State v. Carter Nelson, 2024AP617-CR, 11/6/24, District II (one judge decision; not eligible for publication); case activity
The Court of Appeals reversed the circuit court’s order granting Carter Nelson’s motion to suppress cocaine seized from his vehicle without a warrant and without probable cause. The Court held that the evidence would have inevitably been discovered in a standard inventory search when Nelson’s vehicle was towed.
A New Berlin police officer saw an unoccupied vehicle in a traffic lane on National Avenue, a major east-west thoroughfare. The officer approached the vehicle and saw rifle rounds inside. After calling for backup, the officers searched the vehicle and found cocaine under an identification card in the center console. The officers determined the vehicle was registered to Nelson. When their attempts to contact him were unsuccessful, the car was towed. Two days later, police spoke with Nelson on the phone and told him to come to the police station to retrieve his property from the vehicle. At the station, Nelson admitted the cocaine was his and he was charged with possessing cocaine. (¶¶ 2-4).
Nelson filed a motion to suppress the cocaine seized from his car because police did not have a warrant or probable cause to search the car. In granting the motion, the circuit court rejected the State’s argument that the cocaine would have inevitably been discovered through an inventory search because the officers searched the vehicle before it was towed. (¶ 6).
On appeal, Nelson’s arguments to affirm the circuit court’s order granting his motion to suppress encountered the headwind of SCOW’s 2016 decision in Jackson, which held that the State does not need to prove that police were actively pursuing an alternative line of investigation when the constitutional violation occurred, nor that the police did not act in bad faith. (Id.). Rather, the State only needs to show by a preponderance of evidence that the evidence would have inevitably been discovered. (Id.).
The Court of Appeals noted that the officer testified that the New Berlin police department’s standard operating procedure is to conduct an inventory search when it tows a vehicle, and that the cocaine would have been found during such a search. (¶ 12). The Court assumed without deciding that the officers engaged in misconduct when they searched the vehicle before it was towed, but concluded: “When the officers were unable to communicate with or locate Nelson, his vehicle was lawfully towed from where it was left in a lane of traffic, and it would have lawfully been subject to a standard inventory search that would have inevitably resulted in the discovery of the cocaine in Nelson’s cup holder had the officers not searched the vehicle before it was towed away.” (¶ 14).
