Warrix v. State

• Citation: 184 N.W.2d 189,50 Wis.2d 368
• Decision Date: 02 March 1971
• Docket Number: No. S,S
• Parties: Louis Dean WARRIX and Richard Thomas Warrix, Plaintiffs in Error, v. STATE of Wisconsin, Defendant in Error. tate 40.
• Court: United States State Supreme Court of Wisconsin

Page 189

184 N.W.2d 189

50 Wis.2d 368

Louis Dean WARRIX and Richard Thomas Warrix, Plaintiffs in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 40.

Supreme Court of Wisconsin.

March 2, 1971.

Louis Dean Warrix and Richard Thomas Warrix were convicted on April 9, 1969, of burglarizing Terry and Kay's Tavern in Milwaukee, in violation of sec. 943.10(1)(a), Stats. The Warrix brothers participated in the crime with Rodney Emil Ruehl and Roger Lockhard. Lockhard turned state's witness. According to the testimony, one of the men served as lookout and the other three broke into the tavern about 2:15 o'clock in the morning of July 24, 1968, and took money out of the cash register. A neighbor saw them around the tavern and had her husband call the police.

Patrolmen Charles Wilson and John Muszynski of the Milwaukee police force, on their way home after finishing their tour of duty, were about six blocks from the tavern when they observed the 1958 Pontiac in which the four men were riding. The patrolmen had previously heard a police dispatch to be on the lookout for the auto. They followed the car and stopped it after it speeded and went through a red light. After identifying themselves as police officers, Wilson looked into the car with the aid of a flashlight. He saw a shiny object under the driver's seat which he removed and discovered was a loaded .22 caliber pistol. He also observed several coins on the rear seat of the automobile. The four occupants of the car were ordered out and patted down. From this patting the police officers concluded the defendants' pockets contained a sizable amount of loose coins and they were arrested and taken to a police station. There the defendants were rearch during the booking procedure and the coins in their pockets seized. The Pontiac was taken to the station and searched and $5 in quarters found under the rear seat.

The trial was commenced before a jury but after the state presented its case, the defense rested without calling any witness. The defendants offered to waive the jury, which offer was accepted by the judge and agreed to by the state. Upon the evidence, the court found the defendants guilty and sentenced Richard Thomas Warrix to an indefinite term of not more than six years imprisonment and Louis Dean Warrix to not more than five years.

James H. McDermott, State Public Defender, Madison, for plaintiffs in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., James B. Schwalbach, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

HALLOWS, Chief Justice.

There are several assignments of error which are best discussed seriatim.

Waiver of jury.

There is no question that the waiver, if valid, was voluntarily and knowingly made. The trial court questioned both the defendants and counsel, was careful the defendants understood what they were doing, and had each of them sign a jury waiver which was approved in accordance with sec. 957.01(1), Stats. ¹ This procedure was recommended in Stats ex rel. Derber v. Skaff (1964), 22 Wis.2d 269, 274, 125 N.W.2d 561.

The precise issue is whether the defendants can waive a jury at this late point in a trial and have the court make the finding of guilt or innocence. It is argued by the defendants sec. 957.01(1), Stats., plainly requires the waiver precede the commencement of a trial to a jury and the whole jury trial must be waived, not merely a part of it. It is argued that all the defendants did was to waive the right to continue the jury trial and they could not waive what they already received.

This is not a proper interpretation of the statute. Of course, a jury trial is an examination of the issues between the parties, sec. 270.06, Stats., and this process commences at the time of the opening arguments to the jury, Strong v. State (1967), 36 Wis.2d 324, 327, 152 N.W.2d 890; but a waiver made part way through a jury trial is retroactive in effect to the commencement of the trial. It cannot be said the jury heard part of the case and the court heard part of the case if the finding of guilt or innocence is made by the court after a waiver. The judge heard the evidence as well as the jury. It sounded no different to him as a judge than if he were also the trier of the fact when he heard part of it. A waiver during trial does not mean the judge hears only part of the case. He has heard all the evidence at the trial. If a judge believes he cannot recollect the testimony or did not make notes to help him or for any reason he cannot function as the trier of the facts he needs only to refuse to accept the offer to waive the jury.

