Petition for Writ of Certiorari — Mose B. Coffee, Petitioner v. Wisconsin

Supreme Court briefOct 19, 2020

Ask Donna

What actually matters in this document.

Text

No.

IN THE

_______________

MOSE B. COFFEE,

Petitioner,

STATE OF WISCONSIN,

Respondent.

_______________

On Petition For A Writ Of Certiorari

To The Supreme Court of Wisconsin

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

FRANCES REYNOLDS

COLBERT

ASSISTANT STATE PUBLIC

DEFENDER

ANDREW R. HINKEL

ASSISTANT STATE PUBLIC

DEFENDER

Counsel of Record

OFFICE OF THE STATE

PUBLIC DEFENDER

PO Box 7862

Madison, WI 53707

(608) 267-1779

hinkela@opd.wi.gov

QUESTION PRESENTED

Arizona v. Gant, 556 U.S. 332, 351

(2009), authorizes the search of a vehicle incident to

an arrest when “it is reasonable to believe the vehicle

contains evidence of the offense of arrest.” Courts

around the country have come to different

conclusions about what is required under this

standard. Some hold Gant requires something like

probable cause, others that reasonable suspicion is

sufficient. Still other courts reject any totality-of-thecircumstances approach and hold that the lawfulness

of a Gant search is categorically determined by the

offense of the arrest. The question presented is:

Does Gant’s reasonable-to-believe exception to the

Fourth Amendment’s warrant requirement permit

searches on probable cause, reasonable suspicion or a

categorical approach based on the crime of arrest?

TABLE OF CONTENTS

Page

Question Presented ........................................................... ii

Table of Authorities...........................................................iv

Opinions Below ...................................................................1

Jurisdiction .........................................................................1

Constitutional Provision Involved .....................................1

Statement ...........................................................................2

Factual Background ............................................3

Procedural Background.......................................4

Reasons for Granting the Petition .....................................7

The Origins of the Reasonable-to-Believe

Standard in the Search-Incident-to-Arrest

Exception to the Warrant Requirement ....................9

II.

Courts Have Divided Three Ways Over How To

Apply The Reasonable-to-Believe Exception

Announced In Gant ..................................................11

Some courts apply a probable-cause

standard to meet the reasonable-to-believe

requirement ......................................................11

Most jurisdictions treat the reasonable-tobelieve requirement as akin to reasonable

suspicion ...........................................................14

Some jurisdictions require no level of

articulable suspicion and instead apply a

nature-of-the-offense test .................................17

III. The Wisconsin Decisions are Wrong .......................20

iii

The categorical analysis adopted in this

case is unworkable and inconsistent with

constitutional text ............................................21

The crime of drunk driving, without more,

does not establish a reasonable belief that

evidence of the drunk driving will be in the

vehicle ...............................................................25

Conclusion ........................................................................28

