State v. Roberts

• Decision Date: 17 August 1995
• Docket Number: No. 94-2583-CR,94-2583-CR
• Citation: 196 Wis.2d 445,538 N.W.2d 825
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Rex B. ROBERTS, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 825

538 N.W.2d 825

196 Wis.2d 445

STATE of Wisconsin, Plaintiff-Respondent, v. Rex B. ROBERTS, Defendant-Appellant. ^d

No. 94-2583-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 9, 1995.

Opinion Released Aug. 17, 1995.

Opinion Filed Aug. 17, 1995.

For the defendant-appellant the cause was submitted on the briefs of Michael Yovovich, Assistant State Public Defender.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and David J. Becker, Assistant Attorney General.

Before DYKMAN, SUNDBY and VERGERONT, JJ.

VERGERONT, Judge.

Rex Roberts appeals from a judgment convicting him of possessing drug paraphernalia and a controlled substance with intent to deliver. The issue is whether the trial court properly denied Roberts' motion to suppress physical evidence discovered in a warrantless search of his automobile. Because we conclude that Roberts did not have a legitimate expectation of privacy in his automobile after he fled to evade the police, we affirm.

The relevant facts are not in dispute. Roberts was charged with possession of marijuana with intent to deliver, possession of drug paraphernalia, and a tax stamp violation which was eventually dismissed. The charges arose out of the discovery of marijuana during a search of Roberts' automobile after Roberts fled from the automobile following an attempted arrest by a police officer for outstanding traffic warrants.

Roberts filed a motion to suppress the evidence seized from his automobile on the grounds that the search was conducted in violation of the search and seizure provisions of the United States and Wisconsin Constitutions. The trial court denied his motion. Roberts then pleaded guilty to the two possession charges and was placed on two concurrent three-year probationary terms. Because the evidence supporting his convictions was the subject of a motion to suppress, Roberts appeals the suppression ruling and the subsequent judgment of conviction under § 971.31(10), STATS. See State v. Tompkins, 144 Wis.2d 116, 118, 423 N.W.2d 823, 824 (1988).

Based on the testimony at the suppression hearing, the trial court made the following findings of fact. Bruce Munzenburger, a police officer from the Village of Bangor Police Department, observed an automobile pull up to a nearby intersection. Munzenburger was not familiar with the automobile and became suspicious when its two male occupants quickly looked away from him. Munzenburger ran a license check on the vehicle. The La Crosse County radio dispatcher told Munzenburger that the automobile was registered to Rex Roberts and that there were outstanding warrants for Roberts for the failure to pay $1,270 in traffic fines.

Upon receiving this information, Munzenburger followed the automobile to Rockland, although he did not activate the emergency lights and siren of his marked squad car. On the east side of Rockland, Roberts pulled into a driveway of a residence. Munzenburger pulled over to the side of the road, activated his flashing lights and got out. A person later identified as Roberts got out of the driver's side of the automobile. Because the radio dispatcher had advised him that Roberts could be "quite a handful," Munzenburger drew his sidearm and directed Roberts to put his hands in the air and to get down on the ground. Roberts ignored these commands and fled into a swampy area. Munzenburger briefly pursued Roberts on foot without success and returned to his squad car to radio for assistance. Roberts' passenger, who identified himself as Phil Axelson, remained with the automobile and was detained. Axelson told Munzenburger that it was Roberts who was driving the vehicle, but could not explain his flight.

Robert Schuppel, an officer from the Village of West Salem Police Department, arrived in response to Munzenburger's request for assistance. Axelson told Schuppel that Roberts was "ex-military." Schuppel had overheard the dispatcher tell Munzenburger that Roberts was a "handful." This information, in conjunction with the fact that Roberts had fled into the night on foot, raised in Schuppel's mind the possibility that Roberts could be dangerous and that there might be weapons in the vehicle. Also, Schuppel did not necessarily believe that Axelson was truthful in his identification of the driver and felt that a search of the automobile might yield identification information, such as a wallet.

Schuppel searched the passenger compartment of Roberts' vehicle. In the console between the front seats, he found a clear plastic bag containing a small quantity of a green leafy substance that appeared to be marijuana. Inside a tan shopping bag, he found a larger quantity of a similar substance. He seized both items and gave them to Munzenburger, who put them in the trunk of his squad car.

Dale Stickney, a police officer for the City of Sparta, arrived next. He was acquainted with Roberts and, when given a description of Roberts by Officer Munzenburger, confirmed that the person who fled was probably Roberts. A second search of the automobile on the passenger side of the console produced a third source of suspected marijuana. Based on this discovery, Axelson was placed under arrest. The officers searched the area for about an hour but could not find Roberts.

At the preliminary hearing, Munzenburger testified that when Roberts got out of his car, Munzenburger told Roberts to put his hands up and that he was under arrest; Roberts ignored him and then took off running. At the suppression hearing, Munzenburger did not repeat the testimony that he told Roberts he was under arrest. The State argues that in reviewing the court's ruling on the defendant's suppression motion, we may consider this testimony from the preliminary hearing, citing State v. Mazur, 90 Wis.2d 293, 304, 280 N.W.2d 194, 199 (1979). Roberts' reply brief does not dispute that he was told he was under arrest before he fled or dispute the propriety of our considering this testimony. Accordingly, in our analysis we consider this testimony along with the trial court's findings of fact based on the testimony at the suppression hearing.

In reviewing a trial court's denial of a motion to suppress evidence, we will uphold the trial court's findings of fact unless they are clearly erroneous. Section 805.17, STATS.; State v. Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct.App.1991). However, whether a search passes constitutional muster 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).

Both the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution guarantee the right of citizens to be free from unreasonable searches and seizures. The Wisconsin Supreme Court follows the United States Supreme Court's interpretation of the search and seizure provision of the Fourth Amendment in construing the same provision of the Wisconsin Constitution. State v. Fry, 131 Wis.2d 153, 171-72, 388 N.W.2d 565, 573, cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 586 (1986). Searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are unreasonable under the Fourth Amendment unless they meet the requirements of certain specifically established and well-delineated exceptions. Minnesota v. Dickerson, 508 U.S. 366, ----, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993).

However, before a defendant can invoke the protections of the Fourth Amendment, he or she must establish a legitimate expectation of privacy in the object searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). A defendant does not have a reasonable expectation of privacy in an item once it has been abandoned. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960); State v. Bauer, 127 Wis.2d 401, 407, 379 N.W.2d 895, 898 (Ct.App.1985) ("Warrantless seizure of property whose owner has abandoned it ... does not violate the fourth amendment").

The State argued before the trial court, as it does on appeal, that by fleeing when the officer attempted to arrest him, Roberts lost any legitimate expectation of privacy he had in his automobile. The trial court did not decide this issue but instead concluded that the vehicle search was lawful because, had Roberts remained on the scene and submitted to arrest, a warrantless search of the vehicle would have been permissible. The trial court also concluded that exigent circumstances justified the warrantless search. We do not review these rulings because we conclude that Roberts did not have a reasonable expectation of privacy in his automobile after he fled the scene and therefore the search of the automobile did not violate his right under the federal and state constitutions to be free from unreasonable searches.

In the fourth amendment context, the test for abandonment of property is distinct from the property law notion of abandonment; it is possible for a person to retain a property interest in an item but nonetheless to relinquish his or her reasonable...