*1 Plaintiff-Respondent, State Wisconsin, Defendant-Appellant-Petitioner. Curtis L. Dixon,
Supreme Court 3, 1993. argument No. 91-1092-CR. Oral March Decided 24, 1993. June (Also 442.) reported 501 N.W.2d *3 defendant-appellant-petitioner was there For the Boyle by Wendy P. Patrickus, and A. Gerald a brief argument by Boyle, S.C., Milwaukee and oral P. Gerald Boyle. P. Gerald argued plaintiff-respondent the cause was
For the general attorney by Balistreri, J. Thomas assistant attorney Doyle, E. on the brief was James whom with general. ABRAHAMSON, This is a review J.
SHIRLEY S. appeals unpublished of filed of court decision the of an affirming judgment of the circuit court a 2,1992,1 June Judge. county, Geske, Circuit Janine P. Milwaukee
for (Ct. Dixon, 342, 492 App. N.W.2d Wis. 2d 1992),
The circuit court denied the motion to the suppress cocaine, evidence defendant, and the Curtis L. Dixon, was the possession convicted cocaine with intent to deliver. The court of appeals affirmed order also of the evidence and denying suppression affirmed the of conviction. judgment
The this is whether issue before court the defen- dant, who was the truck with the the owner, is entitled to claim the protection of Fourth to the States Amendment United Constitution. The to this issue turns whether response the defen- dant had a reasonable that is an privacy, interior of the vehicle searched that as society willing recognize reason- able. We conclude under of the totality circumstances the defendant had reasonable expecta- tion of in the interior of the vehicle. Accordingly we decision reverse the of the court of and appeals remand the cause the circuit court.
The for this facts are disputed purposes 7,1989, review. On January the defеndant was driving a Nissan Pathfinder in Milwaukee when was he for stopped by police unmarked car failing stop defendant sole stop sign. The was the occupant of truck, owned Perlean who Bond, had given defendant to the truck that he key so could wash it tires. replace defendant, who car owns a wash and business, automotive had driven the vehicle with the *4 owner's on other occasions before the arrest, for the work purpose doing on it.
Upon the defendant's truck stopping the police officer pulled patrol the сar alongside the truck and asked the defendant for his driver's license. When the defendant not could locate the he immediately license, obeyed the police officer's to get instructions out of the his driver's truck. He then located license. According testimony, the officer's when the officer looked police he brick-shaped package, into the truck saw a wrapped on floor behind the front newspaper, passenger The officer further testified that there was police seat. slit or tear in the a оne-to-two-inch long newspaper which he saw a a white through plastic bag containing substance which he believed to be cocaine. powder Based on what he considered a view" observa- "plain seized the from tion, officer police package truck. was with charged
The defendant possession deliver, more than 30 of cocaine with intent grams 161.16(2)(b)l 161.41(lm)(c)3, to secs. contrary Stats. 1990-91. The defendant moved to evi- suppress He dence of the cocaine found the truck. testified his, that he did not see the paсkage that was vehicle, and that he did not know the package contained cocaine. package the motion to suppress.
The circuit court denied it was a close question, While that acknowledging had no reasonable court held that the defendant circuit he "did not have control because for the vehicle other than over or responsibility he and other than that was transitory way very was found guilty it at the time." The defendant the circuit court. trial before that the defendant concluded appeals court
did not have a reasonable of his use of the truck because of the limited purposes of his to use truck and the limited scope the defen- The court of concluded appeals truck.2 stop justified concluded that the was The circuit court traffic reasonable cause to believe the basis of the officer's had been violated. law *5 possessed authority
dant or control over the vehicle to only use it in a manner consistent with the defendant's scope permission complete agreed upon work. sought The defendant rеview in this court.3 The issue before this court is whether the defen- permission dant, who was the truck with the protections owner, is entitled to claim the of the give Fourth Amendment. Whether the facts rise to an expectation individual's reasonable The circuit court plain also concluded excep- view tion was not satisfied. The state has challenged aspect this of the circuit court's decision.
Although the circuit court concluded that
the search of the
car and seizure of the cocaine were incident
arrest,
to the
stаte
argue
position
did not
this
appeal
to the court of
appeals. The
appeals
court of
deemed
argument
this
abandoned
by the state. The state does not
argument
make this
in its brief
in this
court.
state conceded
argument
at oral
there is
no evidence that an arrest was made before the cocaine was
seized.
3In
concurring opinion
in which he cites United States v.
