State v. Callaway

• Decision Date: 10 June 1981
• Docket Number: No. 80-1333,80-1333
• Citation: 308 N.W.2d 897,103 Wis.2d 389
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Dennis D. CALLAWAY, Defendant-Respondent. *
• Court: Wisconsin Court of Appeals

Page 897

308 N.W.2d 897

103 Wis.2d 389

STATE of Wisconsin, Plaintiff-Appellant, v. Dennis D. CALLAWAY, Defendant-Respondent. ^*

No. 80-1333.

Court of Appeals of Wisconsin.

Argued March 26, 1981.

Opinion Released June 10, 1981.

Opinion Filed June 10, 1981.

Sally L. Wellman, Asst. Atty. Gen., argued, for plaintiff-appellant; Bronson C. La Follette, Atty. Gen., on brief.

William J. Tyroler, Asst. State Public Defender, for defendant-respondent.

Before VOSS, P. J., and BROWN and SCOTT, JJ.

SCOTT, Judge.

The State appeals from an order suppressing physical evidence, marijuana, seized in a warrantless inventory search of the locked glove compartment of a car driven by Dennis Callaway. The State argues that Callaway is not entitled to challenge the search because he failed to show that he had a legitimate expectation of privacy in the car. The State points out that a certificate of title shows a third person to be the owner of the car. The State further argues that the trial court erred in concluding that police impoundment of the car and their subsequent search of the locked glove compartment was unreasonable. We conclude that by failing to raise in the trial court the factual issue of whether Callaway had a legitimate expectation of privacy in the searched area, the State has waived its right to argue on appeal that Callaway had no such expectation. Further, we uphold the trial court's conclusion that the impoundment was unreasonable. Accordingly, we affirm the suppression order.

On May 4, 1979, the State filed a complaint charging that Callaway possessed a controlled substance with intent to deliver contrary to sec. 161.41(1m)(b), Stats., and that he was a repeater contrary to sec. 939.62(1)(b), Stats. After a preliminary hearing on September 26 and October 22, Callaway was bound over for trial. On October 23, the State filed an information On January 24, 1980, Callaway filed a motion to suppress all evidence seized from the car on the ground that the search and seizure violated his rights under the United States and Wisconsin constitutions. A hearing was held on April 21.

charging that Callaway violated secs. 161.41(1m)(b) and 939.62(1)(b), Stats.

The facts are undisputed. Early on May 3, 1979, Michael Quick, a police officer for the City of West Bend, was advised of an outstanding traffic warrant for the arrest of Dennis Callaway. While he was operating a marked police car on Main Street at about 7:13 p. m. on that date, Quick observed the driver of a passing car to be Callaway. He recognized Callaway from a previous traffic stop. He radioed for assistance in making the arrest.

Quick stopped Callaway on Main Street just south of the intersection of Main and Franklin in front of a car wash. Parking was not permitted where Callaway stopped but parking was permitted until 2:00 a. m. on Main Street just north of Franklin.

As Quick walked up to Callaway's car, he observed a "bong" on the rear of the backseat. Callaway was alone in the car. Quick told Callaway of the outstanding traffic warrant and said that Callaway would have to post a $51 bond or be taken to the sheriff's department. Callaway said he had no money with him. Quick said he would have to place Callaway in custody and transport him to the sheriff's department. Quick told Callaway that pursuant to department policy, "a vehicle that was in an area such as that and we were transporting the owner of the vehicle to the Sheriff's Department, if there was not an operator that we could contact to come and get the vehicle, we would have to impound it for safekeeping." Quick did not provide Callaway the option of driving the car to the nearby parking zone. Callaway stated he did not know who could get the car at that time. Quick then told Callaway he could choose whether to have an officer drive the vehicle to the impounding lot or whether to pay a towing firm to tow the car to the lot. Callaway stated he preferred to have an officer drive it and gave Quick the keys. Quick did not search the car and did not seize the "bong." Officer Lieven came within ten or fifteen minutes and, using the keys, drove the car about a block to the police department garage. Officers Quick and Petitte drove Callaway to the sheriff's department.