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Gant,

556 U.S. 332 (2009) .......................................... ii, passim

Birchfield v. South Dakota,

136 S. Ct. 2160 (2016) .................................................. 25

Brown v. State,

24 So. 3d 671 (Fla. Dist. Ct. App. 2009) ...................... 17

Cain v. State,

373 S.W.3d 392 (Ark. Ct. App. 2010) .......................... 20

Carroll v. United States,

267 U.S. 132 (1925) ...................................................... 12

Chambers v. Maroney,

399 U.S. 42 ................................................................... 12

Chimel v. California,

395 U.S. 752 (1969) ............................................ 9, 10, 22

Commonwealth v. Perkins,

989 N.E.2d 854 (Mass. 2013) ....................................... 19

Dawkins v. United States,

987 A.2d 470 (D.C. 2010) ............................................. 13

Draper v. United States,

358 U.S. 307 ................................................................. 13

Johnson v. United States,

7 A.3d 1030 (D.C. App. 2010) ................................ 12, 13

Katz v. United States,

389 U.S. 347 (1967) ...................................................... 21

Meister v. State,

933 N.E.2d 875 (Ind. 2009) .......................................... 19

Mincey v. Arizona,

437 U.S. 385 (1978) ...................................................... 22

Missouri v. McNeely,

569 U.S. 141 (2013) ................................................ 21, 25

Mitchell v. Wisconsin,

___ U.S. ___, 139 S. Ct. 2525 (2019) ...................... 21, 25

New York v. Belton,

453 U.S. 454 (1981) .......................................... 9, passim

People v. Bridgewater,

918 N.E.2d 553 (Ill. 2009) ............................................ 19

People v. Chamberlain,

229 P.3d 1054 (Colo. 2010) ............................ 12, passim

People v. Evans,

133 Cal. Rptr. 3d 323 (Cal. Ct. App. 2011) ............. 6, 15

People v. McCarty,

229 P.3d 1041 (Colo. 2010) .......................................... 16

People v. Nottoli,

199 Cal. App. 4th 531 .................................................. 17

Richards v. Wisconsin,

520 U.S. 385 (1997) .......................................... 21, 23, 26

Robbins v. California,

453 U.S. 420 (1981) ................................................ 13, 24

Rose v. Commonwealth,

322 S.W.3d 76 (Ky.2010).............................................. 19

State v. Cantrell,

233 P.3d 178 (Idaho Ct. App. 2010)....................... 17, 20

State v. Ewertz,

305 P.3d 23 (Kan. App. 2013) ...................................... 15

State v. Fischer,

873 N.W.2d 681 (S.D. 2016)......................................... 15

State v. Harris,

786 N.W.2d 409 (Wis. 2010) .......................................... 7

State v. Leak,

47 N.E.3d 821 (Ohio 2016)........................................... 16

State v. Mbacke,

721 S.E.2d 218 (N.C. 2012) .......................................... 14

State v. Taylor,

137 A.3d 1029 (Md. 2016) ...................................... 14, 15

State v. Yazzie,

307 P.3d 1042 (Ariz. Ct. App. 2013) ............................ 23

Terry v. Ohio,

392 U.S. 1 (1968) .............................................. 8, passim

United States v. Allen,

713 F.3d 382 (8th Cir. 2013) ........................................ 13

United States v. Buford,

632 F.3d 264 (6th Cir. 2011) ......................................... 19

United States v. Edwards,

769 F.3d 509 (7th Cir. 2014) .................................. 12, 13

United States v. Gorman,

314 F.3d 1102 (9th Cir. 2002) ...................................... 11

United States v. Grote,

629 F. Supp. 2d 1201 (E.D. Wash. 2009) .................... 11

United States v. Lopez,

567 F.3d 755 (6th Cir.2009) ......................................... 19

United States v. Madden,

682 F.3d 920 (10th Cir. 2012) ...................................... 19

United States v. Oliva,

No. CRIM.A. C-09-341, 2009 WL 1918458

(S.D. Tex. July 1, 2009) ................................................ 20

United States v. Page,

679 F. Supp. 2d 648 (E.D. Va. 2009) ........................... 17

United States v. Paige,

870 F.3d 693 (7th Cir. 2017) ......................................... 12

United States v. Phillips,

9 F. Supp. 3d 1130 (E.D. Cal. 2014) ............................ 20

United States v. Rabinowitz,

339 U.S. 56 (1950) ........................................................ 22

United States v. Reagan,

713 F. Supp. 724 (E.D. Tenn. 2010) ...................... 16, 22

United States v. Ruckes,

586 F.3d 713 (9th Cir. 2009) ........................................ 19

United States v. Stegall,

850 F.3d 981 (8th Cir. 2017) ........................................ 13

vii

United States v. Taylor,

49 A.3d 818 (D.C. 2012) ..................................... 6, 12, 16

United States v. Thornton,

541 U.S. 615 (2004) ...................................... 9, 18, 24, 27

United States v. Vinton,

594 F.3d 14 (D.C. Cir. 2010) .......................... 11, passim

United States v. Williams,

616 F.3d 760 (8th Cir. 2010) .................................. 12, 13

Wyoming v. Houghton,

526 U.S. 295 (1999) ...................................................... 25

Constitutional Provisions and Statutes

U.S. Constitution

Fourth Amendment ............................................... ii, passim

Wisconsin Statutes

971.31(10) ............................................................................ 5

Other Authorities

1 J. BISHOP, CRIMINAL PROCEDURE

(2d ed. 1872) ................................................................. 18

3 WAYNE R. LAFAVE, SEARCH AND SEIZURE:

A TREATISE ON THE FOURTH AMENDMENT

(6th ed. 2020) ........................................................... 11, 20

viii

OPINIONS BELOW

The opinion of the Supreme Court of Wisconsin

(App., infra, 1a-55a) is reported at 943 N.W.2d 845.

The opinion of the Wisconsin Court of Appeals

(App., infra, 56a-64a) is reported at 929 N.W.2d 245.

The relevant circuit court proceedings and rulings

are unpublished. App., infra, 65a-100a.

JURISDICTION

The Wisconsin Supreme Court issued its opinion

affirming the judgment of the Wisconsin Court of

Appeals on June 5, 2020. The Wisconsin Supreme

Court thereafter entered an order denying

petitioner’s Motion to Reconsider on July 20, 2020.

App., infra, 106a. This petition is filed within

90 days of that denial, as required by Rule 13 of the

Rules of the Supreme Court. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States, Amendment IV:

“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.”

STATEMENT

Without seeking a warrant, police conducted a

search of petitioner’s vehicle and a backpack therein

after arresting him for drunk driving. The Wisconsin

court of appeals held, in a precedential decision, that

police officers will always have a basis to search a

vehicle after the driver has been arrested for drunk

driving. The court held this to be true as a matter of

law with no inquiry into the circumstances of the

arrest.

Petitioner challenged this categorical rule in the

Wisconsin Supreme Court. That court upheld the

court of appeals decision, though it fractured on a

rationale. A two-justice plurality rejected the lower

court’s view that the fact of a drunk-driving arrest

alone justifies a search of the passenger

compartment of a vehicle, but upheld the search

under a totality-of-the-circumstances analysis. One

justice concurred with this result, but would have

maintained the categorical approach of the court of

appeals. Two dissenting justices agreed with the

plurality

that

totality-of-the-circumstances

analysis governed, but reached the opposite

conclusion about whether it supported the search

here.

Although the plurality disagreed with the lower

court’s rationale, the state high court upheld the

court of appeals decision in toto. Thus, despite the

lack of support for this view on the state’s highest

court, binding Wisconsin law now holds that Gant

establishes a categorical exception to the warrant

requirement depending only on the offense of arrest.

The confusion in Wisconsin reflects a nationwide

uncertainty about how to apply Gant’s reasonable-tobelieve standard. Many courts, like the majority of

justices on Wisconsin’s supreme court, have required

totality-of-the-circumstances

reasonableness

standard akin to reasonable suspicion. Others have

applied a higher burden: that of probable cause. And

others, like the Wisconsin court of appeals, have

adopted a categorical test that looks to the nature of

the suspected offense and ignores any other

circumstances. This case presents the Court an

opportunity to unify these disparate approaches and

give courts, litigants and law enforcement a

definitive answer to an important constitutional

question: what does it mean for officers to have a

“reasonable belief” that evidence of the crime of

arrest will be found in a vehicle?

Factual Background

On August 30, 2017, Officer Timothy Skelton

observed a vehicle without its required front license

plate and initiated a traffic stop. App., infra at 2a.

While talking to petitioner, the driver of the vehicle,

Skelton observed indicia of intoxication, including

slurred speech, glassy eyes and the odor of alcohol.

