State v. Lori Ann Phillips

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.
January 20, 2023
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. 2022AP350-CR Cir. Ct. No. 2020CF364

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

LORI ANN PHILLIPS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for La Crosse County:
ELLIOTT M. LEVINE, Judge. Reversed and cause remanded for further
proceedings.

Before Blanchard, P.J., Kloppenburg, and Nashold, JJ.

¶1 PER CURIAM. After the body of the deceased Mark Phillips was
found next to a snowbank outside his house, police seized a pickup truck
No. 2022AP350-CR

registered to his wife, Lori Phillips, which was parked at their shared residence.1
Police seized the pickup without obtaining permission from Phillips or a court
order authorizing seizure. Police then held the pickup at a police impound lot
before obtaining a search warrant authorizing its search. The search yielded
evidence that the State now seeks to rely on at a trial against Phillips on a charge
of hit and run resulting in the death of Mark Phillips.

¶2 The circuit court granted the motion to suppress the evidence from
the search of the pickup, based on the circumstances of its seizure. Specifically,
the court concluded that the State failed to show that the automobile exception to
the warrant requirement of the Fourth Amendment applies to permit the
warrantless seizure. The court also took the position that suppression is
appropriate because police held the pickup in the impound lot for an unreasonable
period of time before obtaining the search warrant and that this was contrary to the
reasoning in United States v. Jones, 565 U.S. 400 (2012). The State appeals the
suppression order.

¶3 Following the reasoning in State v. Marquardt, 2001 WI App 219,
¶¶26-52, 247 Wis. 2d 765, 635 N.W.2d 188, we conclude that the automobile
exception to the warrant requirement applies to the seizure of the pickup.
Separately, we reject search-warrant delay as a basis to affirm the circuit court for
multiple reasons, including lack of development by Phillips. Accordingly, we
reverse the circuit court’s suppression order and remand for further proceedings.

1
We generally refer to Lori Phillips as “Phillips” and to her deceased husband as “Mark
Phillips.”

2
No. 2022AP350-CR

BACKGROUND

¶4 Now pending against Phillips is a criminal charge that she violated
WIS. STAT. §§ 346.67(1) (“Duty upon striking person or attended or occupied
vehicle.”) and 346.74(5)(d) (2019-20) (violation of § 346.67(1) is a “Class D
felony if the accident involved death to a person”) in connection with an accident
that resulted in the death of Mark Phillips.2 The alleged accident occurred near the

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

WISCONSIN STAT. § 346.67 provides:

(1) The operator of a vehicle involved in an accident shall
reasonably investigate what was struck and if the operator
knows or has reason to know that the accident resulted in
injury or death of a person or in damage to a vehicle that is
driven or attended by a person, the operator shall stop the
vehicle he or she is operating as close to the scene of the
accident as possible and remain at the scene of the accident
until the operator has done all of the following:

(a) The operator shall give his or her name, address and the
registration number of the vehicle he or she is driving to
the person struck or to the operator or occupant of or
person attending any vehicle collided with; and

(b) The operator shall, upon request and if available, exhibit
his or her operator’s license to the person struck or to the
operator or occupant of or person attending any vehicle
collided with; and

(c) The operator shall render reasonable assistance to any
person injured in the accident, including transporting, or
making arrangements to transport the person to a
physician, surgeon, or hospital for medical or surgical
treatment if it is apparent that medical or surgical
treatment is necessary or if requested by the injured
person.

(2) Any stop required under sub. (1) shall be made without
obstructing traffic more than is necessary.

(continued)

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No. 2022AP350-CR

family residence in the Town of Onalaska and involved Phillips operating a 2019
Dodge Ram pickup truck that was registered to her.

¶5 The following brief factual overview is undisputed for purposes of
this appeal, with additional facts provided in the Discussion section below. Police
responded to the family residence early on the morning of February 23, 2019.
There they found Phillips standing outside in the driveway area and the body of
the deceased Mark Phillips, face down, next to a snow bank adjoining the
driveway. About 15 feet away from the body, lying on the driveway, was a pair of
wraparound sunglasses. Nearby was parked a 2019 Dodge Ram, which is a full-
sized pickup, registered to Phillips. Phillips told police, in part, that the two had
argued the night before and that at one point, with Mark Phillips standing nearby
and while the passenger door of the pickup was open, Phillips drove the pickup
away in a hurry. She further told police that in the morning she discovered his
body by the snowbank and called 911.

¶6 During the course of the initial investigation on February 23, while
Phillips was being interviewed at a police station but without having been placed
under arrest, police had the pickup hauled away from the residence on a flatbed
truck and taken to a police impound lot. Phillips did not consent to this seizure
and there was no warrant or other court order authorizing the seizure. On
March 15, while the pickup was still in police custody, a circuit court judge issued
a search warrant authorizing its search.

