State v. Orta, 02-1008-CR.
Decision Date | 23 April 2003 |
Docket Number | No. 02-1008-CR.,02-1008-CR. |
Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Juan M. ORTA, Defendant-Respondent. |
Court | Wisconsin Court of Appeals |
On behalf of the Plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, assistant attorney general, and Kathleen M. Ptacek, assistant attorney general, and oral argument by Kathleen M. Ptacek.
On behalf of the defendant-respondent, the cause was submitted on the brief and oral argument of Glenn L. Cushing, of Madison.
Before Nettesheim, P.J., Brown and Snyder, JJ.
¶ 1.
The State appeals from a trial court order granting Juan M. Orta's motion to suppress evidence of drug possession. The court ruled that Orta had a legitimate expectation of privacy in the public rest room stall where he engaged in a drug transaction with another individual and therefore Orta had standing to challenge the search.
¶ 2. We reverse the trial court's order. We conclude that an individual who occupies a public restroom stall does not have a reasonable expectation of privacy when he or she occupies it with another individual, leaves the door slightly ajar and unlatched, and evinces no indication that the stall is being used for its intended purpose.
¶ 3. At the hearing on Orta's motion to suppress, Officer Terrance Jones of the Racine police department testified to the following facts. On August 11, 2001, Jones was working as a private security guard at a dance at Memorial Hall in the city of Racine. At some point during the evening, Jones entered the men's restroom and observed two individuals in the farthest of four restroom stalls. Jones could see the top of their heads and their feet and determined that the individuals were adults. Although Jones could detect a whispered conversation, he could not hear what the individuals were saying.
¶ 4. Jones approached the stall and, from the positioning of the feet, determined that the individuals were facing each other with their feet perpendicular to the toilet. The door to the stall was cracked open and not locked, although Jones could not see into the stall. Jones knocked on the door and slowly pushed it open. The individuals moved back and Jones asked them what was going on. The man in the stall with Orta immediately took a clear baggie containing white powder that was in his hand and threw it in the toilet. Jones immediately ordered the individuals out of the stall, placed them in handcuffs and requested their permission to search them. After receiving consent, Jones searched Orta and discovered a baggie containing what was later determined to be cocaine.
¶ 5. At the conclusion of the hearing on Orta's motion to suppress, the trial court ruled that Orta had a legitimate expectation of privacy in the restroom stall and therefore had standing to challenge the search. Since Jones did not have probable cause or reasonable suspicion to believe that a crime had been or was being committed when he opened the door of the stall, the trial court suppressed the evidence. The State appeals.1
[1]
¶ 6. Before we address the merits of the issue, we set out the scope of the evidence we are permitted to consider on the question. It is self-evident that in a conventional motion to suppress setting where standing is not at issue, a court is not permitted to consider the fruits of the search to justify the intrusion. However, the law is otherwise where standing is at issue. In Minnesota v. Carter, 525 U.S. 83 (1998), the respondents gave cocaine to the owner of an apartment in exchange for the use of the apartment as a site for bagging cocaine. Id. at 85-86. In determining whether the respondents had standing to challenge a search of the apartment, the United States Supreme Court referred to the "commercial nature of the transaction," id. at 91, and further stated:
Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with [the apartment resident], or that there was any other purpose to their visit .... While the apartment was a dwelling place for [its resident], it was for these respondents simply a place to do business.
Id. at 90 (footnote omitted).
[2]
¶ 7. We followed this same approach in State v. Trecroci, 2001 WI App 126, 246 Wis. 2d 261, 630 N.W.2d 555,review denied, 2001 WI 117, 247 Wis. 2d 1033, 635 N.W.2d 782 (Wis. Sept. 19, 2001) (No. 00-1081-CR). In assessing whether the defendants had established a reasonable expectation of privacy, we noted that the defendants had "rented the attic space ... for the principal purpose of conducting their criminal enterprise." Id., ¶ 42 (emphasis added). It is thus evident that a court may look to facts discovered after the intrusion to determine if a defendant has a reasonable expectation of privacy to confer standing to challenge a search.
¶ 8. Orta argues that the consideration of after-discovered facts concerning the defendant's actual use of the facilities would render it impossible for any criminal defendant to have a legitimate expectation of privacy "because every criminal defendant ever caught by police, prosecuted by the state, and litigating a suppression motion was, by definition, not using the stall for its intended purpose." However, our decision in Trecroci squarely refutes this argument. There, although acknowledging the criminal enterprise of the defendants, we nonetheless concluded that they had succeeded in establishing a legitimate expectation of privacy. Id., ¶¶ 42-43.
¶ 9. Therefore, in assessing Orta's standing claim, we are entitled to consider the observations and discoveries made by Jones when he entered the restroom stall.
[3, 4]
¶ 10. When reviewing a trial court's ruling on a motion to suppress evidence on Fourth Amendment grounds, we will uphold the trial court's factual findings unless clearly erroneous. State v. Eskridge, 2002 WI App 158, ¶ 9, 256 Wis. 2d 314, 647 N.W.2d 434,review denied, 2002 WI 121, 257 Wis. 2d 120, 653 N.W.2d 891 (Wis. Sept. 26, 2002) (No. 01-2720-CR). Whether a defendant has standing to raise a Fourth Amendment claim also presents a question of law. Id.
[5-7]
¶ 11. When assessing a defendant's standing to challenge a search under the Fourth Amendment, the critical inquiry is "whether the person ... has a legitimate expectation of privacy in the invaded place." Trecroci, 246 Wis. 2d 261, ¶ 26 (citation omitted). A defendant bears the burden of establishing his or her reasonable expectation of privacy by a preponderance of the evidence. State v. Whitrock, 161 Wis. 2d 960, 972, 468 N.W.2d 696 (1991). Whether a person has a reasonable expectation of privacy depends on (1) whether the individual has exhibited an actual, subjective expectation of privacy in the area inspected and in the item seized; and (2) whether society is willing to recognize such an expectation of privacy as reasonable. Trecroci, 246 Wis. 2d 261, ¶ 35.
¶ 36. On this element of the test, we look to the following factors:
Id. This list of factors is neither controlling nor exclusive; rather, the totality of the circumstances is the controlling standard. State v. Thompson, 222 Wis. 2d 179, 186-87, 585 N.W.2d 905 (Ct. App. 1998). A determination as to the reasonableness of a person's expectation of privacy depends on...
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