State v. Catti J. Meisenhelder

2022 WI App 37

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP708-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CATTI J. MEISENHELDER,

DEFENDANT-APPELLANT.†

Opinion Filed: June 15, 2022
Submitted on Briefs: April 14, 2022
Oral Argument:

JUDGES: Neubauer, Grogan and Kornblum, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Susan E. Alesia, assistant state public defender of Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Sonya K. Bice, assistant attorney general, and Joshua L. Kaul,
attorney general.
2022 WI App 37

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.
June 15, 2022
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. 2021AP708-CR Cir. Ct. No. 2019CF126

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CATTI J. MEISENHELDER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Calumet County:
JEFFREY S. FROEHLICH, Judge. Affirmed.

Before Neubauer, Grogan and Kornblum, JJ.

¶1 GROGAN, J. Catti J. Meisenhelder appeals from a judgment entered
after she pled no contest to possession of methamphetamine, contrary to WIS. STAT.
§ 961.41(3g)(g) (2019-20). Meisenhelder contends the circuit court erred when it
denied her motion to suppress, which alleged that police lacked probable cause to
No. 2021AP708-CR

search a small metal canister on her keychain while searching her purse pursuant to
her arrest for retail theft. She believes the search violated the Fourth Amendment1
because, according to her, the canister was too small to contain a weapon or any
evidence of a crime. We affirm.

I. BACKGROUND

¶2 In July 2019, a Walmart loss prevention officer caught Meisenhelder
stealing merchandise. Walmart notified Appleton Police about the retail theft, and
Officer Jordan Woelfel and Officer Derek Anderson were dispatched to the store.
When the officers arrived, they saw that Walmart loss prevention officers had
detained Meisenhelder in the loss prevention office. One of the loss prevention
officers reported that Meisenhelder had concealed two items in her purse—a bottle
of mouthwash and an eyeliner, worth a total of $18.18—and had attempted to leave
the store without paying for them. These two items were on the desk in the office
when the police arrived.

¶3 The police told Meisenhelder they would need to search her purse to
see if there were any additional stolen items inside, and Meisenhelder consented to
the search. While searching the purse, one of the officers found a metal canister
about the size of a “12 gauge shotgun shell” attached to her keys. The canister,
which was “slightly wider in diameter … than a 12 gauge shotgun shell” was
opaque, making it impossible to view its contents. The officer unscrewed the
canister cap and found a bag with suspected methamphetamine inside. Police then
read Meisenhelder her Miranda2 rights, and she subsequently stated that she

1
U.S. CONST. amend. IV.
2
Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2021AP708-CR

believed the substance in the canister was methamphetamine. Police did not find
any additional stolen merchandise inside the purse. When asked whether she had
any other items on her person the police needed to know about, she gave the police
several “dime-sized bags from her back pants pocket[,]” which contained residue
suspected to be from methamphetamine. The officers arrested Meisenhelder, and
the State charged her with misdemeanor retail theft, possession of
methamphetamine, and possession of drug paraphernalia.

¶4 Meisenhelder filed a motion seeking to suppress “any and all evidence
obtained in violation of her constitutional rights, including but not limited to any
controlled substances located in the purple vial-sized container with a screw-on top
and any derivative evidence, including all statements made after the unlawful
search.”3

¶5 The circuit court denied the motion, relying on State v. Sykes, 2005
WI 48, ¶2, 279 Wis. 2d 742, 695 N.W.2d 277, which upheld the search of Sykes’
wallet incident to a lawful arrest. The circuit court here concluded that the search
of Meisenhelder’s purse was “carried out [as] a valid search incident to arrest[.]”
Subsequently, Meisenhelder entered into a plea bargain with the State where she
agreed to plead no contest to the possession charge, and the other two charges would
be dismissed and read in.

