State v. Caban

563 N.W.2d 501, 210 Wis. 2d 597, 1997 Wisc. LEXIS 62

• Court: Wisconsin Supreme Court
• Decided: June 12, 1997
• Docket: 94-1015-CR
• Status: Published

Opinions

WILLIAM A. BABLITCH, J.

¶ 1. The State of Wisconsin (State) seeks review of a court of appeals' decision which held the police did not have probable cause to search a vehicle belonging to Marty R. Caban (Caban). State v. Caban, 202 Wis. 2d 417, 551 N.W.2d 24 (1996). The State argues that even though there was probable cause to search Caban's vehicle, Caban did not raise the issue of probable cause to search the vehicle at the circuit court and is therefore precluded from raising it on appeal. We agree that Caban waived the issue of probable cause to search the vehicle and accordingly reverse the court of appeals.

¶ 2. The facts derived from the complaint are as follows: On March 31, 1993, Caban drove to the home of his friends, Fred and Denise Hollingsworth. Upon arriving at the Hollingsworth home, Caban parked his car just south of their driveway, on a public street.

¶ 3. Unbeknownst to Caban, the Hollingsworth residence was under surveillance at the time by the Rock County Metro Narcotics Unit (Narcotics Unit) in preparation for the execution of a search warrant.. The search warrant specifically targeted the Hollingsworth apartment, its residents, Fred and Denise Hollings-worth, and any vehicles, located on the premises. Neither Caban nor his vehicle was named in the search warrant.

¶ 4. A surveillance officer observed Caban park his automobile and then enter the Hollingsworth residence. The officer did not observe Caban carrying anything into the residence, but the officer noted that Caban was wearing a dark, ankle-length coat. Minutes after Caban entered the apartment, members of the Narcotics Unit entered the residence to execute the search warrant. Inside the Hollingsworth home, Narcotics Unit officers found Fred and Denise Hollingsworth, their three children, and Caban. They also discovered a ziplock baggie containing 29.9 grams of marijuana. Hollingsworth acknowledged that the marijuana belonged to him, but told the police that, just prior to the execution of the warrant, Caban had come by and asked if he wanted to purchase any marijuana. Hollingsworth further advised the officers that he had purchased marijuana from Caban several times in the past.

¶ 5. The officers forced Caban to the floor and placed him in hand restraints. After the occupants of the residence were secured, Narcotics Unit Detective Richard J. Mussey commented that he recognized Caban from the scene of a previous Narcotics Unit search. While Caban was secured in hand restraints, Detective Mussey searched him to assure the safety of the officers. This search produced no weapons and no contraband. However, in Caban's pockets, Detective Mussey discovered $1199.00 in United States currency.

¶ 6. Detective Mussey then ordered Deputy Hoerler of the Rock County Sheriffs Department to search Caban's vehicle. The officers at the scene made no attempt to obtain a search warrant for Caban's vehicle. Caban was not asked, nor did he consent to the search of his vehicle. No other vehicles were searched pursuant to the search warrant for the Hollingsworth residence.

¶ 7. Acting on the orders of Officer Mussey, Deputy Hoerler searched the entire unlocked interior and the locked trunk of Caban's vehicle while it was parked unattended at the curb. Deputy Hoerler recovered a black plastic bag from the front passenger floor area of the vehicle which she turned over to Drug Unit Officer Niman. Inside the bag were two clear plastic bags of marijuana, one weighing 19.6 grams and the other weighing 28.4 grams. Officer Niman seized the marijuana.

¶ 8. After the officers discovered the marijuana in Caban's vehicle, he was placed under arrest. Subsequently, Caban was charged with possession of a controlled substance with intent to deliver pursuant to Wis. Stat. § 161.41(lm)(b) (1993-94).¹ Caban filed a pre-trial motion to suppress as evidence the marijuana found during the search.

¶ 9. The written motion, cited in relevant part below,² asserts a broad Fourth Amendment challenge to the automobile search. However, Caban's motion did not include a request to suppress the evidence on the ground that there was no probable cause for the search of his vehicle.

