State v. Matejka

• Decision Date: 06 February 2001
• Docket Number: No. 99-0070-CR.,99-0070-CR.
• Citation: 241 Wis.2d 52,621 N.W.2d 891,2001 WI 5
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Jennifer K. MATEJKA, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

241 Wis.2d 52

2001 WI 5

621 N.W.2d 891

STATE of Wisconsin, Plaintiff-Appellant, v. Jennifer K. MATEJKA, Defendant-Respondent-Petitioner.

No. 99-0070-CR.

Supreme Court of Wisconsin.

Oral argument September 6, 2000.

Decided February 6, 2001.

For the defendant-respondent-petitioner there were briefs by James B. Connell and Crooks, Low, Connell & Rottier, S.C., Wausau, and oral argument by James B. Connell.

For the plaintiff-appellant the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DIANE S. SYKES, J.

The issue in this case is whether, under the consent exception to the Fourth Amendment's warrant requirement, a driver's consent to a police officer's search of a vehicle extends to a passenger's jacket left in the vehicle at the time of the search. Defendant Jennifer Matejka was one of several passengers in a van that was stopped by a state trooper for a traffic violation. The trooper obtained the driver's consent to search the van and ordered everyone out while he conducted the search. Matejka left her jacket behind, and the trooper eventually searched it, finding drug paraphernalia and marijuana. Additional drug paraphernalia, marijuana, and LSD were discovered during a custodial search of Matejka and her belongings after her arrest.

¶ 2. The circuit court suppressed the drug evidence, finding a Fourth Amendment violation because Matejka had not personally consented to the search of her individual property within the van. The court of appeals reversed, concluding that the driver's consent to the search of the van encompassed the jacket Matejka had left in it. We agree, and therefore affirm the decision of the court of appeals which reversed the circuit court's suppression of the drug evidence in this case.

FACTS

¶ 3. On March 16, 1997, Wisconsin State Trooper David Forsythe observed a van traveling on a Portage County highway. The van had no front license plate, so he pulled it over.¹

¶ 4. The van had windows all the way around the exterior. From his squad car, Forsythe could see the driver and a passenger in the front seat. As he pulled the van over, Forsythe noticed the driver "leaning over to his right and going down lower as if he was either trying to hide something or retrieving something." Forsythe said he thought the driver might have been "going for a weapon or hiding a weapon or a multitude of other possible options." As a result, Forsythe approached the van with "heightened awareness."

¶ 5. As he walked along the driver's side of the van, Forsythe looked through a side vent window and observed several other passengers covered with blankets and pillows on the back floor of the van. Forsythe told the passengers to put their hands where he could see them and asked the driver to step out of the van. The driver, Anthony Miller, did so, and handed Forsythe his driver's license. Forsythe told Miller he was concerned about his movements in the front seat of the van and asked him if "there was anything he should be aware of." Miller said no, but consented to a frisk for weapons, which produced nothing.

¶ 6. Forsythe then checked the area around the driver's seat for weapons and noticed a backpack. Inside the backpack Forsythe discovered a toy handgun and a postal scale. Forsythe testified that he first thought the gun was an actual firearm, but on closer inspection realized it was not. Miller told Forsythe he used the scale to weigh mail. Forsythe suspected the scale was used to weigh illegal drugs.

¶ 7. Forsythe told Miller he was going to give him a warning for the license plate violation. He then asked Miller to open the back hatch of the van so he could watch everyone inside while he wrote the warning in his squad car. After the hatch was opened, Forsythe asked the passengers for identification. Forsythe then returned to his squad car, where he called for back-up and ran criminal history checks on the van's occupants. Forsythe learned that several of the passengers, including Matejka, were on probation and that Matejka had a drug-related criminal history.

¶ 8. While Forsythe prepared the warning and ran the checks, Trooper Parrott arrived as back-up. Forsythe returned to the van, gave Miller the warning, and told him he was free to go. Forsythe then asked Miller if there was anything he should "be aware of in the van as far as any other guns, drugs, anything illegal at all." Miller said no. Forsythe then asked for permission to search the van. Miller consented.

¶ 9. Forsythe told the passengers he was concerned about contraband in the van and explained that the driver had consented to a search of the vehicle. Forsythe asked the passengers to get out of the van while he conducted the search. As they did so, Forsythe asked about "any weapons, knives, guns, razor blades," or anything else he should be aware of, and asked for consent to frisk for weapons. Each consented, including Matejka, and no weapons were discovered.

