FINE, J.
This case presents a significant search and seizure issue: what is the scope of a permissible warrantless search of premises when the search is incident to a lawful arrest? Since the issue involves the application of constitutional principles to undisputed facts, we decide this matter de novo. See State v. Fry, 131 Wis.2d 153, 171, 175, 388 N.W.2d 565, 573, cert. denied, 479 U.S. 989 (1986).
Contrary to the dissent's assertions, Dissent at pages 211, 214-215 and 217, we do not ignore but, rather, adopt the trial court's findings of historical facts, about which there is no dispute.
I.
Four law enforcement officers went to a rooming house where Leonard Murdock lived to arrest him on three warrants. They found Murdock in a room with two other men. The room was small, approximately ten by twelve feet or twelve by fourteen feet. Connected to the room was a pantry-type closet, which was approximately six by four feet. There was either no door to the pantry-closet or it was open.
Murdock and the other men were ordered to the floor, and were handcuffed with their hands behind their backs. After the men were handcuffed, one of the officers saw a .22 caliber round on a shelf in the pantry. There were drawers underneath the shelf, and the officer opened them looking for a weapon. The officer testified at the suppression hearing that before they went into the rooming house to arrest Murdock, one of the other officers had explained that Murdock was suspected of having "waived a gun at a witness or someone and he was supposedly armed."
A short-barreled rifle was found in one of the drawers. At the time the rifle was found, Murdock was laying on the ground in front of the pantry, approximately three to four feet from the drawer and, according to the trial court, the officers had the situation under "complete control," there being "no resistance."
Murdock was charged with the felony of possessing a short-barreled rifle in violation of sec. 941.28, Stats. Although not challenging the lawfulness of his arrest, Murdock filed a motion to suppress the rifle. The trial court granted the motion and dismissed the case. We reverse.
II.
This case is governed by the search and seizure provisions in the United States Constitution, the Wisconsin Constitution, and the Wisconsin statutes. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, section 11 of the Wisconsin Constitution is substantially the
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
Section 968.11, Stats., provides:
When a lawful arrest is made, a law enforcement officer may reasonably search the person arrested and an area within such person's immediate presence for the purpose of:
(1) Protecting the officer from attack;
(2) Preventing the person from escaping;
(3) Discovering and seizing the fruits of the crime; or
(4) Discovering and seizing any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, the offense.
In the context of an analysis of what is the permissible scope of a search incident to a lawful arrest, these constitutional and statutory provisions are consistent with one another and are coextensive. See Fry, 131 Wis.2d at 165-168, 171-176, 388 N.W.2d at 570-572, 573-575. Accordingly, to paraphrase Gertrude Stein's famous aphorism about roses, what is lawful under the Fourth Amendment to the United States Constitution, is lawful under Article I, section 11 of the Wisconsin Constitution, is lawful under sec. 968.11, Stats. See ibid.
A warrantless search incident to a lawful arrest is permissible for two reasons: (1) to prevent the person being arrested from having access to weapons that might endanger the arresting officer or permit the suspect's escape, and (2) to prevent the person being arrested from concealing or destroying evidence. Chimel v. California, 395 U.S. 752, 762-763 (1969). Thus, Chimel recognized that there is "ample justification" for officers who are lawfully arresting a suspect to search "the area from within which he might gain possession of a weapon or destructible evidence." Id. at 763.
Chimel concerned the full-scale search of a burglary suspect's home. The arresting officers "looked through the entire three-bedroom house, including the attic, the garage, and a small workshop." Id. at 754. In striking down the search as an unreasonable invasion of Chimel's Fourth Amendment rights, the Supreme Court overturned a line of cases that lower courts had interpreted as authorizing almost any search that was incident to a lawful arrest. Id. at 755-768. Chimel adopted a case-by-case approach to determine whether a particular search was reasonable under the Fourth Amendment. Id. at 765. Twelve years later, in New York v. Belton, 453 U.S. 454 (1981), the Supreme Court — in the context of an automobile search — rejected this case-by-case approach in favor of a clear-cut, bright-line rule. Significantly, both Chimel and Belton were written by the same person, Justice Potter Stewart.