¶ 10. On October 25,1993, a suppression hearing was held on the motion in the Rock County Circuit Court, Judge Michael J. Byron, presiding. At the suppression hearing, defense counsel's questioning and argument did not pursue the issue of probable cause for the search of the automobile and at various times attempted to prevent the prosecution from doing so by raising objections to questions from the State going to the issue of probable cause to search the vehicle. The thrust of the defendant's questioning and argument was that the search of Caban's vehicle was not incident to a lawful arrest, nor was it within the scope of the search warrant for the Hollingsworth residence.

¶ 11. The circuit court, finding probable cause for Caban's arrest, denied Caban's motion to suppress. Caban pled guilty and was convicted. He appealed.

¶ 12. At the court of appeals, Caban argued for the first time that the officers lacked the requisite probable cause to search his vehicle and, accordingly, evidence of the marijuana seized during the search was inadmissible. The State argued that Caban had waived his right to appeal the issue of probable cause by failing to raise it at the trial level. Although two members of the court of appeals agreed with the State, a different plurality agreed to hear Caban's appeal. In his dissent, Judge Dykman concluded that Caban had neither specifically raised probable cause to search the vehicle, nor had his broad Fourth Amendment challenge raised the issue. In his concurrence, Judge Gartzke agreed, but concluded that the court of appeals could properly use its power of discretionary review in this case because the circuit court raised the issue sua sponte and the facts were sufficiently developed to decide whether probable cause existed. Judge Sundby, author of the majority opinion, concluded that Caban had preserved his right to appeal the issue of probable cause to search the vehicle by raising a broad Fourth Amendment challenge before the circuit court. Upon review, the court of appeals concluded that the police did not have probable cause to search Caban's automobile, and reversed Caban's conviction. We reverse the court of appeals and remand for reinstatement of Caban's conviction.

¶ 13. This case presents two issues for review: (1) whether Caban raised the issue of probable cause to search his automobile before the circuit court, thus preserving his right to appeal that issue; and if not, (2) whether this court will employ its power of discretionary review to consider the issue of probable cause.

¶ 14. Both issues involve the scope of appellate review. The general rule is that issues not presented to the circuit court will not be considered for the first time on appeal. State v. Gove, 148 Wis. 2d 936, 940-41, 437 N.W.2d 218 (1989). This court has frequently stated that even the claim of a constitutional right will be deemed waived unless timely raised in the circuit court. Id. The party raising the issue on appeal has the burden of establishing, by reference to the record, that the issue was raised before the circuit court. Young v. Young, 124 Wis. 2d 306, 316, 369 N.W.2d 178 (Ct. App. 1985).

¶ 15. The reasons for the waiver rule go to the heart of the common law tradition and the adversary system. By limiting the scope of appellate review to those issues that were first raised before the circuit court* this court gives deference to the factual expertise of the trier of fact, encourages litigation of all issues at one time, simplifies the appellate task, arid discourages a flood of appeals. David L. Walther, Patricia L. Grove, Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, §3.2 (1995). Thus, when a party seeks review of an issue that it failed to raise before the circuit court, issues of fairness and notice, and judicial economy are raised.

■¶ 16. In examining whether Caban raised the issue of probable cause to conduct the automobile search, we look first to whether he raised the issue in his written motion.³ Wisconsin law requires movants to ”[s]taté. with particularity the. grounds for the motion. . . ." Wis. Stat. § 971.30(2)(c). The rationale underlying § 971.30's particularity requirement is notice - notice to the nonmoving party and to the court of the specific issues being challenged by the movant. Both the opposing party and the circuit court must have notice of the issues being raised by the defendant in order to fully argue and consider those issues.. See Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand. L. Rev. 1023, 1029 (1987). Neither the principle of notice, nor Wis. Stat. § 971.30 makes an exception for motions raising Fourth Amendment challenges.

¶ 17. Therefore, in order to raise the issue of probable cause in his written motion, Caban was required to state with particularity, i.e., specifically assert, that the police lacked probable cause to search his automobile. This he failed to do. Caban's motion states several other Fourth Amendment issues with varying degrees of particularity, but not the issue of probable cause to search the vehicle. Accordingly, we conclude that Caban's written motion failed to state the issue of probable cause with particularity as required by Wis. Stat. § 971.30(2).

