Opinion
No. State 90, 91.
Argued: December 3, 1968.
Decided: December 20, 1968.
ERROR to review a judgment of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Nathaniel D. Rothstein of Milwaukee.
For the defendant in error the cause was argued by Harold B. Jackson, Jr., assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and David J. Cannon, district attorney.
The plaintiff in error, hereinafter referred to as the defendant, was tried and convicted of possession of marijuana, contrary to sec. 161.275, Stats. The pertinent facts are these: Two Milwaukee police officers were patrolling in their squad car when they observed the defendant walking on the corner of Eleventh street and Atkinson avenue in the city of Milwaukee. The time was 8:25 p. m. on August 1, 1967. By proclamation of the mayor of Milwaukee, issued pursuant to sec. 66.325, at that time all persons in Milwaukee were required to remain off the streets. The daytime hours from six a.m. to seven p.m. were exempted from the curfew proclamation.
The squad car stopped. Officer Hetznecker stepped out of the squad car. He stopped the defendant, inquired as to his name and address, informed him he was on the streets in violation of the mayor's proclamation and placed him under arrest. The police officer proceeded to search the defendant for weapons. He checked the pockets of defendant's trousers, his pants legs and waistband. In the waistband he found a packet. (It was stipulated at the trial that the packet or envelope contained marijuana.) At this point, the officer testified he was satisfied that the defendant had no weapons. He continued the search and found a cigarette butt in a sweater pocket. (It was stipulated at the trial that the cigarette butt was marijuana.)
On appeal, the defendant raises two issues: (1) That the arrest was illegal because the mayor's curfew proclamation and the statute authorizing it are unconstitutional; and (2) that the search of his person and revealing the presence of the marijuana was illegal.
It is the position of the defendant that his arrest and subsequent search were both illegal because the curfew proclamation of the mayor of Milwaukee and the statute authorizing it are alike unconstitutional. This is an across-the-board challenge to the constitutionality of the mayor's proclamation and to the enabling statute in any situation and under any circumstances.
Scope of Review.
There is no claim made here that the community situation in the summer of 1967 did not warrant the mayor's use of the power to declare a curfew as granted by the legislature. In fact, there is nothing in this record to even suggest what the conditions were in Milwaukee when the curfew was imposed. The district attorney and defense counsel stipulated that the testimony taken on the motion to suppress evidence was to stand as the testimony and the only testimony taken at trial. At the hearing on the motion to suppress evidence, the only witness to testify was the officer who conducted the search and seized the marijuana found on the person of the defendant. So it is neither possible nor necessary to recreate the combination of widespread lootings, sniping from rooftops and multiple arsons that led the common council and the mayor to impose the curfew. The defendant is asserting that no matter how widespread the community chaos, anarchy and disorder, under no possible set of circumstances can the imposition of a community-wide curfew be upheld.Likewise, there is here no narrowed challenge to the unconstitutionality of the curfew as specifically applied to the defendant. There is no testimony whatsoever as to where he was going or what he was going to do when he got there at the time of his arrest. Why he was on the streets at all must be left entirely to conjecture. For this reason the district attorney contends that the defendant lacks standing to raise the question of the constitutionality of the curfew proclamation. We believe he has such standing, but only to challenge the proclamation and the statutory authorization on their faces, generally and not specifically as it relates to him. Statute and Proclamation.
"Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement of his rights." 16 Am. Jur. 2d, Constitutional Law, p. 310, sec. 119.
We would not deny the relatedness of the rights guaranteed by the first amendment to freedom of travel and movement. If, for any reason, people cannot walk or drive to their church, their freedom to worship is impaired. If, for any reason, people cannot walk or drive to the meeting hall, freedom of assembly is effectively blocked. If, for any reason, people cannot safely walk the sidewalks or drive the streets of a community, opportunities for freedom of speech are sharply limited. Freedom of movement is inextricably involved with freedoms set forth in the first amendment.
The freedom to move about is a basic right of citizens under our form of government, in fact, under any system ordered liberty worth the name. It was not added to our United States Constitution by the enactment of the first ten amendments. It is inherent, not only in the Bill of Rights, but in the original document itself. It has properly been termed "engrained in our history" and "a part of our heritage." However, freedom to walk under sniper's bullets, to grovel under a fusillade of gunfire, to leave one's home only to encounter' milling mobs blocking every thoroughfare is not freedom of movement. A municipal curfew as was imposed in Milwaukee, is an emergency measure undertaken to restore order in the community. There is no claim made here and the fact may well be that the only alternative was accelerating community anarchy. The cause of liberty is never served by surrender to anarchy.
"In Anglo-Saxon law that right [of travel] was emerging at least as early as the Magna Carta. Chafee, Three Human Rights in the Constitution of 1787 (1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. . . . It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. . . . `Our nation,' wrote Chafee, `has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.'" Kent v. Dulles (1958), 357 U.S. 116, 125, 126, 78 Sup. Ct. 1113, 2 L.Ed.2d 1204.
