                                                             2020 WI 53

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2018AP1209-CR


COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Mose B. Coffee,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 387 Wis. 2d 673,929 N.W.2d 246
                              PDC No:2019 WI App 25 - Published

OPINION FILED:         June 5, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 21, 2020

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Winnebago
   JUDGE:              John A. Jorgensen

JUSTICES:
ROGGENSACK, C.J., delivered an opinion of the court, in which
ZEIGLER, J., joined.   KELLY, J., filed a concurring opinion.
DALLET, J., filed a dissenting opinion, in which REBECCA GRASSL
BRADLEY, J., joined.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., withdrew from participation.        HAGEDORN,
J., did not participate.

ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
filed by Frances Colbert, assistant state public defender. There
was an oral argument by Frances Colbert.


       For the plaintiff-respondent, there was a brief filed by
John A. Blimling, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by John A. Blimling.
                                                                      2020 WI 53


                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.       2018AP1209-CR
(L.C. No.    2017CF542)

STATE OF WISCONSIN                          :             IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,
                                                                   FILED
      v.                                                       JUN 5, 2020

Mose B. Coffee,                                                  Sheila T. Reiff
                                                              Clerk of Supreme Court

             Defendant-Appellant-Petitioner.


ROGGENSACK, C.J., delivered an opinion of the court, in which
ZEIGLER, J., joined.   KELLY, J., filed a concurring opinion.
DALLET, J., filed a dissenting opinion, in which REBECCA GRASSL
BRADLEY, J., joined.

ANN WALSH BRADLEY, J., withdrew from participation.                    HAGEDORN,
J., did not participate.




      REVIEW of a decision of the Court of Appeals.              Affirmed.



      ¶1     PATIENCE DRAKE ROGGENSACK, C.J.          We review a decision

of the court of appeals1 affirming the circuit court2 denial of


      1State v. Coffee, 2019 WI App 25, 387 Wis. 2d 673, 929
N.W.2d 245.
      2The     Honorable   John   A.   Jorgensen     of    Winnebago        County
presided.
                                                                          No.     2018AP1209-CR



Mose B. Coffee's motion to suppress evidence obtained from a

search of a vehicle incident to his lawful arrest for Operating

While Intoxicated (OWI) that Coffee argues violated the Fourth

Amendment    of   the     United       States        Constitution.          The     court     of

appeals    reasoned     that     the        lawful       arrest   for     OWI,    in    and   of

itself, supplied a basis to search the passenger compartment,

and, specifically, a bag located behind the driver's seat that

contained marijuana.

      ¶2    We disagree that the lawful arrest for OWI, in and of

itself,    supplied     a      sufficient          basis    to    search    the     passenger

compartment of Coffee's vehicle.                    However, the search was lawful

because police had reasonable suspicion, based on the totality

of   the   circumstances,         that        the     passenger         compartment,       and,

specifically,       the        bag,        might     contain           evidence     of     OWI.

Accordingly, we affirm the court of appeals.

                                      I.    BACKGROUND

      ¶3    Officer Timothy Skelton works for the Oshkosh Police

Department.       On August 30, 2017, at 11:17 p.m., he observed an
automobile driving on a city street that did not have a front

license    plate.         He    instituted           a     traffic      stop,     "which      was

eventually completed in the parking lot" of a restaurant or bar.

      ¶4    The     automobile             parked     close       to     another       vehicle.

Skelton testified:

      As the vehicle had pulled into the parking lot, there
      were     other    vehicles    that    were    already
      parked. . . . [I]n this case the vehicle as it pulled
      in pulled in at an angle and very close to a vehicle
      that was –- it would be on the driver's side.      My
      estimation was that it was no more than two feet from

                                               2
                                                                No.    2018AP1209-CR


      the other vehicle, making it very –- it was very close
      to the other vehicle and somewhat at an angle.
Body camera footage shows that Coffee's vehicle was over the

yellow line on the driver's side.

      ¶5      Skelton explained why he found how the vehicle was

parked noteworthy:

      Well, it was the fact that I was performing the
      traffic stop and the vehicle continued into the
      parking lot.   And the way it had parked, the driver
      immediately was getting out of his vehicle so it was
      almost as if he was –- knew I was behind him and was
      getting out quickly.
      ¶6      Skelton     asked    the   driver,    Coffee,    to     stay   in   the

vehicle.      "When asked how much he had to drink and from where

was he coming, [Coffee] stated he was coming from a friend's

house and that he had not had that much."

      ¶7      Skelton      believed      that      Coffee     was     intoxicated.

Coffee's speech was slurred, and his eyes were "very glazed over

and bloodshot."          Skelton testified that the "glazed over look in

his   eyes"    was   a    sign    that   Coffee    was   "possibly     impaired   by

intoxicants and or other controlled substances."                      According to

the affidavit supporting the criminal complaint, "Skelton could

smell an odor of intoxicants coming from the vehicle."                       Skelton

also testified that after he had Coffee "sit down in his car" he

smelled "an odor of intoxicants coming from his person or from

the vehicle."        Based on these observations, Skelton decided to

ask Coffee to step out of the vehicle, so he could administer

field sobriety tests.




                                          3
                                                         No.    2018AP1209-CR



     ¶8     As Skelton walked with Coffee to conduct a test, he

realized that he met Coffee a few weeks prior.           He recalled that

Coffee had been "very quiet at that time."               Yet, Coffee was

presently "very talkative."

     ¶9     Coffee performed poorly on field sobriety tests.                 He

exhibited all six clues on the Horizontal Gaze Nystagmus test,

failed to complete the nine-step-walk-and-turn test and sang the

alphabet    twice   after   being   instructed   to   state    the   alphabet

twice in a row without singing.            Skelton then administered a

preliminary    breath   test,   which    indicated    that    Coffee   had   a

prohibited alcohol level of .14.3

     ¶10    Skelton arrested Coffee and secured him in the back of

his squad car.       Skelton then instructed two other officers at

the scene, Brenden Bonnett and Benjamin Fenhouse, to search the

passenger compartment.       Skelton informed the two that Coffee had

been arrested "for operating under the influence of alcoholic

beverages."

     ¶11    Bonnett testified that "the subject was in custody for
impaired driving."      Therefore, "I'd be looking for any substance

in the vehicle that could impair a driver's ability to operate

the motor vehicle safely."          He further testified that he was

"looking for any substance, whether that could be prescription

medication, nonprescription medication, alcohol, illegal drugs,

or even up to possibly an inhalant such as Dust-Off –- can of


     3   A blood test indicated Coffee's BAC was .17.


                                     4
                                                           No.   2018AP1209-CR



Dust-Off I know has been used before also as a substance which

has impaired drivers."

      ¶12       Bonnett found a cloth bag "right behind the driver's

seat, whereas in the driver could have moved it with his arm

while seated in the driver's seat."            "Inside that cloth bag were

two mason jars.        Inside the mason jars were flakes of what was

suspected to be marijuana."         Bonnett testified that he had to

"dig through the bag" before locating the jars because there

were other items on top that concealed them from sight.4

      ¶13       After Bonnett found the jars with what appeared to be

flakes of marijuana, Fenhouse searched the trunk of the vehicle.

Fenhouse found an additional 930.7 grams of marijuana and drug

paraphernalia.

      ¶14       The State charged Coffee with possession with intent

to deliver THC, possession of drug paraphernalia, second-offense

OWI       and    second-offense   OWI       with   a   prohibited     alcohol

concentration.        Coffee moved to suppress "all evidence obtained"

from the search.
      ¶15       After a contested hearing, the circuit court concluded

that the search did not violate the Fourth Amendment.               The court

found that the search of the bag was permissible because it was

within reach from the driver's seat.               The circuit court also

explained, "I'm really not putting much weight on the fact of

      4Among these items were many cell phones.    Additionally,
the bag also contained little plastic bags, though Bonnett could
not recall on the stand whether he saw the little plastic bags
before he saw the jars. The body camera footage is unclear.


                                        5
                                                           No.     2018AP1209-CR



where exactly that bottle was found because it doesn't matter if

the defendant just threw it on top of the bag or to conceal it

pushed it down to the bottom or in the middle.                   That's easily

done."

      ¶16   After   the   circuit   court    denied    Coffee's    motion,   he

reached a plea agreement with the State.              He pled no-contest to

possession with intent to deliver THC and second-offense OWI.

The two other counts were dismissed.               After sentencing, Coffee

appealed.

      ¶17   The court of appeals affirmed.            State v. Coffee, 2019

WI App 25, 387 Wis. 2d 673, 929 N.W.2d 245.            It stated:

      [A]s a matter of law . . . when an officer lawfully
      arrests a driver for OWI, even if alcohol is the only
      substance detected in relation to the driver, a search
      of the interior of the vehicle, including any
      containers therein, is lawful because it is reasonable
      to believe evidence relevant to the offense of OWI
      might be found.
Id., ¶13.

      ¶18   We granted Coffee's petition for review, which argued

that the court of appeals ignored the particular facts of the

case.     Coffee argued that the court applied a bright-line rule,

and therefore, the search was not justified by the totality of

the     circumstances.      We   agree      that    bright-line     rules    are

disfavored by the United States Supreme Court in its                    Fourth

Amendment jurisprudence; however, we affirm because the totality

of the circumstances provided the foundation for concluding that

the search was reasonable.




                                     6
                                                                              No.    2018AP1209-CR



                                          II.    DISCUSSION

                                   A.     Standard of Review

       ¶19       Review      of    a    decision        denying     a    motion     to     suppress

under the Fourth Amendment presents a question of constitutional

fact.      State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857

N.W.2d 120.            We employ a two-step inquiry when presented with a

question of constitutional fact.                        State v. Robinson, 2010 WI 80,

¶22,       327    Wis. 2d 302,            786     N.W.2d 463;           see   also       State   v.

Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786 N.W.2d 97.