¶ 18. Our analysis does not end with the written motion. Caban did not waive the right to argue the issue of probable cause on appeal merely by his failure to raise that specific issue in his written motion. In determining whether an issue was raised before the circuit court, we look to both the motion and to the suppression hearing. State v. Santiago, 206 Wis. 2d 3, 25-26, 555 N.W.2d 687 (1996). Accordingly, we turn our attention next to the suppression hearing.

¶ 19. A brief review of the law of search and seizure gives perspective to our analysis. The Fourth Amendment protects "(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. ..." A warrantless search is unreasonable per se. State v. Johnston, 184 Wis. 2d 794, 518 N.W.2d 759 (1994). However, the law recognizes an "automobile exception" to the Fourth Amendment warrant requirement. State v. Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), cert. denied, 114 S.Ct. 1865 (1994); State v. Tompkins, 144 Wis. 2d 116, 423 N.W.2d 823 (1988). The warrantless search of an automobile is justified when the police have probable cause to believe that an automobile, found in a public place, contains evidence of a crime; no showing of exigent circumstances is required. Weber, 163 Wis. 2d at 137. Thus, the police could conduct a search of Caban's automobile so long as it was in a public place and they had probable cause to believe that it held evidence of a crime. Now we turn to the suppression hearing.

¶ 20. At the suppression hearing, defense counsel essentially argued only two issues: (1) the police did not have a search warrant to search Caban's automobile for controlled substances, and (2) there were no exigent circumstances justifying a warrantless search. A careful perusal of the testimony at the suppression hearing reveals that at no time during cross-examination of the State's witnesses, direct examination of his own witness, or closing arguments to the court did Caban raise the issue of probable cause to search the vehicle. Of particular note, showing that Caban's only arguments addressed the issues of lack of a warrant and lack of exigent circumstances, is Caban's closing argument to the circuit court, quoted in full:

Obviously the Hollingsworths were the targeted people in terms of this search warrant. It was their premises, and the vehicle's [sic] parked on their premises. Mr. Caban was not mentioned nor his vehicle mentioned in the search warrant. He did not consent to the search. The car, we believe, was parked off the premises of the Hollingsworths. It was not a threat to any law enforcement person. There was no exigent circumstances whatever that may or may not be these days. He was not operating or behind the vehicle at the time that they went to it and proceeded to search it. It was not pursuant, for example, to a traffic arrest or stop. They could have obtained a search warrant. Telephonic search warrant's a term I've just recently heard. There obviously must be one if I've heard it somewhere.

In any event, they could have obtained a search warrant very easily for the vehicle. It was not a threat to anyone. They could have waited and done their search at that time. He did not — he was not even present during the search. He was arrested even before anything happened for something. We're not sure what he was arrested for, except that, as it turns out, he was not arrested for any possession of controlled substance on the premises.

So the arrest perhaps is somewhat questionable, other than he was in the vicinity of what obviously were controlled substances that the Hol-lingsworths had. I think that the state in this instance really should have obtained a search warrant before they proceeded to look in the vehicle. He's on probation. Perhaps even the probation agent could have directed that that be done, directed Mr. Caban to consent to it. They have a lot of authority once they're on probation. But that was not done here either. And it seems to me that this just went too far when they're searching any vehicle parked somewhere on the street.

R:38 at 59-61. As can be seen from Caban's closing arguments, he failed to raise the issue of probable cause to search the vehicle.

¶ 21. We conclude, given the above, that by his silence, both in his motion and at the suppression hearing, Caban failed to raise the issue of probable cause to search the vehicle before the circuit court; therefore, we hold that he waived his right to appeal that issue.

¶ 22. The rule of waiver is one of judicial administration and does not limit the power of an appellate court in a proper case to address issues not raised in the circuit court. Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980). This court has the power in the exercise of its discretion, to consider issues raised for the first time on appeal. Arsand v. City of Franklin, 83 Wis. 2d 40, 55, 264 N.W.2d 579 (1978). Our power of discretionary reversal is governed by statute. Wisconsin Stat. § 751.06 provides:

Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

¶ 23. Thus, a circuit court order may be reversed in either of two situations: (1) whenever it is probable that justice has for any reason miscarried; or (2) whenever the real controversy has not been fully tried. State v. Wyss, 124 Wis. 2d 681, 735, 370 N.W.2d 745 (1985), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990). Separate criteria exists for determining each of these two distinct situations.

