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Expectation of Privacy – Automobile: Closed Container

State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶32 Bruski argues that he had a reasonable expectation of privacy in his travel case, even if he did not have a reasonable expectation of privacy in Ms. Smith’s vehicle. The question of whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that he or she does not have a reasonable expectation of privacy in has not been addressed by the United States Supreme Court. It is a matter of first impression in this state.

¶34 The court of appeals in this case seemingly followed the bright-line rule rationale …. The Fourth Amendment does not lend itself to bright-line rules, see Rakas, 439 U.S. at 147, and we will not adopt one in this case.

¶37 The Court has set forth principles that are especially pertinent in resolving whether Bruski had a reasonable expectation of privacy in the travel case. First, personal property found in vehicles is treated differently than personal property found in dwellings. There is a lesser expectation of privacy in vehicles. …

The court thus effectively overruled the coourt of appeals’ holding, 2006 WI App 53, ¶19, that “(w)ithout a reasonable expectation of privacy in the vehicle, he has no expectation of privacy relative to his travel case as a matter of law, even though he owned the case.” However, the court goes on to decline to find a reasonable expectation of privacy in the container, given the circumstances:

¶39 As mentioned above, there is a reduced expectation of privacy in vehicles. … Bruski left the travel case in a vehicle that he did not own. He left it in a vehicle in which he had established no connection. He left it in a vehicle where he had no reasonable expectation of privacy. [5]

¶40 Courts “have been reluctant to find a reasonable expectation of privacy where the circumstances reveal a careless effort to maintain a privacy interest.” United States v. Angevine, 281 F.3d 1130, 1135 (10th Cir. 2002) (citing United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir. 1998)). Bruski left his travel case in a vehicle he did not have a reasonable expectation of privacy to while he was in such a state that he appeared dead, and required physical shaking to be roused.

¶41 The ease with which Officer Beauchamp came across the travel case illustrates Bruski’s carelessness and failure to take “precautions customarily taken by those seeking privacy.” Dixon, 177 Wis. 2d at 469. … Additionally, Bruski had not done anything to protect any privacy interest he may have had. The travel case was not locked. It did not have identifying information on its exterior. Nothing indicated that Bruski had an expectation of privacy in the travel case. Even when Officer Beauchamp was in the process of opening it, Bruski had neither a verbal or nonverbal response.

The court suggests that State v. Matejka, 2001 WI 5 (search of passenger’s jacket upheld on theory of driver’s consent) contrastingly shows 4th A standing, because that case “involved personal property that had been removed from a vehicle, facts that do not exist in this case,” ¶45 n. 6:

State v. Matejka, 2001 WI 5, 241 Wis. 2d 52, 621 N.W.2d 891, presented a different issue than the one that arises in this case. Defendant Jennifer Matejka claimed the government had violated her Fourth Amendment rights when it searched her jacket. The court held that the search of Matejka’s jacket was reasonable based on the driver’s consent to the search of his vehicle. Her jacket (i.e., personal property) had been retrieved from the vehicle being searched. Before a government agent searched the jacket, it had been removed from the vehicle and the agent had been given a description of her specific jacket. The Matejka court did not address whether Matejka had a reasonable expectation of privacy in her jacket. Her standing to challenge the search of her jacket may be inferred because the court addressed her Fourth Amendment claim. Matejka involved personal property that had been removed from a vehicle, facts that do not exist in this case.

Just how valid is the distinction, though? Matejka’s jacket was left inside the van after she (and the other passengers) were ordered out. Her jacket was retrieved by the police, and searched, after the passengers complained of being cold, 2001 WI 5, ¶¶8-12. Bruski, too, left his property behind when “asked” to get out, 2007 WI 5, ¶9. Presumably, if he’d asked for the case then his situation would be indistinguishable from Matejka’s and, like her, he’d have standing to challenge an ensuing search. Seems like a fairly arbitrary distinction, though it might be this: by insisting that the item be delivered to him, he would thereby be exercising sufficient dominion and control so as to assert a right to, and freedom of interference with, that property. In any event, the court has explicitly recognized the distinction and so it must be kept in mind.

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