Gautreaux v. State
| Decision Date | 08 October 1971 |
| Docket Number | No. S,S |
| Citation | 190 N.W.2d 542,52 Wis.2d 489 |
| Parties | James D. GAUTREAUX, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 94. |
| Court | Wisconsin Supreme Court |
James D. Gautreaux, plaintiff in error, was convicted of burglary and aiding and abetting in the commission of a crime (secs. 943.10(1)(a) and 939.05(2)(b), Stats.) and was sentenced on May 27, 1970, to concurrent terms of not more than two years at the Green Bay Reformatory. From this judgment of conviction, Gautreaux appeals.
Donald E. Mayew, Phillips, Richards & Mayew, Kenosha, for plaintiff in error.
Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for defendant in error.
Gautreaux challenges his convictions on the following grounds: (1) The physical evidence admitted at the trial was obtained by an illegal search of an automobile, and (2) the evidence is insufficient to support a finding of guilty.
The basic facts are not in dispute. Early in the morning of October 30, 1968, Mr. and Mrs. Arthur Garcia, owners of Art & Joyce's Tavern in Kenosha, were awakened in their two-story apartment by sounds in their tavern below. Mr. Garcia saw six people running from the back door of the tavern--two entered a car parked across the street and the others disappeared on foot. Mrs. Garcia, looking out a west window, saw the car pull away. She testified there were several occupants. Both Mr. and Mrs. Garcia described the persons as 'colored', the car as an old black Pontiac with a head lamp on the driver's side out and the red lens on the left-rear taillight gone so the taillight showed white. Upon examining their tavern, they found the back door had been broken open, the cash register emptied and a 'party jar' containing coins was missing. The police, who were called to the scene, noticed the lock on the back door had been broken and pry marks on the door.
The police broadcast the description of the car and the occupants as given by the Garcias and a police squad car on Sheridan road, not far from the tavern, stopped a black 1958 Pontiac with a left-rear taillight lens gone and a front headlight burned out. The car was occupied by eight black males, one of whom was Gautreaux. They were taken to Art & Joyce's Tavern where the Garcias identified the car; the eight men were placed under arrest and taken to the station.
It was subsequently learned the Gallo Pharmacy in Kenosha had been also burglarized that night and several watches and some coins were missing. At the station Joe Charleston, the driver and owner of the car, after twice refusing to allow a search, finally signed a consent permitting the police to search the car. Prior thereto the police had told Charleston they could not search the car without his consent, that he would be better off if he consented to a search of the car and if nothing were found in the car all defendants could return to their homes in Illinois and the day shift of detectives would continue the investigation.
The search of the car turned up a pry bar and a hack saw in the trunk; two pocket watches, another pry bar and a screw driver under the back seat; a glove containing coins and brown paper bags (one containing coins and the other containing several watches) between the radiator and the grill. These items constituted the state's exhibits at the trial which were admitted in evidence.
It is argued by Gautreaux that when the consent was given at the police station Charleston, along with the defendant and others, were under arrest and this alone is sufficient to establish the consent was not voluntary but rather the product of coercion and duress implied from the fact the defendants were subject to the control of the officers. Although the state has the burden of proving by clear and positive evidence the search was the result of a free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied, Holt v. State (1962), 17 Wis.2d 468, 117 N.W.2d 626; United States v. Callahan (2d Cir., 1971), 439 F.2d 852; United States v. Berkowitz (1st Cir., 1970), 429 F.2d 921, and its burden is more difficult when the consent is given while the consenter is under arrest, United States v. Page (9th Cir., 1962), 302 F.2d 81; United States v. Jordan (2d Cir., 1968), 399 F.2d 610, there is no presumption a consent to a search given by a person under arrest is involuntary and coerced as a matter of law.
It is true the psychological effect of being in the custody of the police should be taken into consideration and be given greater weight with first offenders than with experienced criminals. Likewise, the time of day or night, the deprivation of human comforts, the number of pllicemen interrogating the person are among the factors to be considered in evaluating whether the consent was voluntary. However, the factors used in the evaluation do not differ essentially from those considered in determining voluntariness of an inculpatory statement or confession. In terms of involuntariness and the freedom of choice we see no legal difference. See Barnes v. State (1964), 25 Wis.2d 116, 130 N.W.2d 264 (). We think that even though the consent was given early in the morning while Charleston was in custody and after he twice refused to give the consent, these factors are not sufficient standing alone to render the consent involuntary in fact. Many courts have found a consent to be voluntarily given despite its 'in custody' nature. Judd v. United States (1951), 89 U.S.App.D.C. 64, 190 F.2d 649; see Annot. (1966), Validity of Consent to Search Given by One in Custody of Officers, 9 A.L.R.3d 858, 873.
But it is argued by Gautreaux the consent was obtained by coercion in that he was told he would be better off with reference to the charge if he consented to the search of the car and this was a veiled threat which implied he would face a more serious charge if he did not consent. We do not consider this statement of the police to contain an implied threat.
It is also argued an officer promised if nothing was found...
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State v. Woods
...Woods argues that the officers did not have probable cause to take him into custody. Woods cites our decision in Gautreaux v. State, 52 Wis.2d 489, 495-96, 190 N.W.2d 542 (1971), in which we recognized that while mere possession of stolen property raises no inference of guilt, the unexplain......
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State v. Rodgers
...316, 249 N.W.2d 800 (1977). The burden is on the state to show a free, intelligent, unequivocal and specific waiver. Gautreaux v. State, 52 Wis.2d 489, 190 N.W.2d 542 (1971)." The present case concerns what legal significance is to be attached to the facts over which there is no dispute. Si......
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State v. Padley
...or coercion, actual or implied.’ ” State v. Johnson, 177 Wis.2d 224, 233, 501 N.W.2d 876 (Ct.App.1993) (quoting Gautreaux v. State, 52 Wis.2d 489, 492, 190 N.W.2d 542 (1971)); accord Artic, 327 Wis.2d 392, ¶ 32, 786 N.W.2d 430. ¶ 65 We examine the circuit court's findings of fact under the ......
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State v. Reed
...majority's assertion that consent to a search "must be unequivocal and specific." Majority op., ¶¶ 8, 57 (relying on Gautreaux v. State, 52 Wis. 2d 489, 492-93, 190 N.W.2d 542 (1971) ). What the majority does not make clear is that Gautreaux has been "explained" by this court in 384 Wis.2d ......