Before Higginbotham, P.J., Dykman and Vergeront, JJ.
We certify the following question: whether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568.
The facts are undisputed.
Jordan Denk was a passenger in a car driven by Christopher
Pickering. A police officer approached
the car, which was parked on the side of the road, to ascertain whether the
driver was having problems with the vehicle.
After determining that
Denk moved to suppress evidence against him, arguing that his rights under the Fourth Amendment were violated when the police officer searched his eyeglass case. The circuit court denied the motion.
The State contends that the search of Denk’s eyeglass case
was constitutional as incident to
The State contends that the search was permissible under Pallone because Denk was standing within easy reach of the eyeglass case when it was on the ground, thus raising concerns for the officer’s safety and the potential destruction of evidence. The State argues that the scope of a search incident to arrest should not be limited to an arbitrarily circumscribed area inside the vehicle but, instead, the scope of the permissible search should be measured under the “flexible concept of immediate area.” The State argues that this will prevent the person arrested from grabbing a weapon or destroying evidence that may be located outside the car. The State contends that its argument is also based on common sense because “no court has ever held, or would ever hold, that occupants of a vehicle can defeat the search incident to arrest exception by surreptitiously tossing their contraband on the ground outside the car ….”
Denk contends that the State’s argument calls for an
unprecedented extension of New York v. Belton, 453 U.S. 454
(1981), which allows police to search the passenger compartment of a car
incident to the arrest of an occupant of the car. Denk contends that no
United States Supreme Court precedent teaches that, while
a passenger’s belongings in a car may be searched incident to the arrest of an
occupant of the car because they may conceal evidence of the arrestee’s crime,
probable cause to search a car does not justify a body search of a
passenger.
The question thus presents itself: what inquiry should be made when a passenger’s personal belongings are found outside a motor vehicle? Must the circuit court make a factual finding as to how the passenger’s property ended up outside the vehicle? May the police officer draw an inference that Denk tossed the case from the car or that it fell out of the car, and was thus subject to search? Should the police officer draw an inference that the case fell out of Denk’s pocket, and thus was not subject to search? Because the State carries the burden, does the State’s failure to show how the eyeglass case got out of the car require an inference that it was on Denk’s person and then fell to the ground, thus resulting in suppression of the evidence?
Pursuant to Wis. Stat. Rule 809.61 (2005-06), we certify the appeal in this case to the Wisconsin Supreme Court for its review and determination.[2]
[1] There was no testimony at the suppression hearing about how the eyeglass case got on the ground and the circuit court made no findings of fact pertaining to how the eyeglass case came to be in this location.
[2] Denk raises a second issue that can be resolved under existing law, so we do not address that question in this certification.