State v. Mose B. Coffee

2020 WI 53, 943 N.W.2d 845, 391 Wis. 2d 831

• Court: Wisconsin Supreme Court
• Decided: June 5, 2020
• Docket: 2018AP001209-CR
• Status: Published

Opinion

2020 WI 53

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP1209-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Mose B. Coffee, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 387 Wis. 2d 673,929 N.W.2d 246 PDC No:2019 WI App 25 - Published

OPINION FILED: June 5, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 21, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Winnebago JUDGE: John A. Jorgensen

JUSTICES: ROGGENSACK, C.J., delivered an opinion of the court, in which ZEIGLER, J., joined. KELLY, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined. NOT PARTICIPATING: ANN WALSH BRADLEY, J., withdrew from participation. HAGEDORN, J., did not participate.

ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by Frances Colbert, assistant state public defender. There was an oral argument by Frances Colbert.

For the plaintiff-respondent, there was a brief filed by John A. Blimling, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by John A. Blimling. 2020 WI 53

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP1209-CR (L.C. No. 2017CF542)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. JUN 5, 2020

Mose B. Coffee, Sheila T. Reiff Clerk of Supreme Court

Defendant-Appellant-Petitioner.

ROGGENSACK, C.J., delivered an opinion of the court, in which ZEIGLER, J., joined. KELLY, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.

ANN WALSH BRADLEY, J., withdrew from participation. HAGEDORN, J., did not participate.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a decision

of the court of appeals1 affirming the circuit court2 denial of

1State v. Coffee, 2019 WI App 25, 387 Wis. 2d 673, 929 N.W.2d 245. 2The Honorable John A. Jorgensen of Winnebago County presided. No. 2018AP1209-CR

Mose B. Coffee's motion to suppress evidence obtained from a

search of a vehicle incident to his lawful arrest for Operating

While Intoxicated (OWI) that Coffee argues violated the Fourth

Amendment of the United States Constitution. The court of

appeals reasoned that the lawful arrest for OWI, in and of

itself, supplied a basis to search the passenger compartment,

and, specifically, a bag located behind the driver's seat that

contained marijuana.

¶2 We disagree that the lawful arrest for OWI, in and of

itself, supplied a sufficient basis to search the passenger

compartment of Coffee's vehicle. However, the search was lawful

because police had reasonable suspicion, based on the totality

of the circumstances, that the passenger compartment, and,

specifically, the bag, might contain evidence of OWI.

Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶3 Officer Timothy Skelton works for the Oshkosh Police

Department. On August 30, 2017, at 11:17 p.m., he observed an automobile driving on a city street that did not have a front

license plate. He instituted a traffic stop, "which was

eventually completed in the parking lot" of a restaurant or bar.

¶4 The automobile parked close to another vehicle.

Skelton testified:

As the vehicle had pulled into the parking lot, there were other vehicles that were already parked. . . . [I]n this case the vehicle as it pulled in pulled in at an angle and very close to a vehicle that was –- it would be on the driver's side. My estimation was that it was no more than two feet from

2 No. 2018AP1209-CR

the other vehicle, making it very –- it was very close to the other vehicle and somewhat at an angle. Body camera footage shows that Coffee's vehicle was over the

yellow line on the driver's side.

¶5 Skelton explained why he found how the vehicle was

parked noteworthy:

Well, it was the fact that I was performing the traffic stop and the vehicle continued into the parking lot. And the way it had parked, the driver immediately was getting out of his vehicle so it was almost as if he was –- knew I was behind him and was getting out quickly. ¶6 Skelton asked the driver, Coffee, to stay in the

vehicle. "When asked how much he had to drink and from where

was he coming, [Coffee] stated he was coming from a friend's

house and that he had not had that much."

¶7 Skelton believed that Coffee was intoxicated.

Coffee's speech was slurred, and his eyes were "very glazed over

and bloodshot." Skelton testified that the "glazed over look in

his eyes" was a sign that Coffee was "possibly impaired by

intoxicants and or other controlled substances." According to

the affidavit supporting the criminal complaint, "Skelton could

smell an odor of intoxicants coming from the vehicle." Skelton

also testified that after he had Coffee "sit down in his car" he

smelled "an odor of intoxicants coming from his person or from

the vehicle." Based on these observations, Skelton decided to

ask Coffee to step out of the vehicle, so he could administer

field sobriety tests.

3 No. 2018AP1209-CR

¶8 As Skelton walked with Coffee to conduct a test, he

realized that he met Coffee a few weeks prior. He recalled that

Coffee had been "very quiet at that time." Yet, Coffee was

presently "very talkative."

¶9 Coffee performed poorly on field sobriety tests. He

exhibited all six clues on the Horizontal Gaze Nystagmus test,

failed to complete the nine-step-walk-and-turn test and sang the

alphabet twice after being instructed to state the alphabet

twice in a row without singing. Skelton then administered a

preliminary breath test, which indicated that Coffee had a

prohibited alcohol level of .14.3

¶10 Skelton arrested Coffee and secured him in the back of

his squad car. Skelton then instructed two other officers at

the scene, Brenden Bonnett and Benjamin Fenhouse, to search the

passenger compartment. Skelton informed the two that Coffee had

been arrested "for operating under the influence of alcoholic

beverages."

¶11 Bonnett testified that "the subject was in custody for impaired driving." Therefore, "I'd be looking for any substance

in the vehicle that could impair a driver's ability to operate

the motor vehicle safely." He further testified that he was

"looking for any substance, whether that could be prescription

medication, nonprescription medication, alcohol, illegal drugs,

or even up to possibly an inhalant such as Dust-Off –- can of

3 A blood test indicated Coffee's BAC was .17.

4 No. 2018AP1209-CR

Dust-Off I know has been used before also as a substance which

has impaired drivers."

¶12 Bonnett found a cloth bag "right behind the driver's

seat, whereas in the driver could have moved it with his arm

while seated in the driver's seat." "Inside that cloth bag were

two mason jars. Inside the mason jars were flakes of what was

suspected to be marijuana." Bonnett testified that he had to

"dig through the bag" before locating the jars because there

were other items on top that concealed them from sight.4

¶13 After Bonnett found the jars with what appeared to be

flakes of marijuana, Fenhouse searched the trunk of the vehicle.

Fenhouse found an additional 930.7 grams of marijuana and drug

paraphernalia.

¶14 The State charged Coffee with possession with intent

to deliver THC, possession of drug paraphernalia, second-offense

OWI and second-offense OWI with a prohibited alcohol

concentration. Coffee moved to suppress "all evidence obtained"

from the search. ¶15 After a contested hearing, the circuit court concluded

that the search did not violate the Fourth Amendment. The court

found that the search of the bag was permissible because it was

within reach from the driver's seat. The circuit court also

explained, "I'm really not putting much weight on the fact of

4Among these items were many cell phones. Additionally, the bag also contained little plastic bags, though Bonnett could not recall on the stand whether he saw the little plastic bags before he saw the jars. The body camera footage is unclear.

5 No. 2018AP1209-CR

where exactly that bottle was found because it doesn't matter if

the defendant just threw it on top of the bag or to conceal it

pushed it down to the bottom or in the middle. That's easily

done."

¶16 After the circuit court denied Coffee's motion, he

reached a plea agreement with the State. He pled no-contest to

possession with intent to deliver THC and second-offense OWI.

The two other counts were dismissed. After sentencing, Coffee

appealed.

¶17 The court of appeals affirmed. State v. Coffee, 2019

WI App 25, 387 Wis. 2d 673, 929 N.W.2d 245. It stated:

[A]s a matter of law . . . when an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found. Id., ¶13.

¶18 We granted Coffee's petition for review, which argued

that the court of appeals ignored the particular facts of the

case. Coffee argued that the court applied a bright-line rule,

and therefore, the search was not justified by the totality of

the circumstances. We agree that bright-line rules are

disfavored by the United States Supreme Court in its Fourth

Amendment jurisprudence; however, we affirm because the totality

of the circumstances provided the foundation for concluding that

the search was reasonable.

6 No. 2018AP1209-CR

II. DISCUSSION

A. Standard of Review

¶19 Review of a decision denying a motion to suppress

under the Fourth Amendment presents a question of constitutional

fact. State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857

N.W.2d 120. We employ a two-step inquiry when presented with a

question of constitutional fact. State v. Robinson, 2010 WI 80,

¶22, 327 Wis. 2d 302, 786 N.W.2d 463; see also State v.

Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786 N.W.2d 97.

