State v. Bruski

ANN WALSH BRADLEY, J.

¶ 47. (<dissenting). The facts of this case are deceptively simple. The police find the mother's parked car, with a young intoxicated man passed out inside. The police call the mother and she ultimately arrives at the parked car, accompanied by police. The daughter, who had been allowed to use the vehicle, is nowhere in sight.

¶ 48. Mom wants to move the car. The keys cannot be found. The police look for the keys in the car, and finding none, search for them in the young man's travel case. Inside the travel case they find no keys, but they do find a green, leafy substance and drug paraphernalia.

¶ 49. The problem lies not in the search of the car, which seems eminently reasonable, but in the search of the travel case. Although the travel case was in plain *199view in the interior of the ear, it was opaque, made of a solid, non-transparent material, and it was closed. If the police can search this man's travel case, without a warrant or an exception to the search warrant requirement, then they can search a closed purse, a closed briefcase, and a closed suitcase.

¶ 50. And before you know it, the fabric of Fourth Amendment protection is frayed. We will then not just be talking about the constitutional rights of some drunk or drugged kid who woke in the morning to find his travel case searched. Rather, the majority opinion establishes the Fourth Amendment parameters for us all. What we are really talking about in this opinion is the diminution of constitutional protection afforded to all citizens, your rights and mine.

¶ 51. The majority, correctly in my view, allows that a person may have a reasonable expectation of privacy in a travel bag within a vehicle in which that person does not have a reasonable expectation of privacy. Majority op., ¶ 34. Nonetheless, it concludes that Bruski did not have a reasonable expectation of privacy in his travel case. However, the reasons the majority offers do not support its conclusion. They either rely on Bruski's lack of a reasonable expectation of privacy in the vehicle itself, or do not implicate the factors that courts have used to determine reasonable expectations of privacy. See majority op., ¶ 24 (citing State v. Dixon, 177 Wis. 2d 461, 469, 501 N.W.2d 442 (1993)). Indeed, an analysis of the facts of this case in light of those factors compels the conclusion that Bruski did have a reasonable expectation of privacy in his travel case.1

*200¶ 52. The reasons that the majority offers in support of its conclusion that Bruski did not have a reasonable expectation of privacy in the travel case are set forth in paragraphs 39 through 41 of the majority opinion. Like the facts of this case which are deceptively simple, at first blush the reasons given seem straightforward and reasonable. A closer analysis, however, reveals that the reasons given do not support the majority's conclusion. I will examine each in turn.

¶ 53. "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." Majority op., ¶ 39.

¶ 54. To begin, it is misleading to assert that Bruski "left" his travel case in the car, as if he abandoned it or stowed it someplace away from his person. Bruski kept his travel case next to him until he was *201rousted from the car by the police officers who conducted the search. The officers woke him up and asked him to step out of the car, and Bruski complied. Thus, his "leaving" the bag in the vehicle was not a result of a choice to abandon the bag, but the result of complying with a police request.

¶ 55. It is correct that Bruski had the travel case in a vehicle that he did not own, and in which he did not have a reasonable expectation of privacy. However, the very question before the court is whether a person may have a reasonable expectation of privacy in a travel case that is in a vehicle in which that person does not have a reasonable expectation of privacy. The majority answers this question affirmatively, but then engages in circuitous rationale. It offers as a reason why Bruski does not have a reasonable expectation of privacy in his travel case that he did not have a reasonable expectation of privacy in the car. This negates precisely the principle that the majority purports to establish. Applying the principle that a person may have a reasonable expectation of privacy in baggage within a vehicle in which that person does not have a reasonable expectation of privacy requires that we analyze the person's privacy interest in the baggage separately from the person's privacy interest in the vehicle. U.S. v. Edwards, 242 F.3d 928, 936-37 (10th Cir. 2001); U.S. v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993).

¶ 56. Bruski "left" the travel case "while he was in such a state that he appeared dead, and required physical shaking to be roused." Majority op., ¶ 40.

¶ 57. The majority fails to explain why Bruski's being unconscious counts against his having a reasonable expectation of privacy in his travel case, except to imply that being unconscious demonstrates careless*202ness. Id. It cites no authority for the proposition that sleeping people have diminished expectations of privacy or why society would be less likely to view the privacy expectations of the unconscious as unreasonable. Further, it does not explain what factor Bruski's waking state implicates.

