Ball v. State

Decision Date27 March 1973
Docket NumberNo. S,S
Citation205 N.W.2d 353,57 Wis.2d 653
PartiesCharles BALL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 79.
CourtWisconsin Supreme Court

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HANLEY, Justice.

Four issues are raised on this appeal:

1. Did the police have probable cause to arrest the defendant?

2. Was the search of defendant's trash can invalid?

3. Was it error for the trial court to permit the officer to testify as to what he saw through the window of the storage trailer and to consider it in reaching a guilty verdict?

4. Is there sufficient evidence to support defendant's conviction of the crime of theft?

Probable Cause for Arrest

Defendant's first contention is that the trial court was without jurisdiction to proceed in this case to trial. Since an arrest warrant had not yet been issued at the time he was taken into custody, only Sec. 968.07(1)(d) is relevant and provides that:

'(1) A law enforcement officer may arrest a person when:

'. . .

'(d) There are reasonable grounds to believe that the person is committing or has committed a crime.'

The 'reasonable grounds' or what is more commonly referred to as probable cause, is not that quantum of evidence which might later support a conviction, rather it is '. . . that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.' State v. Doyle (1968), 40 Wis.2d 461, 466, 162 N.W.2d 60, 62; Molina v. State (1972), 53 Wis.2d 662, 671, 193 N.W.2d 874.

At the time of defendant's arrest, the police knew that on August 9th, the Mausehunds had parked their camper-trailer at the 'Petreikis' Resort' and that it disappeared without their consent from that location sometime between the evening of August 11th and the morning of August 12th. Similarly, they knew that a trailer matching the general description of the one taken had been seen at defendant's residence on the afternoon of the 12th but that it was gone that same evening. By pure chance, Officer White noticed a similar trailer parked in the Olson garage on his way to work on the morning of August 14th and a subsequent investigation disclosed that it was the Mausehund trailer and that defendant had sold it to Olson in the late afternoon of August 12th.

These facts, we think, fit precisely into the rule that the '. . . unexplained possession of recently stolen goods raises an inference of greater or less weight, depending upon the circumstances that the possessor is guilty of the theft . . .' State v. Johnson (1960), 11 Wis.2d 130, 139, 104 N.W.2d 379, 384.

Search of Trash Can

At the hearing for post-conviction relief, defendant contended that his Fourth Amendment rights had been violated by the failure of the trial court to suppress the cup and sandal which were found the early morning hours of August 15th by police in a 'large barrel that had been used for burning' located 'in the rear of the home.'

Questions concerning the seizure of evidence which, although not actually in the defendant's house but which are, nevertheless, located on his property, have universally revolved around the decision of the Supreme Court in Hester v. United States (1924), 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 and this court relied on it in several decisions. Molina v. State (1972), 53 Wis.2d 662, 668, 193 N.W.2d 874; State v. Dombrowski (1969), 44 Wis.2d 486, 171 N.W.2d 349. In Hester, officers had concealed themselves from Hester's father's house and they saw Hester leave the house and give a bottle to another person. When an alarm sounded, Hester dropped a jug which broke and his companion threw away the bottle, both attempting to flee from capture. At page 59, 44 S.Ct. page 446, the court stated:

'The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester's father's land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law.' (emphasis added)

Although the 'open fields' doctrine of Hester has been recognized and applied by the federal courts, virtually all circuit courts of appeals uniformly recognize that:

'The protection afforded by the Fourth Amendment, insofar as houses are concerned, has never been restricted to the interior of the house, but has extended to open areas immediately adjacent thereto. The differentiation between an immediately adjacent protected area and an unprotected open field has usually been analyzed as a problem of determining the extent of the 'curtilage. " 1

The question of whether the place is within the 'curtilage' of the house, is a question of fact to be decided under all of the circumstances. Care v. United States (10th Cir. 1956), 231 F.2d 22, 25.

Likewise, in United States v. Potts (6th Cir. 1961), 297 F.2d 68, 69, the court states:

'Generally speaking, curtilage has been held to include all buildings, in close proximity to a dwelling, which are continually used for carrying on domestic employment; or such place as is necessary and convenient to a dwelling, and is habitually used for family purposes.' (citations omitted) (emphasis added)

In Work v. United States, supra, the District of Columbia Circuit Court had no difficulty in holding that articles seized from a trash can outside and under the house's steps were within that area constitutionally protected by the Fourth Amendment. In the case at bar, the record discloses only that the barrel 'was in the rear of the house.'

Although the federal courts have stood steadfast on their adherence to the 'curtilage' test, there has emerged a more appropriate test for determining whether a search and seizure adjacent to a house is constitutionally protected.

In Terry v. Ohio (1967), 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, the court stated:

'We have recently held that 'the Fourth Amendment protects people, not places,' Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and wherever an individual may harbor a reasonable 'expectation of privacy,' id., at 361, 88 S.Ct. (507), at 516, (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion.' (Emphasis added)

Defendant contends that the warrantless search of the trash can violated his 'reasonable expectation of privacy.' The state's only answer to defendant's contentions is that the cup and sandal found in the trash can was abandoned, citing Molina v. State, supra.

In Molina, the defendants were observed throwing quantities of heroin onto a public street during a high speed police chase. This court stated 53 Wis.2d 662, at page 669, 193 N.W.2d 874, at page 877 that: '. . . when the powders were sprinkled over the highway, abandonment of any claim to control, possession or ownership was complete, final and irrevocable.' The case at bar presents a different situation.

Made a part of the record are several pictures of defendant's house which were taken from the adjacent highway. These pictures clearly indicate that the barrel could not be visible to any passerby on the road. Moreover, since defendant was arrested at a tavern several miles away from his house, it is presumed that he intended to return and that he never undertook one affirmative act by which it would be reasonably inferred that he intended to irrevocably relinquish his control or possession of the contents of the barrel. While it might be contended that because defendant 'attempted' to burn the evidence, he thereby 'intended' to 'abandon' it, it would, nevertheless, seem that the decision to abandon the property under the facts of this case was a revocable decision which would not be made irrevocable until defendant either vacated the premises or in some way placed the barrel or its contents in 'public view' outside his expectation of privacy. The several cases which address themselves to trash can searches and questions of abandonment clearly indicate that these are the determinative factors.

Abel v. United States (1960), 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 is the leading case on point. Colonel Abel, the notorious Russian spy was arrested in his hotel room and before being led away he was permitted to pack his belongings. Abel chose not to pack all of his belongings and several of the items he placed in the room's wastepaper basket before leaving. After Abel had left, the F.B.I., with approval of the hotel manager, searched the room and seized the items in the wastepaper basket. In sustaining the admission of the evidence, the court at page 241, 80 S.Ct. at page 698, stated:

'This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made . . .. So far as the record shows, petitioner had abandoned these articles. He had thrown them away.' (Emphasis added)

In United States v. Stroble (6th Cir. 1970), 431 F.2d 1273, 1276, evidence of a crime was held to be abandoned where it was found 'lying by the side of two garbage cans adjacent to the curb' which was 'not a part of the curtilage' and which 'was observed by a police officer while he was still on a public street.'

Although impliedly recognizing the Katz rationale, the Wyoming Supreme Court held in Croker v. State (Wyo.1970) 477 P.2d 122, 125, that defendant's expectation of privacy ceased upon trash collectors entering his property and thereafter removing it to the public alley where it was examined by police.

'It is our view that when defendant put his...

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