State v. Tompkins

423 N.W.2d 823, 144 Wis. 2d 116, 1988 Wisc. LEXIS 39

• Court: Wisconsin Supreme Court
• Decided: May 25, 1988
• Docket: 86-0095-CR
• Status: Published

Opinions

STEINMETZ, J.

This is an automobile search case taken upon a review of an unpublished decision of the court of appeals which affirmed Tompkins’ conviction for possession of cocaine with the intent to deliver, entered by the circuit court for Fond du Lac county, Honorable Eugene F. McEssey, judge.

We find that under the facts, as a matter of law, there was probable cause to search the defendant’s motor vehicle. We further hold that because the agents had probable cause to believe the automobile contained contraband, there was no need for a showing of exigent circumstances or a search warrant.

The defendant in this case is Henry L. Tompkins (Tompkins). He was charged with possession of cocaine with intent to deliver contrary to sec. 161.41(lm)(b), Stats. Tompkins filed a motion to suppress challenging the seizure of cocaine from the interior of a truck which he had driven on March 14, 1984. He also sought suppression of items seized from his wallet which agents took from him following his arrest. The trial court denied all of defendant’s motions to suppress.

The defendant pleaded guilty and was sentenced to a term of five years in the Wisconsin State Prison. However, because the evidence supporting Tompkins’ conviction was the subject of a motion to suppress, he appealed the suppression ruling and the subsequent judgment of conviction under sec. 971.31(10), Stats. See State v. Mordeszewski, 68 Wis. 2d 649, 651, 229 N.W.2d 642 (1975).

The testimony at the suppression hearing showed that state agent John Mendoza (Mendoza) originally planned to purchase one-half pound of cocaine from David Lyons (Lyons) at the Holiday Inn on the outskirts of Fond du Lac on March 14, 1984. At 3:20 p.m. on that date Lyons telephoned Mendoza and reported that he was having trouble making connections with his source. It was this information and later information that led Mendoza to believe that the cocaine was being delivered that same day to Lyons from an outside source, rather than coming from a supply already in Lyons’ possession.

During this same time period, other state agents witnessed Lyons and co-defendant Cleve Meyer drive to several Fond du Lac locations near the Holiday Inn, including the Forest Plaza Shopping Center, Forest Mall Shopping Center and Egger’s Tavern. After stopping at various places, apparently in an effort to locate his source, Lyons finally rendezvoused with Tompkins at a shopping mall parking lot. Lyons left the car in which he was a passenger and entered a pick-up truck driven by Tompkins. He remained in Tompkins’ truck for several minutes, returned to the car in which he had been a passenger, and went to the Holiday Inn, where he had agreed to meet agent Mendoza to deliver the cocaine.

Upon delivery of one-quarter pound of cocaine, Mendoza arrested Lyons. Lyons explained that his source had told him that he would deliver only one-quarter pound of cocaine at a time. There is no dispute that, at the time of the transfer to Lyons, the undelivered one-quarter pound of cocaine was either on Tompkins’ person or in Tompkins’ truck and that Lyons was told he could return for the balance after the delivery of the first quarter pound to his customer.

Upon the arrest of Lyons, the agents following Tompkins’ pick-up truck were directed to arrest Tompkins. After Tompkins delivered the cocaine to Lyons in the mall parking lot, these agents saw Tompkins go to a gas station, where he went inside of the building for three or four minutes. He then drove to Egger’s Tavern. After Tompkins was in the tavern for about 15 minutes, he was arrested. The agents patted down Tompkins in the bar and then asked him to step outside. He was handcuffed there and was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

This body search produced keys which fit the pick-up truck Tompkins had been driving. By this time there were five state agents at the scene in separate automobiles surrounding the driverless, parked and locked pick-up truck. The agents, using the key, made an immediate warrantless search of the pick-up truck and found a small box containing one-quarter pound of cocaine in plastic bags.

Tompkins moved to suppress the evidence produced by this search. The trial judge denied the motion because he concluded the search of the truck was incident to the arrest and, in any event, the cocaine inevitably would have been discovered by lawful means. The judge determined that irrespective of the legal theory supporting the search, there was probable cause for a search of the truck. However, the judge specifically found that a search warrant could have been obtained.