¶20 First, we uphold the circuit court's findings unless

they are clearly erroneous. State v. Richter, 2000 WI 58, ¶26,

235 Wis. 2d 524, 612 N.W.2d 29. Second, we independently apply

constitutional principles to the facts. Id.; see also Dearborn,

327 Wis. 2d 252, ¶13. These principles require an objective

application of the facts, meaning we independently examine the

facts known to the officer at the time of the warrantless

search. We do not analyze what the officer subjectively

believed or what inferences he or she actually drew. ¶21 In the present case, we apply this two-step inquiry to

determine whether the search of the passenger compartment, and,

specifically, the bag, was unreasonable under the Fourth

Amendment.5 The burden is on the State to prove that the search

Article I, § 11 of the Wisconsin Constitution is nearly 5

identical to the Fourth Amendment. We normally interpret Article I, § 11 consistent with the United States Supreme Court's interpretation of the Fourth Amendment. E.g., State v. Dearborn, 2010 WI 84, ¶¶14–17, 327 Wis. 2d 252, 786 N.W.2d 97; State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752 (continued) 7 No. 2018AP1209-CR

was constitutionally permissible because police did not obtain a

warrant prior to searching the vehicle. State v. Johnston, 184

Wis. 2d 794, 806, 518 N.W.2d 759 (1994) (citing United States v.

Jeffers, 342 U.S. 48, 51 (1951)); State v. Phillips, 2009 WI App

179, ¶7, 322 Wis. 2d 576, 778 N.W.2d 157.

B. Fourth Amendment Principles

¶22 The Fourth Amendment of the United States Constitution

provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. As the text makes clear, "the Fourth Amendment does not

proscribe all state-initiated searches and seizures; it merely

proscribes those which are unreasonable." Tulberg, 359

Wis. 2d 421, ¶29 (quoting Florida v. Jimeno, 500 U.S. 248, 250

(1991); see also Riley v. California, 573 U.S. 373, 381 (2014)

(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

¶23 A search is unreasonable if the individual's privacy

interest in the area searched is not outweighed by "the

promotion of legitimate governmental interests."6 Virginia v.

N.W.2d 748. Coffee has not argued that we should decide this case under the Wisconsin Constitution, and, therefore, we do not address Article I, § 11. 6 We have considered the practices of the founding generation to determine if a search was unreasonable. Virginia v. Moore, 553 U.S. 164, 168 (2008) ("In determining whether a (continued) 8 No. 2018AP1209-CR

Moore, 553 U.S. 164, 171 (2008) (quoting Wyoming v. Houghton,

526 U.S. 295, 300 (1999)). If a search was unreasonable,

evidence obtained from it is subject to exclusion. Mapp v.

Ohio, 367 U.S. 643, 655 (1961).

¶24 "A warrantless search is presumptively unreasonable,"

Tullberg, 359 Wis. 2d 421, ¶30, because "[w]hen the right of

privacy must reasonably yield to the right of search is, as a

rule, to be decided by a judicial officer, not by a policeman or

Government enforcement agent," Johnson v. United States, 333

U.S. 10, 14 (1948). "[S]earches conducted outside the judicial

process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment——subject only to a

few specifically established and well-delineated exceptions."

Katz v. United States, 389 U.S. 347, 357 (1967).

¶25 One such exception was announced in Arizona v. Gant,

556 U.S. 332, 335 (2009): "[C]ircumstances unique to the

automobile context justify a search incident to arrest when it

is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." Automobiles are movable, making

plausible an automobile's escape from a jurisdiction or

concealment before a warrant can be obtained. Carroll v. United

search or seizure is unreasonable, we begin with history."). However, "the historical scope of officers' authority to search vehicles incident to arrest is uncertain." Arizona v. Gant, 556 U.S. 332, 351 (2009) (Scalia, J., concurring) (citing Thornton v. United States, 541 U.S. 615, 629–31 (2004) (Scalia, J., concurring in judgment)).

9 No. 2018AP1209-CR

States, 267 U.S. 132, 151–53 (1925). Therefore, people have a

lower expectation of privacy in an automobile, and the

legitimate governmental interest in a warrantless search is

stronger.7 The legitimate governmental interests, in this case,

are particularly strong given the havoc wreaked by intoxicated

drivers.8 Therefore, if the Gant exception is satisfied, the

search cannot be unreasonable because the exception articulates

a balancing of interests sufficient for this case.

C. Interpretations of Gant

¶26 The Gant exception has generated much discussion. One

issue concerned whether the nature of an offense of arrest, in

7 To further explain, an automobile's "function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." United States v. Knotts, 460 U.S. 276, 281 (1983) (quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality)).

Furthermore, police are required to be in "frequent contact with automobiles" in the course of their duties. South Dakota v. Opperman, 428 U.S. 364, 367–68 (1976). "Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements." Id. at 368. "As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order." Id. 8 "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Missouri v. McNeely, 569 U.S. 141, 160 (2013) (quoting Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990)).

10 No. 2018AP1209-CR

and of itself, can supply a basis for a search of a passenger

compartment, or whether the search must be analyzed by examining

the totality of the circumstances. The first approach is known

as the "categorical approach," and the second, the

"reasonableness approach."

1. The Categorical Approach

¶27 The categorical approach stems from two quotes in

Gant:

[1.] In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others, . . . the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any container therein.

. . . .

[2.] Gant was arrested for driving with a suspended license——an offense for which police could not expect to find evidence in the passenger compartment of Gant's car. Gant, 556 U.S. at 343–44. Interpreting these quotes, a Florida

appellate court was the first to "reason[] that the [United States] Supreme Court intended to give its imprimatur to a

system of classifying criminal offenses into two distinct

groups: those that 'by [their] nature . . . might yield

physical evidence' and those 'for which there is no physical

evidence.'" United States v. Reagan, 713 F. Supp. 2d 724, 731

(E.D. Tenn. 2010) (quoting Brown v. State, 24 So. 3d 671, 678

(Fla. App. 2009)). Under this interpretation of Gant, relevant evidence of some crimes, such as the possession of a controlled

11 No. 2018AP1209-CR

substance, might be in the passenger compartment of an

automobile. Reagan, 713 F. Supp. 2d at 731 (citing Brown, 24

So. 3d at 677). However, relevant evidence of other crimes,

such as minor traffic violations, will not be in the passenger

compartment. Reagan, 713 F. Supp. 2d at 731 (citing Brown, 24

So. 3d at 677). A search of a passenger compartment is

permissible if a recent occupant was arrested for the former;

for the latter, a search is not permissible.

¶28 Following the Florida court's interpretation, some

courts have concluded that OWI is, by its nature, a crime for

which there might be relevant evidence in the passenger

compartment. State v. Cantrell, 233 P.3d 178, 185 (Idaho 2010)

("Cantrell was arrested for DUI, and the DUI supplied the basis

for the search."); People v. Nottoli, 130 Cal. Rptr. 3d 884, 902

(2011) ("Reid's arrest for 'being under the influence of a

controlled substance' supplied a reasonable basis for believing

that evidence 'relevant' to that type of offense might be in his

vehicle.").9

9 Compare Cain v. State, 373 S.W.3d 392, 396–97 (Ark. App. 2010) (reasoning that an arrest for DUI supplied the basis for a search of an automobile under Gant because "an open container of alcohol could have been found"), with id. at 399 (Brown, J., dissenting) ("Officers must be put on notice about what is allowed following Gant, and the majority fails to define these limitations. Instead, the majority sends the message that nothing has changed and officers can continue to search a vehicle incident to a lawful arrest without anything more to prompt such a search.").

12 No. 2018AP1209-CR

¶29 These courts reason that relevant evidence of an OWI

might be located in the passenger compartment and any container

therein. For example, the court of appeals reasoned in this

case:

Not only could an officer find evidence related to the offense of OWI, it indeed would not be surprising for an officer to find such evidence as, for example, a copy of a credit card receipt showing very recent purchases of alcoholic drinks at a local bar, a partially or fully consumed can of beer or bottle of hard liquor, a prescription drug bottle, or drug paraphernalia or residue. Coffee, 387 Wis. 2d 673, ¶12. The court of appeals also stated:

We need not detail the copious cases across this state and country in which a driver is arrested for OWI, a search of the vehicle is conducted, and alcoholic beverages and/or drugs are found. . . . "It is certainly logical and reasonable to expect that items related to alcohol or drug consumption, such as alcoholic beverage bottles or drug paraphernalia, might readily be contained in the intoxicated driver's car." Id., ¶12 n.6 (quoting People v. Evans, 133 Cal. Rptr. 3d 323,

336-37 (2011)).

2. The Reasonableness Approach

¶30 Other courts have interpreted Gant as imposing a

reasonableness approach. Though stated in various terms, the

approach involves "looking at common sense factors and

evaluating the totality of the circumstances" to determine

whether it was reasonable to conclude that evidence of the crime

of the arrest might be found within the vehicle. Reagan, 713

F. Supp. 2d at 728 (quoting United States v. Pruitt, 458 F.3d 477, 482 (6th Cir. 2006)).

13 No. 2018AP1209-CR

¶31 Courts so interpreting Gant have struggled with the

"quantum of suspicion required." State v. Eversole, 2017-Ohio-

8436, unpublished slip op., ¶23, 2017 WL 5127369 (Ohio Ct. App.

