Opinion
December 4, 1959 —
January 5, 1960.
APPEAL from a judgment of the circuit court for Milwaukee county: LEO B. HANLEY, Circuit Judge. Affirmed.
For the appellant there was a brief by Posner Rubin of Milwaukee, and oral argument by Alexander N. Rubin.
For the respondent the cause was argued by William A. Platz, assistant attorney general, and Hugh R. O'Connell, special assistant district attorney, with whom on the brief were John W. Reynolds, attorney general, and William J. McCauley, district attorney of Milwaukee county.
Appellant was adjudged guilty of unlawful use of narcotic drugs in violation of sec. 161.02(3), Stats.
At the time of the arrest appellant was a woman of the age of twenty-four years. Prior to the arrest, Detective Dayle was connected with the Milwaukee police department. On July 30, 1958, he complained upon information and belief that in July, 1958, in Milwaukee county, appellant feloniously took and used narcotic drugs not in pursuance of a prescription for permitted use, contrary to sec. 161.02(3), Stats. On that day and upon that complaint the district court of Milwaukee county issued a warrant for the arrest of Miss Luczaj. The warrant was delivered to Dayle, who proceeded immediately to a certain apartment occupied by a Miss Richards. Dayle reached the apartment in the early evening of that day. He was admitted by Miss Richards. Miss Luczaj was there. When she saw him at the door she ran into the bathroom and locked the door. Dayle spoke to her at the door saying that he had a warrant and that he was arresting her but she would not come out. A purse lay where she had been sitting in the apartment. Miss Richards told Dayle that it belonged to Miss Luczaj. Dayle opened and emptied the purse. At the trial he testified that he found in it a hypodermic needle, a rubber bulb which could convert the needle into a syringe, and a bottle screw cap, charred or scorched at the closed end and which contained some caked, white substance. At the trial Miss Luczaj admitted the purse was hers but denied that these articles had been in it or belonged to her.
After some delay Miss Luczaj came out of the bathroom. Dayle looked at her arms and saw eight or nine punctures in them, characteristic of those made by hypodermic needles. A number of these marks appeared to have been made within the past few days. Dayle then took Miss Luczaj to police headquarters in the Safety Building. There she slashed her arms at the locations of such punctures with a safety-razor blade which she had in her possession.
The city chemist, a witness for the state, testified that the white substance caked in the bottle cap was heroin. Dayle testified that he had long experience in the use of narcotics and the practices used by narcotic addicts. They are accustomed to put a quantity of heroin and some liquid agent into a bottle cap, heat it over a flame, and then by means of the hypodermic needle and the bulb draw the drug-bearing liquid into the hollow needle and then inject it into the user's body.
Miss Luczaj testified that she knew the use and the procedures of using narcotics. She denied that any of the utensils were in her purse but must have been planted there after she left the room. She explained that her flight to the bathroom and the sound of flushing the toilet when Dayle appeared at the apartment was caused by a sudden attack of nausea and her attempt at the Safety Building to obliterate the marks of punctures in her arm was the unreasoning result of panic.
A doctor testified for the defense that he had treated her to relieve severe headaches and that he had given her a hypodermic syringe and three ampules each containing a sedative of one injection. He did not give her heroin or prescribe it.
Appellant submits that she was not accorded due process of law because the complaint upon which the warrant was issued did not establish that there was probable cause to issue the warrant. Sec. 954.02 (1), Stats., authorizes a complaint made upon information and belief, and sub. (2) "If it appears from the complaint that there is probable cause to believe that a crime has been committed and the accused committed it, . . ." the warrant shall issue. The form of complaint and its foundation, information and belief, was held to be sufficient to support a warrant in State v. Davie (1885), 62 Wis. 305, 22 N.W. 411. That case was cited with approval in Piper v. State (1916), 163 Wis. 604, 158 N.W. 319, and a like result was reached. We conclude that the complaint and the warrant issued upon it conform to our established precedents and this assignment of error is without merit.
Appellant submits that upon the trial of the general issue she should have been permitted to inquire into the existence of probable cause at the time the complaint was made.