On appeal from the judgment of conviction, the court of appeals agreed there was probable cause to believe that the remaining one-quarter pound of cocaine was in the truck. The court of appeals held that the search was conducted incident to the arrest of Tompkins, despite the fact the arrest and pat-down took place in Egger’s Tavern. The conviction was affirmed.

The defendant argues in this court that the warrantless search was not a valid search incident to his arrest. He further argues there was no probable cause to believe the remaining one-quarter pound of cocaine was in the parked and locked truck. Finally, he asserts that, even were there probable cause for a search, there were no exigent circumstances that would permit an exception to the requirement of a search warrant. He points out that the trial judge made the specific finding that a warrant could have been obtained.

Our first inquiry is whether the search was conducted incident to a lawful arrest. If it was not, we must examine whether the agents had probable cause to believe the cocaine was located in Tompkins’ truck. If they did not have probable cause to search, the inquiry ends, because the warrantless search was per se unreasonable under the Wisconsin Constitution and United States Constitution search and seizure provisions. If this court finds that the agents did have probable cause to search the truck, the issue becomes whether exigent circumstances are required to be present when the defendant is arrested outside of his vehicle and some distance from it.

The issues in this case regarding the existence of probable cause and the propriety of the search conducted present questions of law. Accordingly, this court independently reviews these issues without deference to the trial court or court of appeals. Lambert v. Wrensch, 135 Wis. 2d 105, 115, 399 N.W.2d 369 (1987).

Article I, sec. 11 of the Wisconsin Constitution prohibits unreasonable search and seizure.¹ Without probable cause neither a warrant nor warrantless search would be appropriate. Where a search is made incident to a lawful arrest, there need not be probable cause for the search. See sec. 968.11, Stats.; State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986).

Section 968.11, Stats., delineates the scope of a search made incident to a lawful arrest.² If the defendant had been arrested in the motor vehicle or, as in Fry, had he been stopped while driving and then arrested immediately thereafter just outside of his vehicle, there is no question that the search would have been within the scope of a search incident to a lawful arrest. However, in this case Tompkins was arrested in the tavern some distance from his truck. Tompkins’ truck was not "an area within [the defendant’s] immediate presence” under sec. 968.11. We disagree with the court of appeals that the search was conducted "incident to” Tompkins’ arrest within the meaning of sec. 968.11 and Fry, and we decline to sustain the search on these grounds.

Tompkins’ second challenge regards the existence of probable cause to search the truck. While defendant in his brief denies that there was reason to believe he had the remaining one-quarter pound with him at the time of Lyons’ initial purchase, in oral argument he conceded that there was evidence to a reasonable probability that he did then have the remaining cocaine with him. He asserts, however, that because following the delivery to Lyons, Tompkins stopped at a gas station for three or four minutes and then was in Egger’s Tavern for about 15 minutes prior to his arrest, he could have secreted the cocaine at either of those locations and, hence, there was no probable cause to believe the cocaine remained in the truck. Defense counsel did concede that there was probable cause to believe that the cocaine was in one of those three locations. He argued, however, "that the agents conducting the search were required to have probable cause to believe that a controlled substance was at the particular location searched.” (Emphasis supplied.)

We have no quarrel with this proposition; however, we do not believe that the concept of probable cause is so constrained as to mean "a particular location ... and not at any other location.” While defense counsel would reduce the state’s argument of probable cause to an absurdity, stating "under the agents’ theory they had probable cause to search the truck, the gas station, the tavern, and the area within a five-mile radius,” we conclude that, under the facts here, there was probablé cause to search the truck, the gas station and the tavern. There is no intimation in this record that the cocaine could have been left in any but the three named locations.

Professor Wayne LaFave discusses this situation in his treatise, LaFave, Search and Seizure, sec. 3.2(e) at 598-99 (2d ed. 1987):

"[T]he problem arises ... when the police have probable cause that a particular identified person has committed a crime and that he consequently is likely to have evidence of that crime in his possession somewhere, but they lack any information which makes one location (e.g., his car) a more likely location than another (e.g. his apartment). [If under these circumstances] rulings permit searches to be made upon something less than a 50% probability as to any one particular place, they do not appear objectionable.”

In Texas v. Brown, 460 U.S. 730, 742 (1983), the United States Supreme Court stated that "probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would 'warrant a [person] of reasonable caution in the belief,”’ that the contraband was likely to be in the place searched. The Court also stated in this case:

'"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’” Id.