Nov. 6, 2017). Unlike the categorical approach, which does not

utilize facts particular to the case, the reasonableness

approach requires particularization. United States v. Taylor,

49 A.3d 818, 826 (D.C. Ct. App. 2012).

¶32 Determining the quantum of suspicion required is

difficult for at least three reasons. First, Gant stated the

exception four times, twice using the word "might" and twice

without using "might." Compare Gant, 556 U.S. at 335, 343

("reasonable to believe that evidence of the offense of arrest

might be found in the vehicle"), with id. at 346, 351

("reasonable to believe the vehicle contains evidence of the

offense of arrest"). Second, "reasonable to believe" is

language sometimes used to describe the quantum of suspicion

necessary for probable cause.10 And third, Gant provides little

explanation of the exception. ¶33 Most courts have concluded that the officer does not

need probable cause to believe evidence of the crime will be

found in the vehicle. Cantrell, 233 P.3d at 183. But see

United States v. Grote, 629 F. Supp. 2d 1201, 1203 (E.D. Wash.

2009). Otherwise, the Gant exception would be the same as

10Wayne R. LaFave, 2 Search & Seizure § 3.7(d) (5th ed. updated Oct. 2019) (collecting cases that use "reasonable to believe" to describe the quantum of suspicion necessary for an officer to have probable cause).

14 No. 2018AP1209-CR

another simply known as the "automobile exception," and Gant

stated the two exceptions are distinct. United States v.

Vinton, 594 F.3d 14, 25 (D.C. 2010) (citing Gant, 556 U.S. at

347).

¶34 Some courts have equated the Gant exception with

reasonable suspicion but others have crafted a standard

somewhere between probable cause and reasonable suspicion.

Compare Taylor v. State [hereinafter Taylor Md.], 137 A.3d 1029,

1033-34 (Md. 2016) (equating the standard in Gant with

reasonable suspicion) and State v. Ewertz, 305 P.3d 23, 27–28

(Kan. Ct. App. 2013) (same), with Reagan, 713 F. Supp. 2d at 728

(quoting Pruitt, 458 F.3d at 482) (noting the standard in Gant

does not require probable cause and stating that a "[r]easonable

belief is established by looking at common sense factors and

evaluating the totality of the circumstances"). At least one

United States Supreme Court justice believes the Gant exception

requires reasonable suspicion. Megginson v. United States, 556

U.S. 1230, 1230 (2009) (Alito, J., dissenting from a decision to grant, vacate, and remand) ("This case thus appears to present

an important question regarding the meaning and specificity of

the reasonable suspicion requirement in Gant.").

¶35 Whatever the quantum, courts have considered a variety

of circumstances to determine whether the quantum was

satisfied: Whether the officer observed the driver using an

intoxicant;11 whether the officer observed an intoxicant in plain

11 United States v. Reagan, 713 F. Supp. 2d 724, 733 n.7 (continued) 15 No. 2018AP1209-CR

view inside the passenger compartment;12 whether an occupant made

a statement indicating that an intoxicant is in the automobile;13

whether the officer smelled an intoxicant emanating from the

passenger compartment;14 whether "the driver was traveling from a

location such as a recreational area or campground where alcohol

is not available unless it is transported in by private

vehicle;"15 whether the occupant made "furtive movements,"

indicating that the occupant might be trying to conceal

evidence;16 whether the occupant evidenced extreme intoxication;17

(E.D. Tenn. 2010). 12 Id. 13Id.; see also United States v. Francis, No. 11-40064-01- RDR, unpublished slip op., 2011 WL 5837182, at *3 (D. Kan. Nov. 21, 2011) (noting the driver made statements indicating she took medication). 14Reagan, 713 F. Supp. 2d at 733 n.7; see also Francis, 2011 WL 5837182, at *3. 15Reagan, 713 F. Supp. 2d at 733 n.7; see also State v. Wilson, No. 1 CA-CR 11-0292, unpublished slip op., ¶19, 2012 WL 1255151 (Ariz. Ct. App. Apr. 12, 2012) ("The police had received prior tips about suspected drug activity at Appellant's residence, Johnston had recently entered that residence before leaving with Appellant in his vehicle . . . ."). 16State v. Ewertz, 305 P.3d 23, 27 (Kan. Ct. App. 2013) (quoting State v. Julian, No. 105,695, unpublished slip op., 2012 WL 1759405, at *5 (Kan. Ct. App. May 11, 2012) (per curiam), rev'd State v. Julian, 333 P.3d 172 (Kan. 2014), overruled by State v. James, 349 P.3d 457 (Kan. 2015)). 17Ewertz, 305 P.3d at 28 ("In addition to evidence that the car Ewertz was driving swerved in its lane and crossed over the fog line, that Tatro smelled alcohol in the car after he pulled Ewertz over, that Ewertz failed field sobriety tests, that Ewertz had glassy and bloodshot eyes, and that Ewertz slurred (continued) 16 No. 2018AP1209-CR

whether the officer had knowledge of prior unlawful conduct by

an occupant involving an intoxicant in an automobile;18 whether

the officer had knowledge regarding the likelihood of locating

an intoxicant in an automobile driven by an intoxicated person.19

3. Our Approach

¶36 We interpret Gant as imposing the reasonableness

approach. Our conclusion is consistent with the principle that

bright-line rules are disfavored in United States Supreme Court

Fourth Amendment jurisprudence. Myron Moskovitz, A Rule in

Search of A Reason: Empirical Reexamination of Chimel and

Belton, 2002 Wis. L. Rev. 657, 679. Furthermore, the

her words, there is also evidence that Ewertz admitted to drinking at least one alcoholic beverage before driving the car. In light of these specific and articulable facts, as well as any rational inferences that can be drawn from those facts, we conclude the district court did not err in finding it was 'reasonable to believe' evidence relevant to the crime of driving under the influence might be found in Ewertz' vehicle."). 18United States v. Lopez, No. CR 18-120-BLG-SPW-TJC, slip op., 2019 WL 7838283, at *8 (D. Mont. Dec. 18, 2019) ("Officer Miner also testified that he knew drugs had been found in a safe in Lopez's vehicle when Lopez was previously arrested for driving under the influence of a controlled substance in Montana. While law enforcement cannot rely on past criminal history alone to find reasonable suspicion, it can be considered as part of the totality of the circumstances."). 19Taylor v. State, 137 A.3d 1029, 1034 (Md. 2016). But see United States v. Taylor, 49 A.3d 818, 827 (D.C. Ct. App. 2012) ("'[W]e know too little about Officer [Weber's] experience' to place much weight upon his conclusory statement that 'typically someone who is driving under the influence also has an open container or multiple containers of alcohol in their vehicle.'" (internal citation omitted)).

17 No. 2018AP1209-CR

categorical approach is analytically difficult. Lastly, the

briefings and result in Gant do not support the categorical

approach.

a. Bright-Line Rules Are Disfavored

¶37 Bright-line rules, such as the categorical approach,

are disfavored in Fourth Amendment United States Supreme Court

jurisprudence. Missouri v. McNeely, 569 U.S. 141, 158 (2013)

(plurality). This is because a strict application of a bright-

line rule could be used to justify a search even though, under

the particular facts, the search is unreasonable. Reagan, 713

F. Supp. 2d at 732. Case-by-case analysis is, therefore,

preferred. McNeely, 569 U.S. at 158. "Numerous police actions

are judged based on fact-intensive, totality of the

circumstances analyses rather than according to categorical

rules, including in situations that are more likely to require

police officers to make difficult split-second judgments." Id.

(citing Illinois v. Wardlow, 528 U.S. 119, 123–125 (2000); Ohio

v. Robinette, 519 U.S. 33, 39–40 (1996); Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). Indeed, although, the legitimate

governmental interest in limiting the number of OWIs is

substantial, a plurality in McNeely rejected that this

legitimate governmental interest is so strong as to justify a

bright-line rule permitting warrantless blood draws when an

officer has probable cause to believe that an arrestee is

intoxicated. McNeely, 569 U.S. at 160.

¶38 Nevertheless, bright-line rules occasionally have been adopted to provide clear guidance to officers. New York v. 18 No. 2018AP1209-CR

Belton, 453 U.S. 454, 458 (1981), abrogation recognized by Davis

v. United States, 564 U.S. 229, 234 (2011). Quoting Professor

LaFave, the Court in Belton explained:

A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be "literally impossible of application by the officer in the field." Id. (quoting Wayne R. LaFave, "Case-by-Case Adjudication" Versus

"Standardized Procedures": The Robinson Dilemma, 1974

S. Ct. Rev. 127, 141).

¶39 However, the Fourth Amendment generally requires

police to obtain a warrant because judges, and not police, are

better trained to determine whether a search will be

unreasonable. See Johnson, 333 U.S. at 14. "The preference for

warrants is premised on the expectation that magistrates will be

more likely than officers to perceive when justification for a

proposed search is inadequate." Thomas Y. Davies, Recovering

the Original Fourth Amendment, 98 Mich. L. Rev. 547, 576 (1999).