(3) A prosecutor is not required to allege or prove that an
operator knew that he or she collided with a person or a
vehicle driven or attended by a person in a prosecution under
this section.

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No. 2022AP350-CR

¶7 Shortly after the search warrant was issued, investigators with the
Wisconsin Crime Laboratory conducted a forensic examination of the pickup.
According to the criminal complaint, the search yielded “apparent hair” that was
located near the pickup’s front right passenger tire, front passenger suspension bar,
and driver’s step, and also yielded fibers in various locations that were “consistent
with” the pants Mark Phillips was wearing when his body was discovered.

¶8 Phillips moved for an order suppressing “all evidence recovered
from the truck after it was seized.” The motion acknowledged the automobile
exception to the Fourth Amendment. See California v. Carney, 471 U.S. 386,
390-92 (1985) (under automobile exception to the warrant requirement, first
recognized in Carroll v. United States, 267 U.S. 132, 153 (1925), police may seize
a readily mobile vehicle and search it for contraband or evidence of a crime,
without a warrant, consent, or other exception to the Fourth Amendment, when
there is probable cause to believe that it contains contraband or evidence of a
crime). However, Phillips argued that the automobile exception does not apply
here because, at the time of the seizure: (1) there was not probable cause to
believe that the pickup contained evidence of a crime; and (2) the pickup was not
“readily mobile,” because, she argued, “[n]obody was going to drive the truck
from the home” and police “had ample time to pursue a warrant to seize and tow
the truck.”

¶9 The prosecutor argued in response that both of the required elements
of the automobile exception are satisfied and that in order to rely on the
automobile exception the State does not need to show that it would have been
impractical for police to obtain a court order authorizing seizure of the pickup
before doing so. See Marquardt, 247 Wis. 2d 765, ¶¶27-31.

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No. 2022AP350-CR

¶10 In the alternative, the prosecutor contended that, even if the
automobile exception does not apply, evidence obtained during the search of the
pickup is admissible under the reasoning in State v. Gaines, 197 Wis. 2d 102, 539
N.W.2d 723 (Ct. App. 1995). In Gaines, this court applied the rule that an
unlawful seizure does not necessarily invalidate the later recovery of evidence
authorized by a search warrant if the connection between the unlawful seizure and
the later recovery is attenuated and dissipates the taint. See id. at 113. Phillips
responded to this argument by distinguishing the facts in Gaines and also argued
that “it is unlikely that Gaines remains good law following the U.S. Supreme
Court decision in U.S. v. Jones, 565 U.S. 400 (2012).”

¶11 The circuit court conducted an evidentiary hearing over the course of
two days in February and March 2021. At a separate hearing in May 2021, the
court made the following two rulings, memorialized in a June 2021 written order,
resolving the automobile exception aspect of the suppression issue: (1) the State
showed that the police had probable cause at the time of the seizure to believe
“that the truck was involved with the death”; but (2) the State did not show that the
pickup was then “readily mobile.” Based on its not-readily-mobile determination,
the court concluded that the automobile exception does not apply to justify the
warrantless seizure of the pickup.

¶12 Separately, the circuit court allowed the parties to submit further
briefing before resolving the suppression issue. The additional briefing was to
address the prosecutor’s alternative argument that, even if the automobile
exception does not apply, evidence obtained during the search of the pickup is
admissible under Gaines.

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No. 2022AP350-CR

¶13 In addition, in its oral ruling (although not in its corresponding
written order), the circuit court supported its suppression decision by making
references to the Jones opinion, which we address in the Discussion section
below.

¶14 At a hearing in January 2022, the circuit court rejected the
prosecutor’s alternative argument based on Gaines and, consistent with this ruling,
issued a final written order on the suppression motion, directing “that the vehicle
and all evidence from the vehicle are suppressed.” At this hearing, the court again
referenced the Jones opinion (but, as before, the court did not reference Jones in
its corresponding written order).

¶15 The State now pursues a pretrial appeal, seeking reversal of the
suppression ruling. See WIS. STAT. § 974.05(1)(d)2. (“appeal may be taken by the
state from any” order, “the substantive effect of which results in” the suppression
of evidence).

DISCUSSION

¶16 We first address the automobile exception and explain why we
conclude that it applies here, which makes it unnecessary for us to address the
State’s alternative theory under Gaines.3 Then we explain why we reject the

3
Accordingly, we do not address the arguments of the parties on appeal addressing State
v. Gaines, 197 Wis. 2d 102, 539 N.W.2d 723 (Ct. App. 1995), and Segura v. United States, 468
U.S. 796 (1984).

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No. 2022AP350-CR

argument that Phillips now purports to raise on appeal based on the length of time
police retained the pickup before obtaining the search warrant.4

¶17 “This court analyzes the grant or denial of a suppression motion
under a two-part standard of review: we uphold the circuit court’s findings of fact
unless they are clearly erroneous, and we independently review whether those
facts warrant suppression.” State v. Adell, 2021 WI App 72, ¶14, 399 Wis. 2d
399, 966 N.W.2d 115.

