State v. Colin Taylor Theobald

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 22, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP1437-CR Cir. Ct. No. 2021CF17

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

COLIN TAYLOR THEOBALD,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Sheboygan County:
REBECCA L. PERSICK, Judge. Reversed and cause remanded with directions.

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1437-CR

¶1 PER CURIAM. Colin Taylor Theobald appeals from a judgment
entered after he entered no contest pleas to two drug possession charges and two
felony bail-jumping charges. On appeal, he contends the circuit court erred when it
denied his suppression motion. He asserts that the police lacked probable cause to
search him following a traffic stop. We reverse and remand with directions.

I. BACKGROUND

¶2 In January 2021, Sheboygan Police Officer Lucas Haese observed a
car driving with a burnt-out registration lamp and conducted a traffic stop. Theobald
was the driver and sole occupant in the car. Because Haese knew about Theobald’s
drug history, Haese called Officer Taylor and her K-9 partner to the scene. While
Haese was writing Theobald a warning for the burnt-out lamp, Taylor had Theobald
exit his car before having the K-9 conduct a drug sniff of the exterior of the car. The
K-9 alerted to the driver’s side door,1 and as a result, the police searched Theobald’s
car. No drugs were found in the car.

¶3 The officers proceeded to conduct a search of Theobald’s person and
found a small clear baggie with a substance believed to be methamphetamine.
Police arrested Theobald and searched him again. The officers discovered a pill
bottle in his left pants pocket that contained five different kinds of controlled
substances: (1) One dose of fluoxetine hydrochloride (10 mg), which is a
prescription medication; (2) a small piece of Suboxone (12 mg/3 mg), which is a
Schedule III controlled substance; (3) one half of a sildenafil citrate (100 mg),

1
The Complaint stated that the K-9 alerted “at the driver’s side door” of Theobald’s car.
The stipulated facts presented to the circuit court at the suppression hearing stated that the K-9
alerted to the “driver’s passenger side of the vehicle.” This court presumes this means the driver’s
door. Regardless, even if the alert was to another door of the vehicle, the result of our decision
would be the same.

2
No. 2022AP1437-CR

which is a prescription medication; (4) two doses of clonazepam (0.5 mg), which is
a Schedule IV controlled substance; and (5) three doses of Vyvanse (50 mg), which
is a Schedule II controlled substance. At the time of his arrest, Theobald was out
on bond for another pending drug possession case.

¶4 The State charged Theobald with nine counts: (1) possession of
methamphetamine; (2) possession of a controlled substance (Vyvanse);
(3) possession of a controlled substance (Suboxone); (4) possession of a controlled
substance (clonazepam); (5) possession of an illegally obtained prescription
(fluoxetine hydrochloride); (6) possession of an illegally obtained prescription
(sildenafil citrate); (7) felony bail jumping (failing to comply with bond condition
to not possess illegal drugs); (8) felony bail jumping (failing to comply with bond
condition to not possess any controlled substance without valid prescription); and
(9) felony bail jumping (failing to comply with bond condition to not commit any
new crimes).

¶5 Theobald entered not guilty pleas and filed a motion seeking to
suppress the evidence discovered during the search. He argued that the police
lacked reasonable suspicion or probable cause to search his person. Theobald
conceded that the K-9 alert on his car provided probable cause to search the car but
contends that when the police failed to find any drugs in his car, that should have
ended the matter. No one testified at the suppression hearing. Instead, the parties
presented the circuit court with the following stipulated facts: An officer stopped
Theobald’s vehicle for a burnt-out registration lamp. The officer “was aware of the
defendant’s drug history,” so he called a K-9 officer. The K-9 arrived, and police
had Theobald exit the vehicle. The K-9 alerted on the driver’s side of the vehicle.
Officers conducted a search of the defendant’s vehicle but did not find any evidence.
Officers “conducted a search of the defendant and located the various drugs that

3
No. 2022AP1437-CR

he’s currently charged with, the several prescription drugs as well as the
methamphetamine.” The items were “located on his person inside of his jacket in
an internal pocket[.]”