       ¶20       First, we uphold the circuit court's findings unless

they are clearly erroneous.                      State v. Richter, 2000 WI 58, ¶26,

235 Wis. 2d 524, 612 N.W.2d 29.                         Second, we independently apply

constitutional principles to the facts.                           Id.; see also Dearborn,

327 Wis. 2d 252, ¶13.                     These principles require an objective

application of the facts, meaning we independently examine the

facts      known       to    the    officer       at    the   time       of   the    warrantless

search.           We    do    not       analyze        what   the       officer     subjectively

believed or what inferences he or she actually drew.
       ¶21       In the present case, we apply this two-step inquiry to

determine whether the search of the passenger compartment, and,

specifically,           the        bag,    was     unreasonable           under      the    Fourth

Amendment.5        The burden is on the State to prove that the search


       Article I, § 11 of the Wisconsin Constitution is nearly
       5

identical to the Fourth Amendment.       We normally interpret
Article I, § 11 consistent with the United States Supreme
Court's interpretation of the Fourth Amendment. E.g., State v.
Dearborn, 2010 WI 84, ¶¶14–17, 327 Wis. 2d 252, 786 N.W.2d 97;
State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752
                                                    (continued)
                                                   7
                                                                No.     2018AP1209-CR



was constitutionally permissible because police did not obtain a

warrant prior to searching the vehicle.                 State v. Johnston, 184

Wis. 2d 794, 806, 518 N.W.2d 759 (1994) (citing United States v.

Jeffers, 342 U.S. 48, 51 (1951)); State v. Phillips, 2009 WI App

179, ¶7, 322 Wis. 2d 576, 778 N.W.2d 157.

                      B.    Fourth Amendment Principles

     ¶22    The Fourth Amendment of 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.
As   the    text    makes     clear,      "the    Fourth    Amendment     does    not

proscribe all state-initiated searches and seizures; it merely

proscribes        those    which    are     unreasonable."        Tulberg,        359

Wis. 2d 421, ¶29 (quoting Florida v. Jimeno, 500 U.S. 248, 250

(1991); see also Riley v. California, 573 U.S. 373, 381 (2014)

(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

     ¶23    A search is unreasonable if the individual's privacy

interest     in    the     area    searched      is   not   outweighed     by    "the

promotion of legitimate governmental interests."6                     Virginia v.


N.W.2d 748.   Coffee has not argued that we should decide this
case under the Wisconsin Constitution, and, therefore, we do not
address Article I, § 11.
     6 We have considered the practices of the founding
generation to determine if a search was unreasonable. Virginia
v. Moore, 553 U.S. 164, 168 (2008) ("In determining whether a
                                                    (continued)
                                           8
                                                                 No.     2018AP1209-CR



Moore, 553 U.S. 164, 171 (2008) (quoting Wyoming v. Houghton,

526   U.S.   295,    300    (1999)).      If    a   search      was    unreasonable,

evidence obtained from it is subject to exclusion.                          Mapp v.

Ohio, 367 U.S. 643, 655 (1961).

      ¶24 "A warrantless search is presumptively unreasonable,"

Tullberg, 359 Wis. 2d 421, ¶30, because "[w]hen the right of

privacy must reasonably yield to the right of search is, as a

rule, to be decided by a judicial officer, not by a policeman or

Government    enforcement      agent,"       Johnson   v.    United     States,   333

U.S. 10, 14 (1948).         "[S]earches conducted outside the judicial

process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment——subject only to a

few   specifically     established      and     well-delineated         exceptions."

Katz v. United States, 389 U.S. 347, 357 (1967).

      ¶25    One such exception was announced in Arizona v. Gant,

556   U.S.    332,    335    (2009):     "[C]ircumstances         unique     to   the

automobile context justify a search incident to arrest when it

is reasonable to believe that evidence of the offense of arrest
might be found in the vehicle."              Automobiles are movable, making

plausible     an     automobile's      escape       from    a    jurisdiction      or

concealment before a warrant can be obtained.                   Carroll v. United



search or seizure is unreasonable, we begin with history.").
However, "the historical scope of officers' authority to search
vehicles incident to arrest is uncertain." Arizona v. Gant, 556
U.S. 332, 351 (2009) (Scalia, J., concurring) (citing Thornton
v. United States, 541 U.S. 615, 629–31 (2004) (Scalia, J.,
concurring in judgment)).


                                         9
                                                           No.     2018AP1209-CR



States, 267 U.S. 132, 151–53 (1925).             Therefore, people have a

lower    expectation    of     privacy    in    an   automobile,     and     the

legitimate    governmental     interest    in   a    warrantless    search    is

stronger.7    The legitimate governmental interests, in this case,

are particularly strong given the havoc wreaked by intoxicated

drivers.8     Therefore, if the Gant exception is satisfied, the

search cannot be unreasonable because the exception articulates

a balancing of interests sufficient for this case.

                       C.    Interpretations of Gant

     ¶26     The Gant exception has generated much discussion.               One

issue concerned whether the nature of an offense of arrest, in


     7 To  further   explain,   an   automobile's  "function  is
transportation and it seldom serves as one's residence or as the
repository of personal effects.    A car has little capacity for
escaping public scrutiny. It travels public thoroughfares where
both its occupants and its contents are in plain view." United
States v. Knotts, 460 U.S. 276, 281 (1983) (quoting Cardwell v.
Lewis, 417 U.S. 583, 590 (1974) (plurality)).

     Furthermore, police are required to be in "frequent contact
with automobiles" in the course of their duties.    South Dakota
v. Opperman, 428 U.S. 364, 367–68 (1976). "Automobiles, unlike
homes, are subjected to pervasive and continuing governmental
regulation and controls, including periodic inspection and
licensing requirements."     Id. at 368.       "As an everyday
occurrence, police stop and examine vehicles when license plates
or inspection stickers have expired, or if other violations,
such as exhaust fumes or excessive noise, are noted, or if
headlights or other safety equipment are not in proper working
order." Id.
     8 "No one can seriously dispute the magnitude of the drunken
driving problem or the States' interest in eradicating it."
Missouri v. McNeely, 569 U.S. 141, 160 (2013) (quoting Mich.
Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990)).


                                     10
                                                                    No.     2018AP1209-CR



and of itself, can supply a basis for a search of a passenger

compartment, or whether the search must be analyzed by examining

the totality of the circumstances.                  The first approach is known

as      the     "categorical        approach,"        and     the         second,        the

"reasonableness approach."

                         1.     The Categorical Approach

     ¶27       The    categorical      approach     stems   from     two        quotes    in

Gant:

     [1.] In many cases, as when a recent occupant is
     arrested for a traffic violation, there will be no
     reasonable basis to believe the vehicle contains
     relevant evidence.   But in others, . . . the offense
     of arrest will supply a basis for searching the
     passenger compartment of an arrestee's vehicle and any
     container therein.

     . . . .

     [2.] Gant was arrested for driving with a suspended
     license——an offense for which police could not expect
     to find evidence in the passenger compartment of
     Gant's car.
Gant, 556 U.S. at 343–44.              Interpreting these quotes, a Florida

appellate court was the first to "reason[]                        that the [United
States]       Supreme   Court     intended     to   give    its    imprimatur        to    a

system     of    classifying       criminal     offenses      into        two    distinct

groups:       those     that     'by    [their]      nature . . . might             yield

physical evidence' and those 'for which there is no physical

evidence.'"          United States v. Reagan, 713 F. Supp. 2d 724, 731

(E.D. Tenn. 2010) (quoting Brown v. State, 24 So. 3d 671, 678

(Fla. App. 2009)).             Under this interpretation of Gant, relevant
evidence of some crimes, such as the possession of a controlled


                                          11
                                                                         No.    2018AP1209-CR



substance,       might     be     in     the        passenger      compartment       of     an

automobile.       Reagan, 713 F. Supp. 2d at 731 (citing Brown, 24

So. 3d at 677).           However, relevant evidence of other crimes,

such as minor traffic violations, will not be in the passenger

compartment.       Reagan, 713 F. Supp. 2d at 731 (citing Brown, 24

So. 3d   at    677).        A     search       of     a    passenger     compartment        is

permissible if a recent occupant was arrested for the former;

for the latter, a search is not permissible.

     ¶28      Following     the     Florida          court's      interpretation,         some

courts have concluded that OWI is, by its nature, a crime for

which    there     might     be     relevant          evidence      in    the     passenger

compartment.       State v. Cantrell, 233 P.3d 178, 185 (Idaho 2010)

("Cantrell was arrested for DUI, and the DUI supplied the basis

for the search."); People v. Nottoli, 130 Cal. Rptr. 3d 884, 902

(2011)   ("Reid's        arrest    for     'being         under   the    influence     of    a

controlled substance' supplied a reasonable basis for believing

that evidence 'relevant' to that type of offense might be in his

vehicle.").9




     9 Compare Cain v. State, 373 S.W.3d 392, 396–97 (Ark. App.
2010) (reasoning that an arrest for DUI supplied the basis for a
search of an automobile under Gant because "an open container of
alcohol could have been found"), with id. at 399 (Brown, J.,
dissenting) ("Officers must be put on notice about what is
allowed following Gant, and the majority fails to define these
limitations.    Instead, the majority sends the message that
nothing has changed and officers can continue to search a
vehicle incident to a lawful arrest without anything more to
prompt such a search.").


                                               12
                                                            No.        2018AP1209-CR



    ¶29    These courts reason that relevant evidence of an OWI

might be located in the passenger compartment and any container

therein.     For example, the court of appeals reasoned in this

case:

    Not only could an officer find evidence related to the
    offense of OWI, it indeed would not be surprising for
    an officer to find such evidence as, for example, a
    copy of a credit card receipt showing very recent
    purchases of alcoholic drinks at a local bar, a
    partially or fully consumed can of beer or bottle of
    hard liquor, a prescription drug bottle, or drug
    paraphernalia or residue.
Coffee, 387 Wis. 2d 673, ¶12.         The court of appeals also stated:

    We need not detail the copious cases across this state
    and country in which a driver is arrested for OWI, a
    search of the vehicle is conducted, and alcoholic
    beverages and/or drugs are found. . . .        "It is
    certainly logical and reasonable to expect that items
    related to alcohol or drug consumption, such as
    alcoholic beverage bottles or drug paraphernalia,
    might readily be contained in the intoxicated driver's
    car."
Id., ¶12 n.6 (quoting People v. Evans, 133 Cal. Rptr. 3d 323,

336-37 (2011)).

                    2.    The Reasonableness Approach

    ¶30    Other    courts   have     interpreted    Gant    as        imposing   a

reasonableness approach.        Though stated in various terms, the

approach     involves     "looking    at    common   sense        factors       and

evaluating    the   totality   of     the   circumstances"        to     determine

whether it was reasonable to conclude that evidence of the crime

of the arrest might be found within the vehicle.                   Reagan, 713

F. Supp. 2d    at   728    (quoting    United   States      v.    Pruitt,       458
F.3d 477, 482 (6th Cir. 2006)).

                                      13
                                                                         No.       2018AP1209-CR



     ¶31       Courts so interpreting Gant have struggled with the

"quantum of suspicion required."                    State v. Eversole, 2017-Ohio-

8436, unpublished slip op., ¶23, 2017 WL 5127369 (Ohio Ct. App.