Id. at 3a. Skelton continued to investigate and

eventually arrested petitioner on suspicion of drunk

driving. Id. at 4a.

After petitioner’s arrest, without a warrant, and

while he was secured in the back seat of the squad

car, law enforcement searched the passenger

compartment of petitioner’s vehicle. Id. at 4a-5a.

Before the search, officers did not observe petitioner

drinking in the vehicle or have any particular reason

to think he’d been doing so. They also did not see any

empty bottles or open intoxicants in the car, or

observe any furtive or otherwise suspicious

movements.

Ultimately, police found a small jar containing

remnants of marijuana; it was at the bottom of a bag

full of other items that was wedged behind the

driver’s seat. Id. at 5a. Officers then searched the

trunk where they discovered more marijuana. Id.

Procedural Background

Petitioner was charged with drunk-driving

offenses as well as possession of marijuana and drug

paraphernalia. Id. He moved to suppress the drugs

and paraphernalia on the ground that they were the

product of an unreasonable warrantless search.1 Id.

The trial court upheld the search, holding it would

have been reasonable for the officers to believe there

was alcohol concealed at the bottom of the bag. Id. at

5a-6a, 97a-99a. The court concluded that once the jar

containing remnants of marijuana was found,

officers could search the trunk for other evidence of

possession. Id. at 100a.

After the court denied petitioner’s suppression

motion, he pleaded no contest to one drunk-driving

count and the marijuana possession count. Id. at 6a.

1 In the trial court, petitioner also challenged the

administration of field sobriety tests and his subsequent drunkdriving arrest. App., infra, at 66a. Petitioner did not renew

these challenges on appeal.

He then appealed the suppression rulings, as

Wisconsin procedure permits. See Wis. Stat.

§ 971.31(10).

The Wisconsin court of appeals held that

[a]s a matter of law … when an officer

lawfully arrests a driver for OWI,2 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. at 64a.

The Wisconsin Supreme Court affirmed the

court of appeals decision, but the plurality disagreed

“that the lawful arrest for OWI, in and of itself,

supplied a sufficient basis to search the passenger

compartment of [the] vehicle.” Id. at 2a. After

considering other jurisdictions’ adoption of a

categorical approach to Gant searches, the plurality

rejected this application. Id. at 10a-13a. It noted that

bright-line rules are disfavored in Fourth

Amendment jurisprudence. Id. at 17a-20a. It

observed that a categorical approach has analytical

difficulties because “some offenses of arrest cannot

be meaningfully evaluated without reference to the

2 Operating While Intoxicated. App., infra, at 1a.

specific facts known to the officer.” Id. at 23a

(quoting People v. Evans, 133 Cal. Rptr. 3d 323, 336

(Cal. Ct. App. 2011)). Lastly, the plurality asserted

that Gant itself does not permit a categorical

approach. Id. at 23a-25a.

Two dissenting justices agreed that Gant

requires a “reasonableness approach” akin to the

reasonable suspicion standard. Id. at 42a. In

application of this approach, however, the plurality

and the dissent parted ways. According to the

plurality, the manner in which petitioner pulled over

and parked, the way he got out of the car, and his

apparent impairment gave officers reason to believe

the vehicle contained evidence of drunk driving. Id.

at 25a-26a. The dissenting justices disagreed, taking

the view that these facts merely showed petitioner

was intoxicated. In the dissent’s view “‘specific facts

giving rise to the conclusion that [petitioner] was

intoxicated did not make it any more likely that he

had been drinking in his vehicle.’” Id. at 53a

(quoting United States v. Taylor, 49 A.3d 818, 827

(D.C. 2012). The dissent would have required more

particularized facts—alcohol containers in the

vehicle, observations of the driver drinking in the car

or attempting to hide something, or the like—to

support a reasonable belief that the vehicle would

contain evidence of drunk driving. Id. at 52a-53a.

A single justice concurred in the plurality’s view

that the search was legal but rejected a totality-ofthe-circumstances test. Id. at 40a. Instead, like the

court of appeals decision below, the concurrence

asserted that certain categories of offenses, including

drunk driving, will always support a reasonable

belief that evidence of the crime of arrest will be in

the vehicle. Id. at 39a.

Because the opinions did not say any part of the

court of appeals’ binding decision was overruled,

petitioner moved for clarification regarding Gant’s

standard. Id. at 101a-106a. Petitioner argued that

because the categorical approach had been rejected

by four justices in favor of a totality-of-thecircumstances reasonableness approach, the court of

appeals decision should have been “reversed in part”

(on the legal standard) and “the judgment affirmed.”

Id. at 102a.. But the supreme court denied

petitioner’s motion. As a result, the court of appeals

decision is the law of Wisconsin. State v. Harris,

786 N.W.2d 409, 417 n.12 (Wis. 2010) (“Only when a

case is overruled does it lose all of its precedential

value.”) Thus, the two extant decisions offer

competing legal standards for searches incident to

arrest and the law in Wisconsin remains unsettled.

REASONS FOR GRANTING THE PETITION

When Gant announced a new rule permitting

vehicle searches incident to a recent occupant’s

arrest where “it is reasonable to believe the vehicle

contains evidence of the offense of arrest,” members

of this Court predicted that “without any

independent explanation of its origin or justification

[the Gant rule] is virtually certain to confuse law

enforcement officers and judges for some time to

come.” See Gant, 556 U.S. at 356 (Alito, J.,

dissenting, joined by Roberts, C.J., Kennedy, J., and

Breyer, J.).