¶ 58. "The ease with which Officer Beau-champ came across the travel case illustrates Bruski's carelessness and failure to take 'precautions customarily taken by those seeking privacy.' " Majority op., ¶ 41.

¶ 59. The majority's assertion that the ease with which an officer comes across a piece of luggage decreases a person's reasonable expectation of privacy in that luggage is surprising. Officers may easily come across any luggage, carrying case, or handbag that one happens to be holding. In the majority's view, the fact that it is in a person's hands (and therefore easy to "come across") provides a reason that the person's reasonable expectation of privacy in the bag is diminished.

¶ 60. "Bruski had not done anything to protect any privacy interest he may have had." Majority op., ¶ 41.

¶ 61. Among the factors the majority cites as relevant in determining reasonable expectation of privacy is "whether the accused took precautions customarily taken by those seeking privacy." Majority op., ¶ 24 (citing Dixon, 177 Wis. 2d at 469). Bruski did take such precautions. The fact that Bruski kept his travel case close at hand supports the conclusion that he had a reasonable expectation of privacy because it evinces his ownership of the bag.

¶ 62. Placing the travel case on the floor next to him demonstrates Bruski's reasonable expectation of *203privacy in the bag precisely because he did not have a reasonable expectation of privacy in the vehicle. Had Bruski left the travel case in the trunk of the car, rather than in the interior compartment, it would have been beyond his reach and therefore less clear that he owned the bag. Under the factors listed in Dixon, and cited by the majority, placing the travel case somewhere other than the interior compartment would decrease his reasonable expectation of privacy.

¶ 63. The search was conducted "during the course of assisting Ms. Smith to locate her keys." Majority op., ¶ 41.

¶ 64. The issue in this case is whether Bruski had a reasonable expectation of privacy in his travel case. If Bruski did have a reasonable expectation of privacy in his travel case, then a warrantless police search of the bag is per se unreasonable under the Fourth Amendment unless it falls under an exception to the warrant requirement. State v. Payano-Romano, 2006 WI 47, ¶ 30, 290 Wis. 2d 380, 714 N.W.2d 548; State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516 (1983). The purpose of the search is relevant only to whether it falls under such an exception, not to whether there was a reasonable expectation of privacy in the first place. However, the majority does not argue that the search falls under an exception to the warrant requirement. The purpose of the search is therefore irrelevant to its analysis, and fails to constitute a reason why Bruski would not have a reasonable expectation of privacy in his travel case.

¶ 65. For the above reasons, I do not think that the factors adduced by the majority to support its conclusion are persuasive. Moreover, I think that the factors set forth in prior cases support the conclusion that Bruski did have a reasonable expectation of privacy in his travel case.

*204¶ 66. As the majority notes, in Dixon this court outlined the following factors as relevant in determining whether an accused person has a reasonable expectation of privacy:

(1) whether the accused had a property interest in the premises; (2) whether the accused is legitimately (lawfully) on the premises; (3) whether the accused had complete dominion and control and the right to exclude others; (4) whether the accused took precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; (6) whether the claim of privacy is consistent with historical notions of privacy.

177 Wis. 2d at 469. Although this list is not controlling, these factors support the conclusion that Bruski had a reasonable expectation of privacy in his travel case.

¶ 67. First, there is no question that Bruski had a property interest in the travel case; he owned it. Concerning the second factor, there is no contention that Bruski wás in the vehicle illegally. Further, the fact that Ms. Smith stated that her daughter had possession of the car and may have lent it to a friend, and the fact that Bruski knew the daughter's first name, are some indication that he was there legitimately. With respect to the third factor, Bruski had the right to exclude others from use of his travel case.

¶ 68. Fourth, Bruski took precautions customarily taken by those seeking privacy. He kept the bag in the car, near him, on the floor, and within his sight, just as one would do in order to protect a bag from being accessed by others. The bag was opaque and hard-shelled, which prevented any external assessments of its contents. With respect to the fifth Dixon factor, Bruski used the bag for personal belongings.