Nov. 6, 2017).           Unlike the categorical approach, which does not

utilize        facts     particular       to    the    case,       the        reasonableness

approach requires particularization.                       United States v. Taylor,

49 A.3d 818, 826 (D.C. Ct. App. 2012).

     ¶32       Determining        the    quantum      of    suspicion          required      is

difficult for at least three reasons.                       First, Gant stated the

exception four times, twice using the word "might" and twice

without    using       "might."         Compare     Gant,    556    U.S.       at    335,    343

("reasonable to believe that evidence of the offense of arrest

might     be     found     in    the     vehicle"),        with    id.        at     346,    351

("reasonable to believe the vehicle contains evidence of the

offense    of     arrest").             Second,     "reasonable          to    believe"      is

language sometimes used to describe the quantum of suspicion

necessary for probable cause.10                 And third, Gant provides little

explanation of the exception.
     ¶33       Most courts have concluded that the officer does not

need probable cause to believe evidence of the crime will be

found in the vehicle.                  Cantrell, 233 P.3d at 183.                     But see

United States v. Grote, 629 F. Supp. 2d 1201, 1203 (E.D. Wash.

2009).         Otherwise,       the    Gant    exception     would       be    the    same    as

     10Wayne R. LaFave, 2 Search & Seizure § 3.7(d) (5th ed.
updated Oct. 2019) (collecting cases that use "reasonable to
believe" to describe the quantum of suspicion necessary for an
officer to have probable cause).


                                               14
                                                                    No.     2018AP1209-CR



another simply known as the "automobile exception," and Gant

stated    the    two    exceptions      are    distinct.           United       States   v.

Vinton, 594 F.3d 14, 25 (D.C. 2010) (citing Gant, 556 U.S. at

347).

     ¶34    Some       courts    have   equated       the    Gant    exception         with

reasonable       suspicion       but    others       have    crafted        a     standard

somewhere       between    probable      cause       and    reasonable          suspicion.

Compare Taylor v. State [hereinafter Taylor Md.], 137 A.3d 1029,

1033-34     (Md.    2016)       (equating      the     standard       in        Gant   with

reasonable suspicion) and State v. Ewertz, 305 P.3d 23, 27–28

(Kan. Ct. App. 2013) (same), with Reagan, 713 F. Supp. 2d at 728

(quoting Pruitt, 458 F.3d at 482) (noting the standard in Gant

does not require probable cause and stating that a "[r]easonable

belief is established by looking at common sense factors and

evaluating the totality of the circumstances").                           At least one

United States Supreme Court justice believes the Gant exception

requires reasonable suspicion.                Megginson v. United States, 556

U.S. 1230, 1230 (2009) (Alito, J., dissenting from a decision to
grant, vacate, and remand) ("This case thus appears to present

an important question regarding the meaning and specificity of

the reasonable suspicion requirement in Gant.").

     ¶35    Whatever the quantum, courts have considered a variety

of   circumstances         to     determine      whether       the         quantum       was

satisfied:      Whether    the    officer      observed      the    driver       using    an

intoxicant;11 whether the officer observed an intoxicant in plain

     11   United States v. Reagan, 713 F. Supp. 2d 724, 733 n.7
                                                     (continued)
                                          15
                                                                 No.   2018AP1209-CR



view inside the passenger compartment;12 whether an occupant made

a statement indicating that an intoxicant is in the automobile;13

whether the officer smelled an intoxicant emanating from the

passenger compartment;14 whether "the driver was traveling from a

location such as a recreational area or campground where alcohol

is   not    available      unless    it    is    transported      in   by   private

vehicle;"15      whether      the   occupant      made      "furtive   movements,"

indicating       that   the    occupant        might   be    trying    to   conceal

evidence;16 whether the occupant evidenced extreme intoxication;17

(E.D. Tenn. 2010).
     12    Id.
     13Id.; see also United States v. Francis, No. 11-40064-01-
RDR, unpublished slip op., 2011 WL 5837182, at *3 (D. Kan. Nov.
21, 2011) (noting the driver made statements indicating she took
medication).
     14Reagan, 713 F. Supp. 2d at 733 n.7; see also Francis,
2011 WL 5837182, at *3.
     15Reagan, 713 F. Supp. 2d at 733 n.7; see also State v.
Wilson, No. 1 CA-CR 11-0292, unpublished slip op., ¶19, 2012 WL
1255151 (Ariz. Ct. App. Apr. 12, 2012) ("The police had received
prior tips about suspected drug activity at Appellant's
residence, Johnston had recently entered that residence before
leaving with Appellant in his vehicle . . . .").
     16State v. Ewertz, 305 P.3d 23, 27 (Kan. Ct. App. 2013)
(quoting State v. Julian, No. 105,695, unpublished slip op.,
2012 WL 1759405, at *5 (Kan. Ct. App. May 11, 2012) (per
curiam), rev'd State v. Julian, 333 P.3d 172 (Kan. 2014),
overruled by State v. James, 349 P.3d 457 (Kan. 2015)).
     17Ewertz, 305 P.3d at 28 ("In addition to evidence that the
car Ewertz was driving swerved in its lane and crossed over the
fog line, that Tatro smelled alcohol in the car after he pulled
Ewertz over, that Ewertz failed field sobriety tests, that
Ewertz had glassy and bloodshot eyes, and that Ewertz slurred
                                                     (continued)
                                          16
                                                                 No.   2018AP1209-CR



whether the officer had knowledge of prior unlawful conduct by

an occupant involving an intoxicant in an automobile;18 whether

the officer had knowledge regarding the likelihood of locating

an intoxicant in an automobile driven by an intoxicated person.19

                                3.   Our Approach

     ¶36       We   interpret    Gant   as     imposing    the     reasonableness

approach.       Our conclusion is consistent with the principle that

bright-line rules are disfavored in United States Supreme Court

Fourth    Amendment     jurisprudence.         Myron    Moskovitz,     A   Rule    in

Search    of    A   Reason:     Empirical    Reexamination       of    Chimel     and

Belton,     2002      Wis. L. Rev.      657,     679.       Furthermore,          the


her words, there is also evidence that Ewertz admitted to
drinking at least one alcoholic beverage before driving the car.
In light of these specific and articulable facts, as well as any
rational inferences that can be drawn from those facts, we
conclude the district court did not err in finding it was
'reasonable to believe' evidence relevant to the crime of
driving under the influence might be found in Ewertz'
vehicle.").
     18United States v. Lopez, No. CR 18-120-BLG-SPW-TJC, slip
op., 2019 WL 7838283, at *8 (D. Mont. Dec. 18, 2019) ("Officer
Miner also testified that he knew drugs had been found in a safe
in Lopez's vehicle when Lopez was previously arrested for
driving under the influence of a controlled substance in
Montana.   While law enforcement cannot rely on past criminal
history alone to find reasonable suspicion, it can be considered
as part of the totality of the circumstances.").
     19Taylor v. State, 137 A.3d 1029, 1034 (Md. 2016). But see
United States v. Taylor, 49 A.3d 818, 827 (D.C. Ct. App. 2012)
("'[W]e know too little about Officer [Weber's] experience' to
place much weight upon his conclusory statement that 'typically
someone who is driving under the influence also has an open
container or multiple containers of alcohol in their vehicle.'"
(internal citation omitted)).


                                        17
                                                                        No.    2018AP1209-CR



categorical        approach      is    analytically       difficult.           Lastly,      the

briefings and result in                    Gant do not support the categorical

approach.

                     a.    Bright-Line Rules Are Disfavored

      ¶37     Bright-line rules, such as the categorical approach,

are disfavored in Fourth Amendment United States Supreme Court

jurisprudence.            Missouri v. McNeely, 569 U.S. 141, 158 (2013)

(plurality).        This is because a strict application of a bright-

line rule could be used to justify a search even though, under

the particular facts, the search is unreasonable.                              Reagan, 713

F. Supp. 2d        at     732.         Case-by-case       analysis      is,        therefore,

preferred.         McNeely, 569 U.S. at 158.               "Numerous police actions

are    judged        based       on         fact-intensive,       totality          of      the

circumstances        analyses         rather       than   according     to     categorical

rules, including in situations that are more likely to require

police officers to make difficult split-second judgments."                                  Id.

(citing Illinois v. Wardlow, 528 U.S. 119, 123–125 (2000); Ohio

v. Robinette, 519 U.S. 33, 39–40 (1996); Tennessee v. Garner,
471   U.S.    1,    8–9     (1985)).          Indeed,     although,      the       legitimate

governmental        interest          in    limiting      the   number        of    OWIs    is

substantial,         a     plurality         in     McNeely     rejected        that       this

legitimate governmental interest is so strong as to justify a

bright-line        rule    permitting         warrantless       blood    draws       when   an

officer      has    probable      cause       to    believe     that    an    arrestee       is

intoxicated.        McNeely, 569 U.S. at 160.

      ¶38     Nevertheless, bright-line rules occasionally have been
adopted to provide clear guidance to officers.                                New York v.
                                               18
                                                                   No.     2018AP1209-CR



Belton, 453 U.S. 454, 458 (1981), abrogation recognized by Davis

v. United States, 564 U.S. 229, 234 (2011).                       Quoting Professor

LaFave, the Court in Belton explained:

    A highly sophisticated set of rules, qualified by all
    sorts of ifs, ands, and buts and requiring the drawing
    of subtle nuances and hairline distinctions, may be
    the sort of heady stuff upon which the facile minds of
    lawyers and judges eagerly feed, but they may be
    "literally impossible of application by the officer in
    the field."
Id. (quoting Wayne R. LaFave, "Case-by-Case Adjudication" Versus

"Standardized       Procedures":          The      Robinson        Dilemma,         1974

S. Ct. Rev. 127, 141).

    ¶39    However,        the     Fourth       Amendment       generally     requires

police to obtain a warrant because judges, and not police, are

better    trained     to     determine          whether     a     search     will    be

unreasonable.   See Johnson, 333 U.S. at 14.                    "The preference for

warrants is premised on the expectation that magistrates will be

more likely than officers to perceive when justification for a

proposed search is inadequate."                  Thomas Y. Davies, Recovering

the Original Fourth Amendment, 98 Mich. L. Rev. 547, 576 (1999).

