SUPREME COURT UPHOLDS SEARCH RULING

Passengers' Property Not Private In Vehicle

Madison - When a motorist invited police to search his van during a traffic
stop, he opened the door to a warrantless search of his passenger's
belongings as well, the state Supreme Court ruled Tuesday.

Wrestling with the issue for the first time, justices split 4-3 in ruling
that the search of a passenger's jacket in a 1997 Portage County case was
reasonable.

The case arose from a traffic stop in which a state trooper pulled over a
van driven by Anthony Miller after the trooper noticed the vehicle lacked a
front license plate. The trooper gave him a warning and asked if Miller had
anything illegal in the van. Miller said he was not aware of anything and
gave police permission to search the van.

That search turned up marijuana in a jacket that passenger Jennifer Matejka
had left in the van. She was arrested, and a search at the jail found
another small plastic bag containing marijuana in her jacket and two hits
of LSD in her wallet.

Matejka was charged with drug possession but moved to suppress the evidence
on the grounds that the search was illegal. Portage County Circuit Court
Judge Frederic Fleishauer agreed the search was improper but was overruled
by a Court of Appeals panel.

The Supreme Court - in an opinion written by Justice Diane Sykes - upheld
the appeals court, noting that neither Miller nor Matejka objected to the
search.

"In light of the reduced expectation of privacy that attends property in an
automobile, we conclude that the search of Matejka's jacket based upon the
driver's consent to search the vehicle was reasonable under the Fourth
Amendment," Sykes added.

Matejka argued that the search was improper because Miller had no authority
over her jacket.

But the court ruled that the search was bounded not by Miller's authority
over the jacket but his authority over the van containing the jacket.
Justices ruled that the coat was not like a locked briefcase, which might
have called into question Miller's consent to search.

Sykes noted that this is the first time that such a case has been decided
by the high court and said the issue has not been addressed by the U.S.
Supreme Court. In other states, courts have issued rulings on both sides of
the issue.

"The officer's search of Matejka's jacket was well within the proper scope
of the consent to search in this case and was therefore reasonable," Sykes
wrote.

Wausau attorney James Connell, who represents Matejka, said the decision
erodes Fourth Amendment protections against unreasonable search and seizure.

"Most of us believe that by becoming a passenger in a car, we are not
giving up our right to privacy, and we're certainly not giving the driver
of the car consent to have our belongings searched," Connell said. "But
that's what the Supreme Court decision says."

Matejka's drug case has not yet gone to trial.

Assistant Attorney General Jennifer Nashold, who represented the state,
said the court pieced together other legal precedents in other search cases
to arrive at a workable decision.

"Even though the U.S. Supreme Court hadn't addressed this circumstance
before, the decision is consistent with other Wisconsin and federal
precedent," she said. "It's a logical and reasonable extension of those
precedents."

But Justice Ann Walsh Bradley was joined by Chief Justice Shirley
Abrahamson and Justice William Bablitch in a strongly worded dissent.

"Employing an unprecedented and unconstitutional approach, the majority
improperly expands a driver's authority to consent to the search of a
passenger's personal property," she wrote.

Bradley said there is no evidence to show that Miller had any authority
over Matejka's jacket. She added that the trooper knew that the jackets he
was searching belonged to passengers and not to Miller.

The minority challenged the notion that Matejka needed to speak up to stop
the search.

"The majority puts the onus on the individual to confront the officer,
rather than requiring the officer to carry the simple burden of requesting
the consent of the passengers," she wrote.

Connell agreed, saying that the "government has to respect our rights,
regardless of whether we object or not."

The court, Bradley said, "muddles Fourth Amendment principles and in the
end allows an otherwise unreasonable search to be deemed reasonable."

Connell said no decision has been made on whether to seek U.S. Supreme
Court review of the ruling.