COURT OF APPEALS
DATED AND FILED
March 24, 2010
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Kyle J. Graske,
from orders of the circuit court for
¶1 BROWN, C.J. The State appeals from orders suppressing evidence against Kyle J. Graske for possession of Tetrahydrocannabinols (THC) and drug paraphernalia and dismissing a charge of operating with a detectable amount of a restricted controlled substance (first offense). The trial court dismissed the State’s charges after suppressing evidence obtained during a traffic stop. The State alleges that Graske’s passenger, Justin Kohel, provided the deputy with probable cause to search the car by making the “voluntary” statement “we just smoked an hour ago” to the deputy. But the statement cannot be “voluntary” or admissible because the passenger made the statement during a custodial interrogation without the benefit of Miranda rights. The State is left with only the smell of marijuana coming from the vehicle and asserts that the smell alone is probable cause to search the vehicle and arrest Graske for operating under the influence of a controlled substance. However, for the smell to provide probable cause for an operating with a controlled substances arrest, the smell must be specifically linked to Graske. Without the passenger’s statement, the State had nothing linking Graske to the smell to provide probable cause to arrest. Regarding the possession of THC charge, we agree that the smell of marijuana provided probable cause to search the vehicle and backpack. The search yielded a backpack which had contraband in it. But the trial court concluded, after considering relevant testimony, that dominion and control of the backpack belonged to the passenger, not Graske. Such a finding is neither clearly erroneous nor constitutionally infirm. We affirm in total.
December 4, 2008, during routine patrol, a
¶3 The deputy talked to the occupants and determined that the passenger, Justin Kohel, was actually the owner of the car. The deputy placed Kohel under arrest for the warrant and secured him in the squad car. After Kohel’s arrest and before giving him his Miranda warning, the deputy proceeded to question him about the marijuana smell. Kohel answered the deputy by stating something to the effect of, “We just smoked an hour ago.” After Kohel’s admission, the deputy proceeded to search the car.
¶4 During the search of the car, the deputy discovered marijuana and marijuana paraphernalia in a backpack located on the floor of the front passenger’s seat. The deputy looked through the backpack and found Graske’s checkbook along with an envelope of Kohel’s photos in the backpack. The deputy considered Graske’s checkbook in the backpack an indicia of ownership and arrested Graske for possession of THC, possession of drug paraphernalia, and operating a motor vehicle with a detectable amount of a controlled substance (first offense).
¶5 The trial court determined that the deputy’s only basis for arresting Graske was Kohel’s statement and the odor of burnt marijuana. The trial court found that Kohel’s statement was made after he was placed under arrest, handcuffed, and questioned by the deputy. Also, the court found that the odor of burnt marijuana was not sufficiently connected to Graske to establish probable cause for an arrest. The deputy smelled tobacco on Graske’s breath and did not have any basis to link Graske to the odor coming from the car other than the passenger’s suppressed statement. Finally, the trial court considered whether Graske was in possession of the backpack. The court stated that Graske’s checkbook in the backpack was not an indicia of ownership or possession and that the other testimony clearly established that the backpack was in the passenger’s possession.
State appeals the trial court’s findings that the deputy did not have probable
cause to arrest Graske for (1) operating with a controlled substance in his system
or (2) possession of marijuana and marijuana paraphernalia. Factual findings of a trial court are upheld
unless those findings are clearly erroneous.
State v. Patton, 2006 WI App 235, ¶7, 297
1. Driving While Having a Restricted Controlled Substance in his System
we will address the State’s argument that Kohel’s statement “[w]e just smoked
an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s
statement was the result of a custodial interrogation and should be suppressed.
The passenger was handcuffed, told he
was under arrest for a warrant, and placed in the backseat of a squad car
before the deputy point-blank asked “[W]here is the odor of burnt marijuana
coming from?” The question can only be
construed to be one of gathering further evidence in support of a crime that
the officer believed had occurred—and not an investigation of whether a crime has occurred. A statement made during a custodial
interrogation, such as in this case, cannot be considered voluntary and
admissible until Miranda warnings have necessarily been waived.
the State argues that the deputy’s testimony of smelling burnt marijuana is probable
cause for an arrest. The State is
correct in that, for a charge of operating a vehicle with controlled substances
in his system, the odor of marijuana in a car is sufficient probable cause to
arrest. State v. Secrist, 224
2. Possession of THC and Drug Paraphernalia Charges
¶9 Next, we
address the possession of THC and drug paraphernalia charges. The State must establish that there was
probable cause to conduct a warrantless search the car. See
at 210. As we have decided above, the
passenger’s statement was properly suppressed.
So the State is left with only the odor of marijuana that the deputy
smelled upon approaching the car. While
the smell of marijuana, without establishing a connection to the driver, is
insufficient to arrest for operating with drugs in one’s system, it nevertheless
establishes probable cause to search the car for evidence of a crime.
¶10 The State
asserts that Graske possessed the backpack found during the legal search
because it was within his reach and contained his checkbook. But
Wisconsin, constructive possession exists when contraband is found in a place
immediately accessible to the defendant and subject to his exclusive or joint
dominion and control, provided that he has knowledge of the presence of the
contraband. Schmidt v. State, 77
¶12 The trial
court found, and we agree, that there was not enough evidence connecting Graske
to the backpack to support a finding of possession The trial court properly considered Graske’s
checkbook in the backpack as a factor to determine possession of the
backpack. But the backpack was on the
floorboard of the front passenger’s seat in a vehicle that was not owned by
Graske. And even though a person can
constructively possess an object when it is in near proximity when there is no
actual dominion and control, the trial court was obviously convinced that Graske
did not. The court concluded that it
would have been difficult for the backpack to be “immediately accessible” to
Graske from where he was sitting since the backpack was sitting next to or
underneath Kohel. Just the fact that
Graske was in the same vehicle where the backpack was found does not by itself
mean that he had dominion and control over the backpack. Whether an investigatory stop meets the
constitutional and statutory standards is a question of law that we review de
novo. State v. Krier, 165
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 unless otherwise noted.
are accepted exceptions to the waiver requirement for admissibility, such as
the “public safety” exception. However,
in cases such as this, when there is no pressing emergency simultaneously
confronting the officer, there are not any accepted exceptions.