Now, as predicted, courts around the country

have adopted widely varying standards governing

the constitutionality of a search of a vehicle after the

driver has been arrested. The confusion in Wisconsin

is replicated in jurisdictions across the county as

courts have implemented disparate approaches to

the Gant rule. Some jurisdictions have concluded

“reasonable to believe” is equivalent to a probable

cause standard. Other jurisdictions analyze the

existence of a reasonable belief using the lesser

reasonable suspicion standard of Terry v. Ohio,

392 U.S. 1 (1968), though courts take very different

approaches to this standard when applying it to

vehicular searches incident to arrest. Still other

jurisdictions have rejected a case-by-case, totality-ofthe-circumstances inquiry and instead follow a

categorical rule that the reasonableness of the

officer’s belief stems entirely from the nature of the

offense.

Given the frequency of roadside arrests, and

specifically the frequency of roadside arrests for

drunk driving, the novel exception announced in

Gant requires clarification by this Court. Does the

Fourth Amendment require this warrantless search

to be supported by at least reasonable suspicion, and,

if so, is the reasonable-suspicion standard in this

context the same as that required for investigatory

stops or may it be established merely by the nature

of the offense?

The circumstances of petitioner’s case provide

an excellent vehicle to answer this question. The

parties have never argued that any other exception

to the warrant requirement permits the search here,

and neither the lawfulness of the stop nor that of the

arrest is in question. The question presented was

squarely addressed at all levels of review, and the

facts underlying the search are straightforward. This

Court should take review.

The Origins of the Reasonable-to-Believe

Standard in the Search-Incident-to-Arrest

Exception to the Warrant Requirement.

After years of contraction and expansion, Chimel

v. California, 395 U.S. 752, 755 (1969), reined in the

search-incident-to-arrest exception to the warrant

requirement and disallowed general evidencegathering searches incident to arrest. Chimel

permitted warrantless searches only in the

immediate vicinity of an arrestee and only to protect

the safety of officers or to avoid destruction of

evidence. Id.

In New York v. Belton, 453 U.S. 454, (1981), the

Court applied the refined search-incident-to-arrest

exception to vehicle searches, holding that officers

may search the passenger compartment of a vehicle

contemporaneous to the lawful arrest of the driver.

Despite

its

stated

adherence

Chimel’s

justifications of officer safety and evidence

preservation, the Belton rule was routinely applied to

situations where the motorist was handcuffed and

secured in the back of a squad car, leaving no

possibility that the arrestee would harm the officer

or destroy evidence. See United States v. Thornton,

541 U.S. 615, 617 (2004) (affirming and extending

the holding in Belton) (Scalia, J. concurring).

Criticizing the situation created by Belton, Justice

Scalia noted: “we have now abandoned our

constitutional moorings and floated to a place where

the law approves of purely exploratory searches of

vehicles during which officers with no definite

objective or reason for the search are allowed to

rummage around in a car to see what they might

find.” Id. (citations and quotations omitted).

Adopting Justice Scalia’s criticisms of the Belton

rule, the Gant Court corrected the pervasive

misapplication of the search-incident-to-arrest

doctrine, saying it was based on a “faulty

assumption” that erroneously authorized “myriad

unconstitutional searches.” Gant, 556 U.S. at 350-51.

The Court explained, “[t]o read Belton as authorizing

a vehicle search incident to every recent occupant’s

arrest untether[s] the rule from the justifications

underlying the Chimel exception.” Id. at 344.

Thus, Gant rejected the automatic-search rule

and retied the search-incident-to-arrest doctrine to

the Constitution. After Gant “[p]olice may search a

vehicle incident to a recent occupant’s arrest only if

[1] the arrestee is within reaching distance of the

passenger compartment at the time of the search or

[2] it is reasonable to believe the vehicle contains

evidence of the offense of arrest.” Id. at 351.

The second prong of the rule was newly created

in Gant and not rooted in the historical justifications

of officer safety or evidence preservation. Id. at 343.

Rather, Gant announced a novel evidence-gathering

exception to the warrant requirement. Limited to the

vehicle context, evidence-gathering searches were

now authorized when law enforcement had a

reasonable belief they would find evidence of the

crime of arrest in the car.

II.

Courts Have Divided Three Ways Over

How To Apply The Reasonable-to-Believe

Exception Announced In Gant.

The Gant opinion “did not elaborate on the

circumstances when it will be reasonable to believe”

that a vehicle contains evidence; for over a decade,

courts have grappled with the “array of possibilities”

presented by the reasonable-to-believe exception.

United States v. Vinton, 594 F.3d 14, 25 (D.C. Cir.

2010); 3 WAYNE R. LA FAVE, SEARCH AND SEIZURE: A

TREATISE ON THE FOURTH AMENDMENT, § 7.1(d)

(6th ed. 2020). Lacking guidance from this Court,

jurisdictions around the country had developed three

disparate approaches to the exception.

Some courts apply a probable-cause

standard to meet the reasonable-tobelieve requirement.

At least one court has explicitly read the

reasonable-to-believe exception in Gant as a

requirement equivalent to a probable cause

standard. United States v. Grote, 629 F. Supp. 2d

1201, 1203-04 (E.D. Wash. 2009) (aff'd, 408 Fed.

Appx. 90 (9th Cir. 2011). Citing the Ninth Circuit’s

interpretation of the phrase “reason to believe,” the

Eastern District of Washington held that Gant’s

reasonable belief language “embodies the same

standard of reasonableness inherent in probable

cause.” Id. (citing United States v. Gorman, 314 F.3d

1102 (9th Cir. 2002)). The Seventh and Eighth

Circuits and the District of Columbia high court

similarly examined the constitutionality of a

vehicular search by applying a probable cause

standard, finding it unnecessary to decide “whether a

level of suspicion less than probable cause will

suffice under the ‘reasonable to believe’ prong of

Gant.” United States v. Edwards, 769 F.3d 509, 514

(7th Cir. 2014); accord United States v. Williams,

616 F.3d 760, 764-65 (8th Cir. 2010); Johnson v.

United States, 7 A.3d 1030, 1035 (D.C. App. 2010).