I. AUTOMOBILE EXCEPTION

¶18 The Fourth and Fourteenth Amendments to the United States
Constitution and article I, section 11, of the Wisconsin Constitution guarantee
Wisconsin citizens freedom from “unreasonable searches and seizures.” State v.
Griffith, 2000 WI 72, ¶25, 236 Wis. 2d 48, 613 N.W.2d 72. “Warrantless
searches of homes are ‘presumptively unreasonable,’ but warrantless searches of
vehicles are not.” Marquardt, 247 Wis. 2d 765, ¶26 (quoted source omitted).

¶19 The interpretation of the Fourth Amendment by the U.S. Supreme
Court that produced the automobile exception to the warrant requirement first
appeared in Carroll, but there has been extensive U.S. Supreme Court discussion
of the doctrine since Carroll. See Marquardt, 247 Wis. 2d 765, ¶¶27-31

4
We reject Phillips’s brief suggestion that the State cannot challenge the circuit court’s
June 2021 order memorializing the court’s conclusion that the automobile exception does not
apply because the State did not directly appeal the June 2021 order and instead appealed the
March 2022 order, which was the first order to substantively result in the suppression of
evidence. As the State points out, and as our summary above reflects, the court left open
resolution of an alternative theory against suppression argued by the State and the court did not
resolve all aspects of the suppression issue by order until March 2022, after which the State
timely filed a proper notice of appeal.

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No. 2022AP350-CR

(referencing precedent that includes Carney, 471 U.S. 386); State v. Brereton,
2013 WI 17, ¶26, 345 Wis. 2d 563, 826 N.W.2d 369 (deeming Chambers v.
Maroney, 399 U.S. 42 (1970), to be “a hallmark case involving the automobile
exception”); see also 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 7.2(b)
(6th ed. 2022) (referring to the “Carroll-Chambers-Carney automobile
exception”). Article I, section 11, of the Wisconsin Constitution uses virtually
identical language as the Fourth Amendment of the United States Constitution and
the automobile exception is to be applied by Wisconsin courts consistently with
the teachings of the U.S. Supreme Court. See State v. Tompkins, 144 Wis. 2d
116, 135, 423 N.W.2d 823 (1988).

¶20 The automobile exception applies when the following two criteria
are met: “(1) there is probable cause to search the vehicle; and (2) the vehicle is
readily mobile.” Marquardt, 247 Wis. 2d 765, ¶31 (citing Maryland v. Dyson,
527 U.S. 465, 467 (1999) (per curiam)). As we explained in Marquardt, relying
on U.S. Supreme Court precedent, there is no longer a requirement in this context
that it was impractical for police to obtain a search warrant, with the reasoning
being that “the exigency inherent in the ‘ready mobility’ of a vehicle, coupled with
the ‘lesser expectation of privacy’ in a readily mobile vehicle, excuses the need to
secure a search warrant.” Marquardt, 247 Wis. 2d 765, ¶¶28-29 (citing Carney,
471 U.S. at 390-91; Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per
curiam)). Thus, “[i]ssues concerning whether the police could have obtained a
warrant prior to searching are not relevant to the analysis.” Marquardt, 247
Wis. 2d 765, ¶31 (citing Dyson, 527 U.S. at 467, and LAFAVE, § 7.2(b) (3d ed.
1996)). This court in Marquardt cited LAFAVE for the proposition that, so long as
the elements of probable cause and a readily mobile vehicle are met, “courts
uphold warrantless searches with virtually no inquiry into the facts of the

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No. 2022AP350-CR

particular case, reasoning that whether any kind of exigent circumstances claim
could plausibly be put forward is totally irrelevant.” Marquardt, 247 Wis. 2d 765,
¶31.

¶21 We now address the two elements of the automobile exception
summarized above, providing additional legal standards, the arguments of the
parties, and our conclusions.

A. Probable Cause

¶22 The State argues that the circuit court correctly determined that, at
the time of the seizure of the pickup, police had probable cause to believe that it
constituted or contained evidence based on reasonable inferences arising from
evidence available to police. Phillips argues that the evidence established only
that “Mr. Phillips was dead from an unknown cause, with absolutely no evidence
to indicate the truck actually struck him.” We agree with the State.

¶23 Our supreme court has explained that the probable cause standard in
this context requires the State to show “that there was a ‘fair probability’ that” the
vehicle “contained or was itself evidence of a crime.” Brereton, 345 Wis. 2d 563,
¶25 (quoted source omitted).

¶24 The circuit court here made the following relevant findings of fact,
which Phillips does not contend were clearly erroneous:

 When Phillips was interviewed by police responding to her 911 call, she
said the following: That she had been in an argument with her husband
the night before, that during the argument he had walked near the
pickup, that Phillips then drove the pickup away in a rush, with the
passenger door of the pickup open. Thus, according to this account,
Phillips was driving the pickup in a rushed, unusual manner next to
Mark Phillips the last time he was seen alive.