    ¶40    "While     the        desire     for     a     bright-line        rule     is

understandable, the Fourth Amendment will not tolerate adoption

of an overly broad categorical approach that would dilute the

warrant   requirement       in     a   context     where    significant        privacy

interests are at stake."            McNeely, 569 U.S. at 158.               Therefore,

the rationale for adopting a bright-line rule permitting a type

of warrantless search cannot be merely that police would benefit
from clear guidance.             There has to be some reason that police


                                          19
                                                                        No.        2018AP1209-CR



need guidance in the same way that there has to be some reason

for police not to obtain a warrant.20

         ¶41     A bright-line rule might be justified "[w]hen officer

safety or imminent evidence concealment or destruction is at

issue, [because] officers should not have to make fine judgments

in the heat of the moment.                     But in the context of a general

evidence-gathering               search,      the    state       interests     that      might

justify any overbreadth are far less compelling."                              Thornton v.

United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring

in   judgment).              Justice     Scalia,     in    his   Thornton     concurrence,

explained that when an arrestee is secured in the back of a

squad         car,    a    search   of   the    passenger        compartment        cannot   be

justified on the ground that "the arrestee might grab a weapon

or evidentiary item from his car."                        Id. at 629.        If the search

is justifiable, it is "simply because the car might contain

evidence relevant to the crime for which he was arrested."                                   Id.

To him, "[t]his more general sort of evidence-gathering search

[was] not without antecedent."                      Id.     His comments are telling
because the majority in Gant purported it was following Justice

Scalia's suggestions from Thornton.                       Gant, 556 U.S. at 335.

         ¶42     In the case before us, Coffee was secured in the back

of   a        squad       car;   therefore,    the    search      cannot      be     justified


       For example, in United States v. Robinson, 414 U.S. 218,
         20

235 (1973), the Court concluded that police have authority to
search an arrestee's person and that this authority stems from
the lawful arrest and the need for personal safety of the
officer.


                                               20
                                                                        No.        2018AP1209-CR



because of concerns over officer safety or imminent evidence

concealment or destruction.               If the search was lawful, it must

be    because    a    general       evidence-gathering          search        is     permitted

under these circumstances.                Police did not need a bright-line

rule under the totality of the circumstances here because they

were not required to make split-second decisions.                             Thornton, 541

U.S. at 632 (Scalia, J., concurring in judgment).

                b.    Difficulty of the Categorical Approach

       ¶43   But      even     if     police      needed        more     guidance,          the

categorical approach would not provide it.                           Some offenses are

not   easily    categorized,         which     makes    the     categorical           approach

analytically         difficult.        "[A]ny     attempt       to     categorize        every

criminal offense as being either one that might yield physical

evidence or one for which there is no physical evidence runs

into interpretative problems."               Reagan, 713 F. Supp. 2d at 732.

       ¶44   For example, a driver could be arrested for making

criminal threats.            Evans, 133 Cal. Rptr. 3d at 336.                         "If the

threat in question was verbal, it is surely unreasonable to
expect   evidence          related   to   the     crime    to    be     contained         in   a

vehicle."       Id.     "But if the threat was made in a text message,

or    amplified       by    means    of   props    or     a     threatening           drawing,

evidence might well be found in the car."                     Id.

       ¶45   To give one more example, a driver could be arrested

for battery or assault.               Id.      "If such crimes were committed

with fists alone, it would generally be unreasonable to expect

evidence of the offense in the arrestee's vehicle; if committed
with a brick or broken bottle, on the other hand, the opposite
                                             21
                                                                              No.        2018AP1209-CR



might be true."            Id.    "Even in the case of a fistfight, might it

be    reasonable      to    expect     to      find    blood,          or   perhaps        a   broken

fingernail, in the vehicle?"                   Id.     To summarize, a problem with

the categorical approach is that "some offenses of arrest cannot

be    meaningfully         evaluated       without         reference          to    the     specific

facts known to the officer."                         Id.        The point of adopting a

bright-line rule is to provide definitive guidance; if that is

not    being    accomplished,         a       bright-line         rule      serves        no   useful

purpose.

                      c.    The Briefings and Result in Gant

       ¶46     Lastly, the briefings and result in Gant suggest that

the United States Supreme Court did not create a categorical

approach.           Gant   involved       a    traffic          stop    for    driving         with   a

suspended license in Arizona.                    Unlike many states, in Arizona,

driving      with     a    suspended      license          is    not    a     strict       liability

offense.21      The State must prove that the driver either knew or

should have known his or her license was suspended.

       ¶47     In    Gant,       Arizona       admitted,          "In       most     arrests      for
traffic-related            offenses,           the         preservation             of      evidence

justification for a search incident to arrest will not exist."

Pet'r Reply Br. on the Merits, at 26, Gant v. Arizona, 556 U.S.

332 (2009) (No. 07-542).             However, Arizona argued:

       That is not true in this case.    Under Arizona law, a
       person is guilty of driving on a suspended license
       only if "the driver knew or should have known that the

       21   State v. Williams, 698 P.2d 732, 734 (Ariz. 1985) (en
banc).


                                                22
                                                                      No.     2018AP1209-CR


       license has been suspended."         Officer Griffith
       testified that "[l]icense paperwork from the court
       system" could possibly be found in the vehicle.
       Officer Reed testified that it would not be unusual to
       find "notification from Motor Vehicle Division that
       [Gant's] license has been suspended" or "a citation
       for a suspended license that would show that he had
       knowledge that his driver's license was suspended" in
       the vehicle.      Thus, Gant's assertion that the
       "officers had no reason to believe that 'evidence
       relevant to the crime of arrest might be found' in
       [his] car" is inaccurate.
Id.    at    26   n.7   (alterations       in    original)     (internal        citations

omitted); see also Pet'r Br. on the Merits, at 6–7, nn.1–2, Gant

v. Arizona, 556 U.S. 332 (2009) (discussing the testimony of the

officers).

       ¶48    Therefore, if the Gant exception were a categorical

approach, Gant should have permitted the search:                            the passenger

compartment        might    have    contained        relevant    evidence           of     the

offense      of   arrest.     But    Gant       concluded    that     the     search       was

unconstitutional.          Gant, 556 U.S. at 351.             Other courts, noting

this    potential       contradiction,           have    refused       to     apply        the

categorical       approach.        People       v.   Chamberlain,      229     P.3d 1054,
1057   (Colo.      2010)    (en    banc);   see      also    Andrew    Fois     &    Lauren

Simmons, Thomas Jefferson's Carriage:                   Arizona v. Gant's Assault

on the Belton Doctrine, Am. U. Crim. L. Br., Winter 2009, at 4,

22 ("The Court . . . holds that in Gant there is no reason to so

believe . . . [that] the car could contain evidence of the crime

of suspended license.              It is reasonable, however, to believe

that the license itself, the car registration, or other evidence

supporting        the   charge     could    have      been    found     in     the       glove
compartment.").

                                            23
                                                                             No.     2018AP1209-CR



      ¶49   The     only        way        to    interpret        Gant       as     imposing     a

categorical approach is to assume that the justices did not

fully analyze the briefs:                   that is untenable.                 In combination

with the above, we interpret Gant as imposing the reasonableness

approach.

                                      C.    Application

      ¶50   We conclude that the reasonableness approach is the

correct     interpretation            of        Gant.         Here,      the       totality     of

circumstances           objectively             demonstrates          that         Skelton     had

reasonable      suspicion        that           the     passenger       compartment,          and,

specifically, the bag, might contain relevant evidence of OWI.

Therefore,        the     search       was           permissible      under         the    Fourth

Amendment.

      ¶51   Coffee's counsel admitted at oral argument that "We

are talking about reasonable suspicion."                            We conclude that is

the   correct       understanding               of     the    reasonableness             approach.

Taylor Md., 137 A.3d at 1030; Ewertz, 305 P.3d at 27–28.                                     First,

the Gant exception cannot require probable cause because then it
would merely repeat the automobile exception.                             Vinton, 594 F.3d

at 25.      Second, one United States Supreme Court justice has

referred     to     the        Gant        exception         as    requiring          reasonable

suspicion.        Megginson, 556 U.S. at 1230 (Alito, J., dissenting

from a decision to grant, vacate, and remand).

                          1.    The Passenger Compartment

      ¶52   Skelton had reasonable suspicion that the                                    passenger

compartment       might    contain          relevant         evidence    of       OWI.       First,
Skelton testified that when he had Coffee sit in the vehicle, he
                                                 24
                                                                           No.        2018AP1209-CR



smelled "an odor of intoxicants coming from [Coffee's person] or

from     the    vehicle."             Reagan,        713    F. Supp. 2d          at     733     n.7.

Although he used a disjunctive "or" to describe where the smell

was    coming    from,      his       testimony       offers       support       in     favor    of

reasonable suspicion.                 Furthermore, the affidavit does not use

the disjunctive, or.              It states that a smell of intoxicants was

coming from the automobile.

       ¶53     Second, Coffee indicated that he was coming from his

friend's house.           Generally, a private residence has alcohol only

if it is brought to the residence.                         Cf. id.      Coffee might have

brought the alcohol that he consumed to his friend's house and

have retained some in his vehicle.                         The facts of this case are

different than, for example, a case where an officer observes a

patron       drink   at    a     bar     and     then       immediately          get     into     an

automobile.      Id. at 732.

       ¶54     Third, after Skelton initiated the traffic stop Coffee

"continued      into      the    parking       lot,"       which     could    indicate          that

Coffee    was    hesitant        to    pull     over       because    he     knew      there    was
something in the automobile that he should not have had.                                         Cf.

Patel     v.     State,         522     S.E.2d 760,           761     (Ga. Ct. App. 1999)

(reasoning      that      the    failure        to    "immediately         pull        over"     can

inform an officer's probable cause determination); United States

v.    Gonzalez-Guytan,          419     F.    App'x 848,        849    (10th          Cir.    2011)

(same).

       ¶55     Fourth, Coffee acted strangely upon pulling into the

parking lot because he hastily parked and immediately got out of
his vehicle.         Ewertz, 305 P.3d at 27.                 Coffee's careless parking
                                                25
                                                                           No.     2018AP1209-CR



and    hasty    exit     from    his       vehicle         could    indicate     that    he    was

trying to distance himself from something in the vehicle that he

knew he should not have had.                          Stated otherwise, his actions

indicated that he did not want to interact with police near his

vehicle,       perhaps    because          he    did       not     want   them   to     discover

something in it.

       ¶56     Fifth, Skelton had previously interacted with Coffee.

At    that   prior     meeting,           Coffee      had    been     quiet,     but    on    this

occasion, was talkative, about a variety of topics.                                From this,

Skelton could have believed Coffee was nervous because he had

something to hide.          Cf. United States v. Vergara-Manzo, No. 13-

10179-EFM, unpublished slip op., 2014 WL 840722, at *5 (D. Kan.

