bonnett searched the driver-side front seat
while Officer Fenhouse searched the passenger-side front seat.
Neither officer found any evidence of open intoxicants. Officer
Bonnett subsequently searched behind the driver's seat, where he
found a cloth bag "full of stuff," including "wires, cables, and
phones." Officer Bonnett testified that he looked through the
bag "for any evidence which would impair a driver's ability to
operate a motor vehicle." After "dig[ging] through the bag" for
over a minute, Officer Bonnett found two mason jars that had
4
No. 2018AP1209.rfd
"flakes of what was suspected to be marijuana." Upon discovery
of the mason jars, Officer Bonnett and Officer Fenhouse searched
the trunk portion of the vehicle and found roughly two pounds of
marijuana, along with drug paraphernalia.
II. ANALYSIS
¶93 The lead opinion concludes that "Skelton had
reasonable suspicion that the passenger compartment might
contain relevant evidence of OWI" for six reasons. Lead op.,
¶¶52-57.3 As illustrated below, neither the lead opinion's
reasons nor its conclusions are supported by the facts in the
record.
¶94 First, the lead opinion asserts that Officer Skelton
could smell an odor of intoxicants coming from the vehicle, and
therefore there was reason to believe intoxicants would be found
in the vehicle. Lead op., ¶52. The lead opinion reads a
statement in the affidavit attached to the complaint out of
context and insinuates that the smell of intoxicants emanated
from the vehicle separate and apart from Coffee's person.
However, the full record indicates that Officer Skelton did not
articulate any particularized reason to believe the smell of
alcohol emanated from the vehicle. As Officer Skelton's
testimony and the body camera footage clarifies, he "could smell
an odor of intoxicants coming from the vehicle" when Coffee was
The parties do not dispute that if the search of the bag
3
in Coffee's backseat is upheld, the subsequent search of the
trunk cannot be legally challenged. At oral argument, defense
counsel clarified that Coffee was not independently challenging
the search of the trunk.
5
No. 2018AP1209.rfd
seated in it. During the suppression hearing, Officer Skelton
described the odor in the following ways:
 "I believe at that point I had him sit down in
his car and I could smell an odor of intoxicants
coming from his person or from the vehicle."
 "Due to the level of odors and my observations of
Mr. Coffee, I asked him to step out to do field
sobriety tests."
 A "general odor that was coming from his person."
 "Based off my observations of his person, the
conversations I had with him, the odor of
intoxicants, the slurred speech, the field
sobriety tests that we did, I believed he was
operating a motor vehicle under the influence of
intoxicants."4
As the body camera footage shows, Officer Skelton remained
several feet away from the vehicle while Coffee was seated in
the driver's seat with the door open and legs partly outside.
Officer Skelton had no occasion to assess whether the vehicle
independently had an odor of intoxicants.
¶95 Additionally, Officer Bonnett testified he did not
smell any alcohol coming from the vehicle, which he searched
while Coffee was in Officer Skelton's squad car. Officer
Bonnett also did not mention the smell of any other intoxicants.
Viewing the record in full, the claim that there was a reason to
believe alcohol might be found in the vehicle because it smelled
of intoxicants is unsupported.
4Additionally, as evidenced in the body camera footage,
Officer Skelton told Coffee to exit the vehicle and perform
field sobriety tests because "I can smell it on ya."
6
No. 2018AP1209.rfd
¶96 Second, the lead opinion asserts that Coffee's
statement that he was coming from a friend's house provided a
reason to believe that alcohol might be found in the vehicle.
The lead opinion's logic is that "a private residence has
alcohol only if it is brought to the residence" and therefore
Coffee "might have brought the alcohol that he consumed to his
friend's house and have retained some in his vehicle." Lead
op., ¶53. The only authority cited is a footnote from United
States v. Reagan, 713 F. Supp. 2d 724 (E.D. Tenn. 2010), a
federal case upholding the suppression of evidence seized from a
vehicle during a search incident to arrest. The footnote
follows the magistrate judge's conclusion that a search of a
vehicle under Gant requires "a particularized and articulable
reason to believe that evidence of [OWI] is contained inside."
