Belton rule in Wisconsin

2010The dissent in Fry would have given greater protections under Wis. Stat. § 986.11 and the Wisconsin Constitution; it rejected what it called the "Belton rule." State v. Fry, 131 Wis. 2d 153, 186-88 , 388 N.W.2d 565 (1986) (Bablitch, J., dissenting).

2010The dissent in Fry would have given greater protections under Wis. Stat. § 986.11 and the Wisconsin Constitution; it rejected what it called the "Belton rule." State v. Fry, 131 Wis. 2d 153, 186-88 , 388 N.W.2d 565 (1986) (Bablitch, J., dissenting).

2006In the following paragraphs, we will explain why we cannot arrive at that conclusion. ¶10 In New York v. Belton, 453 U.S. 454, 460 (1981), the United States Supreme Court 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." (Emphasis added; footnote omitted.) Our supreme court adopted the Belton standard in State v. Fry, 131 Wis. 2d 153, 161-76 , 388 N.W.2d 565 (1986).

2006In the following paragraphs, we will explain why we cannot arrive at that conclusion. ¶10 In New York v. Belton, 453 U.S. 454, 460 (1981), the United States Supreme Court 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." (Emphasis added; footnote omitted.) Our supreme court adopted the Belton standard in State v. Fry, 131 Wis. 2d 153, 161-76 , 388 N.W.2d 565 (1986).

2010See Pallone, 236 Wis. 2d 162, ¶ 35 (explaining that under Belton and Fry , police may search a vehicle incident to arrest even though the defendants lacked the ability to access the interior of the vehicle due to their arrest); State v. Murdock, 155 Wis. 2d 217, 231-34 , 455 N.W.2d 618 (1990) (same); Littlejohn, 307 Wis. 2d 477, ¶¶ 8-11 (same). ¶ 26.

2010See Pallone, 236 Wis. 2d 162, ¶ 35 (explaining that under Belton and Fry , police may search a vehicle incident to arrest even though the defendants lacked the ability to access the interior of the vehicle due to their arrest); State v. Murdock, 155 Wis. 2d 217, 231-34 , 455 N.W.2d 618 (1990) (same); Littlejohn, 307 Wis. 2d 477, ¶¶ 8-11 (same). ¶ 26.

2010See Pallone, 236 Wis. 2d 162, ¶ 35 (explaining that under Belton and Fry , police may search a vehicle incident to arrest even though the defendants lacked the ability to access the interior of the vehicle due to their arrest); State v. Murdock, 155 Wis. 2d 217, 231-34 , 455 N.W.2d 618 (1990) (same); Littlejohn, 307 Wis. 2d 477, ¶¶ 8-11 (same). ¶ 26.

2010See Pallone, 236 Wis. 2d 162, ¶ 35 (explaining that under Belton and Fry , police may search a vehicle incident to arrest even though the defendants lacked the ability to access the interior of the vehicle due to their arrest); State v. Murdock, 155 Wis. 2d 217, 231-34 , 455 N.W.2d 618 (1990) (same); Littlejohn, 307 Wis. 2d 477, ¶¶ 8-11 (same). ¶ 26.

2000See, e.g., United States v. Strahan, 984 F.2d 155, 159 (6th Cir. 1993) (because defendant was approximately thirty feet from his vehicle when arrested, Belton inapplicable and the Chimel test governs; the passenger compartment of the vehicle was not within defendant's "immediate control" at the time of the arrest and thus "suppression is proper"); State v. Foster, 905 P.2d 1032, 1037-39 (Idaho 1995) (holding that Belton rule only applies when the defendant is arrested or the police at least make initial contact with the defendant in the vehicle; collecting a number of cases which apply this ru

2000See, e.g., United States v. Strahan, 984 F.2d 155, 159 (6th Cir. 1993) (because defendant was approximately thirty feet from his vehicle when arrested, Belton inapplicable and the Chimel test governs; the passenger compartment of the vehicle was not within defendant's "immediate control" at the time of the arrest and thus "suppression is proper"); State v. Foster, 905 P.2d 1032, 1037-39 (Idaho 1995) (holding that Belton rule only applies when the defendant is arrested or the police at least make initial contact with the defendant in the vehicle; collecting a number of cases which apply this ru

