2009AP2831-CR State v. Harrell

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Search and Seizure
Search incident to arrest

Where officers suspected that the defendant had committed a violent crime, they could lawfully search the area near him as an incident to his arrest.

“Harrell does not dispute that the officers went to where they believed Harrell was staying because they suspected that he was involved in the Jackson shooting. Thus, the two aspects of Terry were satisfied: (1) the officers suspected that Harrell had committed a violent crime; and (2) reasonable prudence dictated that they keep Harrell from having possible access to a gun.

Although he asserts that the officers were not lawfully in the house, the trial court found that by virtue of Harrell’s house-sitting status, he could and did give them permission to continue their questioning of him inside the house.

Those findings are not clearly erroneous. See State v. Pickens, 2010 WI App 5, ¶39, 323 Wis. 2d 226, 244–245, 779 N.W.2d 1, 10 (Ct. App. 2009) (common dominion authorizes person to give consent for search).”

“Once the officers found the suspected cocaine, of course, they could also legitimately search the area near Harrell as an incident to Harrell’s pending arrest, as well as to ensure their safety when they directed him to sit in the second chair. See Chimel, 395 U.S. at 763 (‘A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’); see also State v. Dearborn, 2010 WI 84, ¶27, ___ Wis. 2d ___, ___, ___ N.W.2d ___, ___ (automobile search); State v. Denk, 2008 WI 130, ¶33, 315 Wis. 2d 5, 18, 758 N.W.2d 775, 782 (‘[W]arrantless search “may be incident to a subsequent arrest if the officers have probable cause to arrest before the search.”’)
(quoted source omitted).”

Affirmed.

Publication in the official reports is recommended.

2009AP2831-CR State v. Harrell

Dist. I, Milwaukee County, Wagner, Conen, JJ., Fine, J.

Attorneys: For Plaintiff: Warren D. Weinstein, Madison; For Defendant: Michael S. Holzman, Waukesha

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