¶40 "While the desire for a bright-line rule is

understandable, the Fourth Amendment will not tolerate adoption

of an overly broad categorical approach that would dilute the

warrant requirement in a context where significant privacy

interests are at stake." McNeely, 569 U.S. at 158. Therefore,

the rationale for adopting a bright-line rule permitting a type

of warrantless search cannot be merely that police would benefit from clear guidance. There has to be some reason that police

19 No. 2018AP1209-CR

need guidance in the same way that there has to be some reason

for police not to obtain a warrant.20

¶41 A bright-line rule might be justified "[w]hen officer

safety or imminent evidence concealment or destruction is at

issue, [because] officers should not have to make fine judgments

in the heat of the moment. But in the context of a general

evidence-gathering search, the state interests that might

justify any overbreadth are far less compelling." Thornton v.

United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring

in judgment). Justice Scalia, in his Thornton concurrence,

explained that when an arrestee is secured in the back of a

squad car, a search of the passenger compartment cannot be

justified on the ground that "the arrestee might grab a weapon

or evidentiary item from his car." Id. at 629. If the search

is justifiable, it is "simply because the car might contain

evidence relevant to the crime for which he was arrested." Id.

To him, "[t]his more general sort of evidence-gathering search

[was] not without antecedent." Id. His comments are telling because the majority in Gant purported it was following Justice

Scalia's suggestions from Thornton. Gant, 556 U.S. at 335.

¶42 In the case before us, Coffee was secured in the back

of a squad car; therefore, the search cannot be justified

For example, in United States v. Robinson, 414 U.S. 218, 20

235 (1973), the Court concluded that police have authority to search an arrestee's person and that this authority stems from the lawful arrest and the need for personal safety of the officer.

20 No. 2018AP1209-CR

because of concerns over officer safety or imminent evidence

concealment or destruction. If the search was lawful, it must

be because a general evidence-gathering search is permitted

under these circumstances. Police did not need a bright-line

rule under the totality of the circumstances here because they

were not required to make split-second decisions. Thornton, 541

U.S. at 632 (Scalia, J., concurring in judgment).

b. Difficulty of the Categorical Approach

¶43 But even if police needed more guidance, the

categorical approach would not provide it. Some offenses are

not easily categorized, which makes the categorical approach

analytically difficult. "[A]ny attempt to categorize every

criminal offense as being either one that might yield physical

evidence or one for which there is no physical evidence runs

into interpretative problems." Reagan, 713 F. Supp. 2d at 732.

¶44 For example, a driver could be arrested for making

criminal threats. Evans, 133 Cal. Rptr. 3d at 336. "If the

threat in question was verbal, it is surely unreasonable to expect evidence related to the crime to be contained in a

vehicle." Id. "But if the threat was made in a text message,

or amplified by means of props or a threatening drawing,

evidence might well be found in the car." Id.

¶45 To give one more example, a driver could be arrested

for battery or assault. Id. "If such crimes were committed

with fists alone, it would generally be unreasonable to expect

evidence of the offense in the arrestee's vehicle; if committed with a brick or broken bottle, on the other hand, the opposite 21 No. 2018AP1209-CR

might be true." Id. "Even in the case of a fistfight, might it

be reasonable to expect to find blood, or perhaps a broken

fingernail, in the vehicle?" Id. To summarize, a problem with

the categorical approach is that "some offenses of arrest cannot

be meaningfully evaluated without reference to the specific

facts known to the officer." Id. The point of adopting a

bright-line rule is to provide definitive guidance; if that is

not being accomplished, a bright-line rule serves no useful

purpose.

c. The Briefings and Result in Gant

¶46 Lastly, the briefings and result in Gant suggest that

the United States Supreme Court did not create a categorical

approach. Gant involved a traffic stop for driving with a

suspended license in Arizona. Unlike many states, in Arizona,

driving with a suspended license is not a strict liability

offense.21 The State must prove that the driver either knew or

should have known his or her license was suspended.

¶47 In Gant, Arizona admitted, "In most arrests for traffic-related offenses, the preservation of evidence

justification for a search incident to arrest will not exist."

Pet'r Reply Br. on the Merits, at 26, Gant v. Arizona, 556 U.S.

332 (2009) (No. 07-542). However, Arizona argued:

That is not true in this case. Under Arizona law, a person is guilty of driving on a suspended license only if "the driver knew or should have known that the

21 State v. Williams, 698 P.2d 732, 734 (Ariz. 1985) (en banc).

22 No. 2018AP1209-CR

license has been suspended." Officer Griffith testified that "[l]icense paperwork from the court system" could possibly be found in the vehicle. Officer Reed testified that it would not be unusual to find "notification from Motor Vehicle Division that [Gant's] license has been suspended" or "a citation for a suspended license that would show that he had knowledge that his driver's license was suspended" in the vehicle. Thus, Gant's assertion that the "officers had no reason to believe that 'evidence relevant to the crime of arrest might be found' in [his] car" is inaccurate. Id. at 26 n.7 (alterations in original) (internal citations

omitted); see also Pet'r Br. on the Merits, at 6–7, nn.1–2, Gant

v. Arizona, 556 U.S. 332 (2009) (discussing the testimony of the

officers).

¶48 Therefore, if the Gant exception were a categorical

approach, Gant should have permitted the search: the passenger

compartment might have contained relevant evidence of the

offense of arrest. But Gant concluded that the search was

unconstitutional. Gant, 556 U.S. at 351. Other courts, noting

this potential contradiction, have refused to apply the

categorical approach. People v. Chamberlain, 229 P.3d 1054, 1057 (Colo. 2010) (en banc); see also Andrew Fois & Lauren

Simmons, Thomas Jefferson's Carriage: Arizona v. Gant's Assault

on the Belton Doctrine, Am. U. Crim. L. Br., Winter 2009, at 4,

22 ("The Court . . . holds that in Gant there is no reason to so

believe . . . [that] the car could contain evidence of the crime

of suspended license. It is reasonable, however, to believe

that the license itself, the car registration, or other evidence

supporting the charge could have been found in the glove compartment.").

23 No. 2018AP1209-CR

¶49 The only way to interpret Gant as imposing a

categorical approach is to assume that the justices did not

fully analyze the briefs: that is untenable. In combination

with the above, we interpret Gant as imposing the reasonableness

C. Application

¶50 We conclude that the reasonableness approach is the

correct interpretation of Gant. Here, the totality of

circumstances objectively demonstrates that Skelton had

reasonable suspicion that the passenger compartment, and,

specifically, the bag, might contain relevant evidence of OWI.

Therefore, the search was permissible under the Fourth

Amendment.

¶51 Coffee's counsel admitted at oral argument that "We

are talking about reasonable suspicion." We conclude that is

the correct understanding of the reasonableness approach.

Taylor Md., 137 A.3d at 1030; Ewertz, 305 P.3d at 27–28. First,

the Gant exception cannot require probable cause because then it would merely repeat the automobile exception. Vinton, 594 F.3d

at 25. Second, one United States Supreme Court justice has

referred to the Gant exception as requiring reasonable

suspicion. Megginson, 556 U.S. at 1230 (Alito, J., dissenting

from a decision to grant, vacate, and remand).

1. The Passenger Compartment

¶52 Skelton had reasonable suspicion that the passenger

compartment might contain relevant evidence of OWI. First, Skelton testified that when he had Coffee sit in the vehicle, he 24 No. 2018AP1209-CR

smelled "an odor of intoxicants coming from [Coffee's person] or

from the vehicle." Reagan, 713 F. Supp. 2d at 733 n.7.

Although he used a disjunctive "or" to describe where the smell

was coming from, his testimony offers support in favor of

reasonable suspicion. Furthermore, the affidavit does not use

the disjunctive, or. It states that a smell of intoxicants was

coming from the automobile.

¶53 Second, Coffee indicated that he was coming from his

friend's house. Generally, a private residence has alcohol only

if it is brought to the residence. Cf. id. Coffee might have

brought the alcohol that he consumed to his friend's house and

have retained some in his vehicle. The facts of this case are

different than, for example, a case where an officer observes a

patron drink at a bar and then immediately get into an

automobile. Id. at 732.

¶54 Third, after Skelton initiated the traffic stop Coffee

"continued into the parking lot," which could indicate that

Coffee was hesitant to pull over because he knew there was something in the automobile that he should not have had. Cf.

Patel v. State, 522 S.E.2d 760, 761 (Ga. Ct. App. 1999)

(reasoning that the failure to "immediately pull over" can

inform an officer's probable cause determination); United States

v. Gonzalez-Guytan, 419 F. App'x 848, 849 (10th Cir. 2011)

(same).

¶55 Fourth, Coffee acted strangely upon pulling into the

parking lot because he hastily parked and immediately got out of his vehicle. Ewertz, 305 P.3d at 27. Coffee's careless parking 25 No. 2018AP1209-CR

and hasty exit from his vehicle could indicate that he was

trying to distance himself from something in the vehicle that he

knew he should not have had. Stated otherwise, his actions

indicated that he did not want to interact with police near his

vehicle, perhaps because he did not want them to discover

something in it.

¶56 Fifth, Skelton had previously interacted with Coffee.

At that prior meeting, Coffee had been quiet, but on this

occasion, was talkative, about a variety of topics. From this,

Skelton could have believed Coffee was nervous because he had

something to hide. Cf. United States v. Vergara-Manzo, No. 13-

10179-EFM, unpublished slip op., 2014 WL 840722, at *5 (D. Kan.

