State v. Callaway

COFFEY, J.

This is a review of a decision of the court of appeals affirming an order of the circuit court for Washington county, Hon. J. TOM MERRIAM, presiding, granting a motion to suppress. The defendant, Dennis Callaway, filed a motion to suppress the physical evidence (marijuana) seized in a warrantless inventory search of an automobile. The trial court, after an evi-dentiary hearing, found that both the impoundment of the vehicle and the subsequent inventory search of the car, including the glove compartment, were unreasonable and, thus, violative of Callaway’s fourth amendment rights. The appellate court affirmed, agreeing with the trial court that the impounding of the automobile was unreasonable and further holding that the state had waived any right to raise the issue of Callaway’s standing to challenge the constitutionality of the search by failing to raise the issue in the trial court.

The testimony presented at the hearing on defendant’s motion to suppress recites that on May 3, 1979, at approximately 7:15 p.m., West Bend Police Officer Michael Quick stopped a vehicle driven by Dennis Callaway, the defendant-respondent,1 in the city of West Bend. Officer Quick, recognizing Callaway, ordered him to pull his *505vehicle over to the curb because of an outstanding traffic warrant. At the point of Callaway’s arrest, parking was not allowed, although street-side parking was permitted by ordinance up until 2 a.m. some 20 feet from the position where Callaway was stopped.

Officer Quick walked up to the car and advised Calla-way of the outstanding traffic warrant and that he would have to post $51 or be taken into custody. While approaching Callaway’s vehicle, Officer Quick observed a “bong”2 on the back seat of the automobile. During interrogation at the scene, Callaway stated that he did not have any money on him. Officer Quick then placed Callaway under arrest and told him that he would be transported to the Washington county sheriff’s department.

Patrolman Quick next informed Callaway that, pursuant to a police department policy, he had three alternatives to choose from regarding the removal of the car from the scene of the arrest. The three alternatives were: that the police would contact a person of Calla-way’s choice to remove the vehicle from the street; a tow truck would be called to transport the vehicle to the im-poundment lot; or a police officer would drive the vehicle to the impoundment lot, thus saving Callaway towing charges. Callaway stated that he knew of no one he could contact at this time to remove the vehicle from the street. Callaway told Officer Quick that he preferred having an officer drive the vehicle to the police department and gave Quick the keys. Officer Quick radioed for assistance and shortly thereafter, another West Bend police officer arrived and drove the car to the West Bend police department where it was inventoried. Patrolman Quick transported Callaway to the Washington county sheriff’s department.

*506Pursuant to the standard police department procedures, a third police officer conducted a complete inventory of the contents of the car, including the glove compartment, at the police garage. The inventorying officer testified that the department inventory procedure is for “the protection of the owner of the vehicle as well as the police department and the community as a whole.” The police officer filled out a standard motor vehicle content inventory form as he conducted the inventory.

After the general car inventory was completed, the officer used one of the defendant’s keys to unlock the glove compartment. The officer testified that it was the policy of the West Bend police department to inventory the contents of the entire car, including a locked glove compartment, if a key was furnished. Inside the glove compartment, the inventorying officer found a clear plastic bag containing a vegetable substance which was subsequently tested and determined to be marijuana. Based upon this evidence, Callaway was charged with possession of a controlled substance with intent to deliver, contrary to sec. 161.41 (lm) (b), Stats., and as a repeater, contrary to sec. 939.62(1) (b), because of a prior conviction for delivery of a controlled substance, contrary to sec. 161.41(1) (b). After a preliminary hearing, Callaway was bound over for trial.

Prior to trial, Callaway filed a motion to suppress the evidence seized during the automobile search, alleging that the inventory search of the car, including the glove compartment, was in violation of his constitutional rights. After an evidentiary hearing and the submission of briefs, the trial court granted the motion to suppress, finding that the impounding of the automobile and the inventory search of the car, including the glove compartment, were unreasonable. The state appealed this finding and order, pursuant to sec. 974.05(1) (d)2, Stats.

*507The appellate court affirmed the order holding that the impounding of the car was unreasonable under the facts of the case and that the state waived any objection it had to the defendant’s standing to challenge the constitutionality of the impoundment and inventory search of the car, including the glove compartment, because that issue was not raised in the trial court.

Issue

Was the impounding and subsequent inventory search of the automobile, including the glove compartment, unreasonable under the facts and circumstances of this case and, thus, violative of the defendant’s fourth amendment protection against unreasonable searches and seizures?

