State v. Wisumierski

• Decision Date: 30 March 1982
• Docket Number: No. 80-1518-CR,80-1518-CR
• Citation: 317 N.W.2d 484,106 Wis.2d 722
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mitchell J. WISUMIERSKI, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 484

317 N.W.2d 484

106 Wis.2d 722

STATE of Wisconsin, Plaintiff-Respondent, v. Mitchell J. WISUMIERSKI, Defendant-Appellant-Petitioner.

No. 80-1518-CR.

Supreme Court of Wisconsin.

Argued March 4, 1982.

Decided March 30, 1982.

David E. Lehmann, The Legal Clinic, S. C., Madison, for defendant-petitioner.

Daniel J. O'Brien, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

CALLOW, Justice.

This is a review of an April 27, 1981, unpublished decision of the court of appeals, 102 Wis.2d 723, 308 N.W.2d 421 which affirmed Dane county circuit court Judge Mark A. Frankel's judgment of conviction of Mitchell J. Wisumierski for going armed with a concealed weapon pursuant to sec. 941.23(1), Stats.1977. ¹ The facts of this case, giving rise to the instant controversy, are as follows. On February 18, 1979, at approximately 2:45 a. m., Dane County Deputy Sheriff Jeffrey Nania stopped a van on the interstate highway outside of Madison because of an unlighted taillight. Deputy Nania approached the vehicle, and the driver stepped out leaving one passenger in the van. Nania asked the driver for his driver's license. He testified that as it was being given to him, he "shined the flashlight around the cab of the van, the immediate front area." ² Nania noticed that the passenger, Wisumierski, was sitting turned toward him in the vehicle, holding his hands under a thin blanket which covered his lap. Nania stated at trial that a protrusion or lump, which he believed was a gun, extended from Wisumierski's hands. Upon seeing this, Nania "got the driver's license from the driver, stated [he] would be right back, and left the area as quickly as possible to return to [his] squad car." Nania's testimony revealed that at this time he "felt there was a possibility [his] life was in danger. If in fact it was a gun, at that point I was definitely in jeopardy." Nania had told the driver to wait in the van, and he called for backup "because of the possibility that the passenger had a gun" and to check for "wants and warrants of the driver of the vehicle." Nania discovered that the driver, Hans Kubik, was wanted for a parole violation in Wisconsin.

After backup units arrived, Nania informed a state trooper that "there was a possibility that the passenger had a gun underneath the blanket." Because of Nania's apprehension about the possible concealed weapon, he removed his own gun from its usual position in his holster and carried it in his hand by his side. Nania and the state trooper approached the passenger side of the van and asked Wisumierski to exit the vehicle. At that point Nania testified that the blanket covering the lap of the defendant "had been shifted to the engine cowl or cover in the van." Both the driver Kubik and passenger Wisumierski were searched, and two rounds for a .25 Baretta semi-automatic pistol were discovered in Kubik's pants pocket. Both men were placed in squad cars. The record in this case is unclear regarding when the body searches took place, but apparently Kubik was searched twice, and the second search revealed the ammunition. A check was run on Wisumierski, but there were no warrants out for his arrest. Nania informed Kubik that he was under arrest for a felony warrant "and asked him and Mr. Wisumierski if he would allow Wisumierski to take possession of the vehicle and if Wisumierski would be responsible for it to save it getting towed off to a holding yard." The record does not reveal whether the car keys were turned over to Wisumierski, but apparently agreement had been reached between Kubik and Wisumierski that Wisumierski would take possession of the van to avoid a towing charge. Before Wisumierski entered the van, Nania conducted a search of the vehicle. As he testified at trial:

"I wanted to search the van due to the fact that I had seen the configuration. There was a possibility of a gun. Neither of the two individuals had the gun on them, so by offering Wisumierski to take possession of the van and drive it, to protect all involved and to make a legal sound search, I entered the van and searched the immediate area that the driver would occupy for any type of dangerous weapon."

