COURT OF APPEALS
DATED AND FILED
April 13, 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
Gordon J. Schlapper,
from an order of the circuit court for
¶<![if !supportFields]>1<![endif]> PETERSON, J.<![if !supportFootnotes]><![endif]> The State appeals an order granting Gordon Schlapper’s motion to suppress evidence obtained when police searched his vehicle. The State argues the evidence should not have been suppressed because the search was (1) validly conducted as incident to the passenger’s arrest, and (2) supported by probable cause. We agree. We therefore reverse and remand.
¶<![if !supportFields]>2<![endif]> On March 14, 2009, trooper Derrek Hanson stopped Schlapper for speeding. When Hanson approached Schlapper’s vehicle, he smelled intoxicants and saw an open container of alcohol on the center console, an open twelve-pack of beer on the floor, and the neck of what appeared to be a liquor bottle sticking out of the beer pack. When Hanson inquired about open intoxicants, Schlapper handed him the container from the center console, a can of Coors Light. The passenger in the front seat, David Marx, also handed him a glass of cola and liquor. As Hanson walked back to his squad he turned to watch Schlapper’s vehicle and saw a plastic baggie thrown out of the passenger side window. He immediately returned to the vehicle and asked Marx if that was his “dope that just flew out the window.” Marx said it was. Hanson retrieved the baggie, determined it was marijuana, placed Marx under arrest for possession of Tetrahydrocannabinols (THC), and placed him in the squad.
¶<![if !supportFields]>3<![endif]> After determining Schlapper was not operating while intoxicated, Hanson searched the vehicle. During the search, he found a container of marijuana, a pipe, and an alligator clip, which he testified is commonly used to smoke marijuana. Hanson then placed Schlapper under arrest for possession of THC and drug paraphernalia.
¶<![if !supportFields]>4<![endif]> Schlapper moved to suppress the evidence, arguing Hanson
lacked probable cause to search his vehicle.
The State opposed the motion, contending it was lawful (1) as a search
incident to Marx’s arrest, and (2) also because there was probable cause to
search. The circuit court did not appear
to address the State’s probable cause argument.
Instead, purporting to rely on Arizona v. Gant 129
¶<![if !supportFields]>5<![endif]> The only issue on appeal is whether the evidence Hanson
obtained after searching Schlapper’s vehicle should be suppressed. When reviewing a circuit court’s ruling
whether to suppress evidence, we uphold the circuit court’s findings of fact
unless clearly erroneous. State
v. Vorburger, 2002 WI 105, ¶32, 255
1. Search incident to arrest
¶<![if !supportFields]>6<![endif]> The circuit court’s ruling was based on its interpretation of
in which the United States Supreme Court discussed the circumstances in which police
may search a vehicle incident to the arrest of one of its occupants. The issue in Gant was whether police
could search a vehicle after arresting the defendant for operating without a
license and securing him in the squad car.
The Court held they could not because the considerations that permit a
search incident to an arrest—officer safety and evidence preservation—were not
implicated. Gant, 129
¶<![if !supportFields]>7<![endif]> Here, the circuit court appeared to treat these two circumstances as a two-part conjunctive test, ending its inquiry after concluding Marx could not reach the passenger compartment because he “had been … secured by handcuffing … [and] placed in the officer’s squad car.” Accordingly, it failed to proceed to the second circumstance: when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
¶<![if !supportFields]>8<![endif]> We conclude this second circumstance authorized Hanson to
search Schlapper’s car. Indeed, this is
precisely the type of case Gant observed the circumstance would
encompass. Gant illustrated this by reference
to an earlier case, New York v. Belton, 453 U.S. 454 (1981). In Belton, the officer arrested the
defendant after he “smelled burnt marijuana and observed an envelope on the car
floor marked ‘Supergold’—a name he associated with marijuana.” Gant, 129 S. Ct. at 1717 (discussing
2. Probable Cause
¶<![if !supportFields]>9<![endif]> The circuit court did not address the State’s argument that the search was also supported by probable cause, apparently because the court concluded Gant prohibited the search. However, Gant only addressed searches incident to arrest. Nothing in Gant precludes a vehicle search based on probable cause. Here, probable cause provided an additional and independent basis for Hanson to search Schlapper’s vehicle.
¶<![if !supportFields]>10<![endif]> Police may conduct a warrantless search of a vehicle if there
is probable cause to believe it contains evidence of criminal activity. Gant, 129
By the Court.—Order reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
<![if !supportFootnotes]><![endif]> This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
<![if !supportFootnotes]><![endif]> Schlapper appears to contend Gant did not justify the search because Marx, not Schlapper, was the arrestee. Gant contains no requirement any particular occupant of the vehicle be the arrestee. Instead, it holds “[p]olice may search a vehicle incident to a recent occupant’s arrest … if … it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009) (emphasis added).
Schlapper focuses on Hanson’s statement he did not believe he had probable
cause to search the vehicle. The
officer’s subjective belief is irrelevant.
“In determining whether probable cause exists, the court applies an
objective standard and is not bound by the officer’s subjective assessment of
motivation.” State v. Kutz, 2003 WI
App 205, ¶12, 267