The fourth amendment protection against unreasonable searches and seizures is applicable to the states through the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The fourth amendment protects the rights of people to be secure from unreasonable searches and seizures as follows:

“The Fourth Amendment to the United States Constitution provides:
“ ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
“Art. I, sec. 11, of the Wisconsin Constitution is substantially the same. Warrantless searches ‘are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357 (1967). These exceptions are ‘jealously and carefully drawn.’ Jones v. United States, 357 U.S. 493, 499 *508(1958).” State v. Prober, 98 Wis. 2d 345, 351, 299 N.W. 2d 1 (1980).

It is well-established that automobile inventory-searches are “searches” within the meaning of the fourth amendment and, therefore, subject to the reasonableness standard of that amendment.

“We conclude that the latter line of cases not only compels the conclusion that an inventory search is a ‘search,’ but also represents the better reasoned approach. An inventory search can be a serious intrusion into the private affairs of the individual. Cases holding that such conduct is not a search limit their inquiry to the question of whether the search is a bona fide inventory. Cases taking the opposite view consider that question, but also concern themselves with the ‘reasonableness’ of the intrusion, i.e., once it is established that it is not improper to conduct an inventory, the question becomes whether the manner in which the inventory is conducted, its scope, is reasonable. We believe the severity of the intrusion and its possibility for abuse requires this double-barreled protection.” State v. McDougal, 68 Wis. 2d 399, 409, 410, 228 N.W.2d 671 (1975). See also: South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976).

In determining whether an automobile search is reasonable, both this court and the United States Supreme Court have consistently drawn a distinction between automobiles and other areas protected by the fourth amendment. The rationale for this distinction is discussed in the following quotation:

“This Court has traditionally drawn a distinction 'between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are ‘effects’ and thus within reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439 (1973), warrant-less examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589 (1974); Cady v. Dombrowski, supra, at 439-440; Chambers v. Maroney, 399 U.S. 42, 48 (1970).
*509“The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of Such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 132, 153-154 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460 (1971). But the Court has also upheld warrant-less searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, supra, at 51-52; Cooper v. California, 386 U.S. 58 (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra, at 442. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.
“The expectation of privacy as to automobiles is further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted:
“ ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects .... It travels public thoroughfares where both its occupants and its contents are in plain view.’ Cardwell v. Lewis, supra, at 490.
“In the interests of public safety and as part of what the Court has called ‘community caretaking functions,’ Cady v. Dombrowski, supra, at 441, automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of *510police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” South Dakota v. Opperman, supra at 367, 368, 369. See also: Thompson v. State, 83 Wis. 2d 134, 141, 265 N.W.2d 467 (1978).

It is also settled that a police inventory search is among the few exceptions to the warrant requirement of the fourth amendment.

“The search of the automobile was without a warrant. The defendant contends the search was unreasonable and does not fall within any of the recognized exceptions to the constitutional warrant requirement. Some of the exceptions are consent to search, search incident to arrest, a probable cause search, an exigent circumstance search, a police inventory search, and an automobile exception to warrantless search.” Thompson v. State, 83 Wis. 2d 134, 139, 265 N.W.2d 467 (1978). (Emphasis supplied.)

Thus, it is clear that the relevant standard to be applied to the search and seizure in this case is whether the search was reasonable. This court has recognized that there are two aspects of the question of reasonableness to be considered in determining the constitutionality of an inventory search.

“As we view the problem, there are essentially two aspects to the question of reasonableness. First, whether the intrusion was reasonable in the first instance, and second, whether the scope of the intrusion is reasonable. We consider here whether the scope of the search was reasonable, assuming the inventory search itself was justified.” State v. McDougal, supra at 410.

In this case, challenges have been made to both the reasonableness of the impounding of the vehicle and the *511reasonableness of the search of the car, including the locked glove compartment. The challenge to the reasonableness of the impoundment relates to the first of the two aspects of the question of reasonableness set forth in McDougal, supra, that is, whether the intrusion was reasonable in the first instance. The second aspect, namely, whether the scope of the intrusion was reasonable, relates more particularly to the challenge to the scope of the search of the car, extending to the glove compartment. First, we address the question of the reasonableness of the impoundment.

The consideration of what constitutes a reasonable and lawful impoundment of a vehicle as a condition precedent to a warrantless inventory search is a question of first impression in this state. In Bies v. State, 76 Wis. 2d 457, 251 N.W.2d 461 (1977), we held that this court will independently examine the circumstances of the case to determine whether the constitutional requirement of reasonableness is met, even though in this case, the court of appeals and the trial court concluded that the impounding of the vehicle driven by Callaway was unreasonable.

