State v. Sanders

¶ 1. The State seeks review of a published court of appeals decision reversing an order and judgment of the Circuit Court for Racine County, Dennis J. Barry, Judge.1 The circuit court denied defendant Dwight M. Sanders' motions to suppress both physical evidence and statements that law enforcement officers obtained following a warrant-less entry into the defendant's home and two subsequent warrantless searches of the defendant's bedroom. The defendant was convicted of possession of cocaine with intent to deliver as a second offense and as a *261habitual offender contrary to Wis. Stat. §§ 961.41(lm)(cm)lr., 961.48, and 939.62 (2005-06).2

¶ 2. In reversing the circuit court's order and judgment, the court of appeals concluded that the law enforcement officers' warrantless entry into the defendant's home violated the defendant's rights under the Fourth Amendment to the United States Constitution3 applicable to the states under the Fourteenth Amendment. We affirm the decision of the court of appeals but on different grounds.

¶ 3. The determinative issue on review is whether the circuit court erred in denying the defendant's motions to suppress the physical evidence that law enforcement officers obtained following a warrantless entry into the defendant's home to make a warrantless arrest and two subsequent warrantless searches of his bedroom.4 This issue turns on the answer to the following question: Are the law enforcement officers' two *262warrantless searches of the defendant's bedroom justified (respectively) under the "protective sweep" and "search incident to arrest" exceptions to the Fourth Amendment warrant requirement?

¶ 4. The court concludes that although the first warrantless search of the defendant's bedroom may have been justified under the "protective sweep" exception to the Fourth Amendment warrant requirement, the second search of the bedroom was not justified under the "search incident to arrest" exception to the Fourth Amendment warrant requirement. The court further concludes that the search of the canister found in the bedroom and seizure of its contents were not justified under either exception to the Fourth Amendment warrant requirement.

¶ 5. For the reasons set forth, we affirm the decision of the court of appeals reversing the circuit court's order denying the defendant's motion to suppress and reversing the circuit court's judgment of conviction.

I

¶ 6. We briefly summarize the facts relating to the officers' obtaining possession of the evidence that the defendant moved to suppress.

¶ 7. Two City of Racine police officers, Officers Garcia and Anderson, were dispatched to a residence on a complaint of cruelty to animals. As the officers arrived, they heard a dog yelping and proceeded to the *263yard behind the residence. There, the officers observed four people, one of whom was the defendant, along with three or four dogs. Officer Garcia testified that he did not notice any signs of mistreatment or injury to the dogs.

¶ 8. Officer Anderson advised the defendant of the animal cruelty complaint and made multiple requests for the defendant to identify himself. The defendant responded to each of these requests by saying that he had done nothing wrong. According to Officer Anderson, the defendant objected to the officers' conduct, saying that "this [is] bullshit."

¶ 9. As the officers conversed with the defendant, they observed that the defendant was holding folded-up bills of currency5 as well as a yellow and black canister later revealed to be a beef jerky canister.

¶ 10. Officer Garcia testified that the defendant's residence was not a known drug house, that Officer Garcia had had no prior dealings with the defendant, that Officer Garcia was unaware at the time whether the defendant had a history of drug trafficking, and that Officer Garcia observed neither a controlled substance nor a drug transaction in the defendant's back yard. Officer Garcia also testified that the defendant's residence is located in a known drug trafficking area and that it was "not unusual" for persons to conceal controlled substances in canisters "similar to" the beef jerky canister that the officers observed in the defendant's hand.

¶ 11. Officer Anderson attempted to detain the defendant with handcuffs. At oral argument in this court, the State characterized this attempted detainer *264not as an attempted arrest upon probable cause but instead as an attempted seizure justified under the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968). The defendant has not challenged the lawfulness of Officer Anderson's attempt to detain the defendant, and the State has not briefed the validity of Officer Anderson's conduct as a Terry stop. For purposes of this appeal, we assume that the attempted detainer was justified under Terry.

¶ 12. When Officer Anderson attempted to detain the defendant, the defendant moved away from the officers and then ran into his home through the rear door. At some point while the defendant was moving toward his home, Officer Anderson ordered the defendant to stop. The defendant did not stop.

¶ 13. The officers pursued the defendant, following him into his home. The defendant ran into a bedroom and shut the door behind him. Officer Garcia and Officer Anderson each testified that the purpose of following the defendant into his home was to take the defendant into custody. Each officer also testified that he did not believe evidence of any crime would be discovered inside the defendant's home.

¶ 14. After approximately one minute or less, the defendant voluntarily exited the bedroom. Officer Garcia testified that he then ordered the defendant to the ground and that the defendant did not obey this order. Chemical spray was applied to the defendant.6 The defendant fell to the ground and was handcuffed.7

*265¶ 15. Officer Garcia testified that after the defendant was handcuffed, Officer Garcia performed a brief "protective sweep" of the bedroom in which the defendant had just been hiding. The defendant was escorted out of the home after Officer Garcia performed this brief search of the bedroom. Officer Garcia then performed a second search of the bedroom.