Sec. 955.09 (3), Stats., provides that "Defenses and objections based on defects in the institution of proceedings, . . . or the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived." Sub. (5) provides: "The motion shall be determined before trial of the general issue unless the court orders that it be deferred for determination at such trial. . . ."
The alleged defect in the proceedings was raised by the defendant's notice of motion prior to the trial that she would move to suppress the evidence because obtained by illegal means. When the case was called for trial the court ruled that it would hear the motion and determine it before trying the general issue and directed appellant's counsel to proceed with his motion. Counsel was not ready, whereupon, in effect, the court denied the motion and directed the trial of the general issue to be commenced. Thereafter, during trial of the general issue, the court ruled on evidence as though the motion had been heard and determined in respondent's favor. We find no error in the dispositions made by the learned trial court in these matters.
Appellant's counsel submits that he had been misled by an assistant district attorney — not the one who tried the case — that further delay would be granted him in pursuing his motion and that he was "surprised" by being required to proceed at once. Wherefore, counsel says, the court abused its discretion in refusing to defer determination of the motion and merge it into the general issue. There had been ample time to prepare and present the motion. Appellant had filed two affidavits of prejudice and a third judge had now come into the case. There is no written stipulation that the state would agree to further delay and the record is far from clear concerning whatever may have been said in conversation between the state's former attorney and appellant's counsel. The court followed sec. 955.09 (3), Stats., and used the discretion given him by sub. (5). We do not think this was an abuse of discretion. The court might well conclude that under the circumstances further delay was not required in getting to the merits.
Lastly, appellant contends that the state's only evidence is insufficient because all of it was obtained incidental to the arrest. In our view that evidence does not lack persuasive power. The trial court believed the state's witnesses and doubted the appellant's statement of facts and her explanations of obviously incriminating conduct. We conclude the evidence amply supports the judgment and we perceive no reversible error in the course of the trial.
By the Court. — Judgment affirmed.
MARTIN, C.J., took no part.
The instant case does make apparent a rather disturbing anomaly in the criminal law of this state. Sec. 11, art. I of the Wisconsin constitution, is couched in almost the identical language of the Fourth amendment to the United States constitution, and reads as follows:
"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."
This court has held that such constitutional provision invalidates a search warrant which is issued upon a statement under oath, or an affidavit, grounded upon information and belief. Glodowski v. State (1928), 196 Wis. 265, 220 N.W. 227, and State v. Ripley (1928), 196 Wis. 288, 220 N.W. 235. However, sec. 954.02 (1), Stats., authorizes the complaint, upon which a warrant for arrest may be issued, to be made upon information and belief.
If, in the instant case, a valid search warrant could not have been obtained to secure the necessary evidence to convict the accused, sec. 11, art. I, Wis. Const., should not be circumvented by securing the issuance of a warrant for the arrest of the accused on a showing of mere information and belief, not substantiated by grounds of probable cause, and then making the search. The provision against unlawful searches of sec. 11, art. I of our constitution, has long been considered to be one of the bulwarks of the liberty of free men, and it is imperative that it ever be preserved as such. We find it unnecessary to formulate the rule of law which should be adopted to accomplish this in such a fact situation. This is because of the waiver which here occurred.
The accused in the instant prosecution before trial did make and file a timely notice of motion to suppress the evidence obtained by the search of her purse. As pointed out in the majority opinion, the trial court afforded counsel for the accused the opportunity to try the issue raised by such motion to suppress before proceeding to try the general issue. For some reason counsel for the accused declined such opportunity, and later during the course of the trial attempted to raise the issue of the want of probable cause in the issuance of the warrant. It was then too late for counsel to make such move. Sec. 955.09, Stats. Therefore, the accused must be deemed to have waived her right to object to the alleged illegally obtained evidence.
The brief of the accused cites the case of Giordenello v. United States (1958), 357 U.S. 480, 78 Sup. Ct. 1245, 2 L.Ed.2d 1503, in which the facts closely parallel those of the instant case. However, that case is distinguishable because there the motion to suppress was both made and denied before trial.
I am authorized to state that Mr. justice HALLOWS and Mr. Justice DIETERICH concur in this opinion.