In Belton, a police officer stopped an automobile he saw speeding. After he stopped the car, the officer reasonably suspected the driver and passengers of illegally possessing marijuana. He ordered them out of the car, placed them under arrest, patted them down, and "`split them up into four separate areas of the Thruway,'" while he searched the car. Belton, 453 U.S. at 455-457. The officer found Belton's leather jacket lying on the back seat. Unzipping one of the jacket's pockets, the officer discovered cocaine. Id. at 456.
New York's highest court threw out the search on the ground that a "`warrantless search of zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article.'" Ibid. The United States Supreme Court reversed, holding that since the jacket "was `within the arrestee's immediate control' within the meaning of" Chimel, the search was "incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments." Id. at 462-463.
Belton went beyond determining whether the officer's search of the jacket was reasonable under the specific circumstances of that case. It crafted a bright-line rule as to what constitutes an "area from within which [the person being arrested] might gain possession of a weapon or destructible evidence" to pass muster under Chimel, 395 U.S. at 763, irrespective of whether the area searched was actually accessible:
[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.
Belton, 453 U.S. at 460 (footnotes omitted). Significantly, as two of the dissenting justices pointed out, Belton and his friends were arrested "
after they had been removed from the car, patted down, and separated" so that at the time of the arrest and subsequent search "none of them could have reached the jackets that had been left on the back seat of the car."
Id. at 466 (Brennan, J., dissenting) (emphasis in original). They thus characterized the Court's decision as "for the first time grant[ing] police officers authority to conduct a warrantless `area' search under circumstances where there is no chance that the arrestee `might gain possession of a weapon or destructible evidence.'"
Id. at 468 (quoting
Chimel, 395 U.S. at 763). In essence, however,
Belton merely applied what
Chimel had already recognized, namely that a search incident to a lawful arrest "must constitutionally be confined to the area within the arrestee's reach
at the time of his arrest."
Vale v. Louisiana, 399 U.S. 30, 33 (1970) (emphasis supplied).
Whether the area was within the arrestee's reach at the
time of the search, as opposed to the time of the arrest, is not material.
Belton; Fry.
Vale, like Chimel and Belton, was also written by Justice Stewart.
Fry was arrested for the crime of trespass. Fry, 131 Wis.2d at 157-58, 388 N.W.2d at 567. The arresting officers had been told by another law enforcement agency that Fry was known to carry a gun in the glove compartment of his car and that any officer seeing him "should use caution." Id. at 157, 388 N.W.2d at 567. After his arrest, Fry and a passenger from Fry's automobile were handcuffed and placed in separate squad cars. Id. at 186, 388 N.W.2d at 579 (Bablitch, J., dissenting). The officers then searched Fry's car while Fry and his passenger were being guarded by other officers. A weapon was found in the locked glove compartment. Ibid. Fry upheld the search and relied on Belton's bright-line rule for its analysis under the United States Constitution, the Wisconsin Constitution, and sec. 968.11, Stats. Fry, 131 Wis.2d at 165-68, 171-176, 388 N.W.2d at 570-572, 573-575. As Fry explained:
The
Belton rule is a simple and reasonable rule governing the search of an automobile after an arrest is made. A police officer may assume under
Belton that the interior of an automobile is within the reach of a defendant when the defendant is still at the scene of an arrest, but the defendant is not physically in the vehicle. We cannot say as a matter of fact in all cases that a defendant never could regain access to the interior of an automobile after initially leaving the vehicle. Thus, we would seriously undermine police security if we adopted as a matter of constitutional fact the rule that the interior of an automobile never is within the reach of a suspect who is outside the vehicle at the arrest scene; such a rule would prohibit all automobile searches as an incident to arrest, unless the defendant was allowed to remain in the
automobile during the search, which increases the risk of danger to the officer. We cannot subscribe to such a limitation on the search incident to arrest rule.
