“Here, Pepin police conducted a classic search incident to arrest,” says Van Hollen.
“I’m pleased that the Wisconsin Supreme Court recognized the need to protect
both officer safety and the possible destruction of evidence.”
MADISON – It is lawful for police officers to search inside any container found inside the passenger compartment of a vehicle when any of the occupants is arrested, as a “search incident to arrest.” This morning the Wisconsin Supreme Court expanded the scope of such searches to objects or containers found outside the vehicle in close proximity to it.
“Here, Pepin police conducted a classic search incident to arrest,” says Van Hollen. “I’m pleased that the Wisconsin Supreme Court recognized the need to protect both officer safety and the possible destruction of evidence.”
In November 2004 Jordan Denk was a passenger in a car stopped on a rural county road late at night in Pepin County. A police officer on routine patrol stopped to see if the occupants needed assistance. The officer smelled the strong odor of burning marijuana coming from inside the car and ordered the occupants out. The driver was found to be carrying drug paraphernalia, admitted having marijuana on his person, and was arrested. The officer then went over to the passenger side of the vehicle where Denk was standing and saw the eyeglasses case on the ground just outside the passenger’s door. Denk stated that the case was his and placed it on top of the car. The officer looked inside and found a pipe used for smoking methamphetamine. Denk was placed under arrest, and additional drugs and paraphernalia were found in his clothing.
Denk was charged with multiple drug crimes in Pepin County Circuit Court. Denk asked the court to suppress the evidence, arguing that the initial search of the eyeglasses case was unlawful. Under existing law the eyeglasses case could have been searched if it had been found in the car, but not if it had been on Denk’s person, unless the officer had reason to fear that Denk was armed. The judge denied the motion to suppress, and Denk plead no contest to the charge of felony possession of methamphetamine. Denk was sentenced to five months in the county jail as a condition of probation, and appealed to the Wisconsin Court of Appeals.
The Court of Appeals asked the Wisconsin Supreme Court to decide the case because the issue might involve the creation of new law. The Supreme Court accepted the case, and today decided that the eyeglasses case found outside the car should be treated the same as containers found inside the car, and was lawfully searched. The Court’s reasoning was that the same policy considerations of protecting the safety of the officer and preventing the destruction of the evidence apply whether the eyeglasses case was found inside the car or in close proximity outside of it.
Today’s decision of the Wisconsin Supreme Court may be found at the court’s website:
The Pepin County District Attorney’s Office litigated the case in the circuit court. The Wisconsin Attorney General represents the State in all felony appeals in both the Wisconsin Court of Appeals and the Wisconsin Supreme Court. Assistant Attorney General Michael Losse represented the State in this case in both the court of appeals and the supreme court.