In State v. Wisumierski, 106 Wis. 2d 722, 739, 317 N.W.2d 484 (1982), we stated:

"In regard to probable cause, the supreme court has stated that '[the Court] deal[s] with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, [must] act.’”

In State v. Welsh, 108 Wis. 2d 319, 329, 321 N.W.2d 245 (1982), we stated that probable cause was not susceptible of "stringently mechanical definitions.” What is required is more than a possibility, but not a probability, that the conclusion is more likely than not. This court has always stressed the reasonableness factor. Is it reasonable to believe in the circumstances that particular evidence or contraband may be located at a place sought to be searched?

We hold that where there is evidence that would lead a reasonable person to conclude that the evidence sought is likely to be in a particular location — although there may be other evidence that could lead a reasonable person to conclude that the evidence may instead be in another location — there is probable cause for a search of the first location. The search of the first location is appropriate although there may also be probable cause to believe the evidence may be in the second or third location.

In this case the facts indicated that the cocaine was as likely to be in the place searched as it was to be in the two other places visited by the defendant. Accordingly, we reject the defendant’s argument that there was not probable cause to search the truck. The state has successfully, by the recitation of the undisputed facts, fulfilled its duty to prove probable cause. We hold as a matter of law there was probable cause for the search.

The state contends that once probable cause is established — as we herein find it to be — the search of a motor vehicle may proceed without a warrant. It so asserts because under federal law of search and seizure the very nature of an automobile or truck, or other vehicle licensed to travel upon the highway, makes an automobile search sui generis. The state relies upon the mobility potential of a vehicle and the fact that licensed vehicles are constantly under police surveillance for criminal behavior and for safety purposes. In addition, the state relies upon the nature of the visual access to the interior of most motor vehicles by any passerby. These considerations result in a greatly reduced expectation of privacy justifying a search predicated on probable cause alone, without a showing that actual exigent circumstances existed. The state argues that, to the extent that exigent circumstances are necessary at all, the inherent mobility of an automobile satisfies this requirement. The state urges this court to interpret the Wisconsin search and seizure provision consistent with recent federal law interpreting the fourth amendment of the United States Constitution.

In Carroll v. United States, 267 U.S. 132 (1925), the United States Supreme Court first recognized what has been subsequently termed the "automobile exception” to the prohibition against unreasonable search and seizure under the fourth amendment. The Court stated:

"On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.

"Thus contemporaneously with the adoption of the Fourth Amendment we find in the first Congress, and in the following Second and Fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant.

"[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Id. at 149, 161, 153.

In the instant case, it is conceded that under the circumstances the officers could have obtained a search warrant. Does that fact make a difference today in the need to obtain a search warrant for an automobile when there exists probable cause to believe that the vehicle contains contraband? We believe not.

The underlying issue is whether the police acted reasonably in searching the vehicle, not whether a warrant could reasonably have been obtained. A perusal of the leading cases, Chambers v. Maroney, 399 U.S. 42 (1970); Cady v. Dombrowski, 413 U.S. 433 (1973); Cardwell v. Lewis, 417 U.S. 583 (1974); Texas v. Brown, 460 U.S. 730 (1983); and, finally, California v. Carney, 471 U.S. 386 (1985), indicate a steadily diminishing requirement over the years of proof of exigent circumstances based on the likelihood that the vehicle will be moved. These cases also indicate an increasing reliance by the Court upon the proposition that the right against unreasonable searches and seizures derives not so much from the need to protect property rights, but rather from the expectation of privacy. Privacy in one’s home, office, or other place of business is contrasted with the visual opportunity that a vehicle offers to the police and to the public, who in general can peer into the windows of every passing vehicle. Under the holding in Carney, the diminished expectation of privacy in an automobile justifies permitting a warrantless search of a vehicle when there is probable cause to believe that the vehicle contains a controlled substance, even absent a showing of exigent circumstances.

"When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purpose — temporary or otherwise — the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.” Id. at 392-93. (Footnote omitted.)

Thus, the present status of the federal automobile search and seizure law is well expressed by Professor LaFave as follows:

"As the Supreme Court in recent years has come to emphasize more and more not merely the mobility factor but also the lesser expectation of privacy notion, this has been reflected in the manner in which lower courts now deal with vehicle searches. Most significant (and, absent any backing away from Carney by the Supreme Court, most likely in the future) is that courts uphold warrantless searches with virtually no inquiry into the facts of the particular case, reasoning that whether any kind of exigent circumstances claim could plausibly be put forward is totally irrelevant." 3 LaFave, Search and Seizure, sec. 7.2(b) at 39 (2d ed. 1987).