Id. at 174-175,
388 N.W.2d at 574. The dissenting justices in
Fry echoed, in part, the concerns expressed by the dissenting justices in
Belton.
See id. at 185, 187-188,
388 N.W.2d at 579, 580 (Bablitch, J., dissenting).
Belton saw the need for a bright-line rule to guide police officers who are forced to make split-second assessments at the risk of their lives. See Belton, 453 U.S. at 458. In this regard, it followed an earlier case, United States v. Robinson, 414 U.S. 218 (1973), where a similar need prompted the Court to approve the full search of the arrestee's person. As Robinson explained:
A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick
ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.
Robinson, 414 U.S. at 235.
Belton expanded on
Robinson's theme:
When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional
protection, nor can a policeman know the scope of his authority.
Belton, 453 U.S. at 459-460. We agree with the State that there is the same need for a bright-line rule in premises searches. Simply put, the validity of a search incident to a lawful arrest must not depend on a leisurely, retrospective, analysis of countless factors, the assessment of which must be made in an instant by officers on the line. We therefore follow the clear path cut by
Chimel, Robinson, Belton and
Fry and hold that a warrantless premises search incident to a lawful arrest is valid as long as it is limited to the area generally within the "arrestee's reach at the time of his arrest,"
that is, the room in which the arrest is made, including a contiguous open area such as a closet or pantry, and the arresting officers have reasonable grounds to conclude that weapons or destructible evidence might be present in that room.
Since the search here satisfies both prongs of this test, it must be upheld.
Vale, 399 U.S. at 33, interpreting Chimel, 395 U.S. at 763.
We mention "destructible evidence" in conformity with Chimel, 395 U.S. at 763; Belton, 453 U.S. at 460, and Fry, 131 Wis.2d at 184, 388 N.W.2d at 578 as well as sec. 968.11(3), (4), Stats. It is not meant to assert, as contended by the dissent, Dissent at 216, that this case involved evidence that could be destroyed. It obviously did not. Neither did Fry.
The rule we adopt fully conforms with the teachings of Belton and Fry. See United States v. Silva, 745 F.2d 840, 847 (4th Cir. 1984), cert. denied, 470 U.S. 1031 (1985) (lawful arrest in motel room justified warrantless search of nearby locked zippered bag even though arrestees were handcuffed behind their backs at the time); United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir.), cert. denied, 469 U.S. 934 (1984) (lawful arrest in hotel room justified warrantless search behind dresser drawer even though area might have been inaccessible to arrestee at the time of the search). Compare Stackhouse v. State, 468 A.2d 333, 337-338 (Md. 1983), which declined to extend Belton to dwellings, with Foster v. State, 464 A.2d 986, 1000-1001 (Md. 1983), cert. denied, 464 U.S. 1073 (1984), which upheld the warrantless search of a partially open nightstand drawer even though the suspect was handcuffed behind her back at the time of the arrest. Significantly, the majority in Stackhouse relied on one of the two dissenting opinions in Belton. See Stackhouse, 468 A.2d at 338. Recognizing that the room in which a person is arrested generally encompasses the extent of the area within that person's reach, we — as did Belton and Fry — avoid the uncertainty of a case-by-case judicial sifting and weighing of myriad matters (size of room, place in room where person arrested, proximity of search to place of arrest, the degree of stabilization, etc.). As already noted, law enforcement officers must instantaneously process these matters at a time of stress, and often at great personal risk.
The dissent here misreads both Belton and Fry when it states that those cases "involved automobile searches which were incident to arrest and where the areas searched were within the control of the arrestee." Dissent at 214 (emphasis supplied). As noted in this opinion, the arrestees in Belton were separated from the automobile at the time of the search and, indeed, a dissent in Belton pointed out that none of the men arrested "could have reached the jackets." Belton, 453 U.S. at 466. By the same token, Fry and his passenger were not only out of Fry's automobile when it was searched but were, indeed, sitting handcuffed in separate squad cars guarded by other officers. Fry, 131 Wis.2d at 186, 388 N.W.2d at 579 (Bablitch, J., dissenting). The situations in both Belton and Fry were thus "stabilized," see Dissent at 212-213, 215, at the time of the respective searches.
