WI Court of Appeals rules evidence obtained during pat-down search must be suppressed.

• Author: Ziemer, David

Byline: David Ziemer

Where an officer decides not to arrest an intoxicated driver but instead drives him to the police station, evidence obtained during a pat-down search must be suppressed in the absence of a reasonable fear on the officer's part for his or her safety, the Wisconsin Court of Appeals held last week.

Facts

Robert F. Hart was stopped for speeding and suspicion of driving while intoxicated. Sobriety tests and a preliminary breath test indicated that Hart was intoxicated. Nevertheless, the officer decided not to arrest Hart, but instead drive him to the police station, where he could call for a ride home.

Prior to placing Hart in the squad, the officer conducted a pat-down search pursuant to police department policy. During the search, Hart threw a marijuana pipe on the ground.

Procedure

Hart was then arrested, and was charged with possession of drug paraphernalia and operating while intoxicated.

He moved to suppress the pipe, but the trial court denied the motion. Hart was convicted of both charges and appealed. The District II (Waukesha) Court of Appeals reversed the paraphernalia conviction in a decision by Judge Richard S. Brown.

The court's reasoning

The Court of Appeals rejected the State's argument that, if probable cause for arrest existed, the search was valid as a search incident to arrest, citing State v. Swanson, 164 Wis.2d 437, 475 N.W.2d 148 (1991).

In Swanson, as in this case, the officer conducted a pat-down search prior to placing Swanson in a squad car. As in this case, Swanson was not under arrest at the time he was placed in the car.

The Supreme Court in Swanson held that the defendant was not under arrest and therefore the search could not be upheld as being incident to an arrest.

Applying the holding in Swanson to the case at bar, the Court of Appeals found it irrelevant that no probable cause was present to arrest Swanson, while probable cause was present in this case.

The Court of Appeals concluded that the purposes behind a search incident to arrest are not served where no arrest is intended. The purpose of such a search is to find weapons, instruments of escape, and evidence of crime.

Where the officer has no intent to arrest, however, the officer has no reasonable belief that the person will conceal evidence, harm the officer, or escape.

The court further rejected the State's argument that the pipe may be admitted as the result of a lawful pat-down search pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

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