The Court of Appeals for the Seventh Circuit recently stated: "The automobile exception allows a warrantless search and seizure of a car so long as the search is justified by probable cause.” United States v. Rivera, 825 F.2d 152, 158 (7th Cir. 1987), citing California v. Carney, 471 U.S. 386; Chambers v. Moraney, 399 U.S. 42; Carroll v. United States, 267 U.S. 132. The exception as applied by the federal courts recognizes both the inherently mobile nature of an automobile and the decreased expectation of privacy that an individual has in a car. See also Rakas v. Illinois, 439 U.S. 128, 153-54 (1978) (Powell, J. concurring) ("Nothing is better established in Fourth Amendment jurisprudence than the distinction between one’s expectation of privacy in an automobile and one’s expectation when in other locations.”); United States v. Bagley, 765 F.2d 836, 844 (9th Cir. 1985) (holding that probable cause alone justifies a warrantless search or seizure of a vehicle lawfully parked in a public place).

Federal law appears resolved that if the police have probable cause to believe a vehicle contains contraband, they may search it whether there are exigent circumstances or not. Accordingly, were we to follow the present state of federal law, the state, having proved probable cause to search the truck, could proceed with a warrantless search. We hold that where there is probable cause to believe that a vehicle contains evidence of a committed crime, Wisconsin constitutional law allows a warrantless search of a defendant’s automobile without a showing of exigent circumstances.

Tompkins argues that art. I, sec. 11 of the Wisconsin Constitution requires that exigent circumstances be present before a warrantless search of an automobile can be made even though there is probable cause to believe the vehicle contains contraband. The defendant relies on statements this court made in dicta in Wisumierski, 106 Wis. 2d at 737-38:

"Even though we are not required to reach the issue of reasonableness of the search absent a finding of standing, we will comment briefly on this issue. Warrantless searches are per se unreasonable. ... There are but few exceptions to this basic tenet of constitutional law, and to come within one of them it must be shown, by the party seeking to fall within the exception, that the exigencies of the situation rendered a warrantless search imperative.”

Wisumierski, applying federal constitutional law, stated that a "'very slight showing of exigency”’ was required for a warrantless search of an automobile. Id. However, Wisumierski was decided two years before the United States Supreme Court decided Carney in 1984.

In State v. Fry, 131 Wis. 2d 153, 172, this court compared art. I, sec. 11 of the Wisconsin Constitution to the fourth amendment of the United States Constitution and concluded: "But for a few inconsequential differences in punctuation, capitalization and the use of the singular or plural form of a word, the texts of art. I, sec. 11 and the fourth amendment are identical.”

As this court stated in Fry, we have consistently conformed the law of search and seizure under the Wisconsin Constitution to that developed by the United States Supreme Court under the federal constitution.³ Id. at 172. The primary reason this court has declined to interpret art. I, sec. 11 of the state constitution differently than the federal interpretation of the fourth amendment is to prevent confusion which would be generated by differing standards. Id.

Although the United States Supreme Court sets the minimal constitutional standards applicable to the states through the fourteenth amendment, this court is free to interpret our constitution in a manner which affords greater protections. As we stated in Fry:

"It is always conceivable that the Supreme Court could interpret the fourth amendment in a way that undermines the protection Wisconsin citizens have from unreasonable searches and seizures under art. I, sec. 11, Wisconsin Constitution. This would necessitate that we require greater protection to be afforded under the state constitution than is recognized under the fourth amendment.” Id. at 174.

Moreover, when the respective provisions of the state and federal constitution differ in language such that a federal constitutional provision offers more limited or restrictive protections than required under our state constitution, we are not influenced to the same degree to accept the federal position when interpreting rights claimed under the state constitution.

However, where the language of the state constitutional provision at issue is virtually identical with that of its federal counterpart, as here, we have traditionally interpreted our constitution consistent with the protections of the federal constitution as interpreted by the United States Supreme Court. This is particularly true of this court’s interpretation of the Wisconsin search and seizure provision. In Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923), this court first recognized the exclusionary rule in Wisconsin.