It is argued that sec. 957.01(2), Stats., permits only a waiver prior to the commencement of the jury trial by analogy to sec. 957.01(1), Stats., wherein it specifically provides for a reduction in the number of jurors 'at any time before verdict.' Although sec. 957.02 does not expressly provide for a waiver 'at any time before verdict,' there is no compelling policy reason why the statute should not be so construed. We are unconvinced the history of the section or analogy to sec. 957.02 or the language of the section requires the strict and technical construction urged by the defendants.

This court would be hard pressed to say a plea of guilty could not be entertained during a jury trial, ² yet the acceptance of a plea of guilty would waive a jury trial even though some portion of the evidence was heard by the jury. It is true, the analogy is not perfect because on a plea of guilty the plea itself furnishes the basis for the finding of conviction rather than the evidence. Nonetheless, that which is waived, the jury determination, is the same in both instances. A waiver of a jury partly through a trial is in effect an agreement the court can make the finding. The rarity of such a waiver does not necessarily make it invalid.

Seaches and seizures.

Both in the defendants' motion to suppress evidence and in their post-conviction motions, five searches and seizures are claimed to be unconstitutional. None of the searches was made pursuant to a search warrant. In chronological order, they were: (1) The flashlight search which occurred when the car was stopped and revealed the shiny metal object protruding from under the driver's seat and the coins in the rear seat of the car; (2) the seizure of a .22 caliber pistol from under the driver's seat; (3) the 'patting down' of the defendants by which the officers were led to believe the defendants had large amounts of coins in their pockets; (4) custody search at the police station within 45 minutes after their arrest; and (5) the search of their automobile at the police station while in police custody one and a half hours after the arrest and the seizure of coins under the back seat.

The defendants argue the use of the flashlight at 2:15 o'clock in the morning to look into the interior of a car was an exploratory investigation in violation of their Fourth Amendment rights. A policeman may use a flashlight to bring into plain sight what natural light would have revealed if the 'look see' had taken place in daylight. A search implies prying into hidden places for what is hidden. Gouled v. United States (1921), 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. The observance by sun-light or artificial light of that which is open and patent is not a search. Smith v. United States (4th Cir., 1924), 2 F.2d 715; United States v. Lee (1927), 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202. The argument a flashlight renders unreasonable what is otherwise a reasonable search is itself unreasonable. We agree with the statement in Sweeting v. State (1969), 5 Md.App. 623, 249 A.2d 195, 198, '* * * where an officer is in a place where he is lawfully entitled to be (as here, on a public street), the shining of a flashlight at night inside the vehicle while remaining outside does not amount to an illegal search under the Fourth Amendment.'

It is not unreasonable for a police officer under the circumstances of this case to take a shiny object in view from under the front seat even though at that time he does not know it is a gun. If no part of the gun had been protruding, the officer could not have used his hand to discover what if anything was under the seat any more than he could scrape the inside of a pocket for narcotic fragments, Barnes v. State (1964), 25 Wis.2d 116, 130 N.W.2d 264, or disrobe an accused without consent to discover narcotic needle marks, State v. Brown (1964), 25 Wis.2d 413, 130 N.W.2d 760, where we said, 'What is in plain sight they may look at, what is hidden or covered is verboten.'

The finding of a loaded revolver and the coins and knowing the occupants of the car were wanted led to a pat down. It was reasonable for their protection to determine whether the defendants carried any other weapons. True, no more weapons were found but in the process the officers reasonable concluded the defendants were carrying a large amount of coins in their pockets. These factors led Officer Wilson to arrest the defendants. It is argued that this search or pat down was not properly incidental to the arrest and therefore invalid. Defendants rely on United States v. Di Re (1948), 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; United States v. Coplon (2d Cir., 1950), 185 F.2d 629; and United States v. Moderacki (D.C.Del., 1968), 280 F.Supp. 633, 637. It is quite apparent the pat down was not incidental to the arrest because it preceded the arrest. See United States v. Di Re, supra. The defendants raise a false issue.

The state claims the search was in the nature of a stop and frisk procedure recognized in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. While police must whenever practicable seek a warrant before the search, Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the Terry Case justified the 'stop and frisk' procedure on pragmatic grounds because it involved 'an entire...