Police may search unarrested passenger’s belongings found outside car

Jan. 8, 2009 – Police may search the belongings of a passenger who has not been arrested and that are outside of the automobile searched, the Wisconsin Supreme Court held Dec. 30 in State v. Denk, 2008 WI 130.

The court reasoned that such a warrantless search is consistent with the historical rationales of protecting the police officer and preserving evidence.

In this case, Jordan A. Denk was a passenger in a car parked at night alongside a county road. When a police officer stopped to see if the motorists needed assistance, he ran a license plate check to discover the plates did not match the car. The officer approached the car a second time to talk to the occupants and smelled marijuana.

After receiving consent to search the car, the officer ordered the driver and Denk out of the vehicle. The officer noticed the driver’s sweatshirt pocket was bulging, but the driver refused to allow the officer to perform a protective pat down. The officer directed the driver to empty his pockets whereupon the officer spotted drug paraphernalia. The officer arrested the driver and completed a search uncovering more contraband. 

Turning to Denk, the officer noticed an eyeglass case lying on the ground next to the passenger door. Denk acknowledged that it belonged to him. The officer asked Denk to retrieve the case and he did so, placing it on the hood of the car. The officer opened the case and found drug paraphernalia. The officer handcuffed Denk and searched him, finding marijuana and methamphetamine.

The supreme court affirmed the circuit court order upholding the search, citing State v. Pallone, 2000 WI 77. In Pallone, a passenger’s belongings can be searched incident to the arrest of the driver when the passenger poses as much danger as the arrested driver.  In this case, the court found that the eyeglass case was within easy reach of Denk who had not been restrained by the lone officer. The case could have contained a weapon or evidence Denk might seek to discard.

Denk failed to persuade that a court should first determine whether the unarrested passenger’s belongings seized outside the car had originally been loose within the vehicle compartment (where it would have been subject to a search) or if it had been on the passenger’s person (where it would not). The court said the circumstances of how an item came to rest outside the vehicle does not address the concerns of protecting the officer or preserving evidence.  

However, the court reaffirmed that unarrested passengers cannot themselves be searched based solely on the arrest of the driver. In order to search the body of a passenger, the arresting officer must have individualized cause.

By Alex De Grand, Legal Writer, State Bar of Wisconsin