State v. Meisenhelder

404 Wis.2d 75

978 N.W.2d 551

2022 WI App 37

STATE of Wisconsin, Plaintiff-Respondent,

v.Catti J. MEISENHELDER, Defendant-Appellant.^†

Appeal No. 2021AP708-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: April 14, 2022

Opinion Filed: June 15, 2022

On behalf of the defendant-appellant, the cause was submitted on the briefs of Susan E. Alesia, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sonya K. Bice, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, Grogan and Kornblum, JJ.

GROGAN, J.

¶1 Catti J. Meisenhelder appeals from a judgment entered after she pled no contest to possession of methamphetamine, contrary to WIS. STAT. § 961.41(3g)(g) (2019-20). Meisenhelder contends the circuit court erred when it denied her motion to suppress, which alleged that police lacked probable cause to search a small metal canister on her keychain while searching her purse pursuant to her arrest for retail theft. She believes the search violated the Fourth Amendment¹ because, according to her, the canister was too small to contain a weapon or any evidence of a crime. We affirm.

I. BACKGROUND

¶2 In July 2019, a Walmart loss prevention officer caught Meisenhelder stealing merchandise. Walmart notified Appleton Police about the retail theft, and Officer Jordan Woelfel and Officer Derek Anderson were dispatched to the store. When the officers arrived, they saw that Walmart loss prevention officers had detained Meisenhelder in the loss prevention office. One of the loss prevention officers reported that Meisenhelder had concealed two items in her purse—a bottle of mouthwash and an eyeliner, worth a total of $18.18—and had attempted to leave the store without paying for them. These two items were on the desk in the office when the police arrived.

¶3 The police told Meisenhelder they would need to search her purse to see if there were any additional stolen items inside, and Meisenhelder consented to the search. While searching the purse, one of the officers found a metal canister about the size of a "12 gauge shotgun shell" attached to her keys. The canister, which was "slightly wider in diameter ... than a 12 gauge shotgun shell" was opaque, making it impossible to view its contents. The officer unscrewed the canister cap and found a bag with suspected methamphetamine inside. Police then read Meisenhelder her Miranda² rights, and she subsequently stated that she believed the substance in the canister was methamphetamine. Police did not find any additional stolen merchandise inside the purse. When asked whether she had any other items on her person the police needed to know about, she gave the police several "dime-sized bags from her back pants pocket[,]" which contained residue suspected to be from methamphetamine. The officers arrested Meisenhelder, and the State charged her with misdemeanor retail theft, possession of methamphetamine, and possession of drug paraphernalia.

¶4 Meisenhelder filed a motion seeking to suppress "any and all evidence obtained in violation of her constitutional rights, including but not limited to any controlled substances located in the purple vial-sized container with a screw-on top and any derivative evidence, including all statements made after the unlawful search."³

¶5 The circuit court denied the motion, relying on State v. Sykes , 2005 WI 48, ¶2, 279 Wis. 2d 742, 695 N.W.2d 277, which upheld the search of Sykes’ wallet incident to a lawful arrest. The circuit court here concluded that the search of Meisenhelder's purse was "carried out [as] a valid search incident to arrest[.]" Subsequently, Meisenhelder entered into a plea bargain with the State where she agreed to plead no contest to the possession charge, and the other two charges would be dismissed and read in.

¶6 The circuit court accepted Meisenhelder's plea and withheld sentence. It placed her on eighteen months’ probation and allowed her to be discharged early if approved by her agent. As a condition of probation, the court imposed but stayed four months of jail time with Huber release privileges. Judgment was entered. Meisenhelder now appeals.

II. STANDARD OF REVIEW

¶7 An order granting or denying a motion to suppress evidence presents a question of constitutional fact, which requires a two-step analysis on appellate review. State v. Asboth , 2017 WI 76, ¶10, 376 Wis. 2d 644, 898 N.W.2d 541. "First, we review the circuit court's findings of historical fact under a deferential standard, upholding them unless they are clearly erroneous. Second, we independently apply constitutional principles to those facts." State v. Robinson , 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463 (internal citations omitted).

III. DISCUSSION

¶8 Meisenhelder argues that the police did not have probable cause to open the small metal canister attached to her keychain during the search of her purse because, she asserts, it was too small to contain a weapon or evidence of a crime. Meisenhelder relies on State v. Sutton , 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411 (2011), where this court held the warrantless search of vials police found during a protective search of Sutton's car during a traffic stop violated the Fourth Amendment. Id. , ¶¶2, 7-11. The State responds that the search of Meisenhelder's canister did not violate the Fourth Amendment because it was a search incident to arrest, and Meisenhelder was within reaching distance of her purse. The State cites to numerous cases concluding that when a suspect is searched incident to arrest, police can search anything on " ‘the arrestee's person’ " and " ‘the area from within which [the suspect] might gain possession of a weapon or destructible evidence.’ " See, e.g. , United States v. Hill , 818 F.3d 289, 295 (7th Cir. 2016) (alteration in original; citations omitted). We conclude the law permitted the search of the canister in Meisenhelder's purse.

A. Fourth Amendment and Search Incident to Arrest Principles

¶9 The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and that "no Warrants shall issue, but upon probable cause[.]" U.S. CONST . amend. IV. Article I, section 11 of the Wisconsin Constitution likewise provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated" and that "no warrant shall issue but upon probable cause[.]" WIS. CONST. art. I, § 11.

¶10 "A [search or] seizure conducted without a valid warrant is presumptively unreasonable." State v. Brereton , 2013 WI 17, ¶24, 345 Wis. 2d 563, 826 N.W.2d 369 (citing United States v. Ross , 456 U.S. 798, 824-25, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ). The "ultimate touchstone of the Fourth Amendment is ‘reasonableness[.]’ " Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Whether a search is exempt from the warrant requirement involves balancing "the degree to which it intrudes upon an individual's privacy and ... the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton , 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

¶11 In balancing these interests, courts have concluded that warrantless searches may comport with the Fourth Amendment if a search falls within a recognized exception. See, e.g. , Kentucky v. King , 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). One well-established exception to the Fourth Amendment includes the search incident to a lawful arrest. See Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ; State v. Bauer , 2010 WI App 93, ¶6, 327 Wis. 2d 765, 787 N.W.2d 412.

¶12 The law permits a warrantless search incident to arrest because searching the arrested person and the area within her reach is recognized as reasonable. See Chimel v. California , 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Chimel explained:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Id. An arrestee has lessened privacy interests because an arrest "significantly diminish[es]" the suspect's privacy interests. Riley , 573 U.S. at 386, 134 S.Ct. 2473 ; Mincey v. Arizona , 437 U.S. 385, 390-91, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The reasonableness of the search-incident-to-arrest exception includes closed containers found on an arrestee's person, see United States v. Robinson , 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and since United States v. Robinson , courts have repeatedly recognized as lawful the searching of objects found on an arrestee's person. See, e.g. , United States v. Rodriguez , 995 F.2d 776 (7th Cir. 1993) (allowing search of address book); United States v. Molinaro , 877 F.2d 1341 (7th Cir. 1989) (allowing search of wallet). Thus, the...