Lochan,
(1st
1982),
Relying 634, 639, 193 Wis. 2d N.W.2d (1972), Judge dissenting Moser's opinion concluded that a power bailee has to exercise "all possessory rights" over the vehicle, including right to exclude all others from pos property, sessed accordingly and that the defendant had a reasonable privacy. Citing numerous federal and holding state cases that a non-owner bailee with control of the vehicle with the owner's may challenge allegedly illegal search, Judge Moser concluded that the defendant could challenge the reasonableness of the search of the vehicle. of the search is a subject or area which was space of constitutional law which we review inde- question *6 of the circuit court and court of The appeals. pendently underlying circuit court's of fact the determi- findings has a reasonable nation whether the individual will not be set aside unless privacy they are erroneous.4 clearly of the Fourth Amendment
The primary objective United States Constitution is the protection to the The Fourth intrusions. privacy against governmental to be Amendment that "the of the provides right people effects, houses, secure in their and persons, papers, seizures, searches and shall not against unreasonable violated, issue, upon be and no Warrants shall but affirmation, cause, Oath or and probable supported by searched, to be and particularly describing place In this case the things or to be seized." persons of whether the evidence of cocaine shоuld question the defendant have been turns on whether suppressed Fourth Amendment. The assert a claim under the may Court has refocused inquiry United States Supreme the Fourth Amendment from traditional con- under and seizure to standing a search cepts challenge search and seizure an of whether analysis disputed of the accused which the has on infringed to protect. Standing Fourth Amendment was designed law, now a matter of substantive Fourth Amendment expecta- framed in terms of reasonable or legitimate Illinois, Rakas v. 128, 439 U.S. tion of privacy.
(1981).
The United States
Court has stated
Supreme
law must
by
"legitimation
expectations
Wisumierski,
106 Wis. 2d
317 N.W.2d
(1982).
Amendment,
have a source
of the Fourth
either
outside
of real or
reference
concepts
personal property
or to
that are recognized
per-
law
understandings
Illinois,
Rakas v.
mitted
439 U.S.
by society."
(1981).5
Rakas
n.12
court did not tell
how
us
we
are to determine the
that are
"understandings
recog-
the Rakas
nized and
Thus
test
permitted by society."
bright
does not
"a
line between the
provide
protected
Illinois,
Rakas v.
and the
The determination of whether an accused has a reasonable or legitimate (1) invaded whether
place depends individual *7 has his or her conduct exhibited an actual by (subjec- tive) of in the area searched and in expectation privacy (2) item, the seized whether such an is expectation or in legitimate that it is one that is justifiable society to willing as reasonable.6 We shall focus on recognize the of the objective part whether inquiry, namely, under the facts of the case is to society willing recognize the defеndant's of expectation privacy.7 property determinative concepts may While law not the of privacy protected by Amendment, they interests the Fourth are Salvucci, factors to be considered. United States v. 448 U.S. Illinois, (1980); 128, 143, 91-93 Rakas v. 439 U.S. 144 n.12 Whitrock, (1981); 960, 974, 468 State v. 161 Wis. 2d N.W.2d 696 (1991). Milashoski, 72, 85,
6 State v.
163 Wis. 2d
for a limited purpose and a limited time. The majority of the court appeals adopted this reasoning.
We must examine the of the totality circumstances to determine whether expecta- defendant had an tion in the interior of the truck that is society to willing as reasonable. to recognize According record, the defendant had property truck; he was a given bailee. owner had him per- mission to drive the truck and to do repairs it. While the defendant was in of the possession vehicle, he had right exclude from the vehicle any person other than the owner аnd those on the vehicle. In working addition, the defendant and the owner had a personal as well as a business and the defendant relationship, had had the owner's to drive the truck on other occasions. This relationship prior use vehicle point having the defendant an expectation of the interior of truck is will- society as ing recognize reasonable. As Professor LaFave written, has bailment "ordinary still relationships deserve to be recognized as establishing a justified expectation privacy upon which Fourth Amendment standing may be grounded." LaFave, Search and (2d 1987). 11.3(e), Seizure sec. ed. p.
We hold that under of the totality circum- stances the defendant had an privacy in interior the vehicle society is to rec- willing ognize as reasonable.
Our
is
holding
supported
by numerous
cases
involving vehicle searches. These cases conclude, as did
Moser's
Judge
dissenting
opinion
the court of
appeals,
that a person who borrows a car and drives it
with the owner's
has
pri-
vacy which
society willing to recognize as reasonable.