“On review of an order suppressing evidence, the findings of fact, if any, of the trial court will be sustained unless against the great weight and clear preponderance of the evidence. State v. Pires, supra, 55 Wis. 2d 602, 603. However, this court will independently examine the circumstances of the case to determine whether the constitutional requirement of reasonableness is satisfied.” Bies v. State, Id. at 469.

Whether a search and seizure is unreasonable and, therefore, constitutionally invalid depends upon the facts and circumstances of the particular case.

“The determination of what conduct amounts to an unreasonable search and seizure depends upon the par*512ticular facts of each case.” State v. McDougal, supra at 410. See also: South Dakota v. Opperman, supra at 375.

In the case at bar, Officer Quick ordered Callaway to pull over to the curb because of an outstanding traffic warrant. The officer promptly informed Callaway that he would have to post $51 for the outstanding traffic warrant or he would be taken into custody and transported to the sheriff’s department. Had Callaway been able to post the $51, he would only have had to proceed to the police station to pay the $51 and then he would have been free to leave.

Since Callaway was unable to post the $51, it was necessary to convey him to the sheriff’s department. At this time, Officer Quick informed Callaway that he had three alternatives to choose from in removing the car from the street. These alternatives were that the police would contact another operator to come and remove the vehicle from the street; the car would be towed to the impoundment lot; or an officer would drive the car to the lot. According to the testimony of Officer Quick, this written policy of the West Bend police department was consistently applied to all vehicle operators taken into custody.

Callaway stated that he did not know of anyone who could come to get the car at that time and, therefore, he freely waived his opportunity to avoid the impoundment. Officer Quick then informed Callaway that he had a choice of having the car towed to the station or allowing another officer to drive the car to the station. Callaway chose to have an officer drive the car and voluntarily surrendered the car keys, including the key to the locked trunk and glove compartment, to the officer.

The defendant argues that the impounding of the vehicle was unreasonable because the car could have been moved a mere 20 feet to a spot where parking was per*513mitted up until 2 a.m., pursuant to a city ordinance. This argument presumes, however, that Callaway would have been released from the custody of the sheriff’s department before 2 a.m. Although the defendant argues that Callaway would more than likely be released by that time, the officers could not assume as much. Inasmuch as Callaway did not know of anyone whom he could contact to remove the car and further, since he could not personally post the $51, it is reasonable to assume that the car would have remained on the street illegally parked after 2 a.m.

We also note that if the car had been left unattended on the street, there is more than a possibility that it could have been vandalized or struck, by another vehicle in which case it is not unlikely that the owner would claim that the police department was negligent in some manner. It is not unreasonable for the police to avoid such claims by removing the vehicle and placing it in protective custody.

In analyzing the question of what constituted a lawful impoundment as a condition precedent to a warrantless inventory search, the court of appeals concluded that based upon the decisions of several other courts, a vehicle is lawfully impounded if the owner or driver gives his or her informed consent or if there is shown to be a reasonable police need to impound the vehicle. See: State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979), and cases summarized therein. Applying this standard to the facts of this case, the court of appeals concluded that the impoundment in the case at bar was not lawful. We reject this conclusion of the court of appeals, however, and hold that the facts of this case satisfy that standard as Callaway was informed that the car would be impounded if he could not suggest another driver the police could contact and he consented to the impoundment of *514the vehicle and voluntarily surrendered his keys to the officer.

We note that several of the cases analyzed by the court of appeals are factually distinguishable from the case at bar and our decision in this case is not necessarily inconsistent with them. For example, in State v. Bales, 15 Wash. App. 834, 552 P.2d 688 (1976), the impoundment was found unconstitutional because the defendant indicated that a friend could arrive in a short time to pick up the car and, thus, the impounding of the car was unnecessary. Similarly, in State v. Goodrich, 256 N.W.2d 506 (Minn. 1977), the defendant arranged to have his brother pick up the car. In Granville v. State, 348 So. 2d 641 (Fla. App. 1977), the car could have been left where it was parked in a friend’s driveway and in People v. Miller, 7 Cal. 3d 219, 101 Cal. Rptr. 860, 496 P.2d 1228 (1972) the defendant expressly stated that he preferred to assume the risk of leaving his property in the car.

In light of the fact that Callaway was given the three alternatives for the removal of the automobile, the fact that the car was illegally parked at the spot where it was pulled over, and the fact that after a thorough search of the record, we find no indication that the impoundment was a mere pretext for searching the car and the defendant has not argued as much to this court, we hold that the impoundment of Callaway’s car was reasonable and, thus, it not violative of the fourth amendment prohibition against unreasonable searches and seizures.