Some courts have rejected this approach, saying

a probable-cause standard would be redundant to the

automobile exception. See, e.g., Vinton, 594 F.3d at

25; Chamberlain, 229 P.3d 1054, 1057 (Colo. 2010);

Taylor (DC), 49 A.3d at 823. Other courts have been

untroubled by any redundancy, saying Fourth

Amendment doctrines are necessarily overlapping.

United States v. Paige, 870 F.3d 693, 702 (7th Cir.

2017) (“searches predicated on the ‘search incident to

arrest’ theory and those predicated on the

‘automobile exception’ ‘are interrelated’”). In any

event, courts have noted it is not unusual for

evidence “serve double duty, creating probable cause

not only to arrest the occupant but also to believe the

vehicle contains other contraband.” Taylor (DC),

49 A.3d at 825 (quotations and citations omitted); see

also Chambers v. Maroney, 399 U.S. 42, 47 (“as will

be true in many cases, the circumstances justifying

the arrest are also those furnishing probable cause

for the search”).

Indeed, when the probable-cause standard for

warrantless vehicular searches was first announced

in Carroll v. United States, 267 U.S. 132, 149, 156

(1925), this Court used the concept of a “reasonable

belief” interchangeably with “probable cause.”

Carroll held such a search valid if made “upon

probable cause, that is, upon a belief, reasonably

arising out of circumstances known to the seizing

officer,” and said “the seizing officer shall have

reasonable or probable cause for believing that the

automobile which he stops and seizes has

contraband.” Id. This Court has interpreted the

phrase “reasonable to believe” as a synonym of

“probable cause” in other contexts as well. See

Draper v. United States, 358 U.S. 307, 310 n.3 (1959)

(phrases “reasonable grounds to believe” in statute

and “probable cause” in the Fourth Amendment “are

substantial equivalents of the same meaning”).

The Fourth Amendment generally prohibits

evidentiary searches absent a probable cause

determination. U.S. CONST. amend. IV. Long ago,

Justice Stevens criticized Belton’s authorization of

evidentiary searches of vehicles on less than

probable cause: “By taking the giant step of

permitting searches in the absence of probable cause,

the Court misses the shorter step of relying on the

automobile exception to uphold the search.” Robbins

v. California, 453 U.S. 420, 452 (1981) (Stevens, J.

dissenting); see also Belton, 453 U.S. at 463 (Stevens,

J. concurring). Unable to decipher what Gant may

have meant by “reasonable to believe,” many courts

are simply applying the constitutionally safer

standard of probable cause. Johnson, 7 A.3d at 103435; (finding if there was “probable cause to search,

there was perforce, ‘reason to believe’ that the car

contained evidence related to the crime of arrest”);

see also Edwards, 769 F.3d 509; Williams, 616 F.3d

760; United States v. Stegall, 850 F.3d 981, 983 (8th

Cir. 2017) (emphasizing probability of evidence);

United States v. Allen, 713 F.3d 382, 387 (8th Cir.

2013); Dawkins v. United States, 987 A.2d 470, 476

(D.C. 2010).

Most

jurisdictions

treat

the

reasonable-to-believe requirement as

akin to reasonable suspicion.

Most courts have concluded that the “reasonable

to believe” language in Gant is an adoption of the

“reasonable

articulable

suspicion”

standard

articulated in Terry v. Ohio, 392 U.S. 1, and its

progeny. See e.g., Vinton, 594 F.3d at 25 (“the

‘reasonable to believe’ standard probably is akin to

the ‘reasonable suspicion’ standard required to

justify a Terry stop”); State v. Mbacke, 721 S.E.2d

218, 222 (N.C. 2012) (“the ‘reasonable to believe’

standard sufficient to justify a Terry stop”); Taylor

(DC), 49 A.3d at 824 (“officers must have a

reasonable articulable suspicion to conduct a vehicle

search under the second prong in Gant”). People v.

Chamberlain, 229 P.3d 1054, 1057 (Colo. 2010) (“it

seems … likely that the Court intended a … degree

of suspicion commensurate with that sufficient for

limited intrusions, like investigatory stops.”); State v.

Taylor, 137 A.3d 1029, 1024 (Md. 2016) (“We

conclude that the ‘reasonable to believe’ standard is

equivalent of reasonable articulable suspicion

because we cannot discern any logical difference

between the two.”)

Gant’s express rejection of Belton’s automaticsearch rule suggests at least some level of

particularized suspicion is required. 556 U.S. at 338.

And the precise phrasing used by this Court in

setting forth the exception supports adopting

reasonable articulable suspicion as the quantum of

suspicion required to justify the search. Compare

Gant, 556 U.S. at 351 (“reasonable to believe that

evidence of the offense of arrest might be found in

the vehicle”) with Terry, 392 U.S. at 30 (stop

permitted when officer could “reasonably conclude …

that criminal activity may be afoot” and frisk

permitted where officer could “reasonably conclude

… that the person with whom he is dealing may be

armed and presently dangerous”); see also e.g.

Vinton, 594 F.3d at 25 (citing Terry); Chamberlain,

229 P.2d at 1057 (citing Terry). But what the

reasonable-suspicion standard means under Gant

has been widely disputed. The inability of the four

justices on the Wisconsin Supreme Court to apply

the this standard to the same set of facts and reach

the same result reflects a larger split on how much

significance the nature of the crime of arrest plays in

a reasonable-suspicion analysis under Gant.

Some courts ostensibly adopting the reasonablesuspicion standard do not require a case-by-case

inquiry into the particular facts known to the officer.

Rather, these courts permit the fact of arrest alone,

due to the nature of the offense, to supply the

requisite suspicion under Gant. Chamberlain,

229 P.3d at 1057 (suspicion may “arise solely from

the nature of the crime”); Evans, 133 Cal. Rptr. 3d at

336 (fact of drunk-driving arrest alone creates

requisite suspicion evidence of that crime will be in

the car); State v. Fischer, 873 N.W.2d 681, 692 (S.D.