In Hoyer, this court stated:

"Sec. 11, art. I, Wis. Const., supra, is a pledge of the faith of the state government that the people of the state, all alike (with no express or possible mental reservation that it is for the good and innocent only), shall be secure in their persons, houses, papers, and effects against unreasonable search and seizure. This security has vanished and the pledge is violated by the state that guarantees it when officers of the state, acting under color of state-given authority, search and seize unlawfully. The pledge of this provision and that of sec. 8 are each violated when use is made of such evidence in one of its own courts by other of its officers.” Id. at 417.

The protection of rights and the preservation of judicial integrity depend in reality on the deterrent effect of the exclusionary rule. Unlawful police conduct is deterred when evidence recovered in unreasonable searches is not admissible in courts. The Wisconsin cases discussed in Hoyer and statements of that court all concerned judicial protection against police oppression. That is, the exclusionary rule developed as a judicial remedy to deter unreasonable searches and seizures. The fourth amendment was and is a limit on the powers of government.

However, although Hoyer was decided long before the United States Supreme Court held the provisions of the fourth amendment through the fourteenth amendment applicable to the states in Mapp v. Ohio, 367 U.S. 643 (1961), the Wisconsin Supreme Court accepted the United States Supreme Court’s decisions and applied them to interpret Wisconsin Constitution art. I, sec. 11. In Hoyer, the court examined art. I, sec. 11 and the fourth amendment and stated: "The two constitutional provisions here invoked are quite closely interwoven_” Id. at 416. The court stated:

"For ourselves we elect to stand, as this court has heretofore stood, with the federal and other courts which consider these provisions of the Bill of Rights as embodied in constitutions to be of substance rather than mere tinsel. We hold, therefore, that the evidence challenged in this case was taken by the officers by unlawful search and seizure and contrary to sec. 11, art. I, Wis. Const., supra, and was improperly received in evidence against him on the trial in violation of his rights under sec. 8, art. I, Wis. Const.” Id. at 415. (Emphasis added.)

Thus, the Wisconsin search and seizure provision was interpreted as consistent with the protections of the United States Constitution as interpreted by federal cases, Amos v. United States, 255 U.S. 313 (1921); Gouled v. United States, 255 U.S. 298 (1921); Burdeau v. McDowell, 256 U.S. 465 (1921), and other court of appeals cases cited in Hoyer.

In State v. Brady, 130 Wis. 2d 443, 453, 388 N.W.2d 151 (1986) the court characterized Hoyer as the case "in which we adopted an exclusionary rule based upon the Wisconsin Constitution.” What we did not state in Brady was that Hoyer was decided prior to Mapp v. Ohio and the fourth amendment had not been applied to the states. At that time of Hoyer the only protection against unreasonable searches was art. I, sec. 8 of the Wisconsin Constitution. Significantly, the interpretation of the Wisconsin Constitution in Hoyer was based exclusively upon federal cases, particularly United States Supreme Court decisions interpreting the fourth amendment.

As we indicated in Fry, this court will continue to construe our state constitutional search and seizure provision consistent with federal law interpreting the fourth amendment until and unless the federal protections offered undermine the rights protected under art. I, sec. 11. We have not yet reached that point where the United States Supreme Court’s interpretation of the fourth amendment undermines the protection afforded individuals prosecuted in the Wisconsin criminal justice system from unreasonable searches and seizures. The requirement of probable cause for the officer to search an automobile for controlled substances is a strong deterrent to police invasion.

The dissent authored by Chief Justice Heffernan ignores the historical development of search and seizure law starting with Hoyer and its development consistent with United States Supreme Court decisions since Mapp v. Ohio held the fourth amendment applicable to the states through the fourteenth amendment. Exigent circumstances as a theory of law was adopted in Wisconsin from federal case law stated in Carroll.

The cases cited by the dissent for the proposition that the exigent circumstances exception has been accepted into Wisconsin law are not in point for that statement. In Wilder v. Miller, 190 Wis. 136, 208 N.W. 865 (1926), this court examined the validity of a search and seizure of an abandoned automobile containing contraband. The issue of exigent circumstances was not examined or even discussed in Wilder, notwithstanding the fact that Carroll had just been decided the year before and given that the search was conducted in the clear absence of exigent circumstances. Nonetheless, the validity of the search and seizure was upheld in Wilder on probable cause alone. While, as the dissent points out, the Wilder court cited Carroll as authority for its decision, it is also true, as the dissent concedes, that the language of Carroll was "taken out of context” in Wilder. In Wilder this court distinguished Hoyer on its facts in the probable cause analysis, stating that in Hoyer the police did not detect the odor of alcohol emanating from the car prior to the search, whereas in Wilder the odor of alcohol was obvious. Thus, Wilder cannot be seen as a case in which "the exigent circumstances doctrine has been entrenched as a proper exception to the warrant requirement” under the Wisconsin Constitution. See dissent slip op. at 146-147.