¶6 The circuit court denied the suppression motion, reasoning that
because Theobald had recently exited the car, the K-9 alerting on the car gave
officers probable cause to search Theobald. It relied on State v. Secrist, 224 Wis. 2d
201, 589 N.W.2d 387 (1999), which held that: “the odor of a controlled substance
provides probable cause to arrest when the odor is unmistakable and may be linked
to a specific person or persons because of the circumstances in which the odor is
discovered or because other evidence links the odor to the person or persons.” Id.
at 204. In Secrist, a police officer smelled the strong odor of marijuana emanating
from the car that Secrist, the sole occupant, was driving. Id. at 204-06. The officer
asked Secrist to step out of his car and immediately arrested him for possession of
marijuana. Id. at 205. After the arrest, the police searched Secrist’s car incident to
arrest and found marijuana and drug paraphernalia. Id. The circuit court concluded
Secrist supported the warrantless search of Theobald.

¶7 After the circuit court denied his suppression motion, Theobald
entered into a plea bargain where he pled no contest to counts one, two, seven, and
eight, and the remaining counts were dismissed and read in. The court withheld
sentence and placed Theobald on probation for four years.2 It also imposed six

2
The circuit court imposed four years of probation on counts one, seven, and eight and
one year of probation on count two.

4
No. 2022AP1437-CR

months of conditional jail time upfront and stayed another six months of conditional
jail time.3 Theobald appeals.

II. DISCUSSION

¶8 The only issue on appeal is whether the circuit court erred in denying
Theobald’s suppression motion. “An order granting or denying a motion
to suppress evidence presents a question of constitutional fact, which requires a
two-step analysis on appellate review.” State v. Meisenhelder, 2022 WI App 37,
¶7, 404 Wis. 2d 75, 978 N.W.2d 551, review denied (WI Oct. 11, 2022)
(No. 2021AP708-CR). “First, we review the circuit court’s findings of historical
fact under a deferential standard, upholding them unless they are clearly
erroneous. Second, we independently apply constitutional principles to those
facts.” Id. (quoted source omitted).

¶9 The Fourth Amendment to the United States Constitution provides
that “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated” and that
“no Warrants shall issue, but upon probable cause[.]” U.S. CONST. amend. IV.
Article I, section 11 of the Wisconsin Constitution likewise provides that “[t]he
right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated” and that “no warrant shall
issue but upon probable cause[.]” WIS. CONST. art. I, § 11. In determining whether

3
The Record reflects that Theobald’s probation was revoked shortly after his sentence for
violating probation conditions. As a result, the circuit court imposed a sentence of eighteen months’
initial confinement followed by twenty-four months’ extended supervision on count one, costs on
count two, and two years’ initial confinement followed by three years’ extended supervision on the
bail-jumping counts. These sentences were concurrent to each other but consecutive to his
companion drug possession case. Theobald’s appeal raises a challenge only to the suppression
order.

5
No. 2022AP1437-CR

probable cause to search exists, “the relevant inquiry is whether evidence of a crime
will be found.” Secrist, 224 Wis. 2d at 209. “Probable cause to arrest requires
evidence that would lead a reasonable police officer to believe that the person to be
arrested has committed or is committing a crime.” Id. at 214.

¶10 We look to the totality of the circumstances and what a reasonable
officer would believe based on the information he had at the time. Id. at 218. The
officer’s training and experience is also to be considered in the analysis. Id.
“Whether a search is exempt from the warrant requirement involves balancing ‘the
degree to which it intrudes upon an individual’s privacy and ... the degree to which
it is needed for the promotion of legitimate governmental interests.’” Meisenhelder,
404 Wis. 2d 75, ¶10 (omission in original; citation omitted).

¶11 In looking at the facts as stipulated to here, we conclude that the
officers lacked probable cause to search Theobald’s person. At the time the officers
searched Theobald without a warrant, they needed to have reason to believe that
evidence of a crime would be found. What they knew at the time of the search was
that the K-9 had alerted to the driver’s door of an empty car and that a search of the
car resulted in no evidence of drugs or contraband. These facts do not provide
probable cause to search Theobald’s person.

¶12 Although there is no doubt that the K-9 alert provided probable cause
to search the car, it is not enough to extend the search to a person who was not in
the car when the K-9 alerted. The automobile exception allows officers to search a
vehicle without a warrant if the officers have probable cause to believe the vehicle
contains contraband because there is a lesser expectation of privacy in a vehicle.
State v. Marquardt, 2001 WI App 219, ¶¶28, 31, 247 Wis. 2d 765, 635 N.W.2d
188. Police still need either a warrant or an exception to the warrant requirement to

6
No. 2022AP1437-CR

conduct a search of the person. See United States v. Di Re, 332 U.S. 581, 587
(1948) (probable cause to search a car did not justify a body search of a passenger);
Wyoming v. Houghton, 526 U.S. 295, 303 (1999) (reaffirming Di Re and
emphasizing the “unique, significantly heightened protection afforded against
searches of one’s person”).