2000See, e.g., State v. Brown, 588 N.E.2d 113, 114-16 (Ohio 1992) (declining to follow Belton if Belton means that an arrest for a traffic offense automatically authorizes detailed search of arrestee's vehicle); State v. Pierce, 642 A.2d 947, 956, 959-60 (N.J. 1994) (declining to apply Belton to warrantless arrests for motor-vehicle offenses; discussing other state cases); Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) (rejecting Belton rule and adhering to earlier decision limiting the warrantless search of a vehicle incident to an arrest to clothing and areas immediately accessible to the a

2000Rev. 489 , 491 (1977). [11] See, e.g., State v. Brown, 588 N.E.2d 113, 114-16 (Ohio 1992) (declining to follow Belton if Belton means that an arrest for a traffic offense automatically authorizes detailed search of arrestee's vehicle); State v. Pierce, 642 A.2d 947, 956, 959-60 (N.J. 1994) (declining to apply Belton to warrantless arrests for motor-vehicle offenses; discussing other state cases); Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) (rejecting Belton rule and adhering to earlier decision limiting the warrantless search of a vehicle incident to an arrest to clothing and areas imm

2000See, e.g., State v. Brown, 588 N.E.2d 113, 114-16 (Ohio 1992) (declining to follow Belton if Belton means that an arrest for a traffic offense automatically authorizes detailed search of arrestee's vehicle); State v. Pierce, 642 A.2d 947, 956, 959-60 (N.J. 1994) (declining to apply Belton to warrantless arrests for motor-vehicle offenses; discussing other state cases); Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) (rejecting Belton rule and adhering to earlier decision limiting the warrantless search of a vehicle incident to an arrest to clothing and areas immediately accessible to the a

2000Rev. 489 , 491 (1977). [11] See, e.g., State v. Brown, 588 N.E.2d 113, 114-16 (Ohio 1992) (declining to follow Belton if Belton means that an arrest for a traffic offense automatically authorizes detailed search of arrestee's vehicle); State v. Pierce, 642 A.2d 947, 956, 959-60 (N.J. 1994) (declining to apply Belton to warrantless arrests for motor-vehicle offenses; discussing other state cases); Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) (rejecting Belton rule and adhering to earlier decision limiting the warrantless search of a vehicle incident to an arrest to clothing and areas imm

2000See, e.g., United States v. Strahan, 984 F.2d 155, 159 (6th Cir. 1993) (because defendant was approximately thirty feet from his vehicle when arrested, Belton inapplicable and the Chimel test governs; the passenger compartment of the vehicle was not within defendant's "immediate control" at the time of the arrest and thus "suppression is proper"); State v. Foster, 905 P.2d 1032, 1037-39 (Idaho 1995) (holding that Belton rule only applies when the defendant is arrested or the police at least make initial contact with the defendant in the vehicle; collecting a number of cases which apply this ru

2000See, e.g., United States v. Strahan, 984 F.2d 155, 159 (6th Cir. 1993) (because defendant was approximately thirty feet from his vehicle when arrested, Belton inapplicable and the Chimel test governs; the passenger compartment of the vehicle was not within defendant's "immediate control" at the time of the arrest and thus "suppression is proper"); State v. Foster, 905 P.2d 1032, 1037-39 (Idaho 1995) (holding that Belton rule only applies when the defendant is arrested or the police at least make initial contact with the defendant in the vehicle; collecting a number of cases which apply this ru

2000See, e.g., State v. Brown, 588 N.E.2d 113, 114-16 (Ohio 1992) (declining to follow Belton if Belton means that an arrest for a traffic offense automatically authorizes detailed search of arrestee's vehicle); State v. Pierce, 642 A.2d 947, 956, 959-60 (N.J. 1994) (declining to apply Belton to warrantless arrests for motor-vehicle offenses; discussing other state cases); Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) (rejecting Belton rule and adhering to earlier decision limiting the warrantless search of a vehicle incident to an arrest to clothing and areas immediately accessible to the a

2000Rev. 489 , 491 (1977). [11] See, e.g., State v. Brown, 588 N.E.2d 113, 114-16 (Ohio 1992) (declining to follow Belton if Belton means that an arrest for a traffic offense automatically authorizes detailed search of arrestee's vehicle); State v. Pierce, 642 A.2d 947, 956, 959-60 (N.J. 1994) (declining to apply Belton to warrantless arrests for motor-vehicle offenses; discussing other state cases); Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) (rejecting Belton rule and adhering to earlier decision limiting the warrantless search of a vehicle incident to an arrest to clothing and areas imm