2016) (fact of arrest for possession of marijuana pipe

found on driver’s person supplied basis to search the

car); State v. Ewertz, 305 P.3d 23, 28 (Kan. App.

2013) (facts establishing driver’s intoxication and

nothing else supplied basis to search car after drunkdriving arrest); Taylor (Md), 137 A.3d 242 (no

particular facts required to establish requisite

suspicion after drunk-driving arrest).

Other courts take a more traditional approach to

the Terry standard and hold that a “police officer

must be able to point to specific and articulable facts”

that give rise to the belief that the vehicle contains

evidence of the crime of arrest. Taylor (DC), 49 A.3d

at 824 (citations and quotations omitted). These

courts hold that neither that the fact of arrest alone

nor the mere possibility that evidence might be in

the car create a sufficient basis to search the car.

People v. McCarty, 229 P.3d 1041, 1046 (Colo. 2010)

(facts “sufficient to justify an arrest for possession of

drug paraphernalia [are] nevertheless insufficient to

provide reasonable, articulable suspicion that

additional evidence of that offense might be found in

the arrestee’s vehicle.”); Taylor (DC), 49 A.3d 826

and United States v. Reagan, 713 F. Supp. 724, (E.D.

Tenn. 2010) (both holding facts that would be

present in all drunk-driving cases are insufficient to

create a reasonable belief that evidence of the crime

of arrest is in the car; particularized facts such as

observation of open intoxicant, statements of

witnesses, liquid on floorboards, furtive movements,

etc., are required); State v. Leak, 47 N.E.3d 821, 824

(Ohio 2016) (fact of arrest on domestic violence

warrant insufficient to support search of vehicle

when officer had no specific knowledge about when

and how the offense was committed); see also Vinton,

592 F.3d at 25-26 (noting that nature of unlawful

possession of a weapon may make it reasonable to

believe more weapons are in the car, but it was the

enumerated “facts of this case” that established

officer’s “objectively reasonable basis for believing

that additional weapons might be inside in the car”).

Thus, even among courts that hold Gant’s

standard akin to “reasonable suspicion,” the

agreement on this term masks considerable

disagreement about the shape of the inquiry it

describes.

Some jurisdictions require no level of

articulable suspicion and instead

apply a nature-of-the-offense test.

Several states and federal districts reject the

notion that Gant requires any level of suspicion and

interpret the reasonable-to-believe requirement to be

satisfied (or not satisfied) categorically, based solely

on the nature of the offense of arrest. People v.

Nottoli, 199 Cal. App. 4th 531, 553 (“Nothing in Gant

suggests that the Supreme Court was adopting a fact

intensive test similar to the reasonable suspicion

standard established by Terry v. Ohio.”); State v.

Cantrell, 233 P.3d 178, 185 (Idaho Ct. App. 2010)

(“the ‘nature of the charge’ is determinative of

whether there exists a reasonable basis to search for

evidence, not whether there is some independent

evidence that gives rise to a belief that the particular

vehicle contains evidence.”); United States v. Page,

679 F. Supp. 2d 648, 652 (E.D. Va. 2009) (“It is

logical to assume that the Court’s choice of words

was carefully chosen and hence distinguishable from

the more familiar standards of probable cause,

articulable

suspicion,

totality

the

circumstances.”); Brown v. State, 24 So. 3d 671, 679

(Fla. Dist. Ct. App. 2009) (“reasonable belief,” as

used in Gant, is solely determined from the “nature

of the offense of arrest”).

The nature-of-the-offense test is rooted in the

following passage in Gant:

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. [citations omitted].

But in others, including Belton and

Thornton, the offense of arrest will

supply a basis for searching the

passenger

compartment

arrestee’s vehicle and any container

therein.

Gant, 556 U.S. at 343-444.

Many courts also point to Justice Scalia’s

concurring opinion in Thornton as a justification for

this approach. Under Justice Scalia’s formulation,

supported by nineteenth century case law,

particularized suspicion connected to the vehicle is

unnecessary; instead, there is “nothing irrational”

about granting police officers the broad authority to

search, without limitation, the entirety of the place

“where the perpetrator of a crime lawfully arrested.”

Thornton, 541 U.S. at 629-30 (Scalia, J., concurring)

(citing 1 J. BISHOP, CRIMINAL PROCEDURE § 211,

p. 127 (2d ed. 1872).

Courts adopting a categorical approach take

the view that Gant created a dichotomy in the

vehicular search context between offenses for which

“evidence is possible and might conceivably be found

in the arrestee’s vehicle,” and offenses, like traffic

infractions, for which evidence is not likely to be

found in a vehicle. Chamberlain, 229 P.3d at 1056.

While Gant was clear that minor traffic offenses will

not involve documentary or physical evidence in the

vehicle,3 it is less clear what sorts of cases might

involve the possibility of physical evidence. But some

courts have nevertheless extended a categorical

nature-of-offense test beyond minor traffic violations

to other crimes: e.g., obstructing a peace officer

(categorically no reasonable belief, People v.

Bridgewater, 918 N.E.2d 553, 558 (Ill. 2009)); a

probation violation (categorically no reasonable

belief, United States v. Buford, 632 F.3d 264, 270

(6th Cir. 2011); arrest on a theft warrant

(categorically reasonable belief, Brown, 24 So. 3d at

677)). And many courts have applied a nature-of-theoffense test in drunk-driving cases, holding this

crime categorically gives rise to a reasonable belief

3 Courts unanimously agree that when the offense of

arrest is a minor traffic offense there will be no reasonable

belief that evidence of the crime of arrest will be in the vehicle.