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No. 2022AP350-CR

 A pair of sunglasses was found 15 feet from the body, as the circuit
court put it, “suspiciously in the middle of the driveway.”

 The body was face down in the snow.

 The pants Mark Phillips wore at the time of his death had been, as the
circuit court put it, “torn in an odd way,” with “some kind of hole,” and
this was “not a simple tear.”5

We conclude that from this evidence there was a fair probability that the pickup
was or contained evidence of a crime because Phillips drove the pickup into her
husband, knocking him to the ground by the snowbank (while knocking off his
sunglasses) and resulting in his death, and that her conduct surrounding the
collision and its aftermath violated WIS. STAT. § 346.67(1). That would not have
been the only explanation that a reasonable officer might have considered. But the
State carries its burden of showing that there was a fair probability of that
scenario, reasonably calling for a forensic analysis of the pickup for evidence that
it ran over or otherwise collided with Mark Phillips.

¶25 We note that, as reflected in the language of WIS. STAT. § 346.67(1),
quoted supra in note 2, a probable cause finding related to the potential offense of
hit and run resulting in death would not necessarily depend on evidence relevant to
the particular state of mind of Phillips at the time of the possible collision, such as
whether she acted intentionally, recklessly, or negligently in allegedly driving the
pickup into or over Mark Phillips.

5
We have inspected the exhibit reflecting a photograph of the damaged area of the pants
while still on Mark Phillips’s body. Consistent with the findings of the circuit court, the photo
reflects significant tears or holes to one hip area—with some pieces of fabric entirely missing—in
what suggests some sort of gouging action. The damage does not appear to be in the nature of
routine wear-and-tear for pants, such as the tears that can eventually appear in the knee areas.

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No. 2022AP350-CR

¶26 Phillips points out that she denied to investigators that she struck her
husband with the pickup. She also emphasizes that investigators on the scene
testified that they did not observe any of the following: damage to or blood on the
pickup; paint transfer from the pickup to Mark Phillips; or tire treads on his body.
No doubt these types of evidence would have added to the level of suspicion. But,
given the facts summarized above that point toward the likelihood of a collision
between the pickup and Mark Phillips, Phillips fails to explain how the absence of
any or all of these types of evidence undermines that likelihood.

¶27 Further, Phillips fails to come to grips with the totality of the facts
summarized above. One example involves the evidence regarding the pants. In
her appellate briefing, Phillips refers to “a tear in Mr. Phillips[’s] pants that
occurred at an unknown time through unknown methods” and argues that such “a
tear” could not represent a “physical connection between the truck and the
decedent.” There are multiple problems with these references. First, as explained
above, there was not just “a tear” in the pants, but multiple points of damage that
resemble gouges in a location and of a nature that did not appear to be the products
of normal wear-and-tear. Second, the time was not “unknown,” in the sense that a
reasonable officer could suspect that the time was the moment of contact with the
pickup when, according to Phillips, she drove in a rush from the residence,
regardless of when that precisely fell on the clock. Third, the method was not
“unknown,” in the sense that a reasonable officer could suspect that the method
was physical contact with some part or parts of the pickup, regardless of precisely
which part might have caused damage to the pants. Compared with an
unprotected or sheltered human being, a new, full-sized Dodge Ram is a massive,
overpowering machine. Fourth, Phillips fails to explain why the pants evidence

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No. 2022AP350-CR

could not represent, in her words, a potential “physical connection between the
truck and the decedent.”

¶28 Separately, Phillips argues that the State fails to show the probable
cause element because the State at the evidentiary hearing “was unable to identify
who actually seized the truck, and on what basis.” Phillips does not dispute that
police seized the pickup in the hours after the initial 911 call. She further
acknowledges that two different police witnesses who were on the scene explained
the reasons for the seizure. In addition, Phillips acknowledges the general rule
that the State can in some circumstances rely on the collective knowledge of
police officers in taking actions in the Fourth Amendment context. See State v.
Pickens, 2010 WI App 5, ¶11 n.1, 323 Wis. 2d 226, 779 N.W.2d 1 (knowledge of
one police officer may be imputed to another officer for the purpose of
determining reasonable suspicion for a detention). The argument appears to be
based on the following narrow proposition: the State cannot show probable cause
for the seizure of a vehicle under the automobile exception unless it produces a
witness who can testify that the witness personally directed the seizure and why
the witness gave that direction. Phillips cites no authority for this proposition and
we have no reason to think that it is the law.