Mar. 4, 2014) (reasoning that an occupant being "extremely

talkative" could contribute to an officer's determination to

search the automobile).

¶57 Sixth, Coffee was extremely intoxicated. Ewertz, 305

P.3d at 28. He exhibited all six clues on the Horizontal Gaze

Nystagmus test, failed to complete the nine-step-walk-and-turn test and sang the alphabet twice after being instructed to state

the alphabet twice in a row without singing. Furthermore,

Coffee's speech was slurred, and his eyes were "very glazed over

and bloodshot." He also parked poorly. He was over the yellow

line on the driver's side. As Justice Scalia explained in his

Thornton concurrence, "it is not illogical to assume that

evidence of a crime is most likely to be found where the suspect

was apprehended." Thornton, 541 U.S. at 630 (Scalia, J., concurring in judgment). Similarly, when a person is extremely 26 No. 2018AP1209-CR

intoxicated, it is not illogical to assume intoxicants might be

close by.

¶58 Coffee has two arguments, neither of which cause the

search of the vehicle's passenger compartment to be

unreasonable. First, he argues that Skelton needed to know more

to have reasonable suspicion. Skelton did not observe a bottle

cap or open container nor was he tipped off that Coffee had been

using an intoxicant in the vehicle. But the quantum of

suspicion required is not probable cause: it is reasonable

suspicion. Although Coffee acknowledges that reasonable

suspicion is the correct quantum, his argument is phrased in a

manner that assumes probable cause is necessary.

¶59 Second, Coffee would have us conclude that his privacy

interest outweighs the legitimate governmental interests because

the probative value of evidence that might have been present in

the passenger compartment is minimal, i.e., the primary evidence

of OWI is the result of a blood test. We reject this argument

because the balancing of interests has already been done by the United States Supreme Court in establishing the Gant exception.

Moreover, other courts have rejected Coffee's argument because

"a DUI trial does not start and end with a breathalyzer report."

Cantrell, 233 P.3d at 185; see also Grote, 629 F. Supp. 2d at

1205. We agree. Just because the result of a blood test could

be sufficient evidence to secure a conviction does not mean that

it will be. Police do not have the luxury of knowing what will

happen at trial and must collect evidence without the benefit of

27 No. 2018AP1209-CR

hindsight. Police may search for relevant evidence; they are

not required to weigh its probative value.

2. The Bag

¶60 Coffee also argues, "[e]ven if it were reasonable to

search the vehicle, it was not reasonable to believe evidence of

the OWI would be at the bottom of the bag." To explain, Coffee

argues that Skelton did not see a furtive movement that would

have indicated Coffee tried to hide something in the bag.

Therefore, Coffee minimizes the circuit court's finding that

relevant evidence could have "easily" been pushed down because,

Coffee contends, if such an action occurred, it would have been

seen by Skelton.

¶61 Coffee's argument borders on an objection to the

circuit court's findings. Under the applicable standard of

review, we cannot disturb those findings because they are not

clearly erroneous. Richter, 235 Wis. 2d 524, ¶26. Moreover,

Coffee could have gotten intoxicated at his friend's house and

then put the intoxicant in the bag in order to carry it to his car. Indeed, the United States Supreme Court has explained,

"[d]uring virtually the entire history of our country——whether

contraband was transported in a horse-drawn carriage, a 1921

roadster, or a modern automobile——it has been assumed that a

lawful search of a vehicle would include a search of any

container that might conceal the object of the search." United

States v. Ross, 456 U.S. 798, 820 n.26 (1982). "Contraband

goods rarely are strewn across the trunk or floor of a car; since by their nature such goods must be withheld from public 28 No. 2018AP1209-CR

view, they rarely can be placed in an automobile unless they are

enclosed within some form of container." Id. at 820.

¶62 This case is unlike, for example, State v. Hinderman,

No. 2014AP1787-CR, unpublished slip. op. (Wis. Ct. App. Feb. 12,

2015), on which Coffee relied below. Hinderman was arrested for

OWI because she appeared drunk. Id., ¶¶2–3. Police searched

her automobile incident to the arrest. Id., ¶4. On the

passenger seat was her purse. Id., ¶3. Police "looked inside

the purse and found a closed, red zippered pouch, approximately

three-by-three inches in length and one-half inch to three

quarters of an inch wide." Id., ¶4. Inside the pouch was drug

paraphernalia and "a clear plastic bag containing marijuana."

Id. The State argued that the search of the pouch was

permissible because it might have contained a one-shot bottle of

alcohol, similar to what is commonly served on passenger jets.

Id., ¶12. In a one-judge opinion, the court of appeals rejected

this argument and concluded that the search violated the Fourth

Amendment. Id., ¶14. Its conclusion rested heavily on a finding by the circuit court that the pouch was unlikely to

contain a one-shot bottle. Id., ¶12.

¶63 We need not decide whether Hinderman was correct. It

is sufficient to say, Hinderman presented on different facts.

In this case, the bag police searched was significantly larger.

It could have contained regular-sized bottles of alcohol.

Whether police can search a small pouch, on the ground that they

might find a one-shot bottle, or, as the court of appeals mentioned in this case, a credit card receipt showing very 29 No. 2018AP1209-CR

recent purchases of alcoholic drinks at a local bar, is beyond

the scope of this case.

III. CONCLUSION

¶64 We disagree that the lawful arrest for OWI, in and of

compartment of Coffee's vehicle. However, the search was lawful

because police had reasonable suspicion, based on the totality

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

affirmed.

¶65 ANN WALSH BRADLEY, J., withdrew from participation.

¶66 BRIAN HAGEDORN, J., did not participate.

30 No. 2018AP1209-CR.dk

¶67 DANIEL KELLY, J. (concurring). I concur with the

court's judgment. But I think the court handled Gant1 in a

fashion that brings less rather than more clarity to the law

controlling post-arrest evidence-gathering automobile searches.

The court suggests Gant addressed itself to this question:

"[W]hether the nature of an offense of arrest, in and of itself,

can supply a basis for a search of a passenger compartment, or

whether the search must be analyzed by examining the totality of

the circumstances." Lead op., ¶26. The literature, as well as

judicial opinions, generally refer to the former as the

"categorical approach," and the latter as the "reasonableness

approach." And in so referring, they have contributed to the

court's understanding that Gant created a new analytical

methodology that is taxonomically distinct from the extant

exceptions to the warrant requirement. But the Gant court did

not announce a new analytical model. Instead, it returned to

ancient principles governing searches incident to arrest and

applied them to the automobile context.

¶68 Gant's significance lies in it's effort to fix a

specific jurisprudential problem. The Supreme Court realized

that, after its decision in New York v. Belton, 453 U.S. 454

(1981), abrogation recognized by United States v. Davis, 564

U.S. 229 (2011), police officers started conducting post-arrest

evidence-gathering automobile searches as a matter of course,

and in some quarters such searches were understood as a police

1 Arizona v. Gant, 556 U.S. 332 (2009).

1 No. 2018AP1209-CR.dk

officer's entitlement. See Arizona v. Gant, 556 U.S. 332, 335

(2009). There is good reason for the explosion of such

searches. Belton held that "when a policeman has made a lawful

custodial arrest of the occupant of an automobile, he may, as a

contemporaneous incident of that arrest, search the passenger

compartment of that automobile." 453 U.S. at 460 (footnotes

omitted). The test seemed pretty clear: Upon arrest of an

automobile's occupant, the police——without any additional

analysis or justification——may perform an evidentiary search of

the automobile.

¶69 Based on law enforcement's response to Belton, the

Gant court had to address two related questions. First, whether

an arrest always allows the police to perform an evidentiary

search of an automobile recently occupied by the arrestee. And

second, if not, whether an arrest can ever——without more——

justify an evidentiary automobile search. The latter question

is the one relevant to this case, but its answer won't make any

sense outside the context of the former.

¶70 The first question arose because automatic authority

for evidence-gathering automobile searches doesn't fit

comfortably with Belton's rationale. The basic substrate of the

Belton court's reasoning comes from Chimel v. California, 395

U.S. 752 (1969), abrogation recognized by Davis v. United

States, 564 U.S. 229 (2011), which addressed protective searches

(as opposed to evidence-gathering searches). The Court observed

that Chimel says

a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant 2 No. 2018AP1209-CR.dk

of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need "to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape" and the need to prevent the concealment or destruction of evidence. Belton, 453 U.S. at 457 (citing Chimel, 395 U.S. at 763).

¶71 The Chimel rationale works when the arrestee is still

in the automobile or has ready access to it. But once the

arrestee is immobilized or taken from the scene of the arrest,

Chimel loses its justifying power because the arrestee can no longer reach any weapons or evidence that might have been in the

automobile. And yet courts have regularly used Belton to

justify searches in those very circumstances. See, e.g., Gant,

556 U.S. at 346. The Gant court recognized that reading Belton

to authorize such searches would "untether the rule from the

justifications underlying the Chimel exception——a result clearly

incompatible with our statement in Belton that it 'in no way

alters the fundamental principles established in the Chimel case

regarding the basic scope of searches incident to lawful

custodial arrests.'" Gant, 556 U.S. at 343.

