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Expectation of Privacy – Automobile: (Non-Owner) Driver – “Standing” to Challenge Search of Car

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

Issue/Holding: Bruski did not establish an expectation of privacy in the automobile from which evidence was seized, where his only connection to the automobile was that he had passed out in it; further, he did not know how he’d gotten to his current location and didn’t know where the car key was. Moreover, any expectation of privacy he might have had would not have been reasonable under the circumstances:

¶27 First, Bruski had no property interest in the vehicle. His only connections to the vehicle were that he passed out in it and claimed to know the owner’s daughter. The fact that he did not even know Ms. Smith’s daughter’s last name suggests that he did not have any relationship with the owner of the vehicle that would support a conclusion that he had a property interest in Ms. Smith’s vehicle.

¶28 Second, Bruski took no precautions customarily associated with those seeking privacy. He did not even know how he had gotten to his current location, let alone taken steps to retain his privacy. Although he argues that parking the car behind a residence constitutes an effort to retain his privacy, this lacks persuasiveness given that he did not even acknowledge being the person to drive the vehicle to that location.

¶29 Third, Bruski lacked the right to exclude others from the vehicle. He did not own the vehicle. He did not establish any possessory interest in the vehicle. As mentioned above, but also relevant to this factor, his only connections to the vehicle were that he passed out in it and claimed to know the owner’s daughter. His lack of knowledge about how he got to his current location also undermines his authority to exclude others from the vehicle.

¶30 Finally, Bruski’s claim of privacy in Ms. Smith’s vehicle is not consistent with historical notions of privacy. …

If “reasonableness” and “expectation of privacy” analyses seem to overlap to the point of blurring any distinction, well, that’s because they do. However sliced, though, Bruski’s claim is about as weak as you can get: he couldn’t even show that he was a permissive driver; all he could show was that he’d passed out in a car which hadn’t been reported stolen. His more substantial claim related to his expectation of privacy in the container from which the evidence was seized, an issue discussed separately.

 

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