Anderson v. State

• Decision Date: 20 December 1974
• Docket Number: No. S,S
• Citation: 223 N.W.2d 879,66 Wis.2d 233
• Parties: William A. ANDERSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 137.
• Court: Wisconsin Supreme Court

Page 879

223 N.W.2d 879

66 Wis.2d 233

William A. ANDERSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 137.

Supreme Court of Wisconsin.

Dec. 20, 1974.

The plaintiff in error, William A. Anderson (defendant), was convicted on February 23, 1973, after a jury trial, of burglary contrary to sec. 943.10(1) (d), Stats., ¹ and sentenced to an indeterminate term of not more than ten years in the state prison. On July 16, 1973, orders were entered denying the defendant's motions for a new trial and modification of sentence.

Writs of error were obtained to review the judgment and orders.

Beverly A. Temple, Milwaukee, for plaintiff in error.

R. W. Warren, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

The defendant has raised several claimed errors dealing with the sufficiency of the complaint, search and seizure, admission of photographic evidence, use of illustrative evidence, failure to suppress a statement made by the defendant, errors in jury instructions, sufficiency of the evidence and improper sentence.

In the early morning hours of September 21, 1972, Officers Fred Schwartz and Joseph Galewski of the Oak Creek police department were in their squad car patrolling an area of highway and bridge construction between the 100 block and 1300 block of West Ryan Road in Oak Creek. It was raining and the mud and gravel road was closed to through traffic. At approximately 2:57 a.m., the officers observed a 1964 Ford parked in the 500 block of West Ryan Road, facing east. As the officers approached the car in their squad from the east, the car's headlights went on and it started moving towards them. One of the officers turned on the red flashing light but the car continued past them. Officer Schwartz testified that as the car went past, he observed that the driver was defendant Anderson, whom he recognized from prior contact.

Officer Schwartz turned the squad around and followed the car. He observed defendant Anderson switch seats with the other occupant, codefendant Robert Wallich, so that when the car came to stop, Wallich was in the driver's seat and Anderson was in the front passenger's seat. The officers got out of the squad and approached the car, Officer Schwartz going to the driver's side and Officer Galewski going to the passenger's side. Wallich denied switching seats. While inspecting Wallich's driver's license, Officer Schwartz shined his flashlight through a window into the back seat of the car and observed three heavy duty impact wrenches and a long tubular device lying on the rear floor. From his experience in road construction, Officer Schwartz recognized the tools as being used in road construction work. Schwartz asked who the tools belonged to and defendant Anderson said they were his. Anderson then asked why they were being held, to which Officer Schwartz replied 'for switching drivers and possible suspicion of theft.'

The officers then called for an assist squad, which arrived about five minutes later. Officer Galewski left with one of the newly arrived officers to inspect other parts of the construction area. A few minutes later he radioed back to Officer Schwartz that one of the trailers used on the construction site, about three blocks away, had been broken into. Officer Schwartz then placed the defendants under arrest for burglary.

The tools, which were subsequently removed from the car, were stamped with the initials 'W.B. & I.'. Mr. Floyd King, general foreman for the Wisconsin Bridge and Iron Company, which was involved in the Ryan Road construction project, testified that when he left the construction site at about 4:20 p.m., on September 20th, he locked his office trailer with a padlock. Inside the trailer were a torque wrench with a five foot handle, used to measure the pounds of tension on bolts, and several impact wrenches, used to fasten bolts on the bridgework. These tools were kept in locked tool boxes inside the trailer. When Mr. King returned to the job site the next morning, September 21st, he observed that the trailer door was open and the locks were missing on the trailer door and on the tool boxes inside. The torque wrench and two impact wrenches were missing. Mr. King was in exclusive control of the trailer, and no one else had keys to it except personnel at the company's main office. He had not given consent to anyone to enter the trailer between 4:20 p.m. on September 22th and 7:30 a.m. on September 21st.

The jury found both defendants, who were tried jointly, guilty of burglary in violation of sec. 943.10(1)(d), Stats. Defendant Wallich was sentenced to an indeterminate term of not more than six years. Defendant Anderson was sentenced to an indeterminate term of not more than ten years. Codefendant Wallich is not a party to this appeal.