Mar.    4,     2014)   (reasoning           that      an     occupant     being    "extremely

talkative"      could     contribute            to    an    officer's      determination        to

search the automobile).

       ¶57     Sixth, Coffee was extremely intoxicated.                           Ewertz, 305

P.3d at 28.        He exhibited all six clues on the Horizontal Gaze

Nystagmus test, failed to complete the nine-step-walk-and-turn
test and sang the alphabet twice after being instructed to state

the    alphabet    twice        in    a    row       without       singing.      Furthermore,

Coffee's speech was slurred, and his eyes were "very glazed over

and bloodshot."          He also parked poorly.                     He was over the yellow

line on the driver's side.                   As Justice Scalia explained in his

Thornton       concurrence,          "it    is       not    illogical      to    assume       that

evidence of a crime is most likely to be found where the suspect

was    apprehended."            Thornton,            541    U.S.     at   630    (Scalia,     J.,
concurring in judgment).                  Similarly, when a person is extremely
                                                 26
                                                                  No.      2018AP1209-CR



intoxicated, it is not illogical to assume intoxicants might be

close by.

    ¶58       Coffee has two arguments, neither of which cause the

search     of    the     vehicle's          passenger      compartment         to    be

unreasonable.      First, he argues that Skelton needed to know more

to have reasonable suspicion.               Skelton did not observe a bottle

cap or open container nor was he tipped off that Coffee had been

using    an   intoxicant      in    the     vehicle.       But    the      quantum   of

suspicion     required   is    not    probable        cause:     it   is    reasonable

suspicion.        Although         Coffee        acknowledges     that     reasonable

suspicion is the correct quantum, his argument is phrased in a

manner that assumes probable cause is necessary.

    ¶59       Second, Coffee would have us conclude that his privacy

interest outweighs the legitimate governmental interests because

the probative value of evidence that might have been present in

the passenger compartment is minimal, i.e., the primary evidence

of OWI is the result of a blood test.                   We reject this argument

because the balancing of interests has already been done by the
United States Supreme Court in establishing the Gant exception.

Moreover, other courts have rejected Coffee's argument because

"a DUI trial does not start and end with a breathalyzer report."

Cantrell, 233 P.3d at 185; see also Grote, 629 F. Supp. 2d at

1205.    We agree.     Just because the result of a blood test could

be sufficient evidence to secure a conviction does not mean that

it will be.      Police do not have the luxury of knowing what will

happen at trial and must collect evidence without the benefit of


                                            27
                                                                     No.    2018AP1209-CR



hindsight.       Police may search for relevant evidence; they are

not required to weigh its probative value.

                                     2.     The Bag

       ¶60    Coffee also argues, "[e]ven if it were reasonable to

search the vehicle, it was not reasonable to believe evidence of

the OWI would be at the bottom of the bag."                      To explain, Coffee

argues that Skelton did not see a furtive movement that would

have   indicated       Coffee      tried    to     hide    something       in   the    bag.

Therefore,     Coffee       minimizes      the   circuit     court's       finding     that

relevant evidence could have "easily" been pushed down because,

Coffee contends, if such an action occurred, it would have been

seen by Skelton.

       ¶61    Coffee's      argument       borders    on    an   objection       to    the

circuit      court's    findings.          Under    the    applicable       standard     of

review, we cannot disturb those findings because they are not

clearly erroneous.              Richter, 235 Wis. 2d 524, ¶26.                  Moreover,

Coffee could have gotten intoxicated at his friend's house and

then put the intoxicant in the bag in order to carry it to his
car.      Indeed, the United States Supreme Court has explained,

"[d]uring virtually the entire history of our country——whether

contraband was transported in a horse-drawn carriage, a 1921

roadster, or a modern automobile——it has been assumed that a

lawful    search       of   a    vehicle    would     include    a    search      of   any

container that might conceal the object of the search."                            United

States v. Ross, 456 U.S. 798, 820 n.26 (1982).                              "Contraband

goods rarely are strewn across the trunk or floor of a car;
since by their nature such goods must be withheld from public
                                            28
                                                                           No.     2018AP1209-CR



view, they rarely can be placed in an automobile unless they are

enclosed within some form of container."                        Id. at 820.

      ¶62     This case is unlike, for example, State v. Hinderman,

No. 2014AP1787-CR, unpublished slip. op. (Wis. Ct. App. Feb. 12,

2015), on which Coffee relied below.                      Hinderman was arrested for

OWI because she appeared drunk.                     Id., ¶¶2–3.            Police searched

her   automobile       incident        to    the    arrest.           Id.,    ¶4.           On    the

passenger seat was her purse.                   Id., ¶3.         Police "looked inside

the purse and found a closed, red zippered pouch, approximately

three-by-three        inches      in    length      and    one-half          inch      to     three

quarters of an inch wide."                  Id., ¶4.      Inside the pouch was drug

paraphernalia and "a clear plastic bag containing marijuana."

Id.     The    State       argued      that     the      search       of     the      pouch       was

permissible because it might have contained a one-shot bottle of

alcohol, similar to what is commonly served on passenger jets.

Id., ¶12.      In a one-judge opinion, the court of appeals rejected

this argument and concluded that the search violated the Fourth

Amendment.          Id.,   ¶14.        Its     conclusion        rested       heavily            on   a
finding by the circuit court that the pouch was unlikely to

contain a one-shot bottle.              Id., ¶12.

      ¶63     We need not decide whether Hinderman was correct.                                       It

is sufficient to say, Hinderman presented on different facts.

In this case, the bag police searched was significantly larger.

It    could    have     contained           regular-sized        bottles         of     alcohol.

Whether police can search a small pouch, on the ground that they

might   find    a     one-shot      bottle,        or,    as    the    court       of    appeals
mentioned     in    this    case,      a     credit      card    receipt         showing         very
                                              29
                                                                No.   2018AP1209-CR



recent purchases of alcoholic drinks at a local bar, is beyond

the scope of this case.

                               III.   CONCLUSION

      ¶64    We disagree that the lawful arrest for OWI, in and of

itself,     supplied   a   sufficient    basis    to    search    the   passenger

compartment of Coffee's vehicle.             However, the search was lawful

because police had reasonable suspicion, based on the totality

of   the    circumstances,     that   the     passenger    compartment,       and,

specifically,       the    bag,   might       contain     evidence      of    OWI.

Accordingly, we affirm the court of appeals.

      By    the   Court.—The   decision      of   the   court    of   appeals   is

affirmed.

      ¶65    ANN WALSH BRADLEY, J., withdrew from participation.

      ¶66    BRIAN HAGEDORN, J., did not participate.




                                        30
                                                                  No.    2018AP1209-CR.dk


      ¶67     DANIEL KELLY, J.          (concurring).         I concur with the

court's judgment.         But I think the court handled Gant1 in a

fashion that brings less rather than more clarity to the law

controlling post-arrest evidence-gathering automobile searches.

The   court    suggests       Gant   addressed     itself     to        this    question:

"[W]hether the nature of an offense of arrest, in and of itself,

can supply a basis for a search of a passenger compartment, or

whether the search must be analyzed by examining the totality of

the circumstances."           Lead op., ¶26.       The literature, as well as

judicial      opinions,       generally    refer      to   the      former          as   the

"categorical approach," and the latter as the "reasonableness

approach."      And in so referring, they have contributed to the

court's     understanding        that     Gant   created      a     new        analytical

methodology     that     is    taxonomically       distinct       from       the     extant

exceptions to the warrant requirement.                 But the Gant court did

not announce a new analytical model.                  Instead, it returned to

ancient     principles    governing       searches    incident          to     arrest    and

applied them to the automobile context.

      ¶68     Gant's   significance       lies   in    it's      effort        to    fix   a

specific jurisprudential problem.                The Supreme Court realized

that, after its decision in New York v. Belton, 453 U.S. 454

(1981), abrogation recognized by United States v. Davis, 564

U.S. 229 (2011), police officers started conducting post-arrest

evidence-gathering automobile searches as a matter of course,

and in some quarters such searches were understood as a police


      1   Arizona v. Gant, 556 U.S. 332 (2009).


                                           1
                                                                   No.    2018AP1209-CR.dk


officer's entitlement.               See Arizona v. Gant, 556 U.S. 332, 335

(2009).          There    is    good    reason   for     the      explosion          of    such

searches.        Belton held 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."     453    U.S. at         460    (footnotes

omitted).         The test seemed pretty clear:                   Upon arrest of an

automobile's        occupant,          the   police——without         any        additional

analysis or justification——may perform an evidentiary search of

the automobile.

      ¶69    Based       on    law   enforcement's      response     to        Belton,       the

Gant court had to address two related questions.                         First, whether

an arrest always allows the police to perform an evidentiary

search of an automobile recently occupied by the arrestee.                                  And

second,     if    not,    whether       an   arrest    can     ever——without              more——

justify an evidentiary automobile search.                       The latter question

is the one relevant to this case, but its answer won't make any

sense outside the context of the former.

      ¶70    The first question arose because automatic authority

for    evidence-gathering               automobile      searches          doesn't           fit

comfortably with Belton's rationale.                  The basic substrate of the

Belton court's reasoning comes from Chimel v. California, 395

U.S. 752     (1969),          abrogation     recognized      by    Davis        v.    United

States, 564 U.S. 229 (2011), which addressed protective searches

(as opposed to evidence-gathering searches).                      The Court observed

that Chimel says

      a lawful custodial arrest creates a situation which
      justifies the contemporaneous search without a warrant
                                             2
                                                                    No.    2018AP1209-CR.dk

      of the person arrested and of the immediately
      surrounding area. Such searches have long been
      considered valid because of the need "to remove any
      weapons that [the arrestee] might seek to use in order
      to resist arrest or effect his escape" and the need to
      prevent the concealment or destruction of evidence.
Belton, 453 U.S. at 457 (citing Chimel, 395 U.S. at 763).

      ¶71    The Chimel rationale works when the arrestee is still

in the automobile or has ready access to it.                               But once the

arrestee is immobilized or taken from the scene of the arrest,

Chimel loses its justifying power because the arrestee can no
longer reach any weapons or evidence that might have been in the

automobile.         And   yet    courts       have     regularly       used     Belton   to

justify searches in those very circumstances.                        See, e.g., Gant,

556 U.S. at 346.          The Gant court recognized that reading Belton

to authorize such searches would "untether the rule from the

justifications underlying the Chimel exception——a result clearly

incompatible with our statement in Belton that it 'in no way

alters the fundamental principles established in the Chimel case

regarding     the    basic      scope    of        searches     incident        to   lawful

custodial arrests.'"           Gant, 556 U.S. at 343.

