By Joe Forward, Legal Writer, State Bar of Wisconsin

July 21, 2010 – Following a recent United States Supreme Court ruling, the Wisconsin Supreme Court has restricted the authority of police to search an arrestee’s vehicle under the Wisconsin Constitution’s protection against unreasonable searches and seizures.

However, where the police reasonably relied on clear and settled Wisconsin Supreme Court precedent at the time of the search, a good-faith exception applies to preclude suppression of illegally obtained evidence, the court held.

In the both State v. Dearborn, 2010 WI 84 (July 15, 2010), and State v. Littlejohn, 2010 WI 85 (July 15, 2010), the state supreme court overruled (5-2) a previous decision that allowed police to search the entire passenger compartment of a vehicle following a lawful arrest, without exception, including locked compartments such as a glove box and the items found within.

Now, Wisconsin police may search the passenger compartment of a motor vehicle only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. However, an exception applies.

Police may search the passenger compartment of a detained and secured arrestee when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.

This rule follows the U.S. Supreme Court’s decision in Arizona v. Gant, 556 U.S. __, 129 S. Ct. 1710 (S.Ct., 2009), interpreting the U.S. Constitution’s protection against unreasonable searches and seizures.

However, Gant was decided after the searches in Dearborn and Littlejohn took place. Thus, the court held that the good faith exception to the exclusionary rule applied to preclude suppression of evidence because police relied on clear and settled  Wisconsin law. That is, the Gant rule restricting searches only applies to searches that took place after Gant was decided.

Because the facts in both Dearborn and Littlejohn are similar, the court adopted the same reasoning in both cases, but developed its legal reasoning in Dearborn only. The dissenting opinion, filed by Chief Justice Shirley S. Abrahamson, is also developed in Dearborn only.

Facts

The relevant facts of Dearborn and Littlejohn are similar. In both cases, the arrestee exited the vehicle and locked the doors prior to a lawful arrest. In both cases, police placed the arrestee in custody, and subsequently found drugs upon searching the vehicle. Both defendants moved to suppress evidence obtained, asserting an unlawful search and seizure.

In Dearborn, police found marijuana paraphernalia with small traces of marijuana in the defendant’s passenger compartment. In Littlejohn, police found marijuana and cocaine in the passenger compartment and in the locked trunk. Based on this evidence, police obtained a warrant to search the defendant’s residence, and found more incriminating evidence.

Changing law

In State v. Fry, 131 Wis. 2d 152, 388 N.W. 2d 565 (1986), the Wisconsin Supreme Court determined that a search of a locked glove compartment after an arrestee was placed in custody did not violate the U.S. or Wisconsin constitutions under the U.S. Supreme Court case of New York v. Belton, 453 U.S. 454 (1981).

The Belton case announced a bright-line rule that passenger compartments were “searchable so long as the arrestee was at the scene.” The Belton rule did not require the arrestee to be in “immediate control” of the passenger compartments, as was the case under previous law.

In Gant, the U.S. Supreme Court rejected the Belton rule. The Gant court held that police are authorized to search a vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. In other words, police cannot search the car unless the arrestee has immediate access to it.

However, the Gant court held that police may search “an otherwise inaccessible vehicle” when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

In Dearborn, the Wisconsin Supreme Court held that “Fry and any decisions relying on Fry’s interpretations of the Belton Rule are overruled.” The court stated: “[W]e hereby adopt the reasoning in Gant as the proper reading of Article 1, Section 11 of the Wisconsin Constitution (protecting against unreasonable searches as seizures).”

Application of Gant

In Dearborn and Littlejohn, the police searched the arrestees’ vehicles after taking them into custody. Thus the arrestees’ were secured and not within reaching distance of the passenger compartment. Under Gant, the supreme court concluded, the searches were unlawful and any evidence seized within was seized unlawfully.

However, Gant allows police to search an otherwise inaccessible vehicle when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In both Dearborn and Littlejohn, police stopped the defendants because their licenses were revoked.

In both cases, the court explained, police could not have reasonably expected to find evidence in the vehicle regarding a revoked license. Thus, the exception to the Gant rule that prohibits police from searching an inaccessible vehicle did not apply.

Good faith exception and the retroactivity rule

Concluding the evidence was seized unlawfully under Gant, the court nevertheless held that the good faith exception precludes suppression of the evidence obtained unlawfully because the officers relied in good faith on Wisconsin law as it stood at the time of the search. That is, Gant had not been decided at the time of the searches in Dearborn and Littlejohn.

Although at odds with the retroactivity rule, which states that “newly declared constitutional rules ‘must apply to all similar cases pending on direct review,’” the court explained, “[b]oth this court and the United States Supreme Court have determined that the retroactivity rule does not bar application of the good faith exception in situations where police act in objectively reasonable reliance on settled (albeit subsequently overruled) law.”

The court noted that application of the exclusionary rule is a remedy to deter police misconduct, but the police did not act unlawfully at the time of the search in these cases. However, the “exclusionary rule is inappropriate only when the officer reasonably relies on clear and settled precedent,” the court held.

In Dearborn, the appeals court affirmed the defendant’s conviction for possession of marijuana, and the supreme court affirmed the appeals court. In Littlejohn, the circuit court granted the defendant’s motion to suppress evidence, and the appeals court reversed. The supreme court reversed the appeals court, and remanded the case for further proceedings.

Dissent

Chief Justice Shirley S. Abrahamson wrote a dissenting opinion, joined by Justice Ann Walsh Bradley. The chief justice agreed that the police searches in Dearborn and Littlejohn were unconstitutional under Gant, but disagreed that evidence obtained is admissible based on the good-faith exception to the exclusionary rule.

“In my view, the majority has bypassed key precedent and miscalculated the costs and benefits that drive its decision,” Abrahamson wrote.

The chief justice argued that the rule of retroactivity controls, and asserted that the majority relies on “prior decisions that are not controlling in resolving the tension between the retroactivity rule and the exclusionary rule.”