¶ 10. Forsythe searched the van while Trooper Parrott waited outside with the driver and passengers. It was a cold March day, and some asked for their jackets. Parrott asked Forsythe to bring the jackets out of the van.

¶ 11. Forsythe got the jackets out of the van, checking each one for weapons. Forsythe said he did not know which jacket belonged to whom, although Matejka testified that each passenger was asked to describe his or her jacket. In any event, Forsythe found a "wooden dugout type container" containing marijuana in the pocket of the jacket Matejka identified as hers.

¶ 12. Forsythe took Matejka aside, told her what he had discovered, and arrested her. Forsythe put Matejka in the back of the squad car and returned to his search of the van. He found more drug paraphernalia and drugs belonging to other passengers in the van. Forsythe also searched a clutch-type bag belonging to Matejka and found a tweezers with burnt marijuana resin on the ends.

¶ 13. During a custodial search at the Portage County jail, officers found another small baggie containing marijuana in Matejka's jacket pocket. They also found two hits of LSD in her wallet. Matejka admitted she had purchased the LSD at a concert in Minneapolis.

¶ 14. Matejka was charged with two counts of misdemeanor drug possession. She moved to suppress the drug evidence, arguing that the warrantless search violated her Fourth Amendment rights because she had a reasonable expectation of privacy in her personal property in the van and never gave Forsythe permission to search her jacket. Portage County Circuit Court Judge Frederic W. Fleishauer granted the motion, concluding that the search was unreasonable under the Fourth Amendment because Matejka had not consented to the search of her individual property in the van.

¶ 15. The court of appeals, in a one-judge decision by Judge Patience D. Roggensack, reversed. State v. Matejka, No. 99-0070-CR, unpublished slip op. (Sept. 2, 1999). Judge Roggensack relied on United States Supreme Court precedent regarding consent and vehicle searches and concluded that it was not unreasonable for Forsythe to search Matejka's jacket based on the driver's consent.

STANDARD OF REVIEW

[1]

¶ 16. We apply a two-step standard of review to constitutional search and seizure inquiries. State v. Martwick, 2000 WI 5, ¶ 21, 231 Wis. 2d 801, 604 N.W.2d 552. In reviewing a motion to suppress, we uphold the circuit court's findings of evidentiary or historical fact unless they are clearly erroneous. State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352 (1998). We then independently evaluate those facts against a constitutional standard to determine whether the search was lawful. Martwick, 2000 WI 5 at ¶ 18.

[2, 3]

¶ 17. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment to the United States Constitution.²Katz v. United States, 389 U.S. 347, 357 (1967); State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998). Exceptions to the warrant requirement include voluntary third-party consent. Id. There is no challenge to the voluntariness of the driver's consent to search here; the issue involves the scope of that consent. The State bears the burden of establishing, clearly and convincingly, that a warrantless search was reasonable and in compliance with the Fourth Amendment. Kieffer, 217 Wis. 2d at 541-42.

ANALYSIS

¶ 18. The question of whether a driver's consent to the search of a vehicle justifies the warrantless search of a passenger's belongings within the vehicle has not been addressed by the United States Supreme Court and is a matter of first impression in this state.³ ¶ 19. The Supreme Court recently held that when an officer has probable cause to search a vehicle, he or she may search the vehicle itself and any items within it that are capable of containing the object of the search, including items of personal property belonging to passengers. Wyoming v. Houghton, 526 U.S. 295, 307 (1999); see also State v. Pallone, 2000 WI 77, ¶ 70, 236 Wis. 2d 162, 613 N.W.2d 568

. The Supreme Court long ago held that officers may conduct warrantless searches based upon a third-party's consent, where the third party has common authority over the premises to be searched. United States v. Matlock, 415 U.S. 164, 169-71 (1974).

¶ 20. So we know it is constitutionally reasonable for an officer conducting a probable cause search of a vehicle to search and seize passenger property. We also know it is constitutionally reasonable for an officer conducting a third-party consent search of a premises to seize items belonging to one who is not asked to consent, provided common authority over the premises is established. ¶ 21. This case, however, is something of a hybrid. It involves neither a probable cause automobile search nor a third-party consent premises search. Instead, it involves a third-party consent automobile search. The question of the legality of the search is best...