      ¶72    Gant's answer to the first question, therefore, was

that arresting an automobile's occupant does not always justify

an   automobile      search.       So    it       returned    Belton      to   its   Chimel

moorings by rejecting the unjustifiably broad reading it had

accrued     over    the   years.    It    held       "that    the   Chimel       rationale

authorizes     police     to    search    a       vehicle     incident     to    a   recent

occupant's arrest only when the arrestee is unsecured and within

reaching distance of the passenger compartment at the time of
the search."        Gant, 556 U.S. at 343.             That is, Chimel authorizes

                                              3
                                                                    No.   2018AP1209-CR.dk


police to conduct a protective search of an automobile as an

incident to the arrest of a recent occupant.

       ¶73     Having    held     that    arrests        do   not     always     justify

automobile       searches,       the   Gant      court    then     had    to   determine

whether        they      can      ever,       standing        alone,        provide     a

constitutionally acceptable justification.                       I believe Gant says

they can.        The Supreme Court recognized that the Chimel/Belton

line of reasoning is not the exclusive basis upon which officers

can search an automobile upon arrest of one of its occupants.

It said:

       Although it does not follow from Chimel, we also
       conclude that circumstances unique to the vehicle
       context justify a search incident to a lawful arrest
       when it is "reasonable to believe evidence relevant to
       the crime of arrest might be found in the vehicle."
       Thornton, 541 U.S. at 632 (SCALIA, J., concurring in
       judgment).
Gant, 556 U.S. at 343.             Gant's specific holding makes it clear

that       Justice    Antonin    Scalia's       Thornton2     concurrence      played   a

pivotal role in the court's reasoning:

       Consistent with the holding in Thornton v. United
       States, [] and following the suggestion in Justice
       SCALIA's opinion concurring in the judgment in that
       case, id. at 632, we also conclude that circumstances
       unique to the automobile context justify a search
       incident to arrest when it is reasonable to believe
       that evidence of the offense of arrest might be found
       in the vehicle.
Gant 556 U.S. at 335 (citation omitted); see also id. at 347

("Unlike       the    searches    permitted       by     Justice    Scalia's     opinion

concurring in the judgment in Thornton, which we conclude today

       2   Thornton v. United States, 541 U.S. 615 (2004).


                                            4
                                                          No.   2018AP1209-CR.dk


are   reasonable   for   purposes   of   the    Fourth    Amendment,      Ross[3]

allows searches for evidence relevant to offenses other than the

offense of arrest, and the scope of the search authorized is

broader.").     So let's consider Justice Scalia's "suggestion."

      ¶74    Justice Scalia explained that the authority to search

an arrestee without a warrant does not necessarily depend on the

Chimel     considerations.   Instead,     the    justification      can    arise

from the arrest itself:        "In United States v. Robinson, 414

U.S. 218, 235 [] (1973), we held that authority to search an

arrestee's person does not depend on the actual presence of one

of Chimel's two rationales in the particular case; rather, the

fact of arrest alone justifies the search."              Thornton, 541 U.S.

at 631-32 (Scalia, J., concurring).              The     Robinson   court was

quite explicit on this point:

      A custodial arrest of a suspect based on probable
      cause is a reasonable intrusion under the Fourth
      Amendment; that intrusion being lawful, a search
      incident   to  the   arrest   requires  no   additional
      justification. It is the fact of the lawful arrest
      which establishes the authority to search, and we hold
      that in the case of a lawful custodial arrest a full
      search of the person is not only an exception to the
      warrant requirement of the Fourth Amendment, but is
      also a 'reasonable' search under that Amendment.
Robinson, 414 U.S. at 235.

      ¶75    Justice Scalia's Thornton concurrence makes it clear

that once the authority to conduct the search exists (by virtue

of the arrest), the only remaining question is its scope.                    The

scope, he explained, depends on the nature of the search being


      3   United States v. Ross, 456 U.S. 798 (1982).


                                     5
                                                                       No.    2018AP1209-CR.dk


conducted——protective            versus        evidentiary.           Commenting         on    the

Robinson       case,      he   agreed    with       the    Court's     rejection         of    the

District of Columbia Circuit's conclusion that "any protective

search would have to be limited by the conditions laid down in

Terry[4] for a search upon less than probable cause to arrest."

Robinson, 414 U.S. at 233.                 That is, the protective search is

comprehensive, and nothing about the arrest need suggest to the

officer that he is actually in danger or that he might actually

find anything in need of protection.

      ¶76       An evidentiary search performed after arrest, however,

requires        a    connection      between        the    offense     and     the       search.

Justice        Scalia     observed      that    "in       the    context     of    a     general

evidence-gathering             search,     the        state      interests        that     might

justify any overbreadth are far less compelling."                             Thornton, 541

U.S. at 632 (Scalia, J., concurring).                           Therefore, he concluded,

"I   would . . . limit            Belton       searches         to   cases    where       it    is

reasonable to believe evidence relevant to the crime of arrest

might     be    found     in   the   vehicle."            Thornton,     541       U.S. at      632

(Scalia,        J.,      concurring).            So       Justice     Scalia's         Thornton

concurrence was not about the authority to search, it was about

the scope of the search.                 When conducting a protective search

consequent upon an arrest, the scope is comprehensive.                                        When

conducting          an   evidentiary     search       consequent       upon       arrest,      the

scope is limited to where evidence of the crime might be.




      4   Terry v. Ohio, 392 U.S. 1 (1968).


                                                6
                                                                        No.    2018AP1209-CR.dk


       ¶77       Where that evidence might be located depends, to a

very       large      extent,     on    the    nature    of    the    offense     of   arrest.

There       is     good   reason        to     believe    that       Gant     considered   the

automobile search as a question of scope, as Justice Scalia

plainly did, rather than one of authority, as our court does

today.           By    way   of    illustrating          the    Court's       holding,     Gant

juxtaposed a few illustrative cases in which the offense of

arrest would not extend the evidentiary search to the automobile

against a few cases in which it would:

       [W]e also conclude that circumstances unique to the
       vehicle context justify a search incident to a lawful
       arrest when it is "reasonable to believe evidence
       relevant to the crime of arrest might be found in the
       vehicle."    Thornton, 541 U.S. at 632 (SCALIA, J.,
       concurring in judgment). In many cases, as when a
       recent occupant is arrested for a traffic violation,
       there will be no reasonable basis to believe the
       vehicle contains relevant evidence.[5]  But in others,
       including Belton and Thornton, the offense of arrest
       will supply a basis for searching the passenger
       compartment   of   an  arrestee's   vehicle  and   any
       containers therein.
Gant, 556 U.S. at 343-44.                     Gant did not assess the "totality of

circumstances" in each case to determine whether they indicated

there might be evidence relating to the offense of arrest in the

automobile at issue.               It simply noted the type of offense (with

respect       to      Atwater     and    Knowles),       and   called       out   Belton   and

Thornton without any further analysis.                         Of all the cases cited

in this illustration, Thornton is by far the most important in

judging the fidelity of our conclusion to Gant's paradigm.

       See, e.g., Atwater v. Lago Vista, 532 U.S. 318,
       5                                                                                   324
(2001); Knowles v. Iowa, 525 U.S. 113, 118 (1998).


                                                  7
                                                                      No.    2018AP1209-CR.dk


       ¶78    The         court     says       that    "[u]nlike       the        categorical

approach, which does not utilize facts particular to the case,

the reasonableness approach requires particularization."                                    Lead

op., ¶31.       If the automobile search in this case may not take

place     without         particularized          suspicion        "that    the        passenger

compartment, and, specifically, the bag, might contain relevant

evidence of OWI," id., ¶50, then Thornton does not belong in

Gant's illustration.                In Thornton, there were quite literally no

particularized facts connecting the offense of arrest to Mr.

Thornton's car.            The police pulled him over because the license

plate tags on the Chevrolet he was driving were actually issued

to a Ford.          Thornton, 541 U.S. at 617.                Mr. Thornton exited his

car, and then consented to the officer's request to search him.

Id.     The search of his person netted several bags of illegal

narcotics.          Id.        The officer promptly arrested Mr. Thornton for

possession of illegal narcotics and placed him in the back seat

of the patrol car, whereupon the protective search justified by

Chimel       came    to        an   end.         Id.    Nonetheless,             the     officer

immediately commenced an evidentiary search of Mr. Thornton's

car,    pursuant          to    which     he    discovered     a    handgun       (which    Mr.

Thornton was not allowed to possess).                    Id.

       ¶79    The     search        in    Thornton,    Gant    said,       was    appropriate

because      "the     offense        of    arrest . . . suppl[ied]            a    basis    for

searching       the        passenger           compartment     of     [Mr.        Thornton's]

vehicle . . . ."                Gant, 556 U.S. at 343.               Conspicuous by its

absence is any mention of factors other than the offense of the
arrest.       The opinion said nothing about particularized facts, or

                                                  8
                                                                       No.    2018AP1209-CR.dk


totality of the circumstances, or any of the other phrases the

court    uses    to   explain      its    holding       today.         Mr.     Thornton    was

arrested for drug possession ergo the police could search his

car for evidence.            If Gant means what our court says it means,

then the Supreme Court erred pretty remarkably when it pointed

to Thornton as an example of its analysis.                                 Other than the

offense     of   arrest,       neither    the     Gant        nor    the     Thornton    court

identified a single fact suggesting the officer might have found

any     evidence      in    the     automobile.               Consequently,         it    must

necessarily      be     true      that    the     United        States       Supreme     Court

believes that the offense of arrest, without more, can extend

the scope of a post-arrest evidentiary search to an automobile

recently occupied by the arrestee.

      ¶80    That      principle      (and       its        application       to    Thornton)

leads, almost mechanically, to the conclusion that in this case

the scope of the post-arrest evidentiary search appropriately

encompassed      Mr.       Coffee's      car.          In     Thornton,       the   arrestee

possessed illegal drugs on his person, which was an offense

sufficient to bring his car within the scope of the post-arrest

evidentiary search.            Here, Mr. Coffee possessed alcohol instead

of narcotics, and he possessed it inside his body instead of in

a plastic baggie inside one of his pockets.                            These distinctions

appear to have no constitutional significance, nor is any such

distinction on offer.              Further, the offense of arrest in this

case is much more directly tied to the automobile than in the

Thornton matter——OWI cannot be committed without the automobile,
whereas     possession       of   illegal       narcotics           can.      Therefore,    if

                                             9
                                                              No.   2018AP1209-CR.dk


possession of illegal narcotics justifies the scope of search in

Thornton, it perforce justifies the search in this case.6

                                          *

       ¶81    Aside       from   my   disagreement     with      the     majority's

understanding of Gant, I don't think the "reasonableness" test,

at least the way we have fashioned it, can be correct.                            The

court        says     "[t]hough       stated     in    various         terms,    the

[reasonableness]          approach    involves   'looking     at    common      sense

factors and evaluating the totality of the circumstances' to

determine whether it was reasonable to conclude that evidence of

the crime of the arrest might be found within the vehicle."