¶13 The State argues that because Theobald had recently exited the car,
the K-9 alert gave them probable cause to search Theobald. The State has failed to
provide any legal authority to support its argument. Other courts have rejected the
argument that a K-9 alert on an empty vehicle provides probable cause to search
former occupants. See State v. Smith, 729 S.E.2d 120, 123-126 (N.C. Ct. App.
2012) (rejecting the argument that “a drug dog’s positive alert to a motor vehicle
while defendant, a former passenger within the motor vehicle, was outside the
vehicle constitutes probable cause to search defendant’s person without a search
warrant”); see also Bryant v. State, 779 So. 2d 464, 465 (Fla. Dist. Ct. App. 2000)
(concluding that a dog alert on unoccupied vehicle, followed by unfruitful search of
the vehicle, did not supply basis to search the driver).

¶14 We are unable to locate any Wisconsin case that authorizes the search
of a person under the circumstances presented here. The State suggests Secrist
supports its position or that a logical extension of Secrist supports the warrantless
search of Theobald. We disagree. Secrist does not provide legal support to search
Theobald’s person because the facts in this case are not the same as the facts in
Secrist. Secrist involved the officer smelling the unmistakable, strong odor of
marijuana coming from the car with Secrist in it. Id., 224 Wis. 2d at 204. The
search at issue in Secrist was of Secrist’s car based on the odor, not a search of his
person. Id. at 206-07. The evidence seeking to be suppressed in Secrist was the
evidence the officers found in Secrist’s car. Id. at 203-04. Further, Secrist included

7
No. 2022AP1437-CR

evidence of the officers’ experience and training in the odor of marijuana, which is
absent from the Record before us. See id. at 218-19. There is a significant
difference between searching a vehicle and arresting and searching a person. See 2
WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 3.1(b) (6th ed. 2022) (“This distinction [between probable cause to
search a place and probable cause to arrest an individual] is a critical one, and ...
there may be probable cause to search without probable cause to arrest, and
vice-versa.”).

¶15 The State makes the alternative argument that the search of
Theobald’s person was justified under the search-incident-to-arrest exception to the
Fourth Amendment. We disagree. Probable cause to arrest exists when the totality
of the circumstances would lead a reasonable police officer to believe a person has
committed or is committing a crime. Secrist, 224 Wis. 2d at 212. Had the search
of the car resulted in the discovery of illegal drugs, the police would have had
probable cause to arrest Theobald. But that is not what happened here. This was a
traffic stop for an equipment violation. A K-9 alert to the car yielded no drugs or
contraband. The K-9 did not alert to Theobald—which would have given the police
probable cause to search his person. The fact that a search ultimately confirms an
officer’s suspicion is not relevant to the Fourth Amendment analysis. The Fourth
Amendment does not authorize arrest of a person (and search incident to that arrest)
solely based on suspicion or a hunch. State v. Moore, 2023 WI 50, ¶8, 408 Wis. 2d
16, 991 N.W.2d 412.4 The only evidence relevant for our purpose is the facts that

4
Theobald’s case is also distinguishable from State v. Moore, 2023 WI 50, 408 Wis. 2d
16, 991 N.W.2d 412, where our supreme court held that police officers’ credible testimony that
they both detected the overwhelming smell of marijuana and sufficiently linked that illegal activity
to the defendant satisfied the probable cause standard to arrest. Id., ¶¶11-12. In Theobald’s case,
no police officer testified at the suppression hearing.

8
No. 2022AP1437-CR

the police knew before they undertook the search. 3 WAYNE R. LAFAVE, SEARCH
AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 5.4(a) (6th ed. 2022)

(A “search may not be justified as being incident to the subsequent arrest if the arrest
is in turn based upon the fruits of the prior search. Such bootstrapping would render
the Fourth Amendment a nullity.”).

III. CONCLUSION

¶16 Based on the foregoing, we conclude that the circuit court erred in
denying Theobald’s suppression motion. We reverse that decision and remand with
directions to the circuit court to grant Theobald’s motion and suppress the evidence
discovered during the unconstitutional search of Theobald’s person.

By the Court.—Judgment reversed and cause remanded with
directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

9