State v. Bruski, 2005AP1516-CR.

• Decision Date: 22 February 2007
• Docket Number: No. 2005AP1516-CR.,2005AP1516-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. David Allen BRUSKI, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

727 N.W.2d 503

2007 WI 25

STATE of Wisconsin, Plaintiff-Appellant, v. David Allen BRUSKI, Defendant-Respondent-Petitioner.

No. 2005AP1516-CR.

Supreme Court of Wisconsin.

Submitted on Briefs September 13, 2006.

Decided February 22, 2007.

For the defendant-respondent-petitioner there were briefs and oral argument by Margaret A. Maroney, Assistant State Public Defender.

For the plaintiff-appellant the cause was argued by Stephen W. Kleinmaier, Assistant Attorney General, with whom on the brief was Peggy A. Lautenschlager, Attorney General.

¶ 1 JON P. WILCOX, J

This is a review of a published court of appeals decision, State v. Bruski, 2006 WI App 53, 289 Wis.2d 704, 711 N.W.2d 679, reversing an order of the Douglas County Circuit Court, Michael T. Lucci, Judge, which granted David Allen Bruski's motion to suppress evidence.

¶ 2 In the course of assisting a vehicle owner locate her keys, a City of Superior police officer searched her vehicle. His search included opening a travel case that contained drug paraphernalia and led to Bruski's arrest. Bruski argues that the warrantless search violated his Fourth Amendment rights. We hold that Bruski lacked standing to assert a Fourth Amendment claim because he failed to prove that he had a reasonable expectation of privacy in either the vehicle in which the police found the travel case or the travel case itself. Accordingly, we affirm the court of appeals.

I

¶ 3 The events relevant to this case commenced with a citizen's call to the City of Superior Police Department on March 3, 2005, regarding a suspicious vehicle and occupant parked behind a residence. Officer James Olson responded to the call.

¶ 4 Upon Officer Olson's arrival on the scene at about 8:00 a.m., he found Bruski in the driver's seat of the vehicle. The vehicle was not running. Bruski appeared as though he might be dead. He had a piece of a sandwich in his mouth, with the rest of it in his lap.

¶ 5 After closer inspection, Officer Olson discovered Bruski was merely passed out. Officer Olson shook Bruski and asked him repeatedly to wake up. Although Officer Olson had difficulty understanding Bruski's speech, Bruski finally identified himself and informed Officer Olson that he was waiting for a friend. Bruski had no idea how he had gotten to his current location. He never acknowledged operating the vehicle.

¶ 6 Officer Olson determined that the vehicle Bruski occupied was registered to Margaret Smith. The vehicle had not been reported stolen, but Officer Olson had the police communications center contact Ms. Smith to inform her of the whereabouts of her vehicle. Ms. Smith did not request any action be taken related to the vehicle. She speculated that her daughter Jessica, who had been allowed to use the vehicle, may have allowed a friend to operate it.

¶ 7 A couple of hours later, Ms. Smith became concerned about her daughter and her vehicle. She went to the Superior Police Department. From there, Officer Olson escorted her to the scene where her car was located.

¶ 8 When Officer Olson and Ms. Smith arrived on the scene, Officer Gerald Beauchamp was already there. He had been keeping an eye on Bruski while Officer Olson escorted Ms. Smith. Bruski remained passed out in the driver's seat of the vehicle. As Officer Olson, Officer Beauchamp, and Ms. Smith approached the vehicle, Bruski woke up.

¶ 9 Officer Olson asked Bruski to step out of the vehicle. With Bruski out of the vehicle, Ms. Smith stated that she did not recognize Bruski and had never heard his name. Bruski was asked if he knew Ms. Smith's daughter. He responded that he knew Jessica, but did not know her last name.

¶ 10 Ms. Smith wanted to take possession of her vehicle, but did not have the keys. As Officer Olson, Ms. Smith and Bruski stood near the hood of the vehicle on the driver's side, Ms. Smith became upset and asked Bruski for the keys to her vehicle. Officer Olson asked Bruski if he had the keys for Ms. Smith's vehicle. Bruski said that he did not.

¶ 11 As Officer Olson and Ms. Smith continued asking Bruski about the whereabouts of the keys, Officer Beauchamp opened the front passenger door of Ms. Smith's vehicle and began searching it for the keys. Officer Olson, Ms. Smith, and Bruski remained standing as a group near the driver's door. The group stood in a position where they could see the interior of the vehicle.