See e.g. United States v. Madden, 682 F.3d 920, 926-27 (10th

Cir. 2012) (search of vehicle improper because “it was not

reasonable to believe [the] vehicle contained evidence of the

offense of arrest, i.e., evidence of two outstanding municipal

misdemeanor traffic warrants”); Commonwealth v. Perkins, 989

N.E.2d 854, 858 (Mass. 2013) (same, where offense was

operating motor vehicle without a license); Meister v. State,

933 N.E.2d 875, 878 (Ind. 2009) (same, where offense was

driving with a suspended license). United States v. Ruckes,

586 F.3d 713 (9th Cir. 2009) (“no likelihood” of finding evidence

of defendant's driving on suspended license); United States v.

Lopez, 567 F.3d 755 (6th Cir.2009) (arrest for speeding, “no

reason to think that the vehicle contains evidence of the offense

of arrest”); Rose v. Commonwealth, 322 S.W.3d 76 (Ky.2010) (no

basis for search where arrest on arrest warrant “issued for

traffic fines”).

evidence will be in the vehicle. See, e.g., Cantrell,

233 P.3d at 185; Cain v. State, 373 S.W.3d 392, 397

(Ark. Ct. App. 2010); United States v. Oliva, No.

CRIM.A. C-09-341, 2009 WL 1918458, (S.D. Tex.

July 1, 2009); United States v. Phillips, 9 F. Supp. 3d

1130, 1137 (E.D. Cal. 2014).

If an evidentiary search of a vehicle requires no

particularized suspicion at all, as these courts have

held, it represents a “dramatic change in the law”

and “require[s] a[n] …extended and careful analysis

of the doctrinal basis of and rationale underlying the

sudden adoption of this new rule.” LE FAVE, supra, at

§ 7.1.(d) (discussing Gant’s second prong generally).

But without clarification from this Court, lower

courts have been left to guess at the meaning of

Gant’s rule. This Court should take review to

definitively outline the parameters the Gant rule.

III. The Wisconsin Decisions are Wrong.

The categorical analysis adopted by the court of

appeals in this case – and the ones discussed in the

previous section – contradict well-established Fourth

Amendment jurisprudence; particularized suspicion

under the totality-of-the-circumstances is required.

But even under a totality-of-the-circumstances

analysis, and regardless of whether the standard is

probable cause or reasonable suspicion, the facts of

this case do not support searching the car because

committing the crime of drunk driving does not,

without more, create a reasonable belief the more

evidence of that crime will be in the vehicle.

The categorical analysis adopted in

this

case

unworkable

and

inconsistent with constitutional text.

Searches “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). This Court has not delineated an exception to

the warrant requirement for automobile searches in

suspected drunk driving cases or for other categories

of crimes. Such categorical blanket exceptions are

condemned generally, see, e.g., Richards v.

Wisconsin, 520 U.S. 385 (1997), and have been

rejected specifically in the context of drunk driving

prosecutions. See Missouri v. McNeely, 569 U.S. 141

(2013); Mitchell v. Wisconsin, ___ U.S. ___, 139 S. Ct.

2525 (2019). Fourth Amendment reasonableness

always “must be determined case by case on the

totality of circumstances.” McNeely, 569 U.S. at 145.

A reasonableness requirement under the

particular circumstances at hand is embodied in the

text of the Fourth Amendment and has been this

Court’s touchstone. Terry, 392 U.S. at 21 n.18 (the

“demand for specificity in the information upon

which police action is predicated is the central

teaching of this Court's Fourth Amendment

jurisprudence”). On the other hand, the words

“offense of arrest” are not derived from the

Constitution and the Fourth Amendment makes no

reference to or distinction between types of crimes.

See Mincey v. Arizona, 437 U.S. 385, 394-95 (1978)

(explaining there is no principled distinction between

crimes when it comes to the requirements of the

Fourth Amendment).

Gant

resurrected

warrantless

evidencegathering searches incident to an arrest in limited

“circumstances unique to the automobile context,”

despite the fact that Chimel had disallowed these

searches more broadly. Gant, 556 U.S. at 343. But

even pre-Chimel when this Court recognized a

constitutional basis for evidence-gathering searches

incident to an arrest in broader circumstances, the

reasonableness of these searches always required a

case-by-case analysis and was never assessed solely

by reference to the crime of arrest. See e.g. United

States v. Rabinowitz, 339 U.S. 56, 66 (1950)

(overruled by Chimel, 396 U.S. 752) (“the relevant

test is … whether the search was reasonable. That

criterion in turn depends upon the facts and

circumstances, the total atmosphere of the case.”).

Many courts, like the plurality in the Wisconsin

Supreme Court, have noted a categorical approach to

the Gant exception based on the crime of arrest

suffers from flaws in practical application. App.,

infra, at 22a. There exists no meaningful way to

delineate which crimes, by their nature, generate

physical evidence and which do not. Reagan, 713 F.

Supp. 2d at 732. Every crime can have physical

evidence associated with it. Chamberlain, 229 P.3d

at 1057. If the simple possibility of the existence of

such evidence is enough to justify a search, then the

Gant rule permits automobile searches in every case

where the driver is arrested. This can’t be correct; by

its own terms Gant announced the end of automatic

vehicle searches.

In addition, this Court has explicitly rejected

the notion that Fourth Amendment reasonableness

can be based on a “particular category of crime.”