In State v. Leadbetter, 210 Wis. 327, 246 N.W. 443 (1933), Carroll was accepted into Wisconsin constitutional law but again made no mention of exigent circumstances as being required for a warrantless search. Significantly, the dissent relies on Leadbetter for the history of exigent circumstances in Wisconsin despite the following language from that case: "Since all that is required to justify a search of an automobile is reasonable or probable cause for believing that its contents offend against the law, we conclude that the search was lawful.” Id. at 333.

State v. Friday, 140 Wis. 2d 701, 412 N.W.2d 540 (Ct. App. 1987) cited Carroll and State v. Donovan, 91 Wis. 2d 401, 408, 283 N.W.2d 431 (1979), stating that both probable cause and exigent circumstances are necessary for a warrantless search; however, the case was decided on the basis of the lack of probable cause and inappropriateness of the application of the inevitable discovery rule.

It is not logical in the absence of a constitutional violation to have one prosecuted in a federal court to have a warrantless search considered on the basis of probable cause and not requiring exigent circumstances; yet in a state court prosecution both probable cause and exigent circumstances are necessary for a warrantless search. This distinction is not necessary nor appropriate when the treatment is governed by almost identically phrased constitutional provisions.

The exclusionary rule continues to protect against unreasonable searches of an automobile; evidence obtained will not be admissible in prosecutions unless the officer had probable cause to believe the vehicle contained contraband or evidence of a committed crime. That is tested by whether the circumstances would warrant a person of reasonable caution to hold the same belief. Texas v. Brown, 460 U.S. at 742. The test on review of a motion to suppress will be whether the officer had probable cause to search the pick-up truck.

We hold that where the police have probable cause to believe that evidence of a crime is in an automobile, a search may be made of the automobile without a search warrant and without a showing of exigent circumstances. In that regard, art. I, sec. 11 of the Wisconsin Constitution provides no greater rights than art. IV of the United States Constitution as interpreted by the United States Supreme Court.

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

1 Art. I, sec. 11 of the Wisconsin Constitution provides as follows:

"Searches and seizures. SECTION 11. 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 warrant 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.”

2 Sec. 968.11, Stats., provides as follows:

"Scope of search incident to lawful arrest. When a lawful arrest is made, a law enforcement officer may reasonably search the person arrested and an area within such person’s immediate presence for the purpose of:

"(1) Protecting the officer from attack;

"(2) Preventing the person from escaping;

"(3) Discovering and seizing the fruits of the crime; or

"(4) Discovering and seizing any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, the offense.”

3 As this court stated in Fry, 131 Wis. 2d at 172-73:

"Numerous recent examples exist where this court has followed the precedent of the United States Supreme Court in search and seizure cases. In State v. Rodgers, 119 Wis. 2d 102, 349 N.W.2d 453 (1984), we followed the principles for determining the sufficiency of a consent to a search that were articulated by the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In State v. Boggess, 115 Wis. 2d 443, 453-57, 340 N.W.2d 516 (1983), we adopted the totality of the circumstances test for determining probable cause enunciated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). In State v. Callaway, 106 Wis. 2d 503, 519-20, 317 N.W.2d 428 (1982), and State v. Wisumierski, 106 Wis. 2d 722, 727-28, 317 N.W.2d 484 (1982), we repudiated the doctrine of automatic standing for persons accused of possessary offenses, in accord with the Supreme Court’s decision in United States v. Salvucci, 448 U.S. 83 (1980). Finally, in State v. Fillyaw, 104 Wis. 2d 700, 710-11, 312 N.W.2d 795 (1981), we abandoned the traditional rules for determining a defendant’s standing to challenge an unconstitutional search, abandoning the 'legitimately on the premises’ test in favor of an 'expectation of privacy’ test, in conformity with the Supreme Court’s decision in Rakas v. Illinois, 439 U.S. 128 (1978).”