¶ 12 Officer Beauchamp searched on the seats, between the seats, in the glove compartment, and in the ashtray. Before looking for the keys, Officer Beauchamp had not asked Ms. Smith for permission to look for the keys in the car. Ms. Smith had neither given nor denied permission for Officer Beauchamp to search her vehicle.

¶ 13 Having not located the keys, Officer Beauchamp then opened a travel case that was in plain view on the floor in front of the front passenger seat. The travel case was approximately ten inches wide, sixteen inches long, and eight inches deep. The case was hard and opaque. It had no identifying information on it. Although both Ms. Smith and Bruski stood in view of the interior of the vehicle, neither said anything when Officer Beauchamp opened the case.

¶ 14 Officer Beauchamp did not find the keys inside the case. He found a glass smoking pipe, a cigarette box with a green leafy substance that appeared to be marijuana, plastic baggies, weights, a digital scale, and a notebook. Ms. Smith said she had never seen the case before. Officer Olson arrested Bruski.

¶ 15 After placing Bruski under arrest, the officers noticed what appeared to be Jessica's clothes in the back seat. With Jessica's whereabouts unknown, the officers suspected that Jessica may be in the trunk of the vehicle. Officer Beauchamp confirmed with Ms. Smith that he had permission to search the trunk of the vehicle. Nothing illegal was found.

¶ 16 Incident to Bruski's arrest, Officer Olson searched Bruski's person. Officer Olson discovered methamphetamine, a large flip-open knife, Jessica's cell phone, and keys for Ms. Smith's vehicle. As Officer Olson walked Bruski to the squad car after searching Bruski's person, Bruski said, "Just shoot me." Bruski later asked if he could speak with a narcotics agent about sharing information in exchange for making a deal.

¶ 17 The State charged Bruski with possession of methamphetamine, drug paraphernalia, THC, and a concealed weapon. He filed a motion to suppress the evidence found in the travel case and gathered incident to his arrest, arguing that the police violated his Fourth Amendment right against unreasonable searches. The circuit court granted Bruski's motion. According to the circuit court, the evidence from the travel case needed to be suppressed because he had a reasonable expectation of privacy in the travel case and did not give the officers consent to search it. The circuit court also concluded that the evidence gathered subject to his arrest also needed to be suppressed because Bruski's arrest resulted from an illegal search. The result was the suppression of evidence found in the travel case and on Bruski's person. After the circuit court denied that State's motion to reconsider, the State appealed.

¶ 18 The court of appeals reversed the circuit court. According to the court of appeals, Bruski lacked standing to assert a Fourth Amendment claim because he lacked a reasonable expectation of privacy in either the vehicle or the travel case. The court of appeals also noted that "[w]ithout a reasonable expectation of privacy in the vehicle, he ha[d] no expectation of privacy relative to his travel case as a matter of law, even though he owned the case." Bruski, 289 Wis.2d 704, ¶ 19, 711 N.W.2d 679.

¶ 19 The issue before this court is whether Bruski, who was passed out in another person's vehicle, is entitled to Fourth Amendment protections related to the search of the travel case. Whether an individual had a reasonable expectation of privacy in an area subjected to a search by a government agent is a question of constitutional law, which we review de novo. State v. Dixon, 177 Wis.2d 461, 466-67, 501 N.W.2d 442 (1993). Only clearly erroneous findings of fact underlying the circuit court's determination of whether an individual had a reasonable expectation of privacy will be set aside. Id. at 467, 501 N.W.2d 442.

II

¶ 20 In moving to suppress the evidence, Bruski claimed his Fourth Amendment rights had been violated. The Fourth Amendment of 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 no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Bruski, as the proponent of a motion to suppress, has the burden of establishing that his Fourth Amendment rights were violated by the search. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).¹

¶ 21 To have a Fourth Amendment claim, the proponent must initially satisfy two requirements. First, the search must have been done by a government agent. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). The Fourth Amendment protects citizens from government intrusion. Given that Officer Beauchamp, a government agent, conducted the search, Bruski has satisfied this requirement.

¶ 22 Second, an individual must have standing.² Rakas, 439 U.S. at 140, 99 S.Ct. 421. There is not a bright-line test for determining when an individual has standing, but standing exists when an individual has a reasonable expectation of privacy. Id. at 144, 99 S.Ct. 421. The proponent of a Fourth Amendment claim bears the burden of proving that he or she had a reasonable expectation of privacy. State v. Whitrock, 161 Wis.2d 960, 972, 468 N.W.2d 696 (1991)...