State v. Paul S. Jones

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP380-CR Cir. Ct. No. 2017CF123

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PAUL S. JONES,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Vernon County:
LYNN M. RIDER, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP380-CR

¶1 PER CURIAM. Paul Jones, by counsel, appeals his judgment of
conviction and the order denying his motion to suppress evidence obtained in a
warrantless police search of a vehicle. The sole issue on appeal is whether the circuit
court erred in denying Jones’s suppression motion. For the reasons discussed
below, we affirm the judgment of the circuit court.

BACKGROUND

¶2 La Crosse County Sheriff’s Deputy Bryan Cessford observed a green
Audi driving on the road. A search of the license plate number showed that the
Audi was registered to Jones, and that there were warrants out for Jones’s arrest.
Cessford attempted to make a traffic stop, but the driver fled at high speed. Cessford
followed it to a residence, where the driver parked, got out, and entered the
residence.

¶3 Vernon County Deputy Sheriff William Roesler also arrived at the
residence. When Roesler arrived, a neighbor told Roesler that he had “just missed”
Jones and that Jones had just gotten out of the vehicle. Roesler observed a person
in the passenger’s seat of the parked vehicle but no one in the driver’s seat. The
passenger told Roesler that Jones had been the driver who had just left. Roesler
approached the residence with his weapon drawn and told Jones to come out. Jones
came out and denied having driven the vehicle. Jones was arrested and placed in a
squad car. Jones’s mother arrived at the scene and told Roesler that she believed
that Jones was “high.”

¶4 Roesler looked into the window of Jones’s vehicle and saw a butane
torch and large knife partially obstructed by the seat. Police brought a drug
detection dog to the scene and had the dog conduct a sniff of the perimeter of the
vehicle, but it did not make any indication that it had detected drugs.

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No. 2019AP380-CR

¶5 Roesler used a vehicle lock-picking tool to open the locked vehicle.
The car alarm went off. The officers opened the hood of the vehicle and disabled
the alarm. Inside the hood, Roesler observed a piece of plastic underneath a hat.
Roesler testified that this was a common place to conceal drugs, and that based on
what he knew about Jones’s history and from information from the police
investigation unit, he expected that the hat would contain drugs. The hat was seized
and found to contain 114 grams of methamphetamine.1 After the officers disabled
the alarm, they turned their attention to the interior of the vehicle. The officers
found a marijuana grinder and a small amount of marijuana in addition to the items
previously observed.

¶6 Jones was charged with two felony counts and two misdemeanors. He
pled guilty to the two felonies, possession of methamphetamine with intent to
deliver and attempting to flee an officer. The remaining charges were dismissed
and read in. Prior to entering the plea agreement, Jones filed a motion to suppress
evidence obtained from the search of his vehicle, arguing that the evidence was
obtained as the result of an unlawful search. The circuit court denied the motion
after a hearing. Jones now appeals, challenging the circuit court’s denial of his
suppression motion based on the forced entry to the Audi.

DISCUSSION

¶7 Jones argues that the circuit court should have suppressed the
evidence obtained as a result of the search of his vehicle because the search occurred

1
The State asserts in its brief that Jones does not argue that the police unlawfully opened
the hood of his car or that the police could not lawfully seize the methamphetamine once they
opened the hood. Jones has not filed a reply brief disputing the State’s assertion. A proposition
asserted by a respondent on appeal and not disputed by the appellant in the reply brief is taken as
admitted. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994).

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No. 2019AP380-CR

without a warrant and did not fall within any recognized exception to the
constitutional warrant requirement. We affirm the circuit court’s denial of the
suppression motion on the ground that the search of the vehicle was justified under
the automobile exception to the warrant requirement, because law enforcement had
probable cause to believe that Jones had driven impaired and that evidence related
to impairment would be found in the vehicle.

¶8 The United States and Wisconsin Constitutions prohibit unreasonable
searches and seizures. See U.S. CONST. amend. IV; WIS. CONST. art. I, § 11.
“Warrantless searches are per se unreasonable, subject to several clearly delineated
exceptions.” State v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430.
One such exception is the automobile exception, which permits police to “conduct
a warrantless search of a car if they have probable cause to believe that the car
contains contraband.” State v. Jackson, 2013 WI App 66, ¶8, 348 Wis. 2d 103, 831
N.W.2d 426 (citing U.S. v. Ross, 456 U.S. 798, 799-800 (1982)).

