State v. Ashley Rae Baker

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.
June 14, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP1587-CR Cir. Ct. No. 2021CM78

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ASHLEY RAE BAKER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Sheboygan County: DANIEL J. BOROWSKI, Judge. Affirmed.

¶1 LAZAR, J.1 Ashley Rae Baker appeals from a judgment of
conviction for carrying a concealed weapon in her purse without a permit in

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1587-CR

violation of WIS. STAT. § 941.23(2) and an order denying her motion to suppress
evidence. She contends that the police officer who conducted a traffic stop on a
vehicle in which she was a passenger lacked probable cause to search her purse,
thereby violating her Fourth Amendment rights. This court disagrees that the
search was unconstitutional and affirms Baker’s conviction and the circuit court’s
order denying Baker’s motion to suppress.

¶2 On December 31, 2020, Officer Michael Moore was on duty
watching a block that was known by police to have two houses (next door to one
another) in which active drug dealing had been occurring. Moore noticed people
come out of one of the suspected drug houses and get into a vehicle that had
parked on the block less than ten minutes earlier. He followed the vehicle, pulling
it over after a short while for not having a front license plate. No one had exited
or entered the vehicle after it drove away from the drug houses.

¶3 Moore requested an additional officer and a K9 unit before he
initiated contact with the vehicle. When he did make contact, he discovered that
Baker was in the front passenger seat and that a male was driving the vehicle.
Moore did not observe anything (odor or items in plain view, for example) that
would have raised his suspicion as to the presence of drugs. While he was
completing the citation in his police car, however, the K9 unit arrived on the scene
and alerted for drugs in the vehicle. Both individuals had stepped out of the
vehicle prior to the K9 unit’s arrival.

¶4 Moore returned to the driver. In response to questioning, the driver
indicated that there was a small amount of marijuana inside the vehicle. Moore
then searched the vehicle and found approximately a half gram of marijuana in the
center console area, a marijuana grinder (an item of paraphernalia) near the gear

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No. 2022AP1587-CR

shifter, and marijuana “shake” (small loose pieces of marijuana) “spread
throughout the vehicle.” In the backseat there were also sandwich bags with
marijuana shake inside of them, of the type sometimes used to package marijuana
for delivery. Moore then searched the driver and found an additional gram of
marijuana in a blunt inside the driver’s pocket.

¶5 At that point, Moore returned to Baker, who had been waiting
outside of the vehicle—holding her purse—during the K9 search and while Moore
had been searching the driver. He was waiting for a female officer to arrive to
search her person, but he asked her to set her purse on the trunk of the vehicle.
Moore proceeded to search the purse, and immediately saw a handgun inside of it.
Baker admitted that she did not have a concealed carry weapon license as required
by WIS. STAT. § 941.23(2); indeed, as a nineteen-year-old, she was prohibited
from having a license to carry a concealed weapon. See WIS. STAT.
§ 175.60(3)(a).

¶6 The State charged Baker with one count of carrying a concealed
weapon without a license. Baker filed a motion to suppress the evidence, asserting
that Moore did not have a legal basis to search her purse without a warrant. At the
hearing on Baker’s motion, Moore was the sole witness. He testified to the facts
above and stated that his search of the purse was based on the “totality of
everything,” including his observation of Baker coming out of a house known for
drug activity and the marijuana found in the vehicle. He expressed a concern for
“the potential for any concealment of other items,” saying that “any time that
someone gives us a breadcrumb” it could be “to deter finding the loaf of bread.”
He further noted that he believed Baker may have had paraphernalia or drugs on
her person or with her, because (in addition to the shake found throughout the

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No. 2022AP1587-CR

vehicle) the marijuana found in the center console area “would have … been
essentially under her left elbow” while she was in the front passenger seat.

¶7 The circuit court denied Baker’s motion to suppress.
Acknowledging that this was a close case, it determined that Moore needed
“probable cause to believe that [Baker had] committed a crime and that there
[was] evidence of crime in the purse” in order to be able to search Baker’s purse.
It concluded that the totality of the circumstances—that Baker had a short-term
visit with a known drug house, marijuana had been found throughout the vehicle
in which she was riding, and paraphernalia had been found adjacent to both her
and the driver—were sufficient to find probable cause that Baker had committed
the crime of drug possession and that evidence of the crime was in her purse.
Ultimately, “there is that nexus between the defendant and the drugs in the car.”

¶8 Baker appeals the denial of her motion and her conviction, which
was based on the no contest plea she entered following denial of the motion to
suppress. She asserts that the court was wrong in admitting evidence from
Moore’s search of her purse because Moore lacked probable cause. According to
Baker, the search was unconstitutionally based on a “hunch” and the evidence
against the driver was impermissibly “transferred to Ms. Baker simply by
association.”

¶9 The question of whether there was probable cause “is a question of
constitutional fact involving the application of … constitutional principles which
this court reviews independently of the conclusions of the circuit court.” State v.
Mitchell, 167 Wis. 2d 672, 684, 482 N.W.2d 364 (1992). Thus, we begin with the
constitutional principles that govern lawful searches. A warrantless search
violates the Fourth Amendment of the federal Constitution and Article I,

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No. 2022AP1587-CR

Section 11 of the Wisconsin Constitution unless the search falls under an
exception to the warrant requirement. See State v. Howes, 2017 WI 18, ¶¶3, 23,
373 Wis. 2d 468, 893 N.W.2d 812.

