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Consent — Authority — Driver’s Consent to Search Passenger’s Property

State v. Jennifer K. Matejka, 2001 WI 5, 621 N.W.2d 891, affirming unpublished decision of court of appeals.
For Matejka: James B. Connell

Issue: “(W)hether, 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.”

Holding:

¶35 Here, the state trooper received consent to search the van from Miller, who, as the owner and driver of the vehicle, had obvious possessory authority over the vehicle and therefore the capacity to consent to its search. This authority extended in common to the jacket that Matejka brought on board and then left behind in the van, by virtue of the joint access and mutual use of the interior of the van shared by the driver and his passengers. Under Matlock, and by implication Schneckloth, Miller’s consent to search the van encompassed Matejka’s jacket, found inside it.

As usual in 4th amendment cases, this one is fact-intensive. Read it closely. This was a routine traffic stop (no front plate). After to-ing and fro-ing (nonproductive frisks of the driver and a backpack), the trooper said he was going to issue a warning for the plate violation. ¶7. The issue wasn’t raised, but from that moment on the detention at least arguably was prolonged unnecessarily and the ensuing “consent” coerced as the product of that unlawful detention. See, e.g., State v. Christopher Gammons, 2001 WI App 36.Arguably so, neither more nor less: again, the issue simply wasn’t raised. This is merely a reminder that prolonged detention is one of the most vexing (and, not coincidentally, most-litigated) facets of routine traffic stop cases — cases are collected here. But does one occupant have “standing” to challenge another’s consent as the product of an unnecessarily prolonged stop? Yes, see State v. Kothe, TX Crim App No. 1738-03, 10/20/04 (footnotes omitted):

Both Mr. Kothe and Ms. Brantley had a reasonable expectation of privacy in not being detained beyond the time necessary for Officer Forslund to complete his investigation. Thus, Mr. Kothe has standing to complain about any illegally prolonged detention. If Officer Forslund’s conduct in awaiting the results of the computer license and warrant check was “unreasonable” under the Fourth Amendment, Mr. Kothe has standing to complain about the subsequent search of Ms. Brantley. That search is “fruit of the poisonous tree” if it constituted an exploitation of the illegal detention.”

To avoid possible confusion on the matter of “standing”: “A third party may give consent to search a place in which both she and the defendant have legitimate expectations of privacy, and the defendant can challenge the validity of the consent given by the third party,” U.S. v. Cellitti, 7th Cir. No. 03-3777, 10/19/04. Voluntariness of 3rd-party consent can be challenged; it’s just that Kothe presents a somewhat interesting factual variant of this principle, namely prolonged detention during routine traffic stop. But even so, that is merely a subset of the larger idea (again, from Cellitti), “Consent given during an illegal detention is presumptively invalid.” Note, too, that this approach is but a slight extension of and therefore wholly consistent with the settled principle “that when police stop a vehicle, all of the occupants of that vehicle are seized and thus have standing to object to the seizure,”State v. Anthony Harris, 206 Wis. 2d 243, 557 N.W.2d 245 (1996) (Harris, as passenger, had standing to challenge illegal stop of car in which he was riding and thus to obtain suppression of evidence seized from him): once the seizure of the vehicle and its passengers is prolonged beyond lawful limits, the passengers’ prolonged seizure is necessarily unlawful; and if they have standing to challenge 3rd party consent obtained after an illegal stop, then they should also have standing to challenge it on the basis of an illegally prolonged stop. But see, U.S. v. Pulliam, 9th Cir No. 03-50550, 4/21/05 (where “nothing in the record to suggest that the continued detention of the vehicle would have prevented [passenger] Pulliam from leaving if he was permitted to do so,” nor possessory interest by Pulliam in vehicle, he had no standing to challenge post-stop detention of vehicle; court notes that standing might be shown if some connection between his detention and evidence recovered from car).Returning to Matejka: Keep in mind that the issue reached by the court — driver’s authority to consent to a search of a passenger’s belongings — has led to a significant split of authority. See ¶18 n. 3, and cases cited.

 

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