Opinion
December 6, 1940 —
January 7, 1941.
ERROR to review a judgment of the municipal court of Milwaukee county: J. R. McCARTHY, Circuit Judge, Presiding. Affirmed.
James W. Dorsey of Milwaukee, for the plaintiff in error.
For the defendant in error there was a brief by the Attorney General, Herbert J. Steffes, district attorney of Milwaukee county, and Gene L. Green, assistant district attorney, and oral argument by Mr. Green.
On August 31, 1940, a complaint was filed in the district court of Milwaukee county, charging William Mannery, plaintiff in error, hereinafter called the "defendant," with unlawfully —
"keeping, managing and maintaining a house where the game called policy is played, and did unlawfully set up, keep, manage and use a device, scheme and contrivance by which the game commonly called `policy' might be played."
The defendant was arrested and brought into court on September 3, 1940. The matter was continued to September 10, 1940. On that day the defendant was found guilty of the offense as charged in the complaint and sentenced to confinement in the house of correction for a period of thirty days.
The defendant appealed from the judgment of the district court to the municipal court of Milwaukee county where the matter was brought on for trial de novo on October 22, 1940. Upon the opening of the trial, counsel for the defendant moved the suppression of any evidence on the ground that the search warrant in this case was not issued upon probable cause and that the search warrant did not properly describe the place to be searched and did not properly describe the person in the search warrant. From the record in the district court it appears that Police Officer Fred Utech was sworn in respect to the application for a search warrant for the entire premises at No. 1459 North Eighth street, Milwaukee, Milwaukee county. Upon his examination he testified as follows:
" Q. Upon what do you base your application? A. On August 29th, 1940, I was very close to these premises, No. 1459 N. Eighth street, and saw known policy writers enter these premises and one of these persons dropped four sheets of paper, upon which is written policy numbers."
Upon request of Officer Utech the search warrant was issued. No other or further evidence was offered on the motion to suppress. Upon denial of the motion to suppress the evidence, the trial was proceeded with. The district attorney examined Mr. Utech with regard to his observations about the premises, 1459 North Eighth street. To the introduction of this testimony, the defendant's counsel strenuously objected. It was finally admitted on the theory that it was necessary to the principal case. Judgment of conviction was entered on October 22, 1940, and the defendant sentenced to six months in the county jail. From the judgment and sentence, the defendant brings this writ of error.
Upon this review the defendant assigns three errors: (1) The court erred in denying the motion of the defendant to suppress the evidence procured pursuant to the search on the ground that the search warrant was unlawfully issued. (2) The court erred in overruling defendant's objections to the introduction into evidence of the so-called "policy" paraphernalia for the same reason. (3) The court erred in denying defendant's motion to dismiss, made after trial, for the reason that there was no competent admissible evidence introduced, the evidence having been wrongfully obtained by reason of the unlawful search made pursuant to an invalid warrant.
These assignments of error raise a single question, — Was there a sufficient showing of probable cause for the issuance of the search warrant? There was no renewal of the defendant's claim with respect to the unlawful search upon the trial. The evidence referred to in the second assignment of error was with respect to the nature of the "policy" paraphernalia and not upon the ground that it had been obtained by an unlawful search. The evidence has already been set out in the statement of facts.
"Probable cause" is defined as such an apparent state of facts that a discreet and prudent man would be led to believe that the premises or place, sought to be searched, contained property of the character for which a search under a warrant could be lawfully made. That known "policy" players were known to be resorting to these premises and that as they entered they dropped slips bearing "policy" numbers would seem to be a state of facts sufficient to arouse in the mind of any prudent man a strong belief that the premises were resorted to for the purpose of playing the game known as "policy." It is considered that this evidence was sufficient within the rule stated in State v. Baltes (1924), 183 Wis. 545, 198 N.W. 282, and State v. Brockman (1939), 231 Wis. 634, 283 N.W. 338. We need not repeat what was stated in those cases. No other question is presented by the record upon this review.
By the Court. — Judgment affirmed.