¶72 Gant's answer to the first question, therefore, was

that arresting an automobile's occupant does not always justify

an automobile search. So it returned Belton to its Chimel

moorings by rejecting the unjustifiably broad reading it had

accrued over the years. It held "that the Chimel rationale

authorizes police to search a vehicle incident to a recent

occupant's arrest only when the arrestee is unsecured and within

reaching distance of the passenger compartment at the time of the search." Gant, 556 U.S. at 343. That is, Chimel authorizes

3 No. 2018AP1209-CR.dk

police to conduct a protective search of an automobile as an

incident to the arrest of a recent occupant.

¶73 Having held that arrests do not always justify

automobile searches, the Gant court then had to determine

whether they can ever, standing alone, provide a

constitutionally acceptable justification. I believe Gant says

they can. The Supreme Court recognized that the Chimel/Belton

line of reasoning is not the exclusive basis upon which officers

can search an automobile upon arrest of one of its occupants.

It said:

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thornton, 541 U.S. at 632 (SCALIA, J., concurring in judgment). Gant, 556 U.S. at 343. Gant's specific holding makes it clear

that Justice Antonin Scalia's Thornton2 concurrence played a

pivotal role in the court's reasoning:

Consistent with the holding in Thornton v. United States, [] and following the suggestion in Justice SCALIA's opinion concurring in the judgment in that case, id. at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. Gant 556 U.S. at 335 (citation omitted); see also id. at 347

("Unlike the searches permitted by Justice Scalia's opinion

concurring in the judgment in Thornton, which we conclude today

2 Thornton v. United States, 541 U.S. 615 (2004).

4 No. 2018AP1209-CR.dk

are reasonable for purposes of the Fourth Amendment, Ross[3]

allows searches for evidence relevant to offenses other than the

offense of arrest, and the scope of the search authorized is

broader."). So let's consider Justice Scalia's "suggestion."

¶74 Justice Scalia explained that the authority to search

an arrestee without a warrant does not necessarily depend on the

Chimel considerations. Instead, the justification can arise

from the arrest itself: "In United States v. Robinson, 414

U.S. 218, 235 [] (1973), we held that authority to search an

arrestee's person does not depend on the actual presence of one

of Chimel's two rationales in the particular case; rather, the

fact of arrest alone justifies the search." Thornton, 541 U.S.

at 631-32 (Scalia, J., concurring). The Robinson court was

quite explicit on this point:

A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment. Robinson, 414 U.S. at 235.

¶75 Justice Scalia's Thornton concurrence makes it clear

that once the authority to conduct the search exists (by virtue

of the arrest), the only remaining question is its scope. The

scope, he explained, depends on the nature of the search being

3 United States v. Ross, 456 U.S. 798 (1982).

5 No. 2018AP1209-CR.dk

conducted——protective versus evidentiary. Commenting on the

Robinson case, he agreed with the Court's rejection of the

District of Columbia Circuit's conclusion that "any protective

search would have to be limited by the conditions laid down in

Terry[4] for a search upon less than probable cause to arrest."

Robinson, 414 U.S. at 233. That is, the protective search is

comprehensive, and nothing about the arrest need suggest to the

officer that he is actually in danger or that he might actually

find anything in need of protection.

¶76 An evidentiary search performed after arrest, however,

requires a connection between the offense and the search.

Justice Scalia observed that "in the context of a general

justify any overbreadth are far less compelling." Thornton, 541

U.S. at 632 (Scalia, J., concurring). Therefore, he concluded,

"I would . . . limit Belton searches to cases where it is

reasonable to believe evidence relevant to the crime of arrest

might be found in the vehicle." Thornton, 541 U.S. at 632

(Scalia, J., concurring). So Justice Scalia's Thornton

concurrence was not about the authority to search, it was about

the scope of the search. When conducting a protective search

consequent upon an arrest, the scope is comprehensive. When

conducting an evidentiary search consequent upon arrest, the

scope is limited to where evidence of the crime might be.

4 Terry v. Ohio, 392 U.S. 1 (1968).

6 No. 2018AP1209-CR.dk

¶77 Where that evidence might be located depends, to a

very large extent, on the nature of the offense of arrest.

There is good reason to believe that Gant considered the

automobile search as a question of scope, as Justice Scalia

plainly did, rather than one of authority, as our court does

today. By way of illustrating the Court's holding, Gant

juxtaposed a few illustrative cases in which the offense of

arrest would not extend the evidentiary search to the automobile

against a few cases in which it would:

[W]e also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thornton, 541 U.S. at 632 (SCALIA, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.[5] But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein. Gant, 556 U.S. at 343-44. Gant did not assess the "totality of

circumstances" in each case to determine whether they indicated

there might be evidence relating to the offense of arrest in the

automobile at issue. It simply noted the type of offense (with

respect to Atwater and Knowles), and called out Belton and

Thornton without any further analysis. Of all the cases cited

in this illustration, Thornton is by far the most important in

judging the fidelity of our conclusion to Gant's paradigm.

See, e.g., Atwater v. Lago Vista, 532 U.S. 318, 5 324 (2001); Knowles v. Iowa, 525 U.S. 113, 118 (1998).

7 No. 2018AP1209-CR.dk

¶78 The court says that "[u]nlike the categorical

approach, which does not utilize facts particular to the case,

the reasonableness approach requires particularization." Lead

op., ¶31. If the automobile search in this case may not take

place without particularized suspicion "that the passenger

compartment, and, specifically, the bag, might contain relevant

evidence of OWI," id., ¶50, then Thornton does not belong in

Gant's illustration. In Thornton, there were quite literally no

particularized facts connecting the offense of arrest to Mr.

Thornton's car. The police pulled him over because the license

plate tags on the Chevrolet he was driving were actually issued

to a Ford. Thornton, 541 U.S. at 617. Mr. Thornton exited his

car, and then consented to the officer's request to search him.

Id. The search of his person netted several bags of illegal

narcotics. Id. The officer promptly arrested Mr. Thornton for

possession of illegal narcotics and placed him in the back seat

of the patrol car, whereupon the protective search justified by

Chimel came to an end. Id. Nonetheless, the officer

immediately commenced an evidentiary search of Mr. Thornton's

car, pursuant to which he discovered a handgun (which Mr.

Thornton was not allowed to possess). Id.

¶79 The search in Thornton, Gant said, was appropriate

because "the offense of arrest . . . suppl[ied] a basis for

searching the passenger compartment of [Mr. Thornton's]

vehicle . . . ." Gant, 556 U.S. at 343. Conspicuous by its

absence is any mention of factors other than the offense of the arrest. The opinion said nothing about particularized facts, or

8 No. 2018AP1209-CR.dk

totality of the circumstances, or any of the other phrases the

court uses to explain its holding today. Mr. Thornton was

arrested for drug possession ergo the police could search his

car for evidence. If Gant means what our court says it means,

then the Supreme Court erred pretty remarkably when it pointed

to Thornton as an example of its analysis. Other than the

offense of arrest, neither the Gant nor the Thornton court

identified a single fact suggesting the officer might have found

any evidence in the automobile. Consequently, it must

necessarily be true that the United States Supreme Court

believes that the offense of arrest, without more, can extend

the scope of a post-arrest evidentiary search to an automobile

recently occupied by the arrestee.

¶80 That principle (and its application to Thornton)

leads, almost mechanically, to the conclusion that in this case

the scope of the post-arrest evidentiary search appropriately

encompassed Mr. Coffee's car. In Thornton, the arrestee

possessed illegal drugs on his person, which was an offense

sufficient to bring his car within the scope of the post-arrest

evidentiary search. Here, Mr. Coffee possessed alcohol instead

of narcotics, and he possessed it inside his body instead of in

a plastic baggie inside one of his pockets. These distinctions

appear to have no constitutional significance, nor is any such

distinction on offer. Further, the offense of arrest in this

case is much more directly tied to the automobile than in the

Thornton matter——OWI cannot be committed without the automobile, whereas possession of illegal narcotics can. Therefore, if

9 No. 2018AP1209-CR.dk

possession of illegal narcotics justifies the scope of search in

Thornton, it perforce justifies the search in this case.6

*

¶81 Aside from my disagreement with the majority's

understanding of Gant, I don't think the "reasonableness" test,

at least the way we have fashioned it, can be correct. The

court says "[t]hough stated in various terms, the

[reasonableness] approach involves 'looking at common sense

factors and evaluating the totality of the circumstances' to

determine whether it was reasonable to conclude that evidence of

the crime of the arrest might be found within the vehicle."