The purpose and result of the mayor's curfew proclamation was not to destroy freedom of movement, but to restore it. This is not the occasion and we are not the agency to analyze the causes of riots and disorders in major American cities in the summer of 1967, Milwaukee among them. Whether municipal authorities faced the phenomenon of simultaneous spontaneity, psychic contagion or planned escalation is not the question for us to answer. Whatever the cause, given the fact of widespread riotous conditions and criminal activities, the restoration of "domestic tranquility" becomes, not alone a constitutional right, but a constitutional obligation. The temporary imposition of a curfew, limited in time and reasonably made necessary by conditions prevailing, is a legitimate and proper exercise of the police power of public authority. To argue contrarywise is to give to a mob a power to oppress that under our constitution is not given to the state itself. The constitution protects against anarchy as well as tyranny. Search and Seizure.
In testing the validity of the search of the person here involved, the chronology of events becomes highly material. While the entire search took approximately two minutes, even so brief an inspection has its sequence of events. There is a dispute between defendant's counsel and district attorney as to such chronological sequence. However, the record, direct and cross-examination included, establish the sequence to be as follows:1. The police officer searched the trouser pockets, checked the pants legs, found nothing.
2. The officer checked the waistband of defendant's trousers, found the packet containing marijuana.
3. The officer concluded that the defendant had no weapons on his person.
4. The officer examined the pockets of defendant's sweater and found the marijuana cigarette butt.
It is unreasonable searches and seizures that are prohibited by state and federal constitutions. When a person is lawfully arrested, it is not unreasonable for the arresting officer to make a contemporaneous search of the person of the accused for weapons. It is not only proper but prudent for the arresting officer to make certain that the person arrested is not carrying a gun, knife or other dangerous weapon. The law does not require a law enforcement officer to wait until a weapon is displayed or used to remove the danger of a weapon-involved assault upon him.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fourth amendment, United States Constitution.
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." Art. I, sec. 11, Wisconsin Constitution.
"Likewise, weapons and instruments of escape may be searched for and taken to insure the safety of the arresting officers and the custody of the person arrested." State v. Stevens (1965), 26 Wis.2d 452, 458, 132 N.W.2d 502, citing Agnello v. United States (1925), 269 U.S. 20, 46 Sup. Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169; Stoner v. California (1964), 376 U.S. 483, 84 Sup. Ct. 889, 11 L.Ed.2d 856.
Defendant argues that the two minute search was too exhaustive to be justified as a search for weapons. Specifically, he contends that it is enough to "pat down" a defendant from the outside to remove any possibility of weapons being concealed on his person. It is true that there are limits to the type and extent of searching that can be reasonably related to a looking for weapons. A "minute search of a pocket in a shirt" not being worn by the arrested person, actually hanging in a closet off the living room, was held to be beyond the pale of permitted searching for weapons. Where an automobile driver, placed under arrest for a traffic violation, was "patted down" for weapons, and then the pocket of his overcoat examined with a flashlight, this court held the flash-lighting, following the "patting down" to go beyond the limits of a reasonable search for weapons. In the case before us, the officer stayed well within such outer limits. In the light of the turbulent community situation then prevailing, he had every reason for a quick but thorough examination to remove the possibility of the arrested person being armed. He testified that weapons can be hid in many places, and obviously he checked the most likely hiding places. Where he found the packet of marijuana, the waistband of the defendant, is not an unusual hiding place for gun or knife. That he found an envelope of marijuana instead of revolver or switchblade does not affect the reasonableness of the search he was conducting. Given the police officer's testimony that he was searching for weapons and that the waistband is a likely place of concealment for a dangerous weapon, the trial court was entitled to find the search reasonable and to admit into evidence the marijuana contained in the unsealed envelope found in defendant's waistband.
State v. Dodd (1965), 28 Wis.2d 643, 137 N.W.2d 465.
Barnes v. State (1964), 25 Wis.2d 116, 130 N.W.2d 264.
Supra, footnote 8, page 459. See also Hutcherson v. United States (D.C. Cir. 1965), 345 F.2d 964, certiorari denied, 382 U.S. 894, 86 Sup. Ct. 188, 15 L.Ed.2d 502.
Objection is made to the search and seizure from the sweater pocket because it occurred after the checking of the trousers (pockets, pants legs and waistband) and after the officer had concluded, he testified, that the defendant was not armed. However, when the officer found the unsealed packet containing what he believed, on the basis of his experience in two prior marijuana possession cases, to be marijuana, he was entitled to complete the search to determine if the defendant had additional illegal marijuana on his person. Defendant's counsel argues that, if one cigarette is found in a person's side pocket, the fact that he may have a dozen more in a back pocket is entirely immaterial. We cannot agree. There are explanations for having two seeds of marijuana on one's person that would become incredible if used to explain carrying two pounds. In the sentencing phase of a marijuana prosecution, the judge is entitled to know the exact fact as to how much marijuana the defendant had on his person. The continuation or completion of the search, under the circumstances of this case, was not unreasonable.
Finally, defendant seeks a new trial, contending that the trial court erred in denying a motion for a new trial because (1) the trial court should have declared the mayor's proclamation unconstitutional; (2) the trial court should have ruled that the marijuana discovered on defendant's person was obtained through an illegal search and seizure. We have sustained the trial court on both counts. No reason exists for reversal.
By the Court. — Judgment affirmed.