Id. at 733. The footnote reads:
Many different facts may provide a law enforcement
officer with reason to believe that evidence of [OWI]
is located inside the passenger compartment of a
vehicle. Examples include observations of the driver
drinking while driving, observations of an open
container of alcohol in plain view inside the
passenger compartment, statements made by the
occupants of the vehicle indicating that an open
container is in the passenger compartment, the smell
of alcohol emanating from within the passenger
compartment, or indications that the driver was
traveling from a location such as a recreational area
or campground where alcohol is not available unless it
is transported in by private vehicle.
Id. at 733 n.7. The Reagan court determined that the vehicle's
location in a recreational area did not support a search when
the ranger did not articulate any particularized reason why he
believed the vehicle provided evidence of OWI. Id. at 733-34.
7
No. 2018AP1209.rfd
The lead opinion provides no authority for the more attenuated
proposition that if a person arrested for OWI is driving from a
friend's house, police will have a reason to believe there is
evidence of OWI in their vehicle.
¶97 Third, the lead opinion misconstrues the statement
that Coffee "continued into the parking lot" to signify that
"Coffee was hesitant to pull over because he knew there was
something in the automobile that he should not have had." Lead
op., ¶54. This interpretation directly contradicts the evidence
in the record which indicates Coffee immediately pulled over.
Officer Skelton was asked point blank:
Q.: Okay. So safe to say that immediately upon
turning on your emergency lights [Coffee] pulled into
the parking lot?
A.: Correct.
The facts of record clearly show Coffee was not hesitant to pull
over. Therefore, this factor can not support the search of
Coffee's vehicle.
¶98 Fourth, the lead opinion claims that "Coffee's
careless parking and hasty exit from his vehicle could indicate
that he was trying to distance himself from something in the
vehicle that he knew he should not have had." Lead op., ¶55.
The lead opinion ignores Officer Skelton's testimony that Coffee
"indicated that he had been stopped for that same [front license
plate violation] before and that was why he was getting out to
show [him] that he had a warning for it." Coffee's careless
parking and hasty exit from the vehicle fails to provide any
8
No. 2018AP1209.rfd
particular reason to believe that alcohol might be found in his
vehicle.
¶99 Fifth, the lead opinion states that because Coffee was
more talkative than he had been during one past interaction with
Officer Skelton, "Skelton could have believed Coffee was nervous
because he had something to hide." Lead op., ¶56 (emphasis
added). Officer Skelton described Coffee as talkative while
they "were walking over to the area . . . to do the field
tests." The record of the past interaction consists of one
statement that Coffee "had picked up an individual from a
hospital from an accident," and had been "very quiet at that
time."
¶100 The lead opinion uses the term "could have believed"
because there is no evidence that Officer Skelton believed that
Coffee's talkativeness equated to nervousness. Officer Skelton
never characterized Coffee as nervous, and the State never
argued that Coffee's nervousness formed a basis for the search.
While a suspect's nervousness could be a factor to consider in
other cases, see, e.g., State v. Morgan, 197 Wis. 2d 200, 214-
15, 539 N.W.2d 887 (1995), this court is bound by the facts in
the record. Coffee was never described as nervous, and
therefore it could not be a factor that formed the basis for
Officer Skelton's search of Coffee's vehicle.
¶101 Finally, the lead opinion justifies its conclusion
based on Coffee's state of "extreme[] intoxicat[ion]." Lead
op., ¶57. As support, the lead opinion cites to a court of
appeals case from Kansas involving the search of a vehicle based
9
No. 2018AP1209.rfd
in part on an odor of intoxicant emanating from the vehicle.
See State v. Ewertz, 305 P.3d 23, 28 (Kan. Ct. App. 2013). As
discussed earlier, supra ¶¶94-95, there is no indication in the
record that an odor of intoxicants was emanating from the
vehicle.