Nania removed the blanket from the engine cowl and discovered an unloaded .25-caliber Baretta semi-automatic gun. Nania took the gun from the vehicle, and believing it to be the same weapon that had been under the blanket when it had been on Wisumierski's lap, placed Wisumierski under arrest for a violation of sec. 941.23(1), Stats.1977. ³

Wisumierski brought a motion to suppress the admission of the gun as evidence. Following a pretrial hearing on the motion to suppress, the trial judge issued a memorandum decision and order denying the motion on the grounds that the warrantless search of the van was lawful. The trial judge, citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and its progeny, ⁴ concluded that Wisumierski had automatic standing to contest the search of the van. He rejected the defendant's alternative ground for standing--dominion and control--concluding that the defendant lacked a sufficient possessory interest in the van to establish standing.

Judge Frankel concluded, however, that probable cause, coupled with exigent circumstances, justified the warrantless search of the van. Wisumierski was convicted of carrying a concealed weapon following a jury trial on August 19, 1980.

On appeal, the court of appeals affirmed defendant's conviction. The court of appeals, in light of the supreme court decision in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), which had not been rendered at the time of trial, reversed the trial court's determination that the defendant had automatic standing but agreed with the trial court that the defendant lacked sufficient dominion and control over the vehicle to establish a legitimate expectation of privacy. Because the court of appeals determined that the defendant lacked standing, it did not address the legality of the search. This court granted review to decide the following four issues:

(1) Should Wisconsin retain the rule of automatic standing to challenge searches and seizures in cases where the defendant is charged with a possessory offense, despite the fact that the United States Supreme Court in the recent Salvucci case no longer adheres to the rule?

(2) If this court does follow Salvucci, was the court of appeals correct in applying Salvucci retroactively in this case?

(3) Was the issue of automatic standing within the jurisdiction of the court of appeals in the absence of the state's filing a cross-appeal from the trial court's decision and order denying defendant's suppression motion?

(4) Did the defendant have standing to challenge the search because he had a sufficient expectation of privacy in the area searched or the item seized at the time the search was conducted?

We have resolved the first issue before us in our decision in State v. Callaway, --- Wis.2d ---, --- N.W.2d ---- (1982). There we held: "[W]e agree with and endorse the reasoning of the United States Supreme Court set forth in United States v. Salvucci, supra, and hold that criminal defendants charged with crimes of possession must first prove that their own constitutional rights have been infringed upon by a search or seizure before they can challenge the constitutionality of that search and/or seizure."

The question of the validity of a retroactive application of a judicial decision restricting standing to assert Fourth Amendment claims was not decided in Callaway, and we will address that issue here. We note the general rule that decisions overruling or repudiating earlier decisions are accorded retrospective application. Pagelsdorf v. Safeco Insurance Co. of America, 91 Wis.2d 734, 744-45, 284 N.W.2d 55 (1979).

In our decision in Fitzgerald v. State, 81 Wis.2d 170, 174, 259 N.W.2d 743 (1977), we articulated the three-pronged test of (1) purpose, (2) reliance, and (3) effect to determine whether a rule should be applied retroactively. In Fitzgerald we stated:

"The criteria to determine whether a new rule should be retroactively applied are: (1) the effect of the new rule on the fact finding process; (2) the extent of reliance by law enforcement authorities on the old standards; and (3) the effect on the administration of justice of a retroactive application of the new standards." Id. at 174, 259 N.W.2d 743.

See: Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, 61 Va.L.Rev. 1557, 1559 (1975); Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: "Prospective Overruling" or "Sunbursting," 51 Marq.L.Rev. 254, 257 (1967); Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56 (1965). We note that the first prong of the test, purpose, appears to be accorded the greatest weight. Desist v. United States, supra at 249, 89 S.Ct. at 1033.

Justice Rehnquist, using emphatic language in the Salvucci decision, addressed the purpose of the rule abrogating "automatic standing":

"We are convinced that the automatic standing rule of Jones has outlived its usefulness in this Court's Fourth Amendment jurisprudence. The doctrine now serves only to afford a windfall to defendants whose Fourth Amendment rights have not been violated. We are unwilling to tolerate the exclusion of probative evidence under such circumstances since we adhere to the view ... that the values of the Fourth Amendment are preserved by a rule which limits the availability of the exclusionary rule to defendants who have been subjected to a violation of their Fourth Amendment rights." 448 U.S. at 95, 100 S.Ct. at 2555 (emphasis in original).

The state contends that the...