We now discuss the question of the reasonableness of the inventory search made of the car, including the locked glove compartment, since we have concluded the impounding of the vehicle was necessary and reasonable because of the need to protect the vehicle from damage, theft or vandalism and because Callaway was given three alternatives for the removal of the illegally parked car. *515Although the trial court found that the inventory search was unreasonable, based upon the decision of this court in State v. McDougal, supra, the court of appeals failed to address this issue because of its determination that the impoundment was unreasonable in the first instance. We note that the trial court decision was rendered prior to the decision of this court in State v. Prober, supra.

In Prober, as in the case at bar, this court was faced with the question of the constitutionality of a police inventory search. In Prober, we expressly recognized that the scope of an otherwise valid inventory search is limited by the purpose for which it is undertaken.

“However, as we pointed out in McDougal, law enforcement officers may not ‘engage in an unlimited search under the guise of a police inventory search.’ State v. McDougal, supra at 413. This recognizes the benign, non-investigatory nature of inventory searches and the impropriety of engaging in an investigative search of a vehicle under the ‘pretext’ of inventorying its contents.” Id. at 352.

We cited the following language from the United States Supreme Court decision in South Dakota v. Opperman, supra, as descriptive of the purposes underlying an inventory search:

“ ‘When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, . . . ; the protection of the police against claims or disputes over lost or stolen property, . . . ; and the protection of the police from potential danger.’ ” Id. at 369.

Considering these purposes underlying an inventory search and the reasonableness standard of the fourth amendment, we concluded that the search of an auto*516mobile trunk was within the permissible scope of an inventory search. State v. Prober, supra at 352. In reaching this conclusion, we stated that our reasoning would also be equally applicable to glove compartments.

“We are aware that legal authority is to be found both approving and disapproving trunk inventory searches, but in view of the recognized purposes served by inventory searches, we conclude that the better-reasoned cases authorize police inventory searches of locked and unlocked automobile trunks, glove compartments, and other compartments of a vehicle in which the owner might reasonably be expected to put personal effects or items of value.” (Emphasis supplied.) Id. at 353, 354.

The reasons underlying our determination that the search of a trunk or glove compartment was within the permissible scope of an inventory search were fully set forth in Prober:

“To exclude these kinds of compartments from the scope of the inventory searches would clearly thwart the first stated objective of protecting the property itself while it is in custody. It is a meritless argument to say that the owner of the car was satisfied with the security offered by these compartments because the storage of a vehicle at a police storage yard for an indeterminate length of time was not likely to be the sort of circumstances the owner had in mind in storing valuables in the car. Even more clearly, the second purpose for these searches, protection of the police against claims of loss, is not served if police do not inventory the entire contents of the vehicle. Police cannot reasonably be expected to defend against claims of loss, whether legitimate or false, reasonable or unreasonable, if they are not permitted to catalog what they took into custody. Moreover, a car owner inclined to make a false claim could be expected to base the claim on property missing from an area the police were not permitted to search. Finally, the third purpose, protection of the police from potential danger, can only be served by allowing police to inventory the contents of automobile trunks and other com*517partments. Whether the potential danger is a weapon which, if stolen, could pose a serious safety threat, explosives or even a leaking spare gasoline container threatening to ignite the vehicle, it can be averted only by permitting police to discover these before the potential harm materializes.” Id. at 354, 355.

This reasoning as applied to the case at bar is supported by the testimony of the police officer who inventoried the car. Based upon hundreds of inventory searches conducted by the officer, he testified that glove compartments of automobiles frequently are the repository for valuable items such as “checkbooks, bankbooks, personal documents, information on the motor vehicle, et cetera.” Additionally, we point out that glove compartments often serve as a place for storing credit cards. Such credit cards are becoming a necessary hazard of life in our plastic society, although significant financial loss can result from the theft and use of the cards by an unauthorized person.

Further, our determination that the inventory search of a car, including the glove compartment, is reasonable is supported by the testimony at the hearing establishing that there have been many prior reports of items being stolen from motor vehicles stored in the West Bend impoundment lot. Although the impoundment lot is secured by a fence, the area is open during the daylight hours and, even though secured at night, frequent acts of vandalism and theft have taken place in the lot after dark in spite of the barbed wire fence. Because of these instances of prior thefts at the impoundment lot, the inventory search was both reasonable and necessary to protect both the owner’s property and the police from claims of lost property. The protection of the owner’s property and the protection of police from claims of lost or stolen property are two of the justifications for inventory searches set out in South Dakota v. Opperman, *518supra, and the testimony in this case clearly demonstrates that those concerns are actual.