Richards, 520 U.S. at 391. In Richards, the

Wisconsin high court had approved a categorical

exception to the knock-and-announce requirement

for all felony drug investigations. Id. at 388. This

Court unanimously prohibited this approach, holding

a “criminal-category exception” would render the

Fourth Amendment’s reasonableness requirement

meaningless. Id. at 394. This Court recognized that

“felony drug investigations frequently present

circumstances that warrant a no-knock entry” but

still insisted on a case-by-case, totality-of-thecircumstances analysis. Id. This Court held

“Wisconsin’s blanket rule impermissibly insulates

these cases from judicial review.” Id. at 393; see also

Terry, 392 U.S. at 21 (“[t]he scheme of the Fourth

Amendment becomes meaningful only when it is

assured that at some point the conduct of those

charged with enforcing the laws can be subjected to

the more detached, neutral scrutiny of a judge”).

Gant itself illustrates that “reasonable to

believe” requires a showing of particularized facts.

The crime at issue in Gant, driving with a suspended

license, is a crime that could involve documentary

evidence. See State v. Yazzie, 307 P.3d 1042 (Ariz. Ct.

App. 2013) (in order to commit the crime of driving

with a suspended license in Arizona, the driver must

know his/her license is suspended – some kind of

documentation or an official notice suspending the

license would be evidence of the crime). The

possibility that officers might find this documentary

evidence, however, did not create a reasonable belief

that this evidence would be in the car: “reasonable to

believe” requires more than a possibility. See

Chamberlain, 229 P.3d at 1057.

Further, Gant was explicit that it was not

overruling the holdings in Belton and Thornton.

Gant, 556 at 343-44, 346. Rather, Gant explained,

the new rule and reasoning announced in Gant

affirmed the constitutionality of the searches in

those cases. Id. In both, the officer was aware that

arrestees had committed the crime of possessing

illicit drugs while they were in their cars. Law

enforcement either saw and smelled evidence of

drugs in the car (Belton, 453 U.S. at 456) or found

large amounts of contraband on the driver

(Thornton, 541 U.S. at 618). It is logical and

reasonable – even probable – given these

particularized facts that the officer believed more

contraband was in the car. See Robbins 453 U.S. at

452 (Stevens, J. dissenting) (supporting the result in

Belton because officers had probable cause to believe

evidence would be in the car); see also Belton, 453

U.S. at 463 (Stevens, J. concurring). Gant’s

endorsement of the results of Belton and Thornton

suggests a totality-of-the-circumstances approach,

not an offense-based categorical rule.

The Constitution requires and this Court has

held Fourth Amendment searches insist on a caseby-case analysis of the reasonableness of the search

under the circumstances at hand. Gant did not

create a categorical exception to this long held rule

and Wisconsin, along with the other courts that have

interpreted it otherwise, are wrong.

The crime of drunk driving, without

more, does not establish a reasonable

belief that evidence of the drunk

driving will be in the vehicle.

The Fourth Amendment reasonableness inquiry

requires an assessment of “on the one hand, the

degree to which [the search] intrudes upon an

individual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate

governmental interests. Wyoming v. Houghton,

526 U.S. 295, 300 (1999). In drunk-driving cases, the

government has little interest in evidence that might

be collected in the car after the arrest of the driver.

This kind of evidence does not prove when or how

much the driver consumed or otherwise establish the

severity of the crime. The “critical evidence” in a

drunk-driving prosecution is the blood alcohol

concentration. McNeely, 559 U.S. at 172 (Roberts, J.

concurring); accord Mitchell, 139 S. Ct 2525;

Birchfield v. South Dakota, 136 S. Ct. 2160 (2016). A

search based on the generalized prospect of possibly

finding empty bottles or other evidence in the car

when there is no particularized suspicion that the

driver had been drinking in the car does not justify

the government’s intrusion on protected privacy

interests.

Moreover, in a typical drunk-driving arrest, it is

not likely that the marginally relevant evidence

would be found in the car.4 In addition to the data,

logically, the legality and public availability of

alcohol make it far more likely that individuals

consumed the alcohol at bars, restaurants, and

homes than in their cars. Importantly though, even if

possessing open intoxicants that caused the

intoxication was a frequent occurrence (which it is

not), this alone is not enough to justify a search. Just

as the “frequently present circumstances warranting

a no-knock entry” did not justify an exception to the

knock-and-announce requirement in Richards, any

alleged frequency of relevant circumstantial evidence

of drunk driving cannot, alone, justify a search of the

car. Richards, 520 U.S. at 394. The Constitution

requires particularized facts.

In a case such as petitioner’s, where no

evidence was found on him or in his vicinity and

when we know that most people consume alcohol at

home or in bars or restaurants, without

particularized facts indicating otherwise, law

enforcement did not have a reasonable belief that

there would be evidence of the drunk driving in the

car. If the categorical rule created by the Wisconsin

court of appeals is allowed to stand, the pretext of

4 A review of Wisconsin’s court database shows since

2010, 236,834 OWIs have been prosecuted in Wisconsin and

4,964 open intoxicant tickets have issued; only 327 OWIs were

accompanied by an open intoxicant ticket.

This information was compiled from the publically

available

Wisconsin

Circuit

Court

Access

website

(wcca.wicourts.gov) and was analyzed by the Wisconsin State

Public Defender’s Office IT department.

the drunk-driving arrest gives police “unbridled

discretion to rummage at will among a person’s

private effects” in the hopes of finding evidence of an

unrelated crime. Gant, 556 U.S. at 345. This is

exactly the kind of blanket search that was so

sharply condemned by Justice Scalia in Thornton

and corrected by the rule of Gant. Allowing the

search of every car after every OWI arrest is

unreasonable and susceptible to abuse; no legitimate

government interest justifies it under the

Constitution.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

FRANCES REYNOLDS

COLBERT

ASSISTANT STATE PUBLIC

DEFENDER

ANDREW R. HINKEL

ASSISTANT STATE PUBLIC

DEFENDER

Counsel of Record

OFFICE OF THE STATE

PUBLIC DEFENDER

PO Box 7862

Madison, WI 53707

(608) 267-1779

HINKELA@OPD.WI.GOv

October 19, 2020

APPENDIX

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.