*9
Rubio-Rivera,
See,
States v.
1271,
917 F.2d
United
e.g.,
(accused
(19th
1990)
who offered suffi-
Cir.
he
from
to show
gained possession
cient evidence
United
expectation
privacy);
owner has reasonable
(7th
1990)
Garcia,
1413,
States v.
F.2d
1419
Cir.
897
(accused's
permis-
of the vehicle with the owner's
"use
subjective
with
accused]
provides
[the
sion
legiti-
is reasonable
expectation
privacy
(6th
Blanco,
mate"); United States v.
344
Cir.
844 F.2d
1988)
bailee's
recognize
expecta
prepared
(society
auto);
of a rented
in the door
privacy
panels
tion of
(11th
Miller,
v.
States
821 F.2d
547
Cir.
United
1987) (accused
Mеnd's car
with
to borrow
United States
privacy);
has a legitimate expectation
(5th
1987), mod
Dotson,
v.
1127, 1134-35
F.2d
Cir.
817
(5th
1987)
grounds,
on other
In
distinguishable
fact situations
from the case at
bar, several courts have held
non-owner driver
does not have a reasonable expectation of
interior of a
In
vehicle.
one recurring
pattern,
fact
accused's
to the owner of
relationship
the vehicle or to
the vehicle is too attenuated
to allow the court to hold
the accused has a reasonable
of
expectation
pri-
See,
e.g., United States v. Obregon,
interest
the vehicle to the driver. The courts distin-
guish these
from
in
cases
those which an owner of a
thereby conveying
vehicle lends it to the accused
to the
right enjoy
possessory
accused the
in
interest
e.g.,
See,
vehicle
owner's absence.
United States
(10th
1991) (accused
v.
driving
STEINMETZ, J. I hold would that Dixon not did have an in Bond's society willing recognize truck that to as reasonable. challenge As a result, Dixon is to not entitled grounds. search of that on truck Fourth Amendment prove court, In the trial the burden onwas Dixon to that he had a reasonable
474
Illinois,
v.
See Rakas
U.S.
130
439
Bond's truck.
v.
Callaway,
State
503, 520, 317
106 Wis. 2d
(1978);
n.1
denied,
(1982), cert.
(1982);
459
967
U.S.
428
N.W.2d
Rhodes,
722, 724,
2d
N.W.2d 630
Wis.
439
149
1989).
(Ct.
burden, he
satisfy
In
effort to
this
an
App.
facts.
following
establishеd
only
of Bond's truck
for
custody
Dixon had
it
business
to his automotive
transporting
purpose
change.
a tire
He was
"one
given only
for a wash and
key
he
on his
for
placed
ring
individual
which
key,"
he
Dixon
cars
up
testified
safekeeping.
picked
business,
he
as
of his
and
day
part
other
or so"
"every
in the past.
Bond's truck for servicing
had picked up
times he had
Dixon
not establish
number of
did
Bond's
serviced
truck.
previously
he and Bond were "dat-
Dixon also established that
he
testifying,
time
the search. While
ing"
friend mine."
Bond as "a
"a
girlfriend"
referred to
Bond
However,
does
indicate whether
the record
or
marriage,
had a
akin to a
relationship
and Dixon
in the initial
mere
were
they
acquaintances
whether
references
to
Indeed, Dixon's
stages
courtship.
mine,"
and "dat-
"friend
girlfriend,"
Bond —"a
Dixon failed
the latter.1 Regardless,
ing"
suggest
—
had
which was
relationship
he and Bond
prove
had implicit
that Dixon
enough
suggest
intimate
for
other than
purposes
to use the truck
services
Bond.
specified
performing
suppress
evi
an order on a motion
reviewing
"When
may
the evidence at
dence,
take into aсcount
appellate
court
hearing."
trial,
suppression
well as the evidence at
as
(Ct.
Griffin,
App.
State
198, 2d
N.W.2d
Wis.
grounds,
other
1985),
2d
The cites 15 majority cases its conclu- support sion that Dixon had a reasonable in Bond's truck. one Majority op. Only 471-472. cases, these People Campbell, N.Y.S.2d 987 (1982), is somewhat to the case at bar. In analogous the owner of a Campbell, truck hired the defendant drive truck from New York to Long Bellemore Island back for and again purpose of and picking up transporting garments. his arrival cargo Upon New York with the cargo, truck and the defendant was stopped police. searched the truck police determined that garments were stolen. The defen- dant was subsequently with charged cоnspiracy and possession stolen property.
