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07/05/83 STATE WISCONSIN v. MARK K. ABRAMOFF

July 5, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
MARK K. ABRAMOFF, DEFENDANT-APPELLANT



Appeal from a judgment of the Circuit Court for Waukesha County: Neal Nettesheim, Judge.

Foley, P.j., Dean and Cane, JJ.

The opinion of the court was delivered by: Cane

Mark Abramoff appeals his conviction, after a non-jury trial, of possessing marijuana with intent to deliver in violation of sec. 161.01(4), Stats. The issues are (1) whether Abramoff lacks standing to challenge the search of his car, which was done while his companions were driving the car from Florida to Wisconsin, and (2) whether the evidence supports the court's Conclusion of no entrapment. Because the trial court correctly concluded that Abramoff had no legitimate expectation of privacy in the seized car and because there is sufficient credible evidence to support the trial court's Conclusion of no entrapment, we affirm.

At the suppression hearing, Abramoff testified that in early February, 1980, he permitted his roommate, Mike Hagen, to drive his car to Florida. Abramoff later flew to Florida and met his other roommate, Sonny Grauer, and Hagen. Abramoff stated that he observed Hagen place approximately ninety-eight pounds of marijuana into his car's trunk. He then allowed Hagen and Grauer to drive his car back to Wisconsin while he returned by plane. Abramoff acknowledged that he owned the marijuana and the car.

Authorities stopped Hagen and Grauer in Kentucky, where they seized the marijuana in the car. Two Waukesha detectives flew to Kentucky and interviewed Hagen and Grauer, who stated that Abramoff instructed them to drive his car back to their Wisconsin residence with the marijuana. The detectives instructed them to deliver the marijuana as had been agreed upon in Florida. The detectives observed Hagen and Grauer return the car to their Wisconsin residence, where Abramoff moved the marijuana from his car to a jeep. The detectives later arrested Abramoff and, after obtaining a search warrant, seized the marijuana from the jeep.

Abramoff challenged the seizure of the marijuana in Kentucky. The trial court concluded that under the totality of the circumstances, Abramoff had no reasonable or legitimate expectation of privacy in his car when the marijuana was seized in Kentucky.

Abramoff contends that he has automatic standing to challenge the Kentucky search of his car because he owns the property searched and is charged with a crime for possessing the seized items. He argues that his fourth amendment right under the United States Constitution is not forfeited simply because he was not present during the search. We disagree.

The "automatic standing" rule of Jones v. United States, 362 U.S. 257 (1960), has been abolished by the United States Supreme Court in United States v. Salvucci, 448 U.S. 83 (1980), and by the Wisconsin Supreme Court in State v. Callaway, 106 Wis. 2d 503, 519-20, 317 N.W.2d 428, 437 (1982). While property ownership is a factor to be considered in determining whether an individual's rights under either the United States or Wisconsin Constitutions have been violated, an illegal search only violates the rights of those who have a legitimate expectation of privacy in the searched area. Salvucci, 448 U.S. at 91-92.

The primary objective of the fourth amendment is protection of privacy. Cardwell v. Lewis, 417 U.S. 583, 589 (1974). The question before the trial court and on appeal is whether Abramoff had a legitimate expectation of privacy in his vehicle that was searched in Kentucky. On appeal, the trial court's factual findings will be sustained unless clearly erroneous. Section 805.17(2), Stats. The trial court's Conclusion, however, that these facts did not give rise to an individual's legitimate expectation of privacy is a question of law, which we independently review. State v. Wisumierski, 106 Wis. 2d 722, 734, 317 N.W.2d 484, 490 (1982).

Whether Abramoff had a legitimate expectation of privacy depends on a variety of factors, including those our supreme court listed in State v. Fillyaw, 104 Wis. 2d 700, 711-12 n. 6, 312 N.W.2d 795, 801 n. 6 (1981):

(1) Whether one had a property interest in the premises;

(2) Whether one is legitimately (lawfully) on the premises;

(3) Whether one had complete dominion and control and the right ...


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