Lead       op.,     ¶30    (quoting     United    States      v.    Reagan,       713

F. Supp. 2d 724, 728 (2010) (quoting United States v. Pruitt,

458 F.3d 477, 482 (6th Cir. 2006)).                   Frankly, I don't think

       It
       6    is  theoretically   possible   that   the   Wisconsin
Constitution offers greater protection to drivers in Mr.
Coffee's circumstances, but no one has made that argument in
this case.   Nor does any provision of our constitution come to
mind that might provide that protection.        And if we were
addressing the application of the Gant/Thornton (concurrence)
analysis for the first time to a case such as this, I'm not
certain I would conclude that OWI is an offense of arrest
capable of expanding the scope of the post-arrest evidentiary
search to an automobile.     But I believe the Supreme Court's
approval of Thornton authoritatively answers that question, and
this court certainly has no room to disagree.      See generally,
State v. Felix, 2012 WI 36, ¶36, 339 Wis. 2d 670, 811 N.W.2d 775
("We are bound to follow the United States Supreme Court's
interpretation of the Fourth Amendment that sets the minimum
protections afforded by the federal constitution." (citation
omitted)); and    State v. Foster, 2014 WI 131,        ¶57, 360
Wis. 2d 12, 856 N.W.2d 847 ("Our decisions interpreting the
United States Constitution are binding law in Wisconsin until
this court or the United States Supreme Court declares a
different opinion or rule." (quoted source omitted)).


                                         10
                                               No.   2018AP1209-CR.dk


that's actually a test.    Saying that we will consider "common

sense factors" and look at the "totality of the circumstances"

is really nothing more than saying we won't be obtuse.       It may

be right for us to disfavor "bright-line rules" in the Fourth

Amendment context,7 but this just seems like parameter-free ad-

hockery.

    ¶82    For all these reasons, I respectfully concur with the

court's judgment.




    7  Missouri v. McNeely, 569 U.S. 141, 158 (2013) ("While the
desire for a bright-line rule is understandable, the Fourth
Amendment will not tolerate adoption of an overly broad
categorical approach that would dilute the warrant requirement
in a context where significant privacy interests are at
stake.").


                               11
                                                              No. 2018AP1209.rfd



     ¶83    REBECCA FRANK DALLET, J.             (dissenting).         In Arizona

v. Gant, 556 U.S. 332, 335 (2009), the United States Supreme

Court announced that the Fourth Amendment1 allows a warrantless

search of a vehicle incident to arrest "when it is reasonable to

believe that evidence of the offense of arrest might be found in

the vehicle."2       I agree with the lead opinion that under Gant,

the search must be analyzed by examining the totality of the

circumstances, a reasonableness approach, as opposed to applying
a categorical approach based solely upon the nature of the crime

of arrest.    I part ways with the lead opinion, however, in the

application   of     the   reasonableness       approach    to   the     facts   and

circumstances      of   this   case.     I   dissent     because    it    was    not

reasonable for Officer Timothy Skelton to believe that Mose B.

Coffee's vehicle contained evidence relevant to his arrest for

operating    while      intoxicated    (OWI).      The     search   of    Coffee's

vehicle incident to arrest was therefore unconstitutional.

     1 The Fourth Amendment to the United States Constitution
provides the right of citizens to be secure against unreasonable
searches and seizures:

     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.

U.S. Const. amend. IV.
     2 The Gant Court also clarified that a vehicle may be
searched incident to arrest when the arrestee is "within
reaching distance of the passenger compartment at the time of
the search." Arizona v. Gant, 556 U.S. 332, 351 (2009).

                                        1
                                                                    No. 2018AP1209.rfd


                                     I.    FACTS

     ¶84    The relevant facts are set forth in both the affidavit

in   support    of     the   complaint         and      the   suppression       hearing

testimony.

     ¶85    On August 30, 2017, shortly after 11:15 p.m., Officer

Skelton conducted a traffic stop of Coffee's vehicle for failure

to display a front license plate.                    "Immediately" after Officer

Skelton turned on his emergency lights, Coffee pulled over into

a parking lot of a bar and parked very close to another vehicle.

According to the testimony of Officer Skelton, upon parking,

Coffee "immediately was getting out of his vehicle so it was

almost as if he was—knew [Officer Skelton] was behind him and

was getting out quickly."                 Officer Skelton testified to the

following conversation with Coffee as he exited the vehicle:                          "I

indicated I was performing a traffic stop for the front license

plate and that I wanted him to stay with his vehicle," to which

Coffee   "indicated      that   he     had       been     stopped    for     that    same

occurrence before and that was why he was getting out to show
[Officer    Skelton]    that    he    had      a    warning   for     it."     Officer

Skelton described Coffee as "somewhat upset" about being stopped

again for failing to have a front license plate.

     ¶86    Officer Skelton observed that Coffee had a distinct

slur to his speech.          He instructed Coffee to "sit down in his

car."    As he approached Coffee, Officer Skelton "could smell an

odor of intoxicants coming from his person or from the vehicle."

He   also    noticed    that    Coffee's           eyes   were   glazed      over     and
bloodshot,     "consistent      with       the      odor—-the       strong    odor    of

                                           2
                                                              No. 2018AP1209.rfd


intoxicants."      The    body    camera    footage       showed   that    during

Officer Skelton's conversation with Coffee, Coffee was seated in

the driver's seat with the front door open and his legs outside

of the vehicle, while Officer Skelton stood several feet away.

When asked where he was coming from, Coffee responded that he

had been at a friend's house where he "had not had that much" to

drink.

    ¶87    Officer   Skelton      asked    Coffee    to    step    out    of    his

vehicle in order to complete some field sobriety tests "[d]ue to

the level of odors and [his] observations of [] Coffee."                         At

this point, Officer Skelton realized that he had met Coffee a

couple weeks earlier.       Officer Skelton noticed that Coffee was

"very talkative" compared to the previous occasion where Coffee

had been "very quiet."           While Coffee was performing the field

sobriety   tests   with   Officer     Skelton,      several    other      officers

arrived on the scene.

    ¶88    Officer Skelton testified that he believed Coffee was

operating a motor vehicle while intoxicated:                  "[b]ased off my
observations of his person, the conversations I had with him,

the odor of intoxicants, the slurred speech, the field sobriety

tests that we did."       On re-direct examination, Officer Skelton

reiterated that he had arrested Coffee based upon a "culmination

of my observations of his person, field sobriety tests, and

general odor that was coming from his person."

    ¶89    Officer   Skelton      stated   that     he    informed   the       other

officers   on   scene,    Officers     Benjamin      Fenhouse      and    Brenden



                                      3
                                                    No. 2018AP1209.rfd


Bonnett, that Coffee had been arrested for "operating under the

influence of alcoholic beverages."

    ¶90    Both Officer   Bonnett and Officer     Fenhouse   testified

that they were tasked with searching Coffee's two-door vehicle.

When asked what Officer Skelton told him about the nature of the

search, Officer Bonnett testified:

    A.: I recall knowing the subject was in custody for
    impaired driving and conducted my search relevant to
    that.

    Q.: And when you say you conducted             your   search
    relevant to that, what do you mean?

    A.: I'd be looking for any substance in the vehicle
    that could impair a driver's ability to operate the
    motor vehicle safely.
    ¶91    When questioned about whether there was any smell of

alcohol emanating from the vehicle, Officer Bonnett testified:

    Q.: So upon your initially opening the door, your
    police report doesn't mention any smells. Did you
    smell any alcohol?

    A.:    I don't recall smelling any alcohol.
Officer Bonnett did not mention any smells of other intoxicants.

    ¶92    Officer Bonnett searched   the driver-side front seat

while Officer Fenhouse searched the passenger-side front seat.

Neither officer found any evidence of open intoxicants.       Officer

Bonnett subsequently searched behind the driver's seat, where he

found a cloth bag "full of stuff," including "wires, cables, and

phones."   Officer Bonnett testified that he looked through the

bag "for any evidence which would impair a driver's ability to

operate a motor vehicle."   After "dig[ging] through the bag" for
over a minute, Officer Bonnett found two mason jars that had

                                 4
                                                                        No. 2018AP1209.rfd


"flakes of what was suspected to be marijuana."                           Upon discovery

of the mason jars, Officer Bonnett and Officer Fenhouse searched

the trunk portion of the vehicle and found roughly two pounds of

marijuana, along with drug paraphernalia.

                                     II.     ANALYSIS

       ¶93       The     lead     opinion     concludes        that       "Skelton    had

reasonable          suspicion      that     the     passenger       compartment      might

contain relevant evidence of OWI" for six reasons.                              Lead op.,

¶¶52-57.3           As   illustrated       below,    neither      the    lead   opinion's

reasons nor its conclusions are supported by the facts in the

record.

       ¶94       First, the lead opinion asserts that Officer Skelton

could smell an odor of intoxicants coming from the vehicle, and

therefore there was reason to believe intoxicants would be found

in the vehicle.             Lead op., ¶52.             The    lead opinion       reads a

statement in the affidavit attached to the complaint out of

context and insinuates that the smell of intoxicants emanated

from       the    vehicle       separate    and     apart    from    Coffee's     person.
However, the full record indicates that Officer Skelton did not

articulate any particularized reason to believe the smell of

alcohol          emanated   from     the    vehicle.         As     Officer     Skelton's

testimony and the body camera footage clarifies, he "could smell

an odor of intoxicants coming from the vehicle" when Coffee was


       The parties do not dispute that if the search of the bag
       3

in Coffee's backseat is upheld, the subsequent search of the
trunk cannot be legally challenged.   At oral argument, defense
counsel clarified that Coffee was not independently challenging
the search of the trunk.


                                              5
                                                                   No. 2018AP1209.rfd


seated in it.          During the suppression hearing, Officer Skelton

described the odor in the following ways:

               "I believe at that point I had him sit down in
                his car and I could smell an odor of intoxicants
                coming from his person or from the vehicle."

