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Defense win: Search of car during traffic stop was unreasonable

State v. Kendell Marcel White, 2020AP588-CR, District 1, 2/2/21 (one-judge decision; ineligible for publication); case activity (including briefs)

In the course of a traffic stop based on a bad parking job, excessively tinted windows, and no visible plates, police searched the car and found a concealed weapon. The court of appeals holds the search was unreasonable under the totality of the circumstances.

White, who was in the driver’s seat, told police he owned the car and that there was a temporary plate in the back window; there was, but it was expired. A lengthy discussion ensued about whether White had paperwork showing he owned or had registered the car or could provide the car’s VIN. Police had White step out of the car because of his “argumentativeness” and they subjected him to a pat down. After eventually finding the VIN, one officer asked L.G., who was sitting in the passenger seat, to open the glove box. She did so, and the officer saw a handgun. White was charged with carrying a concealed weapon. (¶¶3-8).

White argues the stop was unlawfully extended and that the gun was discovered during an unreasonable search. The court of appeals skips to the second argument and holds that under these facts, opening the glovebox was a warrantless search without probable cause or lawful consent:

¶16     …. First, there was no probable cause that the vehicle was stolen or contained “evidence of a crime.” See State v. Lefler, 2013 WI App 22, ¶7, 346 Wis. 2d 220, 827 N.W.2d 650. Ofc. Gaglione testified that he was not looking for a stolen Audi or a car thief that fit White’s description. Even though Ofc. Gaglione testified that his training and experience showed that some stolen cars are missing registration plates that alone does not create probable cause to conduct a warrantless search.

¶17     Second, the police did not have third-party consent to search the vehicle. The police testimony shows that the police had no reason to believe that L.G. had actual or apparent authority over the vehicle. The State must establish the “sufficiency of the consenting individual’s relationship to the premises to be searched” in order to rely on that third-party consent. [State v.] Kieffer, 217 Wis. 2d [531,] 542[, 577 N.W.2d 352 (1998)]. Actual authority requires “joint access or control” of the property such that it is “reasonable to recognize” that the co-inhabitant has the right to permit inspection. Id. In the absence of actual authority, the “police may rely upon the third party’s apparent common authority to do so, if that reliance is reasonable.” Id. at 548. Here, the police watched the passenger enter the car after they spotted the car for the stop. Nothing in the record establishes L.G.’s actual or apparent authority over the vehicle such that L.G. could consent to the search.

¶18     ….  After being informed that White was the owner of the vehicle, the officer did not ask White’s consent to search the vehicle. Instead, when White was outside of the vehicle, the officer asked the passenger to check the glovebox to look for the title. Although the police characterized the question as a request and that L.G.’s actions were voluntary, we note that the passenger sat in the vehicle with a uniformed police officer standing at each door and she had no authority to consent to a search of the vehicle. A third party with no apparent authority over the vehicle cannot be used to thwart Fourth Amendment protections.

¶19     The State argues that because the police focused on determining the ownership of the vehicle and had no proof of White’s ownership, it was reasonable to not ask White or L.G.’s consent to a search. Under the facts in the record, the police have failed to articulate specific reasons to consider this vehicle stolen. The police had access to the VIN number prior to the search of the glovebox; the decision to continue to search for ownership paperwork and not verify the VIN number does not justify the unreasonable search of the glovebox. The State has failed to show that the police focus on proving the ownership of the vehicle is an exception to the prohibition of warrantless search in the Fourth Amendment.

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