¶ 16. Officer Garcia testified that while performing this second search, he discovered underneath the defendant's bed the canister that the officers earlier had observed in the defendant's hand. Officer Garcia opened the canister. The canister contained a substance that Officer Garcia identified as cocaine.

¶ 17. Officer Garcia testified that his purpose in performing the second search of the defendant's bedroom was "to search!] for the canister." When asked why he did not obtain a warrant before performing this second search of the defendant's bedroom, Officer Garcia testified that he "didn't think of it."

¶ 18. Officer Anderson's testimony regarding Officer Garcia's searches of the bedroom was inconsistent with Officer Garcia's testimony on one point. Officer Anderson testified that Officer Garcia discovered the canister during his initial search of the defendant's bedroom, not during the second search. Officer Anderson offered no testimony regarding the nature or timing of either the first or second searches of the bedroom.

¶ 19. The circuit court did not make a factual finding regarding whether Officer Garcia discovered the canister and contraband during his first or second search of the defendant's bedroom. In his brief, the defendant states that the canister and contraband were discovered during the second search of the *266defendant's bedroom.8 The State asserts in its reply brief that it is unclear whether the canister was found during the first or second search of the defendant's bedroom.9

¶ 20. Subsequent to his arrest, the defendant was transported to the Racine County Jail. The defendant allegedly made inculpatory statements to police while at the jail.

¶ 21. The State charged the defendant with one count of obstructing an officer and one count of second offense possession of cocaine with intent to deliver. The defendant was charged as a habitual offender under each count.

¶ 22. The defendant moved to suppress as evidence the contraband that Officer Garcia discovered while searching the defendant's bedroom, as well as the statements that the defendant allegedly made at the Racine County Jail. The circuit court denied the defendant's suppression motion.

¶ 23. The defendant pled guilty to possession of cocaine with intent to deliver as a second offense and as a habitual offender. The defendant filed a motion for postconviction relief, which the circuit court denied.

¶ 24. The court of appeals reversed the order of the circuit court, holding that the officers' warrantless entry into the defendant's residence was unlawful. The court of appeals did not address the question whether the searches of the defendant's bedroom were lawful.

*267¶ 25. Assuming without deciding that the war-rantless entry into the defendant's home was justified under the Fourth Amendment, we consider whether the warrantless search of the defendant's bedroom and the warrantless search of the canister and seizure of the contents thereof are constitutional under the Fourth Amendment. The question whether a search is constitutional is a question of constitutional fact.10 This court upholds the circuit court's findings of evidentiary or historical facts unless those findings are clearly erroneous. This court determines the application of constitutional principles to those evidentiary facts independently of the circuit court and court of appeals but benefiting from those courts' analyses.11

¶ 26. Neither the record nor the circuit court's findings resolves whether the canister was found during the first or second search of the defendant's bedroom. Resolution of this factual question is unnecessary for purposes of this review. We conclude that the search of the canister and seizure of its contents were unlawful regardless of whether the canister was found during the first or second search of the bedroom.

¶ 27. We approach the issue of the search of the bedroom and the search of the canister and seizure of its contents with the understanding that warrantless searches are per se unreasonable under the Fourth Amendment, subject to a few carefully delineated ex*268ceptions.12 We must therefore determine whether the warrantless search of the defendant's bedroom and the search of the canister and seizure of the contents of the canister fall within any of the delineated exceptions. The burden is on the State to show that the search of the bedroom and search of the canister and seizure of its contents fall within one of the exceptions to the warrant requirement. "[T]he general requirement that a search warrant be obtained is not lightly to be dispensed with, and the burden is on those seeking an exemption from the requirement to show the need for it."13

A. The First Search

¶ 28. For purposes of this part of the opinion, we assume that Officer Garcia discovered the canister and contraband during his first search of the defendant's bedroom and that the officers' presence in the home was lawful.

¶ 29. The record offers little information regarding what happened during the first search. Officer Garcia's testimony flatly contradicts the very premise that Officer Garcia discovered the canister and contraband during his first search of the bedroom. Officer Anderson offered no testimony describing Officer Garcia's searches.

¶ 30. The State's brief seems to assume that if the first warrantless search of the bedroom falls within an exception to the warrant requirement, the search of the *269canister and seizure of its contents during the first search of the bedroom also fall within an exception to the warrant requirement.

¶ 31. The State relies on the "protective sweep" exception to the search warrant requirement established in Maryland v. Buie, 494 U.S. 325 (1990), to validate the search of the bedroom.