2000For a lengthy discussion of the rule and its critics, see State v. Pierce, 642 A.2d 947, 955-58 (N.J. 1994); Commonwealth v. White, 669 A.2d 896, 907-08 (Pa. 1995) (Montemuro, J., concurring). [10] For cases in which the U.S. Supreme Court reminded state courts that they are free to interpret their own constitutions as granting more protections to individuals than does the U.S. Constitution, see, e.g., California v. Greenwood, 486 U.S. 35, 43 (1988) (Fourth Amendment); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) (First Amendment and vagueness); PruneYard Shopping Cente

2000For a lengthy discussion of the rule and its critics, see State v. Pierce, 642 A.2d 947, 955-58 (N.J. 1994); Commonwealth v. White, 669 A.2d 896, 907-08 (Pa. 1995) (Montemuro, J., concurring). [10] For cases in which the U.S. Supreme Court reminded state courts that they are free to interpret their own constitutions as granting more protections to individuals than does the U.S. Constitution, see, e.g., California v. Greenwood, 486 U.S. 35, 43 (1988) (Fourth Amendment); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) (First Amendment and vagueness); PruneYard Shopping Cente

2000For a lengthy discussion of the rule and its critics, see State v. Pierce, 642 A.2d 947, 955-58 (N.J. 1994); Commonwealth v. White, 669 A.2d 896, 907-08 (Pa. 1995) (Montemuro, J., concurring). [10] For cases in which the U.S. Supreme Court reminded state courts that they are free to interpret their own constitutions as granting more protections to individuals than does the U.S. Constitution, see, e.g., California v. Greenwood, 486 U.S. 35, 43 (1988) (Fourth Amendment); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) (First Amendment and vagueness); PruneYard Shopping Cente

2000For a lengthy discussion of the rule and its critics, see State v. Pierce, 642 A.2d 947, 955-58 (N.J. 1994); Commonwealth v. White, 669 A.2d 896, 907-08 (Pa. 1995) (Montemuro, J., concurring). [10] For cases in which the U.S. Supreme Court reminded state courts that they are free to interpret their own constitutions as granting more protections to individuals than does the U.S. Constitution, see, e.g., California v. Greenwood, 486 U.S. 35, 43 (1988) (Fourth Amendment); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) (First Amendment and vagueness); PruneYard Shopping Cente

2000For a lengthy discussion of the rule and its critics, see State v. Pierce, 642 A.2d 947, 955-58 (N.J. 1994); Commonwealth v. White, 669 A.2d 896, 907-08 (Pa. 1995) (Montemuro, J., concurring). [10] For cases in which the U.S. Supreme Court reminded state courts that they are free to interpret their own constitutions as granting more protections to individuals than does the U.S. Constitution, see, e.g., California v. Greenwood, 486 U.S. 35, 43 (1988) (Fourth Amendment); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) (First Amendment and vagueness); PruneYard Shopping Cente

2000For a lengthy discussion of the rule and its critics, see State v. Pierce, 642 A.2d 947, 955-58 (N.J. 1994); Commonwealth v. White, 669 A.2d 896, 907-08 (Pa. 1995) (Montemuro, J., concurring). [10] For cases in which the U.S. Supreme Court reminded state courts that they are free to interpret their own constitutions as granting more protections to individuals than does the U.S. Constitution, see, e.g., California v. Greenwood, 486 U.S. 35, 43 (1988) (Fourth Amendment); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) (First Amendment and vagueness); PruneYard Shopping Cente

1985The majority’s reductio ad absurdvm contention was rejected by the supreme court in State v. Bergenthal, 47 Wis. 2d 668, 674-75 , 178 N.W.2d 16, 20 (1970), cert. denied, 402 U.S. 972 (1971), quoted in Sarabia, 118 Wis. 2d at 661-62, 348 N.W.2d at 531: “The key word in the rule is ‘reasonable.’ The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury.” This is the holding of Belton which the majority misses when attempting to distill the “Belton rule” from that decision: “the Belton court refused to disregard the testimony of ot

1985The majority’s reductio ad absurdvm contention was rejected by the supreme court in State v. Bergenthal, 47 Wis. 2d 668, 674-75 , 178 N.W.2d 16, 20 (1970), cert. denied, 402 U.S. 972 (1971), quoted in Sarabia, 118 Wis. 2d at 661-62, 348 N.W.2d at 531: “The key word in the rule is ‘reasonable.’ The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury.” This is the holding of Belton which the majority misses when attempting to distill the “Belton rule” from that decision: “the Belton court refused to disregard the testimony of ot