¶6 The circuit court accepted Meisenhelder’s plea and withheld sentence.
It placed her on eighteen months’ probation and allowed her to be discharged early
if approved by her agent. As a condition of probation, the court imposed but stayed

3
Meisenhelder refers to the canister as a “vial.” However, having observed the “vial” in
our review of the bodycam video, we refer to the “vial” as a “canister” throughout this opinion, as
we believe “canister” is a more accurate description based on the item’s metal material, size, and
dimensions.

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No. 2021AP708-CR

four months of jail time with Huber release privileges. Judgment was entered.
Meisenhelder now appeals.

II. STANDARD OF REVIEW

¶7 An order granting or denying a motion to suppress evidence presents
a question of constitutional fact, which requires a two-step analysis on appellate
review. State v. Asboth, 2017 WI 76, ¶10, 376 Wis. 2d 644, 898 N.W.2d 541.
“First, we review the circuit court’s findings of historical fact under a deferential
standard, upholding them unless they are clearly erroneous. Second, we
independently apply constitutional principles to those facts.” State v. Robinson,
2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463 (internal citations omitted).

III. DISCUSSION

¶8 Meisenhelder argues that the police did not have probable cause to
open the small metal canister attached to her keychain during the search of her purse
because, she asserts, it was too small to contain a weapon or evidence of a crime.
Meisenhelder relies on State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808
N.W.2d 411 (2011), where this court held the warrantless search of vials police
found during a protective search of Sutton’s car during a traffic stop violated the
Fourth Amendment. Id., ¶¶2, 7-11. The State responds that the search of
Meisenhelder’s canister did not violate the Fourth Amendment because it was a
search incident to arrest, and Meisenhelder was within reaching distance of her
purse. The State cites to numerous cases concluding that when a suspect is searched
incident to arrest, police can search anything on “‘the arrestee’s person’” and “‘the
area from within which [the suspect] might gain possession of a weapon or
destructible evidence.’” See, e.g., United States v. Hill, 818 F.3d 289, 295 (7th Cir.

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No. 2021AP708-CR

2016) (alteration in original; citations omitted). We conclude the law permitted the
search of the canister in Meisenhelder’s purse.

A. Fourth Amendment and Search Incident to Arrest Principles

¶9 The Fourth Amendment to the United States Constitution provides
that “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated” and that
“no Warrants shall issue, but upon probable cause[.]” U.S. CONST. amend. IV.
Article I, section 11 of the Wisconsin Constitution likewise provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated” and that “no warrant shall
issue but upon probable cause[.]” WIS. CONST. art. I, § 11.

¶10 “A [search or] seizure conducted without a valid warrant is
presumptively unreasonable.” State v. Brereton, 2013 WI 17, ¶24, 345 Wis. 2d
563, 826 N.W.2d 369 (citing United States v. Ross, 456 U.S. 798, 824-25 (1982)).
The “ultimate touchstone of the Fourth Amendment is ‘reasonableness[.]’”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Whether a search is exempt
from the warrant requirement involves balancing “the degree to which it intrudes
upon an individual’s privacy and … the degree to which it is needed for the
promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S.
295, 300 (1999).

¶11 In balancing these interests, courts have concluded that warrantless
searches may comport with the Fourth Amendment if a search falls within a
recognized exception. See, e.g., Kentucky v. King, 563 U.S. 452, 459 (2011). One
well-established exception to the Fourth Amendment includes the search incident

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No. 2021AP708-CR

to a lawful arrest. See Riley v. California, 573 U.S. 373, 382 (2014); State v. Bauer,
2010 WI App 93, ¶6, 327 Wis. 2d 765, 787 N.W.2d 412.

¶12 The law permits a warrantless search incident to arrest because
searching the arrested person and the area within her reach is recognized as
reasonable. See Chimel v. California, 395 U.S. 752, 762-63 (1969). Chimel
explained:

When an arrest is made, it is reasonable for the arresting
officer to search the person arrested in order to remove any
weapons that the latter might seek to use in order to resist
arrest or effect his escape. Otherwise, the officer’s safety
might well be endangered, and the arrest itself frustrated. In
addition, it is entirely reasonable for the arresting officer to
search for and seize any evidence on the arrestee’s person in
order to prevent its concealment or destruction. And the area
into which an arrestee might reach in order to grab a weapon
or evidentiary items must, of course, be governed by a like
rule. A gun on a table or in a drawer in front of one who is
arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. There is
ample justification, therefore, for a search of the arrestee’s
person and the area ‘within his immediate control’—
construing that phrase to mean the area from within which
he might gain possession of a weapon or destructible
evidence.

