State v. Howard

• Citation: 176 Wis.2d 921,501 N.W.2d 9
• Parties: , 62 USLW 2047 STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Larry HOWARD, Defendant-Appellant. 91-2821-CR.
• Decision Date: 16 June 1993
• Court: United States State Supreme Court of Wisconsin

Page 9

501 N.W.2d 9

176 Wis.2d 921, 62 USLW 2047

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Larry HOWARD, Defendant-Appellant.

91-2821-CR.

Supreme Court of Wisconsin.

Argued May 26, 1993.

Decided June 16, 1993.

For the defendant-appellant there was a brief and oral argument by Nikola P. Kostich, Milwaukee.

CECI, Justice.

This case comes before the court on a petition for review by the State of Wisconsin of a published court of appeals decision which reversed a judgment of conviction entered in the circuit court for Milwaukee County, William D. Gardner, Circuit Judge. The sole issue presented is whether Larry Howard (the defendant), who was a passenger in a vehicle the police stopped for an equipment violation, can challenge the lawfulness of that vehicle stop. The court of appeals concluded that the vehicle stop in question "implicated" the defendant's fourth amendment rights and therefore held that the defendant could challenge the stop. State v. Howard, 171 Wis.2d 743, 752, 492 N.W.2d 371 (Ct.App.1992). We disagree and reverse.

In May of 1990, the defendant was riding as a passenger in an automobile owned and operated by his uncle. Milwaukee police officers Merriweather and Harden observed the defendant's uncle's car and determined it had dark and illegally tinted windows. See Wis.Admin.Code secs. MVD 5.51(1)(b), 5.51(1)(e) (Dec.1989) (making it illegal to operate motor vehicle if windows have been "tinted by any means other than that used in the original manufacturing process"). The officers decided to stop the car, to question the driver, and to "probably" cite the driver. Officer Harden turned on the siren and activated the red lights. Either as the defendant's uncle's car was stopping or after it had stopped, Officer Merriweather saw the defendant reaching across his body, leaning back, and raising his buttocks off the seat of the car.

After both cars had stopped, Officer Merriweather approached the passenger side of the car and asked the defendant to step outside the car. The officer then asked the defendant to place his hands on the hood of the car and told the defendant he was going to pat him down. Officer Merriweather testified that he told the defendant that "[a]fter [the pat-down] you can go on about your business.... We'll deal with the driver of the car."

The pat-down turned into an altercation and with the help of additional officers, the police eventually subdued the defendant. The police discovered a pager and a bag containing forty-eight grams of cocaine hidden under the defendant's bib overalls. The police also recovered over $800.00 in cash from the defendant's pocket.

The defendant's uncle was cited for having illegally tinted windows.

The defendant was charged with possession of cocaine with intent to deliver. After being bound over for trial, the defendant filed a motion to suppress the cocaine. The state challenged the defendant's "standing" to challenge the stop of a car in which he was a passenger.

The circuit court held hearings on the standing issue and eventually concluded that the defendant did not have standing to challenge the stop of his uncle's car. The circuit court reasoned that a passenger "really gives his own control and ... movement of his person to the driver of the automobile...." Additionally, the court said that a passenger "must know ... that if the driver ... violates any traffic or safety laws, that that vehicle is subject [to be stopped] regardless of what the passenger does or does not do." Having reached this conclusion, the circuit court did not address whether the stop of the defendant's uncle's car was lawful.

The defendant then entered a plea of no contest. He was convicted of possession of a controlled substance with intent to deliver, in violation of secs. 161.16(2)(b)1 and 161.41(1m)(c)3, Stats.

The court of appeals reversed, saying that "it is clear that a passenger's Fourth Amendment interests are implicated by a law-enforcement stop of a motor vehicle in which the passenger is riding...." Howard, 171 Wis.2d at 752, 492 N.W.2d 371. Because the circuit court had made no findings of fact regarding the lawfulness of the vehicle stop or the ensuing search, the court of appeals remanded. Id. We granted review.

Can the defendant challenge the stop of the car in which he was a passenger? This is a question of law that we review without deference to the lower courts. State v. Guzy, 139 Wis.2d 663, 671, 407 N.W.2d 548 (1987).