B. Readily Mobile Vehicle

¶29 The State argues that the circuit court erred in determining that the
State fails to satisfy the second element of the test because the pickup was not
readily mobile when it was seized. The State contends that this issue is controlled
by Marquardt. See Marquardt, 247 Wis. 2d 765, ¶¶40-42 (rejecting an argument
that the arrest of the owner of the vehicle at issue rendered it no longer readily
mobile for purposes of its seizure under the automobile exception). Phillips

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No. 2022AP350-CR

acknowledges that the pickup here was, in her words, “operational” when police
seized it, presumably meaning that it was capable of being driven away from the
residence on the roadways. But she argues that Marquardt is distinguishable from
the facts here because the presence of emergency responders, combined with high
snowbanks along the sides of the driveway, made it “practically impossible for
anyone to have removed the Dodge Ram or its contents from the Phillips home.”
We agree with the State, based on the reasoning in Marquardt, which we now
explain further.

¶30 Marquardt was arrested soon after pulling into the driveway of his
residence in a vehicle that this court noted was “in working order.” Id., ¶¶5, 40.
At the time of Marquardt’s arrest, his “locked vehicle was parked in his
driveway.” Id., ¶5. Shortly thereafter, police seized the vehicle and took it to a
police facility, without consent from Marquardt or a warrant to do so. See id., ¶¶5,
25-26, 40. Marquardt challenged this seizure on the ground that, as the court put
it, “once [Marquardt] was arrested, the vehicle was no longer readily mobile.” Id.,
¶40.

¶31 Because Marquardt had not raised the readily mobile issue in the
circuit court and failed to cite legal authority, this court “decline[d] to address this
argument in detail.” Id., ¶41. However, this court stated that it was “assure[d]”
“that the argument lacks merit.” Id. It then stated the following to show lack of
merit:

In United States v. Gallman, 907 F.2d 639, 641
(7th Cir. 1990),[6] the court addressed the same argument

6
United States v. Gallman, 907 F.2d 639, 641 (7th Cir. 1990), was abrogated on other
grounds by Custis v. United States, 511 U.S. 485 (1994).

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No. 2022AP350-CR

from a defendant who contended that his car was not
readily mobile because he had been arrested and the
officers had his car key. The court rejected Gallman’s
reasoning, concluding: “These circumstances do indeed
make the car less accessible to Gallman, but they do not
make it less mobile.” Id. This reasoning is equally
persuasive here; Marquardt’s arrest would not prevent other
unknown individuals from moving the vehicle.

Additionally, we are not concerned by the fact that
the car was seized and impounded before it was searched.
The Supreme Court has held that the justification to
conduct a warrantless search does not vanish once the car
has been immobilized. See United States v. Johns, 469
U.S. 478, 484 … (1985). In short, we are confident that the
readily mobile component of the automobile exception has
been satisfied.

Marquardt, 247 Wis. 2d 765, ¶¶42-43.

¶32 In adopting the stated reasoning in Gallman based on the fact that
the seized vehicle in Marquardt was “in working order,” even after it had been
immobilized by law enforcement officers, this court established that the readily
mobile test as applied in Wisconsin requires the State to show only inherent
mobility of the seized vehicle. Under this legal standard, the State is not required
to produce evidence regarding the potential for any person to access the vehicle
and move it. This standard is consistent with that taken not only by the Seventh
Circuit, as stated in Gallman, but also by other federal courts of appeals and state
supreme courts that have addressed the readily mobile issue. See, e.g., United
States v. Howard, 489 F.3d 484, 493 (2d Cir. 2007) (“readily mobile” “has more
to do with the inherent mobility of the vehicle than with the potential for the
vehicle to be moved from the jurisdiction, thereby precluding a search,” without
regard to “the actual ability of a driver or passenger to flee immediately in the car,
or the likelihood of hi[s] or her doing so.”); Myers v. State, 839 N.E.2d 1146,
1152 (Ind. 2005) (“[W]e understand the ‘ready mobility’ requirement of the

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No. 2022AP350-CR

automobile exception to mean that all operational, or potentially operational,
motor vehicles are inherently mobile, and thus a vehicle that is temporarily in
police control or otherwise confined is generally considered to be readily mobile
and subject to the automobile exception to the warrant requirement if probable
cause is present.”). Under this standard, it does not matter that Marquardt was in
custody at the time of the seizure while Phillips was not, nor do any other
circumstances regarding her whereabouts matter. All such circumstances are
irrelevant to the analysis.

¶33 Phillips argues that Marquardt is distinguishable because police
here were “entirely unconcerned with the disappearance of evidence” when the
pickup was seized because “[e]mergency responder vehicles were parked in both
routes of egress [from her driveway] to the point that the truck could not have left
the home unless the vehicles were moved” and an officer “posted outside …
would have denied access to anyone attempting to enter or move the Dodge Ram.”
But Phillips fails to provide support for the argument that application here of the
rule explained in Marquardt turns on whether any person could have driven the
pickup away while emergency responders were still on the scene.