Philip Lentz, another West Bend police officer, took possession of the car at the police garage at about 7:30 p. m. and conducted a complete inventory on it. The inventory followed the department's normal procedures and lasted between a quarter and one-half hour. He filled out a motor vehicle inventory form as he conducted the inventory. He found, among other things, a large "bong" in a corner of the backseat and a plastic bag containing a vegetable substance in the glove compartment. He opened the glove compartment by using the keys, and he took the vegetable matter to a detective's office for testing. Pursuant to department policy, when a vehicle is brought in by an officer with the keys, the keys are not returned to the owner but are tagged and kept in an office for safekeeping. Lentz was aware of items having been stolen from impounded vehicles during his years with the West Bend Police Department. He had completed hundreds of car inventory searches. When he had the key to a locked glove compartment, he would open the compartment, but when he did not have the key, he would not open a locked compartment.

Over the State's objection, Callaway introduced into evidence a certified copy of a State of Wisconsin Certificate of Title showing a certain Michael Walsh to be the owner of the car driven by Callaway.

The search was not pursuant to a search warrant.

On May 20, 1980, the trial court issued a written decision granting the motion to suppress. The court found that at the time Callaway was apprehended, he had been stopped by the police on a city street in a no parking zone approximately twenty feet from a place where Callaway could have legally parked. The court concluded "that On June 9, the court entered an order suppressing the admission of the marijuana into evidence. The State presently appeals from this order.

the taking of the defendant's car, the impounding of it, under the circumstances in this case was not reasonable." The court further concluded that the search of the locked glove compartment was unreasonable because police examination of the contents of a closed suitcase or other container in an inventory search was held unreasonable in State v. McDougal, 68 Wis.2d 399, 228 N.W.2d 671 (1975).

LEGITIMATE EXPECTATION OF PRIVACY

The State argues that Callaway does not have standing to challenge the search of the car because he was required to show but failed to show that he had a legitimate expectation of privacy in the car. The State is in no position to make this argument.

The test for determining whether a defendant is entitled to challenge the legality of a search and seizure under the fourth amendment is whether the defendant could legitimately expect privacy in the area which was the subject of the search. Rakas v. Illinois, 439 U.S. 128, 149, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978). The analysis belongs more properly under the heading of substantive fourth amendment doctrine than under the heading of standing. Id. at 140, 99 S.Ct. at 428-29.

In Rakas, the defendants were passengers in a car driven by the car's owner. The police stopped the car, searched it and found a rifle under the seat and shells in the glove compartment. The defendants were tried and convicted of armed robbery. The rifle and shells were admitted into evidence at trial. The defendants' motion to suppress the items as products of an illegal search was denied on the ground that the defendants lacked standing to object to the legality of the search. The United States Supreme Court affirmed and stated:

Jones v. United States, 362 U.S. 257 (80 S.Ct. 725, 4 L.Ed.2d 697) (1960) and Katz v. United States, 389 U.S. 347 (88 S.Ct. 507, 19 L.Ed.2d 576) (1967), involved significantly different factual circumstances. Jones not only had permission to use the apartment of his friend, but had a key to the apartment with which he admitted himself on the day of the search and kept possessions in the apartment. Except with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it. Likewise in Katz, the defendant occupied the telephone booth, shut the door behind him to exclude all others and paid the toll, which "entitled (him) to assume that the words he utter(ed) into the mouthpiece (would) not be broadcast to the world." Id., at 352 (88 S.Ct. at 512). Katz and Jones could legitimately expect privacy in the areas which were the subject of the search and seizure each sought to contest. No such showing was made by these petitioners with respect to those portions of the automobile which were searched and from which incriminating evidence was seized.

III

The Illinois courts were therefore correct in concluding that it was unnecessary to decide whether the search of the car might have violated the rights secured to someone else by the Fourth and Fourteenth Amendments to the United States Constitution. Since it did not violate any rights of these petitioners, their judgment of conviction is affirmed. (Footnotes omitted.)

Id. at 149-50, 99 S.Ct. at 433-34.

In United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Supreme Court made it clear that the legitimate expectation of privacy test set forth in Rakas applied to cases involving crimes of possession. In so doing, the Court expressly overruled the doctrine set forth in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which had given a defendant charged with a crime of possession "automatic standing" to challenge the legality of a search which produced the evidence against him. In Salvucci, the Court stated:

While property ownership is clearly a factor to be considered in determining...