               "Due to the level of odors and my observations of
                Mr. Coffee, I asked him to step out to do field
                sobriety tests."

               A "general odor that was coming from his person."

               "Based off my observations of his person, the
                conversations I had with him, the odor of
                intoxicants,   the slurred   speech,  the  field
                sobriety tests that we did, I believed he was
                operating a motor vehicle under the influence of
                intoxicants."4
As   the       body   camera     footage    shows,    Officer   Skelton      remained

several feet away from the vehicle while Coffee was seated in

the driver's seat with the door open and legs partly outside.

Officer Skelton had no occasion to assess whether the vehicle

independently had an odor of intoxicants.

      ¶95       Additionally,      Officer       Bonnett   testified    he   did   not

smell any alcohol coming from the vehicle, which he searched
while      Coffee     was   in    Officer    Skelton's     squad    car.     Officer

Bonnett also did not mention the smell of any other intoxicants.

Viewing the record in full, the claim that there was a reason to

believe alcohol might be found in the vehicle because it smelled

of intoxicants is unsupported.


      4Additionally, as evidenced in the body camera footage,
Officer Skelton told Coffee to exit the vehicle and perform
field sobriety tests because "I can smell it on ya."


                                             6
                                                                No. 2018AP1209.rfd


      ¶96      Second,     the    lead    opinion     asserts     that   Coffee's

statement that he was coming from a friend's house provided a

reason to believe that alcohol might be found in the vehicle.

The   lead     opinion's     logic   is   that   "a    private    residence    has

alcohol only if it is brought to the residence" and therefore

Coffee "might have brought the alcohol that he consumed to his

friend's house and have retained some in his vehicle."                        Lead

op., ¶53.        The only authority cited is a footnote from United

States    v.    Reagan,     713   F. Supp. 2d 724      (E.D.     Tenn.   2010),   a

federal case upholding the suppression of evidence seized from a

vehicle      during   a    search    incident    to   arrest.      The   footnote

follows the magistrate judge's conclusion that a search of a

vehicle under Gant requires "a particularized and articulable

reason to believe that evidence of [OWI] is contained inside."

Id. at 733.       The footnote reads:

      Many different facts may provide a law enforcement
      officer with reason to believe that evidence of [OWI]
      is located inside the passenger compartment of a
      vehicle.   Examples include observations of the driver
      drinking while driving, observations of an open
      container of alcohol in plain view inside the
      passenger   compartment,   statements   made  by   the
      occupants of the vehicle indicating that an open
      container is in the passenger compartment, the smell
      of alcohol emanating from within the passenger
      compartment, or indications that the driver was
      traveling from a location such as a recreational area
      or campground where alcohol is not available unless it
      is transported in by private vehicle.
Id. at 733 n.7.           The Reagan court determined that the vehicle's

location in a recreational area did not support a search when

the ranger did not articulate any particularized reason why he
believed the vehicle provided evidence of OWI.                    Id. at 733-34.
                                          7
                                                          No. 2018AP1209.rfd


The lead opinion provides no authority for the more attenuated

proposition that if a person arrested for OWI is driving from a

friend's house, police will have a reason to believe there is

evidence of OWI in their vehicle.

    ¶97     Third,    the    lead   opinion   misconstrues    the   statement

that Coffee "continued into the parking lot" to signify that

"Coffee was hesitant to pull over because he knew there was

something in the automobile that he should not have had."                Lead

op., ¶54.    This interpretation directly contradicts the evidence

in the record which indicates Coffee immediately pulled over.

Officer Skelton was asked point blank:

    Q.: Okay.     So safe to say that immediately upon
    turning on your emergency lights [Coffee] pulled into
    the parking lot?

    A.:     Correct.
The facts of record clearly show Coffee was not hesitant to pull

over.     Therefore, this factor can not support the search of

Coffee's vehicle.

    ¶98     Fourth,    the     lead    opinion   claims      that   "Coffee's

careless parking and hasty exit from his vehicle could indicate
that he was trying to distance himself from something in the

vehicle that he knew he should not have had."                Lead op., ¶55.

The lead opinion ignores Officer Skelton's testimony that Coffee

"indicated that he had been stopped for that same [front license

plate violation] before and that was why he was getting out to

show [him] that he had a warning for it."                 Coffee's careless

parking and hasty exit from the vehicle fails to provide any



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particular reason to believe that alcohol might be found in his

vehicle.

       ¶99   Fifth, the lead opinion states that because Coffee was

more talkative than he had been during one past interaction with

Officer Skelton, "Skelton could have believed Coffee was nervous

because he had something to hide."                          Lead op., ¶56 (emphasis

added).      Officer Skelton described Coffee as talkative while

they    "were     walking    over       to    the       area . . . to         do   the   field

tests."      The record of the past interaction consists of one

statement    that     Coffee      "had       picked       up     an   individual      from   a

hospital from an accident," and had been "very quiet at that

time."

       ¶100 The lead opinion uses the term "could have believed"

because there is no evidence that Officer Skelton believed that

Coffee's talkativeness equated to nervousness.                           Officer Skelton

never    characterized       Coffee          as       nervous,    and   the    State     never

argued that Coffee's nervousness formed a basis for the search.

While a suspect's nervousness could be a factor to consider in
other cases, see, e.g., State v. Morgan, 197 Wis. 2d 200, 214-

15, 539 N.W.2d 887 (1995), this court is bound by the facts in

the     record.      Coffee       was        never       described      as    nervous,     and

therefore it could not be a factor that formed the basis for

Officer Skelton's search of Coffee's vehicle.

       ¶101 Finally,        the   lead       opinion       justifies         its   conclusion

based on Coffee's state of "extreme[] intoxicat[ion]."                                   Lead

op., ¶57.         As support, the lead opinion cites to a court of
appeals case from Kansas involving the search of a vehicle based

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in part on an odor of intoxicant emanating from the vehicle.

See State v. Ewertz, 305 P.3d 23, 28 (Kan. Ct. App. 2013).                            As

discussed earlier, supra ¶¶94-95, there is no indication in the

record    that    an    odor   of   intoxicants       was    emanating       from   the

vehicle.

    ¶102 Of        greater     concern    is   the    catchall      statement       that

"when a person is extremely intoxicated, it is not illogical to

assume    intoxicants       could   be    close    by."      Lead    op.,    ¶57.      A

finding    of    "extreme      intoxication"       invites     police       to   always

search a vehicle after an OWI arrest, despite the absence of any

facts indicating there might be evidence of OWI in a particular

vehicle.        United States v. Taylor, 49                A.3d 818 (D.C. 2012),

illustrates      the   distinction       between     the    lead    opinion's     broad

statement    and      the   particularization        required       when    discussing

whether it is reasonable to believe evidence of OWI will be

found in a vehicle.

    ¶103 In Taylor, the defendant rear-ended a vehicle occupied

by three Deputy United States Marshals.                      Id. at 820.          After
arresting       the    defendant    for     driving        under    the     influence,

officers searched the truck and found a loaded handgun.                              Id.

The trial court suppressed the evidence as the fruits of an

unlawful search.        Id. at 821.

    ¶104 In upholding suppression of the evidence, the Taylor

court addressed Gant and discussed how the principles "apply to

this arrest for driving under the influence."                      Id. at 826.       The

Taylor court reasoned:

    Whenever probable cause exists to effect an arrest for
    DUI, there will be evidence that the individual in
                              10
                                                        No. 2018AP1209.rfd

    question is intoxicated, has been drinking recently,
    and has been driving despite being (and perhaps while
    becoming) inebriated.     In this case, the police
    certainly had reason to believe (indeed, they had
    probable cause to conclude) that Taylor was drunk.
    The smell of alcohol was on his breath, he was swaying
    back and forth, he had lost control of his vehicle,
    and he had urinated on a nearby tree. The breath test
    showed a blood alcohol content of .161. This evidence
    gave ample reason to believe that Mr. Taylor had
    consumed   alcohol.     But   there  was  nothing   in
    particular——no tell-tale sign——to suggest that he had
    been drinking in his vehicle.

    It was, of course, possible that evidence of drinking—
    such as empty or partially full containers of alcohol—
    would be found in the vehicle, just as it is possible
    that such evidence may be found in any vehicle driven
    by an intoxicated individual.       But the question
    under . . . Gant is whether it is reasonable to
    believe that such evidence might be found in this
    specific   vehicle.       The   suspicion    must   be
    particularized.
Id. (emphasis added).

    ¶105 This   case    lacks     particular   facts    to   suggest    that

alcohol might be found in Coffee's vehicle.             There were signs

that Coffee was intoxicated, but the State cannot rely solely on

those facts to search his vehicle.         The specific facts giving
rise to the conclusion that Coffee was intoxicated "did not make

it any more likely that he had been drinking in the vehicle."

Id. at 827.

    ¶106 Although there was no such evidence here, there are

factual   circumstances   which    would   support     the   search    of   a

vehicle incident to an arrest for OWI.          For example, if police

observed, or were informed, that a suspect was consuming alcohol

while driving or just before driving.          See, e.g., City of West
Bend v. Willie, No. 2018AP151, unpublished slip op., ¶1 (Wis.

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Ct. App. Aug. 15, 2018) (noting that the police received "a

report from the manager of Wendy's that Willie and his passenger

had open beers in their vehicle"); State v. Relyea, 2014AP2860-

CR, unpublished slip op., ¶3 (Wis. Ct. App. Jun. 18, 2015) ("The

officer saw that Relyea was 'guzzling' from what appeared to be

a bottle of 'microbrew' beer.").                 Other circumstances include

where an officer observes evidence of drinking or an attempt to

hide something in the vehicle.              See, e.g., State v. Bons, 2007

WI   App   124,   ¶15,    301    Wis. 2d 227,      731     N.W.2d 367    (unusual

behavior "coupled with the presence of the shot glass on the

console, gave [the officer] reasonable suspicion that Bons had

been   committing    or    was    about     to   commit    a   crime    involving

alcohol").     None of these factual circumstances were present in

this case.

                                  III. CONCLUSION

       ¶107 I agree with the lead opinion that Gant, 556 U.S. 332,

requires   a   reasonableness       approach      to   a   search   incident   to

arrest based upon the totality of the circumstances.                    However,
in this case, Officer Skelton did not have any particular reason

to believe that Coffee's vehicle might contain evidence relevant

to his arrest for OWI.           The search of Coffee's vehicle incident

to arrest was therefore unconstitutional and the evidence should

have been suppressed.

       ¶108 For the foregoing reasons, I respectfully dissent.

       ¶109 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this dissent.



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