¶34 Phillips may intend to suggest that a related potential distinguishing
feature of the facts here compared with those in Marquardt is that here there is no
evidence that, as Phillips puts it, “an ally of the defendant” was poised to spirit the
pickup away or destroy or remove evidence from it. But the discussion in
Marquardt about “unknown individuals” “moving the vehicle” makes clear that
no such evidence is needed for the exception to apply. See Marquardt, 247
Wis. 2d 765, ¶42. As reflected above in our summary of the automobile exception
as stated in Marquardt, no showing of exigency (such as the hypothetical “ally of
the defendant” that Phillips posits, someone prepared to hide or destroy evidence)

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No. 2022AP350-CR

is required, given “the ‘ready mobility’ of a vehicle, coupled with the ‘lesser
expectation of privacy’ in a readily mobile vehicle.” See id., ¶¶28-29. Indeed, as
explained in Marquardt, the automobile exception applies even when a vehicle
has been “impounded” or “immobilized.” See id., ¶43. As we have explained,
what matters here, under the reasoning in Marquardt, is that the pickup was “in
working order,” capable of being driven.

¶35 Phillips argues that applying the automobile exception doctrine to
permit this seizure—despite the presence of emergency vehicles and police
personnel at the scene on a driveway surrounded by snow—“would allow the
search of any functioning vehicle” even if the vehicle is “unable to travel from the
scene.” This would allow the warrantless seizure, she argues, of a vehicle on “an
auto ferry, on a mechanic’s lift, within a secured police impound lot, or even fitted
with an immobilizing boot.” It is not clear what assumptions Phillips makes about
the hypothetical warrantless search of vehicle while it is, for example, temporarily
on a ferry boat. In any case, Phillips fails to show how any of these hypotheticals
helps to distinguish the particular facts here from the relevant facts in Marquardt.

II. DELAY IN OBTAINING THE SEARCH WARRANT

¶36 Phillips asserts that, assuming that the seizure of the pickup was
lawful at its inception, “delay between the warrantless seizure and subsequent
search unreasonably infringed on Ms. Phillips’[s] possessory interest in the truck.”
This argument is made in response to the State’s argument that the circuit court
erred in concluding that, under Jones, the detention of her truck provided another
basis to suppress evidence. However, in seeking affirmance of this ground for
suppression, Phillips does not cite Wisconsin precedent, does not purport to rely
on Jones as the circuit court did, and does not cite to case law from any

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No. 2022AP350-CR

jurisdiction involving the automobile exception. Instead, she asserts that, under
the reasoning in opinions of federal circuit courts of appeals addressing factual
circumstances different from those here, retention of the pickup for this time
period before obtaining a warrant was constitutionally unreasonable due to her
strong possessory interest in the pickup and the fact that “the State has offered no
reasonable explanation for why it kept the Dodge Ram secured without [obtaining]
a warrant for twenty days.”

¶37 As explained more fully below, we conclude that the following
problems are fatal to this argument. First, the substantive argument that Phillips
raises for the first time on appeal is undeveloped. Second, after the State on
appeal offers a developed argument that the circuit court erred on this issue,
Phillips fails to offer an argument that supports the court’s reasoning. Third,
Phillips failed to present her new argument to the circuit court as a basis for
suppression. Fourth, in sustaining objections to testimony made by Phillips at the
evidentiary hearing, the circuit court prevented the development of a factual record
that could have allowed the parties and the court to properly address the issue of
whether there was an unreasonable delay between the initially valid seizure of the
truck and the seeking of a warrant to search it.

¶38 The following is additional background. As referenced above, in her
briefing to the circuit court Phillips referred to Jones in the course of challenging
the State’s alternative argument against suppression based on Gaines. Phillips
argued that Gaines is “unlikely” to be good law because Jones “held that the
Fourth Amendment applies not only to places and property [involving a] privacy
interest, but also to the physical trespass to chattels by government agents.”
Phillips noted that the Court in Jones held that the warrantless installation of a
Global Positioning System (GPS) device on a defendant’s vehicle and its use to

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No. 2022AP350-CR

track the vehicle’s movements was a search that violated the Fourth Amendment
because, in the words of the Court, “[t]he Government physically occupied private
property for the purpose of obtaining information.” See Jones, 565 U.S. at 402,
404. Phillips also observed that, in reaching that result, the Court emphasized the
significance of property rights, such as common-law trespass, within the meaning
of the Fourth Amendment when it was adopted. See id. at 405. Phillips argued
that seizure of the pickup here was a “far more substantial” “trespass to
Ms. Phillips’[s] property” than was the installation of the GPS device to the
defendant in Jones. As in Jones, Phillips argued, “the sole reason for this trespass
was to eventually gather information to use against Ms. Phillips.”