Lead op., ¶30 (quoting United States v. Reagan, 713

F. Supp. 2d 724, 728 (2010) (quoting United States v. Pruitt,

458 F.3d 477, 482 (6th Cir. 2006)). Frankly, I don't think

It 6 is theoretically possible that the Wisconsin Constitution offers greater protection to drivers in Mr. Coffee's circumstances, but no one has made that argument in this case. Nor does any provision of our constitution come to mind that might provide that protection. And if we were addressing the application of the Gant/Thornton (concurrence) analysis for the first time to a case such as this, I'm not certain I would conclude that OWI is an offense of arrest capable of expanding the scope of the post-arrest evidentiary search to an automobile. But I believe the Supreme Court's approval of Thornton authoritatively answers that question, and this court certainly has no room to disagree. See generally, State v. Felix, 2012 WI 36, ¶36, 339 Wis. 2d 670, 811 N.W.2d 775 ("We are bound to follow the United States Supreme Court's interpretation of the Fourth Amendment that sets the minimum protections afforded by the federal constitution." (citation omitted)); and State v. Foster, 2014 WI 131, ¶57, 360 Wis. 2d 12, 856 N.W.2d 847 ("Our decisions interpreting the United States Constitution are binding law in Wisconsin until this court or the United States Supreme Court declares a different opinion or rule." (quoted source omitted)).

10 No. 2018AP1209-CR.dk

that's actually a test. Saying that we will consider "common

sense factors" and look at the "totality of the circumstances"

is really nothing more than saying we won't be obtuse. It may

be right for us to disfavor "bright-line rules" in the Fourth

Amendment context,7 but this just seems like parameter-free ad-

hockery.

¶82 For all these reasons, I respectfully concur with the

court's judgment.

7 Missouri v. McNeely, 569 U.S. 141, 158 (2013) ("While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.").

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¶83 REBECCA FRANK DALLET, J. (dissenting). In Arizona

v. Gant, 556 U.S. 332, 335 (2009), the United States Supreme

Court announced that the Fourth Amendment1 allows a warrantless

search of a vehicle incident to arrest "when it is reasonable to

believe that evidence of the offense of arrest might be found in

the vehicle."2 I agree with the lead opinion that under Gant,

the search must be analyzed by examining the totality of the

circumstances, a reasonableness approach, as opposed to applying a categorical approach based solely upon the nature of the crime

of arrest. I part ways with the lead opinion, however, in the

application of the reasonableness approach to the facts and

circumstances of this case. I dissent because it was not

reasonable for Officer Timothy Skelton to believe that Mose B.

Coffee's vehicle contained evidence relevant to his arrest for

operating while intoxicated (OWI). The search of Coffee's

vehicle incident to arrest was therefore unconstitutional.

1 The Fourth Amendment to the United States Constitution provides the right of citizens to be secure against unreasonable searches and seizures:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. 2 The Gant Court also clarified that a vehicle may be searched incident to arrest when the arrestee is "within reaching distance of the passenger compartment at the time of the search." Arizona v. Gant, 556 U.S. 332, 351 (2009).

1 No. 2018AP1209.rfd

I. FACTS

¶84 The relevant facts are set forth in both the affidavit

in support of the complaint and the suppression hearing

testimony.

¶85 On August 30, 2017, shortly after 11:15 p.m., Officer

Skelton conducted a traffic stop of Coffee's vehicle for failure

to display a front license plate. "Immediately" after Officer

Skelton turned on his emergency lights, Coffee pulled over into

a parking lot of a bar and parked very close to another vehicle.

According to the testimony of Officer Skelton, upon parking,

Coffee "immediately was getting out of his vehicle so it was

almost as if he was—knew [Officer Skelton] was behind him and

was getting out quickly." Officer Skelton testified to the

following conversation with Coffee as he exited the vehicle: "I

indicated I was performing a traffic stop for the front license

plate and that I wanted him to stay with his vehicle," to which

Coffee "indicated that he had been stopped for that same

occurrence before and that was why he was getting out to show [Officer Skelton] that he had a warning for it." Officer

Skelton described Coffee as "somewhat upset" about being stopped

again for failing to have a front license plate.

¶86 Officer Skelton observed that Coffee had a distinct

slur to his speech. He instructed Coffee to "sit down in his

car." As he approached Coffee, Officer Skelton "could smell an

odor of intoxicants coming from his person or from the vehicle."

He also noticed that Coffee's eyes were glazed over and bloodshot, "consistent with the odor—-the strong odor of

2 No. 2018AP1209.rfd

intoxicants." The body camera footage showed that during

Officer Skelton's conversation with Coffee, Coffee was seated in

the driver's seat with the front door open and his legs outside

of the vehicle, while Officer Skelton stood several feet away.

When asked where he was coming from, Coffee responded that he

had been at a friend's house where he "had not had that much" to

drink.

¶87 Officer Skelton asked Coffee to step out of his

vehicle in order to complete some field sobriety tests "[d]ue to

the level of odors and [his] observations of [] Coffee." At

this point, Officer Skelton realized that he had met Coffee a

couple weeks earlier. Officer Skelton noticed that Coffee was

"very talkative" compared to the previous occasion where Coffee

had been "very quiet." While Coffee was performing the field

sobriety tests with Officer Skelton, several other officers

arrived on the scene.

¶88 Officer Skelton testified that he believed Coffee was

operating a motor vehicle while intoxicated: "[b]ased off my observations of his person, the conversations I had with him,

the odor of intoxicants, the slurred speech, the field sobriety

tests that we did." On re-direct examination, Officer Skelton

reiterated that he had arrested Coffee based upon a "culmination

of my observations of his person, field sobriety tests, and

general odor that was coming from his person."

¶89 Officer Skelton stated that he informed the other

officers on scene, Officers Benjamin Fenhouse and Brenden

3 No. 2018AP1209.rfd

Bonnett, that Coffee had been arrested for "operating under the

influence of alcoholic beverages."

¶90 Both Officer Bonnett and Officer Fenhouse testified

that they were tasked with searching Coffee's two-door vehicle.

When asked what Officer Skelton told him about the nature of the

search, Officer Bonnett testified:

A.: I recall knowing the subject was in custody for impaired driving and conducted my search relevant to that.

Q.: And when you say you conducted your search relevant to that, what do you mean?

A.: I'd be looking for any substance in the vehicle that could impair a driver's ability to operate the motor vehicle safely. ¶91 When questioned about whether there was any smell of

alcohol emanating from the vehicle, Officer Bonnett testified:

Q.: So upon your initially opening the door, your police report doesn't mention any smells. Did you smell any alcohol?

A.: I don't recall smelling any alcohol. Officer Bonnett did not mention any smells of other intoxicants.

¶92 Officer Bonnett searched the driver-side front seat

while Officer Fenhouse searched the passenger-side front seat.

Neither officer found any evidence of open intoxicants. Officer

Bonnett subsequently searched behind the driver's seat, where he

found a cloth bag "full of stuff," including "wires, cables, and

phones." Officer Bonnett testified that he looked through the

bag "for any evidence which would impair a driver's ability to

operate a motor vehicle." After "dig[ging] through the bag" for over a minute, Officer Bonnett found two mason jars that had

4 No. 2018AP1209.rfd

"flakes of what was suspected to be marijuana." Upon discovery

of the mason jars, Officer Bonnett and Officer Fenhouse searched

the trunk portion of the vehicle and found roughly two pounds of

marijuana, along with drug paraphernalia.

II. ANALYSIS

¶93 The lead opinion concludes that "Skelton had

reasonable suspicion that the passenger compartment might

contain relevant evidence of OWI" for six reasons. Lead op.,

¶¶52-57.3 As illustrated below, neither the lead opinion's

reasons nor its conclusions are supported by the facts in the

record.

¶94 First, the lead opinion asserts that Officer Skelton

could smell an odor of intoxicants coming from the vehicle, and

therefore there was reason to believe intoxicants would be found

in the vehicle. Lead op., ¶52. The lead opinion reads a

statement in the affidavit attached to the complaint out of

context and insinuates that the smell of intoxicants emanated

from the vehicle separate and apart from Coffee's person. However, the full record indicates that Officer Skelton did not

articulate any particularized reason to believe the smell of

alcohol emanated from the vehicle. As Officer Skelton's

testimony and the body camera footage clarifies, he "could smell

an odor of intoxicants coming from the vehicle" when Coffee was

The parties do not dispute that if the search of the bag 3

in Coffee's backseat is upheld, the subsequent search of the trunk cannot be legally challenged. At oral argument, defense counsel clarified that Coffee was not independently challenging the search of the trunk.

5 No. 2018AP1209.rfd

seated in it. During the suppression hearing, Officer Skelton

described the odor in the following ways:

 "I believe at that point I had him sit down in his car and I could smell an odor of intoxicants coming from his person or from the vehicle."

 "Due to the level of odors and my observations of Mr. Coffee, I asked him to step out to do field sobriety tests."

 A "general odor that was coming from his person."

 "Based off my observations of his person, the conversations I had with him, the odor of intoxicants, the slurred speech, the field sobriety tests that we did, I believed he was operating a motor vehicle under the influence of intoxicants."4 As the body camera footage shows, Officer Skelton remained

several feet away from the vehicle while Coffee was seated in

the driver's seat with the door open and legs partly outside.

Officer Skelton had no occasion to assess whether the vehicle

independently had an odor of intoxicants.