Id. An arrestee has lessened privacy interests because an arrest “significantly
diminish[es]” the suspect’s privacy interests. Riley, 573 U.S. at 386; Mincey v.
Arizona, 437 U.S. 385, 390-91 (1978). The reasonableness of the search-incident-
to-arrest exception includes closed containers found on an arrestee’s person, see
United States v. Robinson, 414 U.S. 218, 236 (1973), and since United States v.
Robinson, courts have repeatedly recognized as lawful the searching of objects
found on an arrestee’s person. See, e.g., United States v. Rodriguez, 995 F.2d 776
(7th Cir. 1993) (allowing search of address book); United States v. Molinaro, 877
F.2d 1341 (7th Cir. 1989) (allowing search of wallet). Thus, the warrantless search

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No. 2021AP708-CR

of an arrestee’s person and items found on the arrestee’s person does not violate the
Fourth Amendment.4 The Supreme Court directs that “a search incident to the arrest
requires no additional justification[,]” Robinson, 414 U.S. at 235, because “the fact
of arrest alone justifies the search.” Thornton v. United States, 541 U.S. 615, 631-
32 (2004) (Scalia, J., concurring in judgment).

¶13 The search-incident-to-arrest exception also permits police to search
items not actually located on the person but also in the area within the arrestee’s
reach. “The scope of a search incident to arrest is confined to ‘the area from within
which [the suspect] might gain possession of a weapon or destructible evidence[.]’”
Sykes, 279 Wis. 2d 742, ¶20 (first alteration in original; citation omitted). A search
may precede an arrest so long as the officer had probable cause to arrest prior to the
search. Id., ¶2 (holding search was lawful because “law enforcement had probable
cause to arrest … for a crime prior to the search”).

B. Application

¶14 The search at issue here arose incident to Meisenhelder’s arrest for
stealing items at a Walmart store, and the search occurred in Walmart’s loss
prevention office. Meisenhelder, relying primarily on Sutton, 338 Wis. 2d 338,
contends that the search of the canister conducted incident to her arrest violated her
Fourth Amendment rights. In Sutton, this court held that police needed a warrant
to search two “cylindrical and opaque” vials discovered in the map pocket of
Sutton’s car during a protective search after a traffic stop for failure to wear a
seatbelt. Id., ¶¶5, 11. Police searched Sutton’s car because they saw the car make

4
This general principle does not apply to a cell phone, which the United States Supreme
Court declared may not be searched under the search-incident-to-arrest exception. See Riley v.
California, 573 U.S. 373, 385-86 (2014).

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No. 2021AP708-CR

“two distinct rocking motions”—movement the police thought could be Sutton
trying to “retrieve or conceal a weapon[,]” which caused them to fear for their safety.
Id., ¶4. Sutton held that the search of the car itself complied with the Fourth
Amendment because it was reasonable for the police to make sure “there was no
gun or other weapon” in the car. Id., ¶8. But Sutton went on to conclude that
because the cylinders were too small to house a weapon, and the police did not have
“‘probable cause to believe there [was] a connection between the [opaque cylinders]
and criminal activity[,]’” id., ¶¶10-11 (first and second alterations in original;
citation omitted), the search of the cylinders violated the Fourth Amendment.
Sutton decided that Sutton’s suppression motion should have been granted and
reversed his judgment of conviction. Id.