¶ 24. We begin our analysis by considering whether it is probable that a miscarriage of justice has occurred. The grounds for ordering a discretionary reversal under this circumstance have been clearly stated by this court. In order for us to exercise our discretion and order a new hearing on the issue of probable cause, we must first determine whether there is a "substantial degree of probability that a new [hearing] would produce a different result." Wyss, 124 Wis. 2d at 734. Despite Caban's failure to raise the issue at the suppression hearing, the circuit court found that the officers had probable cause to arrest Caban and search his automobile. Without determining the issue of whether the police had probable cause to search Caban's vehicle, a careful review of this entire record does not persuade us that a "substantial degree of probability" exists that a new hearing would produce a different result.

¶ 25. Alternatively, there may be a discretionary reversal whenever the real controversy has not been fully tried. In this circumstance, the court may reverse even though it cannot conclude to a substantial degree of probability that a new hearing would produce a different result. Wyss, 124 Wis. 2d at 735. Generally, the real controversy is not fully tried when the fact finder did not hear all the relevant evidence. Id. at 746.

¶ 26. Again without determining the issue of probable cause to search the vehicle, a careful review of this entire record persuades us that the circuit court did hear all the relevant evidence. We conclude that if the issue of probable cause has not been fully tried, it is only because of defense counsel's objections to the admission of probable cause evidence, and defense counsel's failure to introduce evidence contrary to a finding of probable cause. Accordingly, we conclude that this is not an appropriate case in which to use our power of discretionary reversal under Wis. Stat. § 751.06.

¶ 27. In sum, we hold that, in order to challenge the constitutionality of the automobile search on probable cause grounds, Caban has the burden of establishing, by reference to the record, that he raised the issue before the circuit court. In making this determination, we consider both the written motion and the motion hearing. We conclude that, by his silence, Caban failed to raise the issue of probable cause to search the vehicle before the circuit court; therefore, we hold that he waived his right to appeal that issue. We further conclude that justice does not warrant discretionary review of the issue of probable cause. Accordingly, we reverse the court of appeals and remand for reinstatement of Caban's conviction.

By the Court. — The decision of the court of appeals is reversed and cause remanded.

1 All future statutory references are to the 1993-94 volume unless otherwise indicated.

2 The defendant, Marty R. Caban, by his counsel, hereby moves the Court to suppress as evidence certain property seized by the Rock County Metro Narcotics Unit and Janesville Police Department on the 31st of March, 1993, from a 1982 Dodge automobile, titled in the name of the defendant herein, for the following reasons:

1. That on or about the time of the seizure, the Rock County Metro Unit was in the process of executing a search warrant at 1300 Hamilton Avenue, Janesville, Rock County, Wisconsin, which was the residence at said time of a Fred Hollingsworth, and whose residence and property was the specific subject matter of the search warrant, and identified therein. That the defendant, Marty R. Caban, was not identified in the search warrant, nor was any property or residence belonging to him described therein.

2. That the property seized in conjunction with the search of the Hollingsworth residence, was not done with lawful authority and was in violation of the defendant's rights as set forth in the U.S. Constitution, Article IV, of the Amendments thereto, and Arti-ele I, Section 11 of the Wisconsin Constitution.

3. That the property seized from the automobile of the defendant was the result of an unlawful and illegal arrest.

4. That the vehicle from which the property was seized was not occupied by the defendant nor any person at the time of the seizure, nor was he in any close proximity thereto, and in addition, the vehicle did not, in and of itself, pose any threat or danger to any law enforcement officers at the scene.

R:9-l.

3 On the morning of oral arguments, Caban circulated a memo to this court positing that the distinction drawn between issue and argument in State v. Weber, 164 Wis. 2d 788, 476 N.W.2d 867 (1991) is significant to this case. We disagree. Weber involved an interpretation of Wis. Stat. § 809.62, the rule governing petitions for review to this court. The issue in Weber was whether an issue had been raised in the petition for review. In Weber, the court took a broad view of the. term "issue." Because of the different context, and therefore different interests involved, the distinctions in Weber do not apply to the waiver rule. Motions must be stated and argued with particularity.