State v. Garcia

535 N.W.2d 124, 195 Wis. 2d 68, 1995 Wisc. App. LEXIS 699
CourtCourt of Appeals of Wisconsin
DecidedMay 31, 1995
Docket94-2573-CR
StatusPublished
Cited by23 cases

This text of 535 N.W.2d 124 (State v. Garcia) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Garcia, 535 N.W.2d 124, 195 Wis. 2d 68, 1995 Wisc. App. LEXIS 699 (Wis. Ct. App. 1995).

Opinions

WEDEMEYER, P.J.

Alvaro Jose Garcia appeals from a judgment of conviction, after pleading guilty, to possession with intent to deliver a controlled substance (cocaine), party to a crime, contrary to §§ 161.16(2)(b)l, 161.41(lm)(cm), and 939.05, STATS.1 Garcia claims the trial court erred in denying his motion to suppress because: (1) the use of a dog to sniffhis automobile that was parked in the motel parking lot violated his rights under the Fourth Amendmént;2 and (2) the trial court erred in finding that Garcia consented to a search of his entire motel room. Because the dog sniff in this case does not constitute a "search" and because the trial court's finding that the search was consensual was not clearly erroneous, we affirm.

I. BACKGROUND

In November 1993, Milwaukee Police Detectives Frederick Leffler and A1 Wilke, were assigned to the Drug Interdiction Unit, Vice Control Division of the Milwaukee Police Department. On November 1, as a part of their regularly assigned duties, the detectives were routinely patrolling train stations, bus stations, hotels and motels looking for vehicles with license [72]*72plates from states known for drug trafficking. While on patrol through the parking lot of the Red Roof Motel, located near Mitchell International Airport, the detectives noticed a 1993 Nissan with Florida license plates. The detectives ran a check on the license plate and learned that the car was registered to a Mr. Garcia of Miami, Florida. The detectives had their drug detection dog, named "Zig/Z" sniff the vehicle, Zig/Z alerted to the rear of the vehicle, indicating the presence of illegal drugs. Leffler entered the motel lobby and asked the motel's front desk clerk to check to see if any of the motel guests were Florida residents. Leffler learned that a Mr. Garcia was registered in room 144. Wilke returned Zig/Z to their vehicle and the detectives proceeded to room 144.

They knocked on the door, and Victor Diaz, an occupant of the room, pulled back the curtains from the window. At this point, the detectives showed Diaz their badges and stated "Police Officers." Diaz opened the door. The detectives again displayed their badges, stated that they were police officers, and requested permission to come in to speak with the occupants. The detectives both testified that Garcia, who was rising from the bed closest to the door, told the police detectives to "come in."

Leffler testified that he asked Garcia whether they could search the entire room and his luggage and that Garcia replied, "Go ahead" and gestured toward the luggage. Wilke confirms Leffler's testimony on this issue. Garcia, however, claims he only gave the detectives consent to search his luggage. The detectives observed several bags of cocaine, some on the floor next to the dresser area, and some on the sink. Both Garcia and Diaz were arrested and charged. Garcia filed a [73]*73motion to suppress the evidence, which was denied.3 Garcia pleaded guilty. He now appeals.

II. DISCUSSION

A. Does a dog sniff constitute a search ?

Garcia raises an issue of first impression in Wisconsin: whether using a specially trained drug detection dog to sniff the airspace around a vehicle parked in a motel parking lot constitutes a "search" within the meaning of the Fourth Amendment's proscription against unlawful searches and seizures.

Whether a search or seizure has occurred is a question of law subject to de novo review. State v. Richardson, 156 Wis. 2d 128, 137-38, 456 N.W.2d 830, 833 (1990). A "search" under the Fourth Amendment occurs when the police infringe on an expectation of privacy that society considers reasonable. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Garcia "bears the burden of proving . . . that he had a legitimate expectation of privacy [in the airspace around his unoccupied, parked automobile]." State v. Rewolinski, 159 Wis. 2d 1, 13-16, 464 N.W.2d 401, 405-06 (1990), cert. denied, 500 U.S. 909 (1991). Garcia cites United States v. Thomas, 757 F.2d 1359 (2d. Cir.), cert. denied, 474 U.S. 819 (1985), in an attempt to satisfy his burden. The Thomas court held that using a dog to sniff outside the door to the defendant's apartment constituted a search. Id. at 1366-67. Garcia reasons that the [74]*74Thomas case is analogous — that the Thomas court's finding that a legitimate expectation of privacy exists in the airspace outside the door of an apartment should lead this court to conclude that Garcia had an expectation of privacy in the airspace around his car, which was parked in a motel parking lot. We are not persuaded.

The instant case does not involve a dog sniff of an individual's private dwelling. Garcia parked his car in a parking lot that was open and visible from the roads surrounding it. The police detectives routinely patrol this parking lot. There is no evidence in the record that access to the parking lot was restricted in anyway. We conclude, therefore, that Garcia could not reasonably expect that the parking lot would be private. See Katz v. United States, 389 U.S. 347, 351 (1967) (what a person knowingly exposes to the public is not a subject of Fourth Amendment protection).

Garcia also contends that his legitimate expectation of privacy in the motel room that he rented for the night, see Minnesota v. Olson, 495 U.S. 91, 96-97 (1990), extends to the parking space that he rented along with the room. Garcia offers no legal authority on point and we are unable to locate any legal authority to support Garcia's claim. Instead, we note that both the Sixth and the Tenth Circuits have addressed this precise contention and both courts rejected it. See United States v. Diaz, 25 F.3d 392, 396 (6th Cir. 1994) (expectation of privacy in motel room does not extend to parking lot); United States v. Ludwig, 10 F.3d 1523, 1526 (10th Cir. 1993) (even if a particular parking space was rented with the motel room, there is no expectation of privacy in that parking space). We, in [75]*75turn, reject Garcia's argument and conclude that there is no legitimate expectation of privacy in the air space around a car that is parked in a motel parking lot. Accordingly, the dog sniff in this case did not constitute a search that was within the scope of the Fourth Amendment.

B. Consent to Search.

Garcia next claims the trial court erred in determining that he consented to a search of his motel room. The State responds that Garcia consented to the search. The trial court found that consent was in fact given.

Whether consent was given and the scope of the consent are questions of fact that we will not overturn unless clearly erroneous. State v. McKinney, 168 Wis.

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Bluebook (online)
535 N.W.2d 124, 195 Wis. 2d 68, 1995 Wisc. App. LEXIS 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garcia-wisctapp-1995.