¶15 Sutton does not control here. First, the search in Sutton was not based
on the search-incident-to-arrest exception. Rather, the police conducted a protective
search based on the officer’s concern that Sutton may have had a weapon in the car
and “because Sutton was not under arrest and could freely return to [his vehicle].”
Id., ¶8. Second, the search in Sutton involved concerns only about a weapon, and
the cylinders involved in Sutton were too small to house a weapon. Thus, the
officers’ “legitimate reason to be concerned that there might be a gun or other
weapon[,]” which justified looking in the vehicle itself, did not apply to the
cylinders. Id. When the officers found the cylinders in the car’s map pocket, the
analysis shifted to the plain-view exception and whether probable cause existed to
reasonably believe that the cylinders “were connected to ‘criminal activity.’” Id.,
¶9.

¶16 Here, it is undisputed that the police had probable cause to arrest
Meisenhelder for retail theft. The search of the contents of her purse constituted a
lawful search incident to arrest. It is of no import that the probable cause for the

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No. 2021AP708-CR

retail theft arrest also led to drug-related charges being filed. See Sykes, 279 Wis. 2d
742, ¶¶22, 34 (“That the arrest led to drug-related charges being filed, not to a charge
for criminal trespass, does not negate that probable cause to arrest existed prior to
the search.”). The search-incident-to-arrest exception permitted the police to search
both Meisenhelder’s person and objects within her reach. See Chimel, 395 U.S. at
762-63; Sykes, 279 Wis. 2d 742, ¶¶14, 21. The circuit court found that
Meisenhelder’s purse was “in the immediate area and used in the commission of the
alleged offense.” That finding, based on this court’s viewing of the officers’
bodycam video of the entire incident, is not clearly erroneous. Meisenhelder was
not handcuffed while the officer searched her purse, and she was located within
reaching distance of her purse in Walmart’s very small loss prevention office.5 It is
undisputed that Meisenhelder had placed the items she attempted to steal in her
purse—she was using her purse to conceal stolen merchandise. We are further not
convinced that the presence of four officers in the loss prevention office with
Meisenhelder somehow negated Meisenhelder’s ability to reach her purse. See
Arizona v. Gant, 556 U.S. 332, 343 (2009) (search incident to arrest permissible
when “arrestee is unsecured and within reaching distance … at the time of the
search”).

¶17 Additionally, the bodycam video provided this court with the
opportunity to see the actual size of the canister. Although the canister is small—
described as the size of a twelve-gauge shotgun shell but a little wider—it is not so

5
Meisenhelder also relies on United States v. Maddox, 614 F.3d 1046 (9th Cir. 2010), but
Maddox involved much different facts. It involved the search of a keychain in Maddox’s vehicle
after Maddox had been handcuffed and placed in the police squad car. Id. at 1047. The court held
that “this was not a search of Maddox’s person incident to arrest” because after Maddox was
handcuffed and placed in the squad car, the keychain was no longer on his person or in his
immediate control. Id. at 1048. Additionally, Maddox is not binding on this court. See State v.
Mechtel, 176 Wis. 2d 87, 95, 499 N.W.2d 662 (1993) (“State courts are not bound by the decisions
of the federal circuit courts of appeal or federal district courts.”).

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No. 2021AP708-CR

small that it could not have contained additional stolen merchandise. At the
suppression hearing, when asked whether the cylinder was too small to hide stolen
merchandise, the officer testified, “you can put very small things into that vial”[,]
and “[i]t can be used to … hold a lot of small things.” Having viewed the size of
the cylinder, it appears to be of sufficient size so as to have hidden a variety of small
objects.

IV. CONCLUSION

¶18 The circuit court correctly denied the suppression motion here
because the search of Meisenhelder’s purse and its contents, including the small
metal canister attached to her keychain, constituted a valid search incident to her
arrest for retail theft. When police have probable cause to arrest a person, the law
recognizes as reasonable the search of the person and anything within her reach.
See Chimel, 395 U.S. at 762–63. The purse was within Meisenhelder’s reach, and
it is undisputed that she used her purse to conceal merchandise she attempted to
steal. The search of the canister, which could have contained stolen merchandise,
was not unreasonable.

By the Court.—Judgment affirmed.

10