State v. Howard

HEFFERNAN, CHIEF JUSTICE

(dissenting). I believe that today's holding improperly restricts the right of individuals to be free of unreasonable government searches and seizures under both the U.S. and Wisconsin Constitutions.1 Rather than permit the defendant an opportunity to introduce evidence in respect to the permissibility of the instant police stop, the majority engages in an ex post facto analysis as to the reasonableness of Howard's expectations of privacy upon entering his uncle's car. I find the reasoning of the majority without legal foundation and contrary to the public policy of this state, accordingly I dissent.

Insofar as today's holding apparently will require courts henceforth to engage in dual Fourth Amendment analyses, i.e., first to determine the scope of the defendant's protectable interest and second to consider the merits of the search and seizure, I conclude that it is contrary to state public policy and the efficient adminis*932tration of criminal justice. In a sense the holding of the majority is a procedural expansion of the exclusionary rule. To ensure that the full protection of the Fourth Amendment is extended to all defendants, this court should permit defendants the right to litigate the merits of a search and seizure rather than require as a condition precedent that the defendant first convince the court during a motion hearing that he in fact has a protectable interest. Clearly, when the assertion of standing is at least arguable the merits should be determined. See Rakas v. Illinois, 439 U.S. 128, 166 (1978) (White, J. dissenting).

More troubling yet is the majority's conclusion that Howard had no protectable interest in his uncle's car under the facts of this case. Of course Howard has no interest of privacy in his uncle's car, but that is not the question. The question is whether he has an interest in his personal privacy while a passenger in a car owned, operated, and controlled by some one else. In the opinion for the court of appeals, Judge Fine appropriately and correctly analyzed the privacy rights of a passenger. Judge Fine emphasized that the rights sire personal to the passenger and relied on Delaware v. Prouse, 440 U.S. 648, 662-63 (1979), which explicated the fact that the freedom of movement of a passenger is inextricably bound up with that of the vehicle. It defies logic Eind the laws of physics for the state to assert that the rights of a passenger are unrelated to the stopping and seizing of the vehicle.

I emphasize that the chances that Howard can successfully have the seized evidence suppressed is minimal, but to assert that he has no arguable right of privacy merely because he is in someone else's car appeEirs to be contrary to accepted fourth Eimendment jurisprudence. In so reasoning, the majority distinguishes the instEmt *933case from our decision in State v. Guzy, reasoning that Howard, unlike the defendant in Guzy, was not the target of the police stop.2 I disagree. When the police stopped Howard's uncle's car, they effectively stopped all of the occupants of the car for purposes of the Fourth Amendment. To hold otherwise ignores the reality of vehicular stops and merely serves to muddy the application of the Fourth Amendment. It also ignores Rakas wherein the majority accepted the proposition that the essence of standing was a personal stake or interest in the outcome.

In the instant case, the police stopped the car in question because they detected what were thought to be illegally tinted windows in violation of Wis. Admin. Code secs. MVD 5.51(1)(b) and 5.51(l)(e) (Dec. 1989). Tinted windows pose a significant risk to police who are unable to view into the car to detect the possible possession of weapons or other contraband. See State's Brief-in-Chief at 21-22. In other words, police stop vehicles for illegally tinted windows because they are concerned that occupants of such cars may themselves present a danger or be prone to illegal behavior. Given the obvious link between the reason for the stop and the occupants of the vehicle, it is disingenuous of the majority to conclude that Howard was not a target of the police decision to stop an automobile with tinted windows when Howard was one of the persons in that vehicle. Accordingly, I dissent.

*934I am authorized to state that Justices ABRAHAMSON and Bablitch join in this dissent.

The right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . ...

U.S. Const., amend. IV.; Wisconsin Const., art. I, § 11.

This dissent recognizes that Rakas v. Illinois, 439 U.S. 128 (1978), specifically disavowed the "target" rationale. The majority nonetheless appears to recognize the distinction as a matter of state law. Even if it is, the facts here do not sufficiently distinguish this case from Guzy.