The defendant contends that the complaint in this action was insufficient to establish probable cause. In the complaint, Officer Schwartz, the complainant, stated on information and belief that the defendants William A. Anderson and Robert C. Wallich:

'. . . on the 21st day of September A.D., 1972, in the County of Milwaukee, Wisconsin, did feloniously and intentionally enter a locked construction trailer, the property of Wisconsin Bridge and Iron Co., Inc., without the consent of Wisconsin Bridge and Iron Co. and with intent to steal therein, contrary to Section 943.10(1)(d) of the statutes. . . .

'Complainant further states that this information is based upon the statement of Floyd King, the general foreman of Wisc. Bridge & Iron Co. crew presently constructing a bridge at the 800 block of W. Ryan Rd.; Floyd King further states that his company has placed a truck in the 800 block of W. Ryan Rd., said trailer being used as an office, that he personally closed and locked said trailer on 9--20--72 at 4:20 P.M. That at said time numerous large construction tools belonging to Wisc. Bridge & Tool Co. were located in said trailer.

'Floyd King further states he returned to said site at 7:30 A.M. on 9--21--72 and found the lock missing from the trailer and found the tools stored therein missing. Floyd King further states he thereafter observed tools missing from said truck in the Oak Creek Police Station. Floyd King further states he gave no one permission to enter said trailer after 4:20 P.M. on 9--20--72.

'Complainant further states his information is based upon personally observing defendants seated in an auto stopped in the 500 block of W. Ryan Rd. at approximately 2:50 A.M. on 9--21--72 and then observed said auto drive off. Complainant further states he then stopped said auto and observed numerous construction tools in said auto. That he removed said tools and found them to bear the initials WB&I and took said tools to the Oak Creek Police Dept. where he displayed them to Floyd King.'

The defendant argues that the complaint, which is based in part on the hearsay statements of Floyd King, fails to satisfy the two-pronged test of Aguilar v. Texas (1964), 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; and that State v. Knudson (1971), 51 Wis.2d 270, 274, 187 N.W.2d 321, 324, requires that when the complaint is based on other than eyewitness observations of the complainant, i.e., hearsay, the reliability of the hearsay must be established in the complaint by indicating:

". . . (1) The underlying circumstances from which he (the complainant) concludes that the informance is reliable; and (2) that the underlying circumstances or manner in which the informant obtained his information is reliable."

With respect to the second requirement, it is obvious from a reading of the complaint that the statements of Floyd King were based on his personal observations at the trailer and at the Oak Creek police station. The very fact of such direct, personal observation, rather than some mere hunch or inference from the circumstances, attests to the reliability of the manner in which Mr. King obtained his information. As stated by this court in State ex rel. Cullen v. Ceci (1970), 45 Wis.2d 432, 446, 173 N.W.2d 175, 181:

'Here the fact is that the complaint shows that all whose information was relied upon were eye witnesses to the portion of the event they related to the sworn complainant. If hearsay is to be credited at all for this limited purpose, what better basis can there be than that of eye-witness testimony. . . .'

See also, United States v. Harris (1971), 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; State v. Paszek (1971), 50 Wis.2d 619, 628, 184 N.W.2d 836; State v. Mansfield (1972), 55 Wis.2d 274, 279, 198 N.W.2d 634.

The other prong of Aguilar requires that the complaint establish the underlying circumstances from which the complainant concludes that the informant is reliable. In State v. Paszek, supra, 50 Wis.2d page 630, 184 N.W.2d page 842, this court stated:

'A different rationale exists for establishing the reliability of named 'citizen-informers' as opposed to the traditional idea of unnamed police contacts or informers who usually themselves are criminals. Information supplied to officers by the traditional police informer is not given in the spirit of a concerned citizen, but often is given in exchange for some concession, payment, or simply out of revenge against the subject. The nature of these persons and the information which they supply conveys a certain impression of unreliability, and it is proper to demand that some evidence of their credibility and reliability be shown. One practical way of making such a showing is to point to accurate information which they have supplied in the past.

'However, an ordinary citizen who reports a crime which has been committed in his presence, or that a crime is being or will be committed, stands on much different ground than a police informer. He is a witness to criminal activity who acts with an intent to aid the police in law enforcement because of his concern for society or for his own...