*205¶ 69. Thus, I think that the first five Dixon factors provide ample reason to conclude that Bruski had a reasonable expectation of privacy in his travel case. However, the sixth factor, "whether the claim of privacy is consistent with historical notions of privacy," is particularly compelling. There is little doubt that society has historically recognized a privacy claim in travel bags like Bruski's. In US. v. Block, the Fourth Circuit made the case that expectations of privacy are at their most intense and most justifiable in precisely such places:

Common experience of life, clearly a factor in assessing the existence and the reasonableness of privacy expectations, surely teaches all of us that the law's "enclosed spaces" mankind's valises, suitcases, footlockers, strong boxes, etc. are frequently the objects of his highest privacy expectations, and that the expectations may well be at their most intense when such effects are deposited temporarily or kept semi-permanently in public places or in places under the general control of another.

590 F.2d 535, 541 (4th Cir. 1978).

¶ 70. Similarly, in U.S. v. Fultz the Ninth Circuit stated that "certain types of containers — suitcases, valises, purses, and footlockers, for instance — do command high expectations of privacy" and that even cardboard boxes used as luggage command similarly high expectations of privacy, even when located in a space that is not the exclusive province of the boxes' owner. 146 F.3d 1102, 1105 (9th Cir. 1998). See also Robbins v. California, 453 U.S. 420, 424-25 (1981) (stating that, in contrast to the diminished expectations of privacy surrounding automobiles "[n]o such diminished expectation of privacy characterizes luggage; on the contrary, luggage typically is a repository of personal effects, the contents of closed pieces of luggage are hidden from view, and luggage is not generally subject to state regulation.").

*206¶ 71. Clearly the privacy of personal luggage has historic importance, and society would certainly recognize claims to privacy in personal luggage as legitimate.2 At root, this case involves police searching Bruski's luggage, without a warrant, without probable cause, and without an exception to the warrant requirement. Bruski's reasonable expectation of privacy in his luggage does not diminish just because he was asleep in an automobile.

¶ 72. The majority states that "[w]e are obligated to look to all the facts and circumstances of the specific case in fight of the principles set forth in prior decisions." Majority op., ¶ 36 (citing South Dakota v. Opperman, 428 U.S. 364, 375 (1976)). This affirmation rings hollow. The majority neglects to show how, in fight of principles set forth in prior decisions, the reasons it adduces support its conclusion that Bruski did not have a reasonable expectation of privacy in his travel case. As I outline above, I think that the factors outlined in Dixon and the cases that recognize a privacy claim in luggage show that Bruski did have a reasonable expectation of privacy in his travel case. Accordingly, I respectfully dissent.

¶ 73. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent.

The majority notes that this court generally follows the United States Supreme Court's Fourth Amendment jurispru*200dence in analyzing the protections afforded by Article I, Section 11 of this state's constitution. Majority op., ¶ 20, n. 1. However, we are not required to do so. Rather, "[i]t is fundamental that that state courts be left free and unfettered by us in interpreting their state constitutions." Michigan v. Long, 463 U.S. 1032, 1041 (1983). Thus, Article I, Section 11 may afford greater protections than the Fourth Amendment. State v. Knapp, 2005 WI 127, ¶ 59, 285 Wis. 2d 86, 700 N.W.2d 899; State v. Eason, 2001 WI 98, ¶ 63, n.30, n.31, 245 Wis. 2d 206, 629 N.W.2d 625.

Some states do not employ the reasonable expectation of privacy test under their own state constitutions because of the "potential for inconsistent and capricious application," State v. Alston, 440 A.2d 1311, 1319 (N.J. 1981), and because "the United States Supreme Court's current use of the 'legitimate expectation of privacy' concept needlessly detracts from the critical element of unreasonable governmental intrusion" the constitution is aimed to guard against. Commonwealth v. Sell, 470 A.2d 457, 469 (Penn. 1983).

The majority's distinction between the type of property and type of claim is unpersuasive. Majority op., ¶ 36, n.4. This case is about a privacy claim in luggage, and the appropriate question under Dixon is therefore "whether the claim of privacy [in this case in personal luggage] is consistent with historical notions of privacy." State v. Dixon, 177 Wis. 2d 461, 469, 501 N.W.2d 442 (1993).