¶95 Additionally, Officer Bonnett testified he did not

smell any alcohol coming from the vehicle, which he searched while Coffee was in Officer Skelton's squad car. Officer

Bonnett also did not mention the smell of any other intoxicants.

Viewing the record in full, the claim that there was a reason to

believe alcohol might be found in the vehicle because it smelled

of intoxicants is unsupported.

4Additionally, as evidenced in the body camera footage, Officer Skelton told Coffee to exit the vehicle and perform field sobriety tests because "I can smell it on ya."

6 No. 2018AP1209.rfd

¶96 Second, the lead opinion asserts that Coffee's

statement that he was coming from a friend's house provided a

reason to believe that alcohol might be found in the vehicle.

The lead opinion's logic is that "a private residence has

alcohol only if it is brought to the residence" and therefore

Coffee "might have brought the alcohol that he consumed to his

friend's house and have retained some in his vehicle." Lead

op., ¶53. The only authority cited is a footnote from United

States v. Reagan, 713 F. Supp. 2d 724 (E.D. Tenn. 2010), a

federal case upholding the suppression of evidence seized from a

vehicle during a search incident to arrest. The footnote

follows the magistrate judge's conclusion that a search of a

vehicle under Gant requires "a particularized and articulable

reason to believe that evidence of [OWI] is contained inside."

Id. at 733. The footnote reads:

Many different facts may provide a law enforcement officer with reason to believe that evidence of [OWI] is located inside the passenger compartment of a vehicle. Examples include observations of the driver drinking while driving, observations of an open container of alcohol in plain view inside the passenger compartment, statements made by the occupants of the vehicle indicating that an open container is in the passenger compartment, the smell of alcohol emanating from within the passenger compartment, or indications that the driver was traveling from a location such as a recreational area or campground where alcohol is not available unless it is transported in by private vehicle. Id. at 733 n.7. The Reagan court determined that the vehicle's

location in a recreational area did not support a search when

the ranger did not articulate any particularized reason why he believed the vehicle provided evidence of OWI. Id. at 733-34. 7 No. 2018AP1209.rfd

The lead opinion provides no authority for the more attenuated

proposition that if a person arrested for OWI is driving from a

friend's house, police will have a reason to believe there is

evidence of OWI in their vehicle.

¶97 Third, the lead opinion misconstrues the statement

that Coffee "continued into the parking lot" to signify that

"Coffee was hesitant to pull over because he knew there was

something in the automobile that he should not have had." Lead

op., ¶54. This interpretation directly contradicts the evidence

in the record which indicates Coffee immediately pulled over.

Officer Skelton was asked point blank:

Q.: Okay. So safe to say that immediately upon turning on your emergency lights [Coffee] pulled into the parking lot?

A.: Correct. The facts of record clearly show Coffee was not hesitant to pull

over. Therefore, this factor can not support the search of

Coffee's vehicle.

¶98 Fourth, the lead opinion claims that "Coffee's

careless parking and hasty exit from his vehicle could indicate that he was trying to distance himself from something in the

vehicle that he knew he should not have had." Lead op., ¶55.

The lead opinion ignores Officer Skelton's testimony that Coffee

"indicated that he had been stopped for that same [front license

plate violation] before and that was why he was getting out to

show [him] that he had a warning for it." Coffee's careless

parking and hasty exit from the vehicle fails to provide any

8 No. 2018AP1209.rfd

particular reason to believe that alcohol might be found in his

vehicle.

¶99 Fifth, the lead opinion states that because Coffee was

more talkative than he had been during one past interaction with

Officer Skelton, "Skelton could have believed Coffee was nervous

because he had something to hide." Lead op., ¶56 (emphasis

added). Officer Skelton described Coffee as talkative while

they "were walking over to the area . . . to do the field

tests." The record of the past interaction consists of one

statement that Coffee "had picked up an individual from a

hospital from an accident," and had been "very quiet at that

time."

¶100 The lead opinion uses the term "could have believed"

because there is no evidence that Officer Skelton believed that

Coffee's talkativeness equated to nervousness. Officer Skelton

never characterized Coffee as nervous, and the State never

argued that Coffee's nervousness formed a basis for the search.

While a suspect's nervousness could be a factor to consider in other cases, see, e.g., State v. Morgan, 197 Wis. 2d 200, 214-

15, 539 N.W.2d 887 (1995), this court is bound by the facts in

the record. Coffee was never described as nervous, and

therefore it could not be a factor that formed the basis for

Officer Skelton's search of Coffee's vehicle.

¶101 Finally, the lead opinion justifies its conclusion

based on Coffee's state of "extreme[] intoxicat[ion]." Lead

op., ¶57. As support, the lead opinion cites to a court of appeals case from Kansas involving the search of a vehicle based

9 No. 2018AP1209.rfd

in part on an odor of intoxicant emanating from the vehicle.

See State v. Ewertz, 305 P.3d 23, 28 (Kan. Ct. App. 2013). As

discussed earlier, supra ¶¶94-95, there is no indication in the

record that an odor of intoxicants was emanating from the

¶102 Of greater concern is the catchall statement that

"when a person is extremely intoxicated, it is not illogical to

assume intoxicants could be close by." Lead op., ¶57. A

finding of "extreme intoxication" invites police to always

search a vehicle after an OWI arrest, despite the absence of any

facts indicating there might be evidence of OWI in a particular

vehicle. United States v. Taylor, 49 A.3d 818 (D.C. 2012),

illustrates the distinction between the lead opinion's broad

statement and the particularization required when discussing

whether it is reasonable to believe evidence of OWI will be

found in a vehicle.

¶103 In Taylor, the defendant rear-ended a vehicle occupied

by three Deputy United States Marshals. Id. at 820. After arresting the defendant for driving under the influence,

officers searched the truck and found a loaded handgun. Id.

The trial court suppressed the evidence as the fruits of an

unlawful search. Id. at 821.

¶104 In upholding suppression of the evidence, the Taylor

court addressed Gant and discussed how the principles "apply to

this arrest for driving under the influence." Id. at 826. The

Taylor court reasoned:

Whenever probable cause exists to effect an arrest for DUI, there will be evidence that the individual in 10 No. 2018AP1209.rfd

question is intoxicated, has been drinking recently, and has been driving despite being (and perhaps while becoming) inebriated. In this case, the police certainly had reason to believe (indeed, they had probable cause to conclude) that Taylor was drunk. The smell of alcohol was on his breath, he was swaying back and forth, he had lost control of his vehicle, and he had urinated on a nearby tree. The breath test showed a blood alcohol content of .161. This evidence gave ample reason to believe that Mr. Taylor had consumed alcohol. But there was nothing in particular——no tell-tale sign——to suggest that he had been drinking in his vehicle.

It was, of course, possible that evidence of drinking— such as empty or partially full containers of alcohol— would be found in the vehicle, just as it is possible that such evidence may be found in any vehicle driven by an intoxicated individual. But the question under . . . Gant is whether it is reasonable to believe that such evidence might be found in this specific vehicle. The suspicion must be particularized. Id. (emphasis added).

¶105 This case lacks particular facts to suggest that

alcohol might be found in Coffee's vehicle. There were signs

that Coffee was intoxicated, but the State cannot rely solely on

those facts to search his vehicle. The specific facts giving rise to the conclusion that Coffee was intoxicated "did not make

it any more likely that he had been drinking in the vehicle."

Id. at 827.

¶106 Although there was no such evidence here, there are

factual circumstances which would support the search of a

vehicle incident to an arrest for OWI. For example, if police

observed, or were informed, that a suspect was consuming alcohol

while driving or just before driving. See, e.g., City of West Bend v. Willie, No. 2018AP151, unpublished slip op., ¶1 (Wis.

Ct. App. Aug. 15, 2018) (noting that the police received "a

report from the manager of Wendy's that Willie and his passenger

had open beers in their vehicle"); State v. Relyea, 2014AP2860-

CR, unpublished slip op., ¶3 (Wis. Ct. App. Jun. 18, 2015) ("The

officer saw that Relyea was 'guzzling' from what appeared to be

a bottle of 'microbrew' beer."). Other circumstances include

where an officer observes evidence of drinking or an attempt to

hide something in the vehicle. See, e.g., State v. Bons, 2007

WI App 124, ¶15, 301 Wis. 2d 227, 731 N.W.2d 367 (unusual

behavior "coupled with the presence of the shot glass on the

console, gave [the officer] reasonable suspicion that Bons had

been committing or was about to commit a crime involving

alcohol"). None of these factual circumstances were present in

this case.

¶107 I agree with the lead opinion that Gant, 556 U.S. 332,

requires a reasonableness approach to a search incident to

arrest based upon the totality of the circumstances. However, in this case, Officer Skelton did not have any particular reason

to believe that Coffee's vehicle might contain evidence relevant

to his arrest for OWI. The search of Coffee's vehicle incident

to arrest was therefore unconstitutional and the evidence should

have been suppressed.

¶108 For the foregoing reasons, I respectfully dissent.

¶109 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this dissent.

12 No. 2018AP1209.rfd