Our decision in Prober is consistent with the reasoning of the United States Supreme Court in South Dakota v. Opperman, supra, in which that court recognized that a search of glove compartments is within the scope of a reasonable inventory search as it is a customary place for documents of ownership and registration besides being a place where valuables are often stored:

“These cases have recognized that standard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration, United States v. Pennington, supra, at 251, as well as a place for the temporary storage of valuables.” Id. at 372.

Similarly, our decision in the case at bar is in harmony with the rationale of the Opperman decision in which the United States Supreme Court reached the conclusion that car inventories pursuant to standard police procedures are reasonable since the search in the case at bar was conducted according to the West Bend police department standard inventory procedure.

“The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable.” Id. at 372.

Thus, after a review of the decisions of the United States Supreme Court and the facts of this case, we find no reason to modify our decision in Prober and consistent therewith, we hold that the inventory search of the car, including the glove compartment, was within the permissible scope of an inventory search.

In light of our holding that both the impoundment and the subsequent inventory search of the car driven by *519Callaway were reasonable and constitutionally valid, we reverse the decision of the court of appeals and the order of the trial court.

When we granted the petition to review in this case, we requested that the parties brief the issues discussed above as well as the issue of whether this court should follow the lead of the United States Supreme Court in abandoning the doctrine of automatic standing. Since the parties to this case have fully briefed the additional question of whether Wisconsin should retain the rule of “automatic standing,” we deem it appropriate to resolve that issue at this time.

This court, following the United States Supreme Court’s holding in Jones v. United States, 362 U.S. 257 (1960), establishing a rule of “automatic standing” permitting a defendant charged with a crime of possession to challenge the legality of a search that produced evidence against him regardless of whether his own fourth amendment rights had been violated by that search and seizure, applied the automatic-standing rule in Wisconsin. See: State v. Monahan, 76 Wis. 2d 387, 251 N.W.2d 421 (1977); State v. Mabra, 61 Wis. 2d 613, 213 N.W.2d 545 (1974), and State v. Christel, 61 Wis. 2d 143, 211 N.W.2d 801 (1973). These cases followed Jones and their holdings were grounded in federal law concerning the fourth amendment protections, absent any analysis of state constitutional law.

Recently, the United States Supreme Court, in the decision of United States v. Salvucci, 448 U.S. 83 (1980), expressly abolished the rule of automatic standing established in Jones and held that the justifications for that rule have been eliminated in subsequent decisions.

We are fully cognizant, on the other hand, that this court has the prerogative to afford greater protection under our Wisconsin constitution than the United States Supreme Court has declared under the federal constitu*520tion. State v. Doe, 78 Wis. 2d 161, 171, 172, 254 N.W.2d 210 (1977).

In considering and weighing the arguments presented by both those in favor of and those in opposition to the rule of automatic standing, we do not feel it is advisable to continue our adherence to the rule granting automatic standing to one charged with a crime of possession. In so doing, we agree with and endorse the reasoning of the United States Supreme Court set forth in United States v. Salvucci, supra, and hold that the criminal defendants charged with crimes of possession must first prove that their own constitutional rights have been infringed upon by a search or seizure before they can challenge the constitutionality of that search and/or seizure. The relevant question to be answered in making this determination is whether the defendant had a legitimate expectation of privacy in the place searched.

“[T]he Fourth Amendment rights are personal rights which may not be asserted by another. Id. at 133. The inquiry as to whether these personal rights were violated ‘requires a determination of whether the disputed search and seizure has infringed on an interest of the defendant which the Fourth Amendment was designed to protect.’ Id. at 140. In making this determination, the relevant question to be answered is whether the defendant had a legitimate expectation of privacy in the invaded place.” State v. Fillyaw, 104 Wis. 2d 700, 710, 312 N.W.2d 795 (1981).

By the Court. — The decision of the court of appeals is reversed and remanded for further proceedings not inconsistent with this opinion.

It is not established in the record who was the actual owner of this vehicle although the defendant’s attorney entered a certificate of title into evidence at the motion to suppress hearing identifying someone other than Callaway as the owner of the car. The defendant implied in his argument that at the time of his arrest he was in the process of purchasing the car from the person to whom the car was registered.

A bong is a special type of pipe used in the smoking of marijuana.