¶102 Of greater concern is the catchall statement that
"when a person is extremely intoxicated, it is not illogical to
assume intoxicants could be close by." Lead op., ¶57. A
finding of "extreme intoxication" invites police to always
search a vehicle after an OWI arrest, despite the absence of any
facts indicating there might be evidence of OWI in a particular
vehicle. United States v. Taylor, 49 A.3d 818 (D.C. 2012),
illustrates the distinction between the lead opinion's broad
statement and the particularization required when discussing
whether it is reasonable to believe evidence of OWI will be
found in a vehicle.
¶103 In Taylor, the defendant rear-ended a vehicle occupied
by three Deputy United States Marshals. Id. at 820. After
arresting the defendant for driving under the influence,
officers searched the truck and found a loaded handgun. Id.The trial court suppressed the evidence as the fruits of an
unlawful search. Id. at 821.
¶104 In upholding suppression of the evidence, the Taylor
court addressed Gant and discussed how the principles "apply to
this arrest for driving under the influence." Id. at 826. The
Taylor court reasoned:
Whenever probable cause exists to effect an arrest for
DUI, there will be evidence that the individual in
10
No. 2018AP1209.rfd
question is intoxicated, has been drinking recently,
and has been driving despite being (and perhaps while
becoming) inebriated. In this case, the police
certainly had reason to believe (indeed, they had
probable cause to conclude) that Taylor was drunk.
The smell of alcohol was on his breath, he was swaying
back and forth, he had lost control of his vehicle,
and he had urinated on a nearby tree. The breath test
showed a blood alcohol content of .161. This evidence
gave ample reason to believe that Mr. Taylor had
consumed alcohol. But there was nothing in
particular——no tell-tale sign——to suggest that he had
been drinking in his vehicle.
It was, of course, possible that evidence of drinking—
such as empty or partially full containers of alcohol—
would be found in the vehicle, just as it is possible
that such evidence may be found in any vehicle driven
by an intoxicated individual. But the question
under . . . Gant is whether it is reasonable to
believe that such evidence might be found in this
specific vehicle. The suspicion must be
particularized.
Id. (emphasis added).
¶105 This case lacks particular facts to suggest that
alcohol might be found in Coffee's vehicle. There were signs
that Coffee was intoxicated, but the State cannot rely solely on
those facts to search his vehicle. The specific facts giving
rise to the conclusion that Coffee was intoxicated "did not make
it any more likely that he had been drinking in the vehicle."
Id. at 827.
¶106 Although there was no such evidence here, there are
factual circumstances which would support the search of a
vehicle incident to an arrest for OWI. For example, if police
observed, or were informed, that a suspect was consuming alcohol
while driving or just before driving. See, e.g., City of West
Bend v. Willie, No. 2018AP151, unpublished slip op., ¶1 (Wis.
11
No. 2018AP1209.rfd
Ct. App. Aug. 15, 2018) (noting that the police received "a
report from the manager of Wendy's that Willie and his passenger
had open beers in their vehicle"); State v. Relyea, 2014AP2860-
CR, unpublished slip op., ¶3 (Wis. Ct. App. Jun. 18, 2015) ("The
officer saw that Relyea was 'guzzling' from what appeared to be
a bottle of 'microbrew' beer."). Other circumstances include
where an officer observes evidence of drinking or an attempt to
hide something in the vehicle. See, e.g., State v. Bons, 2007
WI App 124, ¶15, 301 Wis. 2d 227, 731 N.W.2d 367 (unusual
behavior "coupled with the presence of the shot glass on the
console, gave [the officer] reasonable suspicion that Bons had
been committing or was about to commit a crime involving
alcohol"). None of these factual circumstances were present in
this case.
III. CONCLUSION
¶107 I agree with the lead opinion that Gant, 556 U.S. 332,
requires a reasonableness approach to a search incident to
arrest based upon the totality of the circumstances. However,
in this case, Officer Skelton did not have any particular reason
to believe that Coffee's vehicle might contain evidence relevant
to his arrest for OWI. The search of Coffee's vehicle incident
to arrest was therefore unconstitutional and the evidence should
have been suppressed.
¶108 For the foregoing reasons, I respectfully dissent.
¶109 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
12
No. 2018AP1209.rfd