¶10 One such exception is a search incident to arrest. Chimel v.
California, 395 U.S. 752, 762-63 (1969); State v. Sykes, 2005 WI 48, ¶14, 279
Wis. 2d 742, 695 N.W.2d 277. Our supreme court has explained that whether the
search takes place just before or just after an arrest is not important; what matters
is that “probable cause to arrest must have existed independent of the fruits of the
search of the suspect’s person.” Sykes, 279 Wis. 2d 742, ¶16 (citing Rawlings v.
Kentucky, 448 U.S. 98, 111 & n.6 (1980)). Nor does the arrest need to be for the
crime on which probable cause was premised. See Sykes, 279 Wis. 2d 742, ¶22.
In Sykes, for example, our supreme court affirmed the constitutionality of a search
incident to arrest where the officer had probable cause to believe the defendant
had committed criminal trespass but was never arrested for that crime—he was
instead arrested on a drug crime based on evidence found during the search. Id.

¶11 The quantum of evidence required for probable cause to arrest is that
which would “lead a reasonable police officer to believe that the defendant
probably committed or was committing a crime.” State v. Secrist, 224 Wis. 2d
201, 212, 589 N.W.2d 387 (1999) (citations omitted). “There must be more than a
possibility or suspicion that [the] defendant committed an offense, but the
evidence need not reach the level of proof beyond a reasonable doubt or even that
guilt is more likely than not.” Mitchell, 167 Wis. 2d at 681-82. Whether probable
cause exists is fact intensive, depending heavily on the circumstances of an
individual case. Secrist, 224 Wis. 2d at 212.

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No. 2022AP1587-CR

¶12 Because probable cause requires a belief not only that a crime was or
is being committed, but that it was or is being committed by a particular
defendant, it is helpful to look at cases in which (as in Baker’s situation) there is
more than one person involved. The Mitchell case is instructive. That case
involved an officer’s arrest of an individual who was in a parked vehicle with
another person after the officer smelled and saw marijuana smoke in the vehicle.
167 Wis. 2d at 683-84. Our supreme court reasoned that “[t]he fact that there
were two occupants in the vehicle is not fatal to a finding of probable cause to
arrest defendant because probable cause does not mandate that it is more likely
than not that the defendant committed the offense.” Id. at 684. To the extent one
party takes the blame and tells an officer that he or she is solely to blame, the
officer is not required to believe that party. See State v. Kutz, 2003 WI App 205,
¶12, 267 Wis. 2d 531, 671 N.W.2d 660 (“When a police officer is confronted with
two reasonable competing inferences, one justifying arrest and the other not, the
officer is entitled to rely on the reasonable inference justifying arrest.”).

¶13 We must apply these principles to the facts of Baker’s case, none of
which are disputed on appeal. Baker was seen leaving a house known for active
drug activity after a ten-minute visit and was riding in a car that had marijuana and
drug paraphernalia throughout, including approximately one half gram of
marijuana and a marijuana grinder between her and the driver—“essentially under
her left elbow.” We agree with the circuit court’s assessment that this evidence is
sufficient to establish a “nexus between the defendant and the drugs in the car.”
This is not a case of guilt by association—which could be said if, for example, the
only marijuana found prior to the search of Baker’s purse had been the marijuana
blunt in her companion’s pocket—but rather a case where Moore’s belief that
Baker was committing the crime of possessing marijuana was reasonable under

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No. 2022AP1587-CR

the totality of the circumstances. Cf. State v. Riddle, 192 Wis. 2d 470, 477-78,
531 N.W.2d 408 (Ct. App. 1995) (finding no probable cause to arrest backseat
passenger of vehicle ultimately found to have cocaine in its locked trunk because
there was no nexus of possession or control between the defendant and the
cocaine).

¶14 Baker cites United States v. Di Re, 332 U.S. 581 (1948),
characterizing it as “near-comically analogous” to her case. We disagree. In
Di Re, the Supreme Court held that a search of a person was unconstitutional
where his arrest was based only on being a passenger in a vehicle in which the
driver sold counterfeit gasoline ration coupons to a government informant seated
in the backseat. 332 U.S. at 586-87. There was no contraband found in the car in
that case that could have belonged to either the driver or the passenger (or both);
in fact, there was no search of the vehicle. Id. at 586. In addition, the nature of
ration tickets is such that if the defendant “had witnessed the passing of papers
from hand to hand, it would not follow that he knew they were ration coupons,” let
alone counterfeit ones. Id. at 593. Unlike the ration coupons in Di Re, the
marijuana and paraphernalia in the vehicle at issue here was spread throughout the
vehicle and in close proximity to Baker. It could have belonged to either
passenger (or both) and it would have been unreasonable not to appreciate both its
unlawful nature and the fact that it was there.

¶15 In summary, we conclude that the circuit court did not err in ruling
that the fruit of Moore’s search—the gun found in Baker’s purse—was admissible.
Under the totality of the circumstances, there was probable cause to arrest Baker
for possession of marijuana prior to the search, and therefore, the order and
judgment of conviction are affirmed.

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No. 2022AP1587-CR

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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