The defendant moved to suppress the stolen mer- He chandise. argued, that he had part, a reasonable expectation of support truck. To this argument, he pointed the fact that kept personal he *14 including overnight bag, property, in the truck. The Supreme York Court concluded that the defen- New expectation. dant had such an Id. at 989-90.
Campbell from at bar. The defen- differs the case Campbell specifically purpose hired for the dant was cargo. transporting Here, the truck and its only necessary the defendant drove Bond's truck as a servicing incident to the truck. From a common sense partakes standpoint, Campbell arrangement of a arrangement greater expectation than Camp- between Dixon and Bond. That the defendant kept personal property in the illustrates this bell truck Accordingly, Campbell unpersuasive. I fact. find respectfully disagree I with the New addition,
In
holding
Campbell.
person
Supreme
A
York
Court's
by
of a
to drive said truck and
hired
the owner
truck
acquire
сargo
relatively
does not
for a
short distance
in that truck. Like
reasonable
transitory
simply
the bailment is
too
bar,
the case at
expectation.
scope
to create such an
and too limited
majority
remaining
address
The
cases cited
than the fact
which are much different
fact situations
support
do not
bar; therefore,
these cases
situation
holding.
majority's
cases involve
Most of the cited
permission
unqualified
from
defendants who had
for the defendants' own
vehicle owner to use
vehicle
purposes.
Miller,
546, 547-48
821 F.2d
United States v.
(11th
1987);
Dotson, 817 F.2d
United States v.
Cir.
(5th
1987),
on other
1127, 1134-35
Cir.
modified
(5th
1987);
grounds,
States v.
1034
Cir.
United
821 F.2d
(7th
1984), cert.
475, 483 n.11
Cir.
729 F.2d
Griffin,
(1984);
Williams,
denied,
United States v.
477 (9th denied, cert. 1043 1313, 1980), 1317 Cir. 450 U.S. Ochs, United States v. (1981); 1247, 595 F.2d (2d. denied, 444 cert. 1979), (1979); Cir. U.S. McMichael, States v. United 541 F. 958 n.5 Supp. (D. Wells, 1982); Md. 539 So.2d nom., (Fla. on other sub Flor grounds 1989), n.4 aff'd Wells, v. People Regnet, ida (1989); U.S. (1981). 642, 644 scope permission
N.Y.S.2d in these cases was much more broad than granted in the instant case. As granted scope above, Dixon had to drive explained merely truck in order the service on the perform Bond's vehicle that Bond requested. *15 Blanco,
United States v.
344,
844 F.2d
346-350
(1988)
(6th
denied,
cert.
and
1988),
Cir.
The (7th 1990). Garcia 897 F.2d 1415-18 Cir. who received from the permission involved a defendant of a truсk to the truck from Texas to Indi- owner drive the to use the vehicle Again, scope permission ana. Garcia was much broader than the scope this case. The Garcia defendant was to drive granted which states, the owner's vehicle several through take a of time. On a period trip would substantial from this one can the driver to deviate length, expect Here, Dixon food, lodging, route for etc. prescribed only for time had to drive Bond's truck change to it and its tires. needed wash majority cites United States v. Rubio- also (10th 1990) Rivera, to F.2d Cir. holding. support that the defendant its Rivera held privacy in the reasonable the case had a permis- driving merely he had he was because vehicle owner, from the vehicle's sion to use the vehicle scope permission. regardless I of the of that nature disagree holding. simply Examination of the with this necessary scope to deter- nature and of a bailment has reasonable mine whether bailee property. I am in accord with in the bailor's majority op. majority point. this at 469. on See majority Finally, also Professor LaFave cites holding. "ordinary support He bailment its states that recognized relationships as estab- still deserve be privacy upon lishing justified expectation which standing may grounded." 4 be Fourth Amendment 11.3(e) Wayne LaFave, R. sec. Search and Seizure (2d 1987). However, cases cited LaFave ed. distinguished support proposition be of this can by majority. grounds Id. as the cases cited the same 1993). (2d Supp. Therefore, 1989 & at 334 n.239 ed. apply pronouncement does Professor LaFave's here. the fact situation foregoing I dissent. reasons,
For *16 P. Justice JON WILCOX I am to state that authorized opinion. joins dissenting this