¶ 32. The protective sweep doctrine applies once law enforcement officers are inside an area, including a home. Once inside an area a law enforcement officer may perform a warrantless "protective sweep," that is, "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others."14 Under Buie, a law enforcement officer is justified in performing a warrantless protective sweep when the officer possesses "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others."15 Because the protective sweep exception authorizes only a limited intrusion, Buie requires the officer to have only reasonable suspicion that the area poses a danger to the officer or others; the test is not probable cause.16

*270¶ 33. The protective sweep extends "to a cursory inspection of those spaces where a person may be found"17 and may last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises."18

¶ 34. The State argues that Officer Garcia's initial search of the defendant's bedroom was justified under the Buie standard. According to the State, the officer had reasonable suspicion of drug trafficking and therefore understandably feared others may be present who would jeopardize the officers' safety.19 The State recounts that the defendant "was uncooperative, had fled, was carrying money and a container that looked like it could be used to conceal drugs and, in addition, the area where [the defendant's] apartment is located is noted for drug trafficking."20

¶ 35. Accepting for the moment the State's position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant's bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified, we nevertheless must conclude that Officer Garcia's search of the canister and seizure of its contents clearly were not within *271the purpose of the protective sweep. The search of the canister and seizure of its contents were not part of a search for persons who might pose a danger to law enforcement officers or to others. No person could be hiding in the canister. Furthermore, the officers had no articulable suspicion that weapons were involved in the instant case. The search of the canister and seizure of its contents therefore do not fall within the "protective sweep" exception to the search warrant requirement.

¶ 36. Accordingly, we determine that if the canister was searched and the contents of the canister were seized during the first search of the defendant's bedroom, the search of the canister and the seizure of its contents do not fall within the protective sweep exception to the search warrant requirement. The physical evidence is therefore the fruit of a search that violated the Fourth Amendment and must be suppressed.

¶ 37. The State offers no justification for the officers' search of the canister and seizure of its contents beyond the protective sweep exception to the warrant requirement. Under our case law, warrantless seizure and inspection of evidence are justified when the officer is lawfully in a position to observe the evidence, the evidence is in plain view of the officer, the discovery is inadvertent, and the item seized in itself or in itself with facts known to the officer at the time of the seizure provides probable cause to believe there is a connection between the evidence and criminal activity.21 The State does not, however, cite to or rely on this *272line of cases and does not argue in this court that Officer Garcia had probable cause to believe that there was a connection between the canister and criminal activity. The State argues in this court only that the officers had reasonable suspicion of a drug offense.22

¶ 38. The present case is reminiscent of Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), in which officers were lawfully in an apartment looking for a shooter. Suspecting that stereo components in the squalid, ill-appointed apartment might be stolen goods, one of the officers moved some pieces of equipment slightly to reveal and record their serial numbers. The officer called in the serial numbers and immediately established that the equipment was stolen property. The law enforcement officers seized the equipment. The United States Supreme Court held that the officer's initial movement of the equipment was a search separate and apart from the search of the apartment for the shooter that justified the officer's original entry into the apartment and that the search of the equipment was unreasonable under the Fourth Amendment because only reasonable suspicion, not probable cause, existed to believe that the equipment was stolen.

¶ 39. Hicks teaches that even in the face of a lawful entry and reasonable suspicion that an object is evidence of a crime, a slight movement of the object is an impermissible search whenever it is "unrelated to the objectives of the authorized intrusion."23

*273¶ 40. In the instant case the officers were in the home to arrest the defendant for obstructing the officers. The officer did not merely move the canister slightly and examine its exterior surface. Rather, the officer removed the canister from under the bed and opened it.

¶ 41. Because the officer's search of the canister and seizure of the contents were unrelated to the objectives of the authorized intrusion into the bedroom as a protective sweep in relation to arresting the defendant for obstructing the officers, the officer's search of the canister and seizure of its contents do not fall within the protective sweep exception to the warrant requirement.

¶ 42. Accordingly, we conclude that if the canister was searched and its contents were seized during the first search of the defendant's bedroom, the physical evidence in the canister is the fruit of a search that violated the Fourth Amendment and must be suppressed.

B. The Second Search

¶ 43. For purposes of this part of the opinion, we assume that Officer Garcia searched the canister and seized its contents during his second search of the defendant's bedroom and that the officers' presence in the home was lawful.

¶ 44. The record offers little information regarding what happened during the second search of the bedroom. Officer Garcia testified that he discovered the canister and contraband during his second search of the bedroom while he was looking under the bed.

¶ 45. The defendant was arrested in the living room. The parties do not dispute that the police had probable cause to arrest the defendant for obstructing *274an officer. The State relies on the "search incident to an arrest" exception to the Fourth Amendment warrant requirement to justify the second search of the bedroom.