¶39 Summarizing, Phillips argued in the circuit court with regard to
Jones only that the State could not rely on Gaines as an alternative to the
automobile exception, because the reasoning in Gaines is contrary to the reasoning
in Jones. Phillips did not argue that the passage of 20 days between the
warrantless seizure and police obtaining the warrant authorizing the search was
unreasonable under the Fourth Amendment. It is true that, in the course of arguing
the Gaines issue, Phillips used the phrase “without any legal authorization for
twenty days,” but this passing reference to the lack of “legal authorization”
appeared to involve the basis for the motion to suppress: there was no “legal
authorization,” including no automobile exception, permitting seizure of the
pickup. And in any case, this reference could not reasonably be considered a
sufficiently prominent statement that Phillips was not exclusively challenging the
seizure itself, but instead basing the suppression motion in part on the State’s
conduct in allowing an allegedly unreasonable period of time to pass between
seizure and seeking the search warrant. See also State v. Radder, 2018 WI App
36, ¶16, 382 Wis. 2d 749, 915 N.W.2d 180 (“The fact that the State would bear the

19
No. 2022AP350-CR

burden of proof at a hearing does not mean [the defendant] simply gets to raise
questions and put the State to its proof.... [T]he State is entitled to notice of the
factual disputes supporting a purported constitutional violation.”).

¶40 This also strongly appears to have been the circuit court’s view of
the scope and nature of the only suppression argument advanced by Phillips, based
on the following rulings that the court made at the evidentiary hearing. When the
prosecutor asked a police investigator if he was aware of a reason that Phillips did
not simply drive the pickup from the family residence to the police station for a
voluntary interview, instead of riding with a friend as she did, defense counsel
objected on the grounds of speculation. The objection was sustained. The
prosecutor then asked the witness whether Phillips ever contacted police after the
pickup was seized to ask for its return. The defense again objected, this time on
relevance grounds, and this objection was also sustained.7 The following dialog
then occurred:

[PROSECUTOR]: We talked about it being seized for 20
days prior to a search warrant, I just want it on the record
that there was no urgency to it.

THE COURT: Okay. I—I actually believe it’s irrelevant
because it’s—I know it’s irrelevant because it doesn’t
matter, once the thing is seized, it’s seized. The question is
does the State have a right to seize it?

¶41 At the May 2021 hearing on the circuit court’s initial set of rulings,
immediately after the court ruled that the automobile exception does not apply, the

7
For context we note that Phillips concedes on appeal that she “did not immediately
demand the return of the truck,” implying that there was no demand during the 20-day period at
issue.

20
No. 2022AP350-CR

court said it would take up, apparently as a separate issue, whether there is “a
trespass on the property here” under Jones. The court said:

The Jones case is very important because it really—
the trespass in that case by the government was the
imposition of a GPS unit on the bottom of a car. That’s all
it was. And the Supreme Court said that that was a seizure
in and of itself, and because of that … interference of
trespass, essentially what they say is, is that the physical
trespass of the vehicle is … unreasonable in that case. The
physical trespass of the GPS was unreasonable, even
though it was a minor occupation in the U.S. v. Jones case.

Physical trespass in this case is far greater. It’s 20
days of holding it within the county holding facility.
[Mapp] versus Ohio[8] says unlawful seizures are to be
suppressed. Wong Sun versus U.S.[9] says … unlawful
seizures … are to be suppressed.

¶42 In a motion to reconsider filed after the May 2021 hearing but before
the January 2022 hearing on the circuit court’s final set of rulings, the State
renewed its position that Jones does not overrule Gaines, and contended that
Jones addresses an entirely different context than the one here or in Gaines.

¶43 At the January 2022 hearing the circuit court said the following,
immediately after rejecting the State’s alternative argument based on Gaines:

The other issue is the possessory interest. I think
Jones is very clear, if it doesn’t overrule Gaines, it actually
adds another level to Gaines, which is the question of
possessory interest.

Possessory interest is, in Gaines, is very slight, in
the sense that it’s only a matter of hours. And in Jones is
even, someone could argue it’s more insignificant, because
it was a little piece of metal that’s attached to a car. It was

8
Mapp v. Ohio, 367 U.S. 643 (1961).
9
Wong Sun v. United States, 371 U.S. 471 (1963).

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No. 2022AP350-CR

a GPS unit. They never took the vehicle. They never held
it in Jones. They never did anything to the vehicle. The
person had total use of the vehicle during that time. In fact,
they wanted him to use it for that fact.

But, the reality is, is that there was no invasion of
the possessory interest. You take a vehicle, put it in a
garage and hold it for 22 days,[10] that’s fairly clear the
invasion of their possessory interest. That’s protected in,
you know, separately from the privacy right that you have
to have that vehicle.

¶44 On appeal, the State argues in part as follows:

The [circuit] court’s reliance on Jones, and its conclusion
that Jones “adds another level to Gaines, which is the
question of possessory interest” is puzzling because, as the
court seemed to recognize, Jones has nothing to do with a
person’s possessory interest in a vehicle. It concerns only a
person’s privacy interest. In Jones, the Supreme Court did
not address the person’s possessory interest in the vehicle
because the police did not interfere with that interest.
Jones was a tracking case, not a seizure case. Jones
simply has nothing to do with the issue Phillips raised in
this case, which concerns whether seizure of her truck
violated her possessory interests in the truck.

