State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan
¶11 The first issue turns on whether Russ had a reasonable expectation of privacy in the affidavits that he left on the bench. See Roberts, 196 Wis. 2d at 453, 538 N.W.2d at 828 (“[B]efore a defendant can invoke the protections of the Fourth Amendment, he or she must establish a legitimate expectation of privacy in the object searched.”).
The determination of whether the defendant had a reasonable expectation of privacy depends on two separate questions. The first question is whether the individual by his conduct exhibited an actual, subjective expectation of privacy. The second question is whether such an expectation is legitimate or justifiable in that it is one that society is willing to recognize as reasonable.
State v. Rewolinski, 159 Wis. 2d 1, 13, 464 N.W.2d 401, 405 (1990). We focus on the second aspect of the test, that is, whether Russ had an objectively reasonable expectation of privacy in the affidavits. See Roberts, 196 Wis. 2d at 454, 538 N.W.2d at 829 (“An actual, subjective expectation of privacy is not sufficient to create fourth amendment protection; in addition, the expectation must be one society is prepared to accept as objectively reasonable.”). We conclude that he did not.