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Personal Property Case Analysis

Although the court affirms the court of appeals, it nevertheless changes the law significantly.

The court of appeals held that a person cannot have a reasonable expectation of privacy in personal property in an automobile, if the person has no expectation of privacy in the vehicle itself. State v. Bruski, 2006 WI App 53, 289 Wis.2d 704, 711 N.W.2d 679, 683.

The Supreme Court, however, rejected the bright-line rule, and allows for an expectation of privacy in some cases; just not this one.

What makes the case interesting is that both the majority opinion and dissent seem correct as you read them. What makes the ultimate result seem correct is not the merits of the discussion of whether Bruski had a reasonable expectation of privacy, but that the officer’s action in searching the travel case seems so reasonable under the circumstances as to seem wholly unobjectionable.

Bruski didn’t own the car or even know who did, yet he was passed out in it. The woman who did own it just wanted to find her keys to the car, and every place else in the car had been searched already.

What were the officers supposed to do, but search the travel case? Drive her back home, and tell her to hope the keys turn up?

Even if one were to accept that the majority is wrong, and Bruski did have a reasonable expectation of privacy in the travel case, the officer’s actions seem so reasonable under the circumstances that suppression of the evidence would be unjust.

He wasn’t even looking for evidence, but was trying to find a key to the car. Suppression in this case would not deter any abusive police conduct — one of the purposes of the exclusionary rule.

Furthermore, the woman who owned the car clearly had the right to search the travel case found in her car by herself if she chose. Thus, the police officer doing it instead seems all the more reasonable.

This rationale, however, is not one that can justify the search, as reasonable as it seems, for two reasons: like the foregoing analysis, it goes to the reasonableness of the officer’s actions, rather than the underlying question of whether Bruski had a reasonable expectation of privacy; and the U.S. Supreme Court has recently rejected the rationale.

In Georgia v. Randolph, 126 S.Ct. 1515 (2006), two co-tenants differed on whether officers could search the home; the wife gave consent, but the husband objected. The majority held that the search was unlawful.

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Justice Thomas dissented, concluding that, since the wife was present and could have simply gone into the home, retrieved the contraband, and given it to the officer, there was no Fourth Amendment violation in the officer searching the home instead. Id., at 1541-43 (Thomas, J., dissenting).

However, no other justice concurred in Thomas’ dissent, so the decision provides no support for such an interpretation. On the contrary, it suggests that, even if the owner of the car gave consent, the search would be unlawful if the owner of the personal property in it objected.

Ultimately, however, it is probably not just a coincidence that the officer’s actions were so reasonable, and that the court held Bruski had no reasonable expectation of privacy in the case.

Technically, the reasonableness of the officer’s action is only relevant if a reasonable expectation of privacy is present. In practice, however, it is likely that, the more reasonable the officer’s conduct is conducting a search like this, the more likely it will be that the defendant’s subjective expectation of privacy was objectively illegitimate and unjustifiable.

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David Ziemer can be reached by email.

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