(Citation omitted.)

¶45 In her response brief on appeal, Phillips relies on Jones only for the
purpose of an argument that we do not need to reach: that Gaines cannot be
reconciled with Jones, which is the same approach she took in the circuit court. In
the section of her brief that attempts to support the circuit court’s ruling that the
delay between the warrantless seizure and the warrant-supported search violated
the Fourth Amendment, which the court purported to base on Jones, Phillips relies

10
The parties agree that the police held the pickup truck after its warrantless seizure for
20 days, not 22 days, before obtaining a warrant to search it and conducting the search.

22
No. 2022AP350-CR

on other authority and not on Jones. In other words, Phillips on appeal does not
attempt to explain or support the rationale expressed by the circuit court.

¶46 With that additional background, we reject the new argument raised
for the first time on appeal because it is undeveloped. It is true that “we may
affirm the circuit court if it reached the correct result but for the wrong reason,”
State v. Chitwood, 2016 WI App 36, ¶34, 369 Wis. 2d 132, 879 N.W.2d 786, but
we will not abandon our neutrality to develop arguments, see M.C.I., Inc. v.
Elbin, 146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988). The new
argument is not based on Wisconsin precedent on any topic or on precedent from
any jurisdiction addressing the automobile exception. Beyond that, there are
significant, independent omissions in the new argument that Phillips advances on
appeal. It is sufficient to cite two, both major.

¶47 First, Phillips fails even to attempt to explain at what point the
seizure of the pickup, if it was lawful at its inception under the automobile
exception, became constitutionally unreasonable and what facts that are in the
record would be relevant to determine when it became unreasonable.

¶48 Second, Phillips entirely fails to come to terms with one side of the
equation that would be pertinent under the federal case law that she newly cites on
appeal: the governmental interests in seizing, retaining, and searching a vehicle
that police had reason to suspect had just been involved in the death of a person.
See United States v. Sullivan, 797 F.3d 623, 633 (9th Cir. 2015) (determining
whether delay between the seizure of an item and the issuance of a search warrant
is constitutionally unreasonable is based on the “totality of the circumstances, not
whether the [g]overnment pursued the least intrusive course of action,” and
involves a balancing of “‘nature and quality of the intrusion on the individual’s

23
No. 2022AP350-CR

Fourth Amendment interests against the importance of the governmental interests
alleged to justify the intrusion’” (quoting United States v. Place, 462 U.S. 696,
703 (1983))).

¶49 Turning to the circuit court’s reliance on Jones on the search-
warrant-delay topic, Phillips concedes through silence that the State is correct
when it argues that Jones has no bearing on the issue of whether the State held the
pickup for an unreasonable period of time after a seizure that we determine was
valid under the automobile exception. “Respondents on appeal cannot complain if
propositions of appellants are taken as confessed which they do not undertake to
refute.” State ex rel. Blank v. Gramling, 219 Wis. 196, 199, 262 N.W. 614
(1935) (quoted in Charolais Breeding Ranches, Ltd. v. FPS Sec. Corp., 90
Wis. 2d 97, 279 N.W.2d 493 (Ct. App. 1979)).

¶50 Further, Phillips failed to present the new argument as a basis for
suppression in the circuit court, as the court’s evidentiary rulings confirm, with
one result being that the State was not allowed to offer evidence that could have
supported an argument on this topic. That is, Phillips failed to preserve an
argument in the circuit court that, even if the automobile exception applies, the
State violated the Fourth Amendment by holding the pickup for 20 days before
obtaining a search warrant that was promptly executed, and as a result, the parties
did not have an opportunity to offer all relevant evidence. Now on appeal, Phillips
references topics that could be potentially relevant to her new argument that are
not part of the record, such as reasons why she never initiated communications
with police regarding the status of her seized pickup. See Sullivan, 797 F.3d at
633-34 (“an individual who did ‘not even allege[], much less prove[], that the
delay in the search of packages adversely affected legitimate interests protected by
the Fourth Amendment’ and ‘never sought return of the property’ has not made a

24
No. 2022AP350-CR

sufficient showing that the delay was unreasonable” (alterations in original)
(quoting United States v. Johns, 469 U.S. 478, 487 (1985))). But the record is
closed. Phillips objects that the prosecution failed to offer a “reasonable
explanation for why [police] kept the Dodge Ram secured without a warrant for
twenty days.” But, as explained above, the prosecution was not on notice in the
circuit court that evidence on that topic would be relevant to the only issue Phillips
identified in raising and pursuing the suppression motion.

CONCLUSION

¶51 For all these reasons, we reverse the order directing that the pickup
truck and all evidence from the pickup truck be suppressed.

By the Court.—Order reversed and cause remanded for further
proceedings.

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

25