One commentator, not sympathetic to the Belton "bright-line" rule, recognizes that its application to premises "would most likely be in the form of one of the intermediate positions found wanting in Chimel — a one-room rule or, more likely, a rule based on the extent of the person's control just before his arrest." 2 W.R. La Fave, Search and Seizure, sec. 6.3 at 635 (2d ed. 1987) (emphasis in original).
The United States Supreme Court has reminded us that "[e]very arrest must be presumed to present a risk of danger to the arresting officer." Washington v. Chrisman, 455 U.S. 1, 7 (1982). It is appropriate to balance this danger, and the danger that evidence will be destroyed, against the privacy rights we all enjoy. See New Jersey v. Bruzzese, 463 A.2d 320, 332-333 (N.J. 1983), cert. denied, 465 U.S. 1030 (1984). "[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Payton v. New York, 445 U.S. 573, 585 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313). As Belton notes, "the lawful custodial arrest justifies the infringement of any [Fourth Amendment] privacy interest" caused by the search. See Belton, 453 U.S. at 461. By limiting the search to the zone of potential danger, recognized by both Belton, 453 U.S. at 460, and Fry, 131 Wis.2d at 174, 388 N.W.2d at 574, we heed the Supreme Court's forceful reminder that the Fourth Amendment was adopted by Framers well aware of the outrages perpetrated by the king's myrmidons under the aegis of the hated general warrants and writs of assistance. Payton, 445 U.S. at 583-584 n. 21. See Chimel, 395 U.S. at 760-761. We also heed the need for effective and safe law enforcement. By the Court. — Order reversed.
"During 1987, 27 officers were slain during arrest situations, accounting for more line-of-duty deaths than any other circumstance," Uniform Crime Reports — Law Enforcement Officers Killed and Assaulted p. 3 (U.S. Dept. of Justice 1987). Eighteen police officers were killed in arrest situations during the first six months of 1988. Release, U.S. Dept. of Justice. Contrary to the dissent's assertion, Dissent at 215-216, we may acknowledge the tragedies, both past and potential, inherent in these figures though they are not part of the appellate record in this case. As explained by the Federal Advisory Committee's note to Rule 201 of the Federal Rules of Evidence, this type of information may be used by trial and appellate courts as an aid in the ascertainment of legal principles, 59 Wis.2d at R26-R27, because that task "should be guided by experience and understanding." Davis, Judicial Notice, 55 Col. L. Rev. 945, 949 (1955) quoted in the Judicial Council Committee's note to Rule 902.01, Stats., 59 Wis.2d at R25.
Contrary to the dissent's assertion, Belton does not stand for the proposition that the Chimel case-by-case approach "is still the law in this country concerning the validity of a search of a home incident to a lawful arrest." Dissent at 217. Indeed, as Belton states, "while the Court in Chimel held that the police could not search all the drawers in an arrestee's house simply because the police had arrested him at home, the Court noted that drawers within an arrestee's reach could be searched because of the danger their contents might pose to the police." Belton, 453 at 461 (citing Chimel, 395 U.S. at 763). Belton abandoned Chimel's case-by-case evaluation of whether, in fact, the searched areas were in "an arrestee's reach" in favor of a bright-line rule that does not turn on whether the area was actually accessible or not. It neither extended, nor declined to extend, the bright-line rule it announced to searches of premises. The issue was simply not before the Court. Rather than "revers[ing] Chimel," see Dissent at 217, this court follows Belton and Fry, so that police officers who must make split-second decisions need not try to guess whether some court might later consider the situation "stabilized." See Dissent at pages 212-213, 215. We also disagree with the implication in the dissenting opinion that this decision is a license for unbridled search; it is not. The bright-line rule here, as in Belton/Fry, is narrow and specific. See page 207, supra.