State v. Garcia, 94-2573-CR

• Decision Date: 31 May 1995
• Docket Number: No. 94-2573-CR,94-2573-CR
• Citation: 195 Wis.2d 68,535 N.W.2d 124
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Alvaro Jose GARCIA, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 124

535 N.W.2d 124

195 Wis.2d 68

STATE of Wisconsin, Plaintiff-Respondent, v. Alvaro Jose GARCIA, Defendant-Appellant. ^d

No. 94-2573-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 2, 1995.

Opinion Released May 31, 1995.

Opinion Filed May 31, 1995.

For the defendant-appellant the cause was submitted on the briefs of Martin A. Blumenthal and Elliott T. Price, Chicago, IL.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Atty. Gen. and Sharon Ruhly, Asst. Atty. Gen.

Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.

WEDEMEYER, Presiding Judge.

Alvaro Jose Garcia appeals from a judgment of conviction, after pleading guilty, to possession with intent to deliver a controlled substance (cocaine), party to a crime, contrary to §§ 161.16(2)(b)(1), 161.41(1m)(cm), and 939.05, STATS. ¹ Garcia claims the trial court erred in denying his motion to suppress because: (1) the use of a dog to sniff his automobile that was parked in the motel parking lot violated his rights under the Fourth Amendment; ² and (2) the trial court erred in finding that Garcia consented to a search of his entire motel room. Because the dog sniff in this case does not constitute a "search" and because the trial court's finding that the search was consensual was not clearly erroneous, we affirm.

I. BACKGROUND

In November 1993, Milwaukee Police Detectives Frederick Leffler and Al Wilke, were assigned to the Drug Interdiction Unit, Vice Control Division of the Milwaukee Police Department. On November 1, as a part of their regularly assigned duties, the detectives were routinely patrolling train stations, bus stations, hotels and motels looking for vehicles with license plates from states known for drug trafficking. While on patrol through the parking lot of the Red Roof Motel, located near Mitchell International Airport, the detectives noticed a 1993 Nissan with Florida license plates. The detectives ran a check on the license plate and learned that the car was registered to a Mr. Garcia of Miami, Florida. The detectives had their drug detection dog, named "Zig/Z" sniff the vehicle. Zig/Z alerted to the rear of the vehicle, indicating the presence of illegal drugs. Leffler entered the motel lobby and asked the motel's front desk clerk to check to see if any of the motel guests were Florida residents. Leffler learned that a Mr. Garcia was registered in room 144. Wilke returned Zig/Z to their vehicle and the detectives proceeded to room 144.

They knocked on the door, and Victor Diaz, an occupant of the room, pulled back the curtains from the window. At this point, the detectives showed Diaz their badges and stated "Police Officers." Diaz opened the door. The detectives again displayed their badges, stated that they were police officers, and requested permission to come in to speak with the occupants. The detectives both testified that Garcia, who was rising from the bed closest to the door, told the police detectives to "come in."

Leffler testified that he asked Garcia whether they could search the entire room and his luggage and that Garcia replied, "Go ahead" and gestured toward the luggage. Wilke confirms Leffler's testimony on this issue. Garcia, however, claims he only gave the detectives consent to search his luggage. The detectives observed several bags of cocaine, some on the floor next to the dresser area, and some on the sink. Both Garcia and Diaz were arrested and charged. Garcia filed a motion to suppress the evidence, which was denied. ³ Garcia pleaded guilty. He now appeals.

II. DISCUSSION

A. Does a dog sniff constitute a search?

Garcia raises an issue of first impression in Wisconsin: whether using a specially trained drug detection dog to sniff the airspace around a vehicle parked in a motel parking lot constitutes a "search" within the meaning of the Fourth Amendment's proscription against unlawful searches and seizures.

Whether a search or seizure has occurred is a question of law subject to de novo review. State v. Richardson, 156 Wis.2d 128, 137-38, 456 N.W.2d 830, 833 (1990). A "search" under the Fourth Amendment occurs when the police infringe on an expectation of privacy that society considers reasonable. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). Garcia "bears the burden of proving ... that he had a legitimate expectation of privacy [in the airspace around his unoccupied, parked automobile]." State v. Rewolinski, 159 Wis.2d 1, 13-16, 464 N.W.2d 401, 405-06 (1990), cert. denied, 500 U.S. 909, 111 S.Ct. 1694, 114 L.Ed.2d 88 (1991). Garcia cites United States v. Thomas, 757 F.2d 1359 (2d. Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985), in an attempt to satisfy his burden. The Thomas court held that using a dog to sniff outside the door to the defendant's apartment constituted a search. Id. at 1366-67. Garcia reasons that the Thomas case is analogous--that the Thomas court's finding that a legitimate expectation of privacy exists in the airspace outside the door of an apartment should lead this court to conclude that Garcia had an expectation of privacy in the airspace around his car, which was parked in a motel parking lot. We are not persuaded.

