State v. Dixon

• Decision Date: 24 June 1993
• Docket Number: No. 91-1092-CR,91-1092-CR
• Citation: 177 Wis.2d 461,501 N.W.2d 442
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Curtis L. DIXON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 442

501 N.W.2d 442

177 Wis.2d 461

STATE of Wisconsin, Plaintiff-Respondent, v. Curtis L. DIXON, Defendant-Appellant-Petitioner.

No. 91-1092-CR.

Supreme Court of Wisconsin.

Argued March 3, 1993.

Decided June 24, 1993.

For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, Asst. Atty. Gen. with whom on the brief was James E. Doyle, Atty. Gen.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed June 2, 1992, ¹ affirming a judgment of the circuit court for Milwaukee county, Janine P. Geske, Circuit Judge. The circuit court denied the motion to suppress the evidence of cocaine, and the defendant, Curtis L. Dixon, was convicted of possession of cocaine with the intent to deliver. The court of appeals affirmed the order denying suppression of the evidence and also affirmed the judgment of conviction.

The issue before this court is whether the defendant, who was driving the truck with the permission of the owner, is entitled to claim the protection of the Fourth Amendment to the United States Constitution. The response to this issue turns on whether the defendant had a reasonable expectation of privacy, that is an expectation of privacy in the interior of the vehicle searched that society is willing to recognize as reasonable. We conclude that under the totality of the circumstances the defendant had a reasonable expectation of privacy in the interior of the vehicle. Accordingly we reverse the decision of the court of appeals and remand the cause to the circuit court.

The facts are not disputed for purposes of this review. On January 7, 1989, the defendant was driving a Nissan Pathfinder in Milwaukee when he was stopped by an unmarked police car for failing to stop at a stop sign. The defendant was the sole occupant of the truck, owned by Perlean Bond, who had given the defendant the key to the truck so that he could wash it and replace the tires. The defendant, who owns a car wash and automotive business, had driven the vehicle with the owner's permission on other occasions before the arrest, for the purpose of doing work on it.

Upon stopping the defendant's truck the police officer pulled the patrol car alongside the truck and asked the defendant for his driver's license. When the defendant could not immediately locate the license, he obeyed the police officer's instructions to get out of the truck. He then located his driver's license. According to the police officer's testimony, when the officer looked into the truck he saw a brick-shaped package, wrapped in newspaper, on the floor behind the front passenger seat. The police officer further testified that there was a one-to two-inch long slit or tear in the newspaper through which he saw a plastic bag containing a white powder substance which he believed to be cocaine. Based on what he considered a "plain view" observation, the police officer seized the package from the truck.

The defendant was charged with possession of more than 30 grams of cocaine with intent to deliver, contrary to secs. 161.16(2)(b) 1 and 161.41(1m)(c) 3, Stats.1990-91. The defendant moved to suppress evidence of the cocaine found in the truck. He testified that the package was not his, that he did not see the package in the vehicle, and that he did not know the package contained cocaine.

The circuit court denied the motion to suppress. While acknowledging that it was a close question, the circuit court held that the defendant had no reasonable expectation of privacy because he "did not have control over or responsibility for the vehicle other than in a very transitory way and other than that he was driving it at the time." The defendant was found guilty at the trial before the circuit court.

The court of appeals concluded that the defendant did not have a reasonable expectation of privacy in the truck because of the limited purposes of his use of the truck and the limited scope of his permission to use the truck. ² The court of appeals concluded that the defendant possessed authority or control over the vehicle to use it only in a manner consistent with the defendant's scope of permission to complete the agreed upon work. The defendant sought review in this court. ³

The issue before this court is whether the defendant, who was driving the truck with the permission of the owner, is entitled to claim the protections of the Fourth Amendment. Whether the facts give rise to an individual's reasonable expectation of privacy in the space or area which was the subject of the search is a question of constitutional law which we review independently of the circuit court and court of appeals. The circuit court's findings of fact underlying the determination whether the individual has a reasonable expectation of privacy will not be set aside unless they are clearly erroneous. ⁴

The primary objective of the Fourth Amendment to the United States Constitution is the protection of privacy against governmental intrusions. The Fourth Amendment provides that "the 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." In this case the question of whether the evidence of cocaine should have been suppressed turns on whether the defendant may assert a claim under the Fourth Amendment. The United States Supreme Court has refocused inquiry under the Fourth Amendment from traditional concepts of standing to challenge a search and seizure to an analysis of whether the disputed search and seizure has infringed on an interest of the accused which the Fourth Amendment was designed to protect. Standing is now a matter of substantive Fourth Amendment law, framed in terms of reasonable or legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 428-29, 58 L.Ed.2d 387 (1981).

The United States Supreme Court has stated that "legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 99 S.Ct. 421, 431 n. 12, 58 L.Ed.2d 387 (1981). ⁵ The Rakas court did not tell us how we are to determine the "understandings that are recognized and permitted by society." Thus the Rakas test does not provide "a bright line between the protected and the unprotected." Rakas v. Illinois, 439 U.S. at 168, 99 S.Ct. at 443 (White, J., dissenting); see also 439 U.S. at 144-48, 99 S.Ct. at 431-33; 439 U.S. at 152, 99 S.Ct. at 435 (Powell, concurring).

The determination of whether an accused has a reasonable or legitimate expectation of privacy in the place invaded depends on (1) whether the individual has by his or her conduct exhibited an actual (subjective) expectation of privacy in the area searched and in the seized item, and (2) whether such an expectation is legitimate or justifiable in that it is one that society is willing to recognize as reasonable. ⁶ We shall focus on the objective part of the inquiry, namely, whether under the facts of the case society is willing to recognize the defendant's expectation of privacy. ⁷

Our court has stated that the following factors are relevant in determining whether an accused has an expectation of privacy that society is willing to recognize as reasonable: (1) whether the accused had a property interest in the premises; (2) whether the accused is legitimately (lawfully) on the premises; (3) whether the accused had complete dominion and control and the right to exclude others; (4) whether the accused took precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; (6) whether the claim of privacy is consistent with historical notions of privacy. This list of factors is not controlling or exclusive. The totality of the circumstances is the controlling standard. ⁸

The state asserts that the mere fact that a person is legitimately present in a vehicle with the permission of the owner does not necessarily mean that he or she can legitimately expect privacy in the driver and passenger areas of the vehicle. The state argues that a bailment is created when the owner of a vehicle gives another permission to operate it, and because of the various qualifications which may limit a bailee's interest in the car, the exact nature of the bailment is relevant in assessing whether the operator has a legitimate expectation of privacy in the car.

Based on this analysis the state argues that the defendant had no reasonable expectation of privacy in the truck because his permission to use the vehicle was for a limited purpose and a limited time. The majority of the court of appeals adopted this reasoning.

We must examine the totality of the circumstances to determine whether the defendant had an expectation of privacy in the interior of the truck that society is willing to recognize as reasonable. According to the record, the defendant had a property interest in the truck; he was a bailee. The owner had given him permission to drive the truck and to do repairs on it. While the defendant was in possession of the vehicle, he had the right to exclude from the vehicle any person other than the owner and those working on the vehicle. In addition, the defendant and the owner had a personal as well as a business relationship, and the defendant had had the owner's permission to drive the truck on other occasions. This relationship and prior use of the vehicle point to the defendant having an expectation of privacy in the interior of the truck that society is willing to recognize as reasonable. As Professor LaFave has written, "ordinary bailment relationships still...