418 F.2d 430 (7th Cir. 1969), 17748, United States ex rel. Beal v. Skaff

Docket Nº:17748.
Citation:418 F.2d 430
Party Name:UNITED STATES ex rel. Harley J. BEAL, Relator-Appellant, v. Michael SKAFF, Warden, Wisconsin State Reformatory, Respondent-Appellee.
Case Date:November 26, 1969
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 430

418 F.2d 430 (7th Cir. 1969)

UNITED STATES ex rel. Harley J. BEAL, Relator-Appellant,

v.

Michael SKAFF, Warden, Wisconsin State Reformatory, Respondent-Appellee.

No. 17748.

United States Court of Appeals, Seventh Circuit.

November 26, 1969

Page 431

E. J. Morse, Jr., R. R. Roggensack, Lancaster, Wis., Morse, Morse & Roggensack, Lancaster, Wis., for relator-appellant.

Robert W. Warren, Atty. Gen., of Wisconsin, Sverre O. Tinglum, Madison, Wis., William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.

Before CASTLE, Chief Judge, MAJOR, Senior Circuit Judge, and HASTINGS, Senior Circuit Judge.

CASTLE, Chief Judge.

Petitioner, who is presently incarcerated in the Wisconsin State Reformatory, appeals from the denial by the district court of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On March 21, 1968, petitioner was convicted in the Grant County, Wisconsin, Circuit Court of illegal possession of marijuana in violation of Section 161.275(1), Wisconsin Statutes. The marijuana was seized in petitioner's home during a search conducted pursuant to a search warrant issued by a magistrate. The issue presented to the district court and on appeal concerns the validity of that warrant.

On October 23, 1967, a federal law enforcement officer informed the Grant County district attorney that a parcel, bearing the postmark of Lexington, Kentucky, having no return address, and addressed to petitioner at his residence in Platteville, Wisconsin, had been observed in the United States mail at Milwaukee, and that the contents, which were believed to be marijuana, were leaking out. The package, which had been sent by first class mail, was subsequently intercepted by local law enforcement officers in Platteville. The chief of police was permitted to examine and 'dope' the outside of the parcel with a fluorescent chemical, but was not permitted to take any of the contents which had come out of the package.

Upon concluding his examination, the police chief informed the district attorney that he believed the parcel contained marijuana. The district attorney then swore to a complaint to permit a search of petitioner's residence for the parcel. The complaint is a printed form with certain portions to be completed by the affiant. As a part of the printed form there appear the words, 'in and upon certain premises * * * there are now located and concealed certain things, to wit:'. Immediately thereafter

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was typed a description of the parcel and its contents, the addressee and postmark, and the statute believed to have been violated. Following this section of the complaint appeared the facts which were advanced to support the issuance...

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