WisBar News: Appeals court clarifies scope of plain view doctrine in unlawful car search case:

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  • Appeals court clarifies scope of plain view doctrine in unlawful car search case

    Police went too far by opening opaque vials, which contained ecstasy, seized in an automobile search where no probable cause existed to tie the vials’ contents to “criminal activity.”

    Joe Forward

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    Appeals court clarifies scope of plain 
view doctrine in unlawful car search case Dec. 14, 2011 – It was unlawful for a police officer to open opaque vials found “in plain view” while searching the defendant’s car, a state appeals court has ruled. That means defendant Damon Sutton’s conviction for possessing ecstasy with intent to deliver is reversed.

    In April 2010, Milwaukee police stopped Damon Sutton for failure to wear a seatbelt. One officer, Amy Bartol, asked where Sutton had come from, but he explained that it was none of her business, a right he had under Florida v. Royer, 460 U.S. 491 (1983).

    While another officer verified Sutton’s license and registration, Bartol kept an eye on the vehicle, a large conversion van. Bartol testified that while watching the van it made two distinct rocking motions, which caused Bartol to be concerned that Sutton may be moving to retrieve a weapon.

    Fearing for their safety, the officers conducted a pat-down search and placed Sutton “unhandcuffed” in the squad car while they began a search of the van. In the side “map pocket,” Bartol saw two dark blue vials in plain view. She could not see inside the vials, and opened them to find 21 ecstasy pills.

    Sutton, who subsequently pled guilty to unlawfully possessing less than four grams of a prohibited drug with intent to deliver, appealed the conviction on Fourth Amendment grounds, arguing the circuit court erred by not granting his motion to suppress the evidence seized.  In State v. Sutton, 2011AP36-CR (Dec. 6, 2011), the District I Wisconsin Court of Appeals reversed the circuit court's judgment.

    Under the Fourth Amendment to the U.S. Constitution, police may not conduct unreasonable searches and seizures. Warrantless searches are presumed to be unconstitutional, the appeals court explained, but exceptions exist. One of them involves weapons.

    The officers were legally allowed to search the van, under State v. Williams, 2010 WI App 39, 323 Wis. 2d, 460, 781 N.W.2d 495, because they believed it may contain a weapon and it was possible that Sutton would be returning to the van, the appeals court explained.

    “The minimal intrusion of looking into the van was more than outweighed by the need for the officers to assure themselves that there was no gun or other weapon in the van, especially because Sutton was not under arrest and could freely return to the van,” wrote Judge Ralph Fine.

    Under the “plain view” rule, it was also lawful for the officers to inspect anything in plain view, including the two opaque vials in the “map pocket” of the driver-side door. But the plain view doctrine did not give Bartol the authority to open the vials, the court concluded.

    “Here, although the opaque cylinders were ‘in plain view,’ the pills were not. Moreover, Bartol could not tell by touch what was inside the cylinders without opening them,” Judge Fine explained. “Additionally … Officer Bartol did not have probable cause to believe that the cylinders were connected to ‘criminal activity’ until she opened them.”

    The appeals court explained that a warrant was required in order to open the vials, because the vials were not big enough to contain a weapon, and Bartol searched the car for weapons. “Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus,” Judge Fine wrote.

    By Joe Forward, Legal Writer, State Bar of Wisconsin