The instant case does not involve a dog sniff of an individual's private dwelling. Garcia parked his car in a parking lot that was open and visible from the roads surrounding it. The police detectives routinely patrol this parking lot. There is no evidence in the record that access to the parking lot was restricted in anyway. We conclude, therefore, that Garcia could not reasonably expect that the parking lot would be private. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (what a person knowingly exposes to the public is not a subject of Fourth Amendment protection).

Garcia also contends that his legitimate expectation of privacy in the motel room that he rented for the night, see Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 1687-88, 109 L.Ed.2d 85 (1990), extends to the parking space that he rented along with the room. Garcia offers no legal authority on point and we are unable to locate any legal authority to support Garcia's claim. Instead, we note that both the Sixth and the Tenth Circuits have addressed this precise contention and both courts rejected it. See United States v. Diaz, 25 F.3d 392, 396 (6th Cir.1994) (expectation of privacy in motel room does not extend to parking lot); United States v. Ludwig, 10 F.3d 1523, 1526 (10th Cir.1993) (even if a particular parking space was rented with the motel room, there is no expectation of privacy in that parking space). We, in turn, reject Garcia's argument and conclude that there is no legitimate expectation of privacy in the air space around a car that is parked in a motel parking lot. Accordingly, the dog sniff in this case did not constitute a search that was within the scope of the Fourth Amendment.

B. Consent to search.

Garcia next claims the trial court erred in determining that he consented to a search of his motel room. The State responds that Garcia consented to the search. The trial court found that consent was in fact given.

Whether consent was given and the scope of the consent are questions of fact that we will not overturn unless clearly erroneous. State v. McKinney, 168 Wis.2d 349, 356, 483 N.W.2d 595, 598 (Ct.App.1992).

Both detectives testified at the suppression hearing that Leffler asked Garcia if he would give them permission to search his luggage and the room area. Both detectives testified that Garcia responded, "go ahead. I have nothing to hide," and gestured in the direction of the luggage. Garcia, however, denied that he consented to the search. The trial court found the detectives' testimony more credible. Because the trial court is the sole judge of credibility, this court will not reverse a credibility determination unless we could conclude, as a matter of law, that no finder of fact could believe the testimony. State v. Wind, 60 Wis.2d 267, 275, 208 N.W.2d 357, 363 (1973). The record amply demonstrates that the detectives' testimony could be believed. Both detectives were under oath, offered consistent accounts of Garcia's consent, and were seasoned veterans of the police force. Based on the foregoing, we conclude that the trial court's finding that consent was given to search the entire motel room is not clearly erroneous.

Garcia also argues that the detectives' search commenced prior to obtaining consent. The trial court's decision does not contain an express finding in this regard, but clearly implies that consent was obtained prior to commencement of the search. See Sohns v. Jensen, 11 Wis.2d 449, 453, 105 N.W.2d 818, 820 (1960) (appellate court may assume a missing finding on an issue was implicitly made in favor of supporting the judgment). Leffler testified that Wilke was standing five feet away from him while Leffler was requesting permission to search and that Wilke interrupted Leffler's search of the luggage to point to the bags of cocaine. It is undisputed that Leffler did not begin the search of the luggage until consent was obtained. Accordingly, the trial court's implied finding that consent was obtained prior to the commencement of the search is not clearly erroneous.

Judgment affirmed.

SULLIVAN, Judge (concurring).

I agree with the majority's conclusion that Alvaro Jose Garcia's judgment of conviction should be affirmed. Majority op. at 125. I further agree with the majority's analysis concerning the lack of any legitimate expectation of privacy in the air space surrounding an unoccupied automobile, parked in a public motel parking lot. Majority op. at 126-27. I write separately, however, solely to address the underlying and additional question of whether a canine "sniff" test is a "search" within the meaning of the Fourth Amendment to the United States Constitution. ¹ As the majority...