The parties refer to this issue as one of standing. Using the term "standing," however, does not serve any useful analytical purpose. Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). Fourth amendment rights are personal rights and cannot be vicariously asserted. Id. at 133-34, 99 S.Ct. at 425. Questions of standing to challenge searches and seizures are "more properly subsumed under substantive Fourth Amendment doctrine." Id. at 139, 99 S.Ct. at 428. The analysis used, therefore, to determine whether a defendant can challenge a search or a seizure focuses on a defendant's rights under the fourth amendment. Id. The inquiry "requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." Id. at 140, 99 S.Ct. at 429. See also Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The question in this case, then, is whether the stop of the defendant's uncle's car in which the defendant was riding as a passenger infringed upon any of the defendant's fourth amendment rights. The defendant has the burden of proving that it did. Rawlings, 448 U.S. at 104-05, 100 S.Ct. at 2561.

The fourth amendment protects two basic types of expectations. One involves searches, the other seizures. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). A search takes place when "an expectation of privacy that society is prepared to consider reasonable is infringed." Id. (footnote omitted). A seizure of property takes place when "there is some meaningful interference with an individual's possessory interests in that property." Id. (footnote omitted). A seizure of the person takes place when an officer, by means of physical force or show of authority, restrains a person's liberty. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968).

The ultimate question is whether the defendant's "claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances." Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Cf. State v. Milashoski, 163 Wis.2d 72, 85, 471 N.W.2d 42 (1991). Although this standard may fail to provide a bright-line rule, a bright-line rule would fail to be faithful to the purposes of the fourth amendment. Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring).

At the outset, it is important to note what is not at issue in this case. We do not address the conduct of the police in asking the defendant to step out of the car, or in the subsequent altercation and search of the defendant. The only conduct at issue is the vehicle stop. We do not decide whether that stop was constitutional, only whether it infringed upon a protected interest of the defendant. If it did, then the defendant can challenge the stop's constitutionality.

It is also important to note that our decision in Guzy did not address the facts of this case. In Guzy, we concluded that "because Guzy was the target of the vehicle stop in this case, the stop was a 'seizure' of Guzy within the meaning of the fourth amendment and [Wis. Const.] art. I, sec. 11, and therefore infringed on an interest of Guzy protected by the fourth amendment and art. I, sec. 11." Guzy, 139 Wis.2d at 672, 407 N.W.2d 548. However, we made clear that "[w]e [did] not deal with the issue of a passenger's standing to challenge the stop when the passenger is not the target of the stop." Id., n. 2. From this record it is clear that the defendant passenger in this case was not the target of the vehicle stop. Moreover, to the extent that Guzy has relevance to this case, we question its reasoning. Guzy apparently relied, at least in part, on a "target" theory of standing that the United States Supreme Court rejected in Rakas. See Rakas, 439 U.S. at 132-40, 99 S.Ct. at 424-29.

Likewise, Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), does not control the outcome of our inquiry. Prouse stated broadly that "stopping an automobile and detaining its occupants constitute a 'seizure' ... even though the purpose of the stop is limited and the resulting detention quite brief." Id. at 653, 99 S.Ct. at 1396. However, the Supreme Court apparently never resolved the issue of whether the respondent in Prouse was the driver or passenger of the automobile. Id. at 650, n. 1, 99 S.Ct. at 1394, n. 1. Further, the "standing" issue was apparently not raised in Prouse.

We have no doubt that the stop of his uncle's car did not infringe upon any of the defendant's fourth amendment rights relative to that car. The defendant does not suggest that he had a property or possessory interest in the car. See generally State v. Fillyaw, 104 Wis.2d 700, 711-12 n. 6, 312 N.W.2d 795 (1981) (discussing factors which may be "useful" in determining "standing"). Additionally, the defendant has not claimed that he had dominion or control over the vehicle. Id.

Did the stop infringe upon the defendant's personal interest in freedom of movement under the facts of this case? The question is whether a fourth amendment seizure occurred when the car in which the defendant was a passenger was stopped for a traffic violation. This question is highly factual and its resolution depends upon all of the circumstances of the case. See U.S. v. Boden, ...