¶ 46. The State's brief seems to assume that if the second warrantless search of the bedroom falls within an exception to the warrant requirement, the search of the canister and seizure of its contents during the second search of the bedroom also fall within an exception to the warrant requirement.

¶ 47. The circuit court concluded that the search of the bedroom was a valid search pursuant to an arrest.

¶ 48. The scope of what is conventionally termed the "search incident to arrest" exception to the Fourth Amendment warrant requirement was set forth in Chimel v. California, 395 U.S. 752 (1969). In Chimel, the United States Supreme Court held that a lawful arrest creates a situation justifying a contemporaneous, warrantless "search of the arrestee's person and the area within his immediate control."24 It is a search of the area within the arrestee's immediate control that is at issue here.

¶ 49. This exception to the warrant requirement serves two primary governmental interests. "One is the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape. Another is the need to prevent the destruction or concealment of evidence."25

*275¶ 50. Significantly, while "the Chimel rule states that it is reasonable to search an area near the ar-restee," the rule does not permit a warrantless search of "an area so broad as to be unrelated to the protective purposes of the search."26 "Thus, Chimel defines the area of 'immediate control' within which the police may reasonably search incident to arrest as 'the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.' "27

¶ 51. The State contends that Officer Garcia's second search of the defendant's bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was "within [the defendant's] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers' sight."28

¶ 52. Although the bedroom might be considered within the defendant's immediate presence or control for Chimel purposes, we do not agree with the State that the second search of the bedroom was a search incident to arrest under the circumstances of the present case. The second search occurred after the defendant had been removed from the home.29 The defendant could not have gained possession of a weapon or destructible evidence from his bedroom when the *276defendant was not even inside the home when the bedroom and canister were searched and the contents of the canister seized.

¶ 53. The State relies upon State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990), to support the second search of the bedroom under the Chimel standard even though the defendant in the instant case had been removed from the home. Murdock does not authorize the search of the bedroom at issue in the present case as a search incident to arrest.

¶ 54. In Murdock, law enforcement officers performed a warrantless search of an area immediately surrounding the defendant. The search was contemporaneous with handcuffing the defendant.30 The search involved a pantry-type closet connected to the room in which the arrest was made. The court upheld the search notwithstanding the defendant's restrained condition and apparent inability to access the areas immediately surrounding him. The Murdock court was "unwilling to say that a defendant who is arrested in and remains in his or her dwelling as the search is conducted could never regain access to areas in his or her immediate control at the time of arrest."31

¶ 55. The Murdock court also determined that even when an arrestee is handcuffed, "we cannot require an officer to weigh the arrestee's probability of success in obtaining a weapon or destructible evidence *277hidden within his or her immediate control,"32 According to the Murdock court, Chimel authorizes a limited, contemporaneous search for weapons and evidence in the area surrounding the arrestee. "Its sanction of a contemporaneous, limited search protects the individual's privacy interests in areas outside his or her immediate control and also serves valid societal interests in protecting officer safety and preserving evidence."33

¶ 56. The facts in the present case do not resemble those in Murdock. In the instant case, unlike in Murdock, the defendant was not in his home when the bedroom was searched. The defendant had already been removed from the home at the time of the search. No possibility existed that the defendant could obtain a weapon or destroy evidence in the home. The purposes of the search incident to arrest were achieved by removing the defendant from his home. By removing the defendant from the home, the officers eliminated the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape or to prevent the destruction or concealment of evidence.

¶ 57. Neither Chimel nor Murdock governs the instant case, in which the defendant was removed from the home before the search supposedly incident to the arrest.

¶ 58. At oral argument, the State suggested that the law enforcement officers were justified in conducting the second warrantless search of the defendant's bedroom because it was "highly likely" that persons other than the defendant would destroy evidence inside the defendant's bedroom had the officers waited to *278obtain a warrant before searching for the evidence. Nothing in the record supports speculation that other persons posed risks. Nothing in the record suggests that the law enforcement officers could not have maintained the status quo and could not have obtained a search warrant promptly upon a showing of probable cause to believe illicit drugs were in the home.

¶ 59. Accordingly, we determine that the second search of the bedroom does not fall within the search incident to arrest exception to the search warrant requirement. If the canister was searched and the contents seized during the second search of the defendant's bedroom, the search and seizure were not within the State's claimed search incident to arrest exception to the search warrant requirement. The physical evidence in the canister is therefore the fruit of a search that violated the Fourth Amendment and must be suppressed.

H* H* $ $

¶ 60. For the reasons set forth, we affirm the decision of the court of appeals reversing the circuit court's order denying the defendant's motion to suppress and reversing the circuit court's judgment of conviction.

By the Court. — The decision of the court of appeals is affirmed.