Monday, March 31, 2008

Review granted in 'State v. Denk'

The District IV Court of Appeals has certified the question of whether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of a previous case, State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W. 2d 568 [cert. denied, Pallone v. Wisconsin, 121 S.Ct.1148 (2000)].

Some background: A police officer in Pepin County came upon a car parked on the side of the road and asked its driver, Christopher Pickering, if he needed help.

Upon running a license plate check, the officer discovered the license plates on the vehicle did not belong to Pickering’s car. When the officer returned to the car, he smelled marijuana and eventually found drug paraphernalia and marijuana.

After formally arresting Pickering, the officer walked around to the passenger side of the car, where he saw a small eyeglass case on the ground in the vicinity where the passenger, Jordan A. Denk, was standing. Denk conceded the eyeglass case belonged to him and placed the case on the hood of the car at the officer’s request. Denk denied owning the contents, which turned out to be a glass "methamphetamine pipe" and "some cleaning tools." The officer arrested Denk and searched him, finding a baggie of marijuana, two marijuana pipes and a baggie containing methamphetamine.

Denk was initially charged with two felonies, including possession with intent to deliver THC and simple possession of methamphetamine, and two misdemeanors. The state later dropped the felony charge of possessing THC with intent to deliver but amended the complaint to include a Class H felony charge of possession of methamphetamine-related drug paraphernalia.

The circuit court denied Denk’s motion to suppress the results of the search of his eyeglass case and his person, concluding the officer was justified in his search incident to Pickering’s arrest. The circuit court also concluded that Denk had consented to the search of the eyeglass case. After the circuit court denied the suppression motion, Denk reached a plea agreement with the state under which he pleaded no contest to a Class I felony count of possessing methamphetamine-related drug paraphernalia. The state agreed to dismiss the more serious Class H felony and the two misdemeanors.

Denk filed a post-conviction motion to withdraw his guilty plea, contending the state could not have legally charged Denk with the Class H felony.

The Court of Appeals certification memorandum focuses on the search of the eyeglass case and whether its search could be justified as incident to the arrest of the driver, Pickering.

The state argues the search incident to the arrest of a driver of a vehicle should extend beyond a vehicle’s interior to an immediate area surrounding the vehicle from which the driver could retrieve a weapon or evidence. To rule otherwise would allow criminals to get rid of evidence or contraband simply by throwing it out of the vehicle, the state contends.

Denk asserts the search-incident-to-arrest exception authorizes police to search only the interior compartment of an automobile in which the individual was a recent occupant.

A decision by the Supreme Court could develop law in this area and determine how case law applies to this situation. From Pepin County.