¶9 Significant here, in addition to this probable-cause-for-contraband
rule, under the automobile exception, police may search a vehicle “‘for evidence
relevant to offenses other than the offense of arrest’ when ‘there is probable cause
to believe a vehicle contains evidence of criminal activity.’” State v. Lefler, 2013
WI App 22, ¶14, 346 Wis. 2d 220, 827 N.W.2d 650 (quoting Arizona v. Gant, 556
U.S. 332, 347 (2009), which relies on Ross, 456 U.S. at 820-21, for the proposition,
“If there is probable cause to believe a vehicle contains evidence of criminal
activity,” police may search “any area of the vehicle in which the evidence might
be found.”).

¶10 Turning to probable cause standards, there is probable cause when the
totality of the circumstances “would lead a reasonable police officer to believe that

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No. 2019AP380-CR

the defendant probably committed a crime.” State v. Koch, 175 Wis. 2d 684, 701,
499 N.W.2d 152 (1993). Whether a set of facts constitutes probable cause is a
question of law that we review de novo. State v. Babbitt, 188 Wis. 2d 349, 356,
525 N.W.2d 102 (Ct. App. 1994).

¶11 The State argues that the police officers had probable cause to believe
that Jones had driven impaired, and to believe that his vehicle contained evidence
of an operating while intoxicated (OWI) offense. Jones argues that probable cause
of an OWI offense was lacking and he emphasizes the following combination of
facts: the officers did not conduct field sobriety tests or a preliminary breath test
(PBT), nor did they arrange for a blood draw; Deputy Roesler is not a drug
recognition expert; and the drug detection dog did not signal the presence of drugs.

¶12 We agree with the State’s position. Even in light of the facts
highlighted by Jones, we are satisfied that the officers had probable cause, based on
the totality of the circumstances, to believe that Jones had driven impaired and that
the Audi contained evidence related to impairment, despite the fact that his arrest
was not for OWI. The following undisputed facts support our conclusion.

¶13 On the day of Jones’s arrest, an off-duty police officer reported to
dispatch that he saw Jones driving a green Audi. License plate records showed that
the Audi was registered to Jones. Deputy Cessford observed the same green Audi
later that day, and the Audi fled at high speed when Cessford tried to make a traffic
stop.

¶14 Deputy Roesler testified that he had information from the Vernon
County Sheriff’s Department that Jones was a user and distributor of
methamphetamine in the area. Roesler also testified that he knew Jones was wanted
on a drug-related warrant. Both the passenger of the Audi and a neighbor told

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No. 2019AP380-CR

Roesler that Jones had been the driver of the vehicle. When Jones came out of the
residence, Roesler observed that Jones was fidgety, that he spoke at a quick pace,
and that he exhibited a “1,000 yard stare,” as if Jones were looking right through
Roesler. Jones’s mother also told officers that she believed that Jones was “high.”

¶15 In addition, Roesler observed a butane torch and a knife in plain view
inside the Audi. Roesler testified at the suppression motion hearing that butane
torches are commonly used to light methamphetamine.

¶16 All of these facts, when considered together under the totality of the
circumstances, created probable cause for the officers to believe that Jones had
committed the offense of OWI and that Jones’s vehicle contained evidence of
criminal activity. Thus, under the automobile exception discussed above, the
officers could search the vehicle consistent with the Fourth Amendment under the
applicable case law.

¶17 Jones also argues that this court should overrule State v. Marquart,
2001 WI App 219, 247 Wis. 2d 765, 635 N.W.2d 188, in which this court considered
and rejected an argument that the Wisconsin Constitution imposes a requirement
that the automobile exception to the constitutional warrant requirement applies only
to vehicles located in public places. Id., ¶¶44-49. Jones suggests that this court
reexamine Marquart and take up the issue of whether the automobile exception can
justify the search of a vehicle then located in a private driveway. However, as the
State asserts, Marquardt is good law, which binds us. See Cook v. Cook, 208
Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (only the supreme court has the power
to overrule, modify or withdraw language from a published opinion of the court of
appeals).

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No. 2019AP380-CR

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18).

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