Barnes v. State

• Decision Date: 06 October 1964
• Citation: 130 N.W.2d 264,25 Wis.2d 116
• Parties: Fred L. BARNES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 264

130 N.W.2d 264

25 Wis.2d 116

Fred L. BARNES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Oct. 6, 1964.

Warren L. Kreunen, Milwaukee, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, William J. McCauley, Dist. Atty., Milwaukee, for defendant in error.

James M. Shellow, Milwaukee, for American Civil Liberties Union, amicus curiae.

CURRIE, Chief Justice.

The writ of error presents the issue of whether it was prejudicial error for the trial court to have denied the motion to suppress the evidence. To resolve this issue the court must resolve these subsidiary questions:

(1) Was the consent by defendant to the search of his person voluntary and not the product of duress?

(2) If such consent was the product of duress, did it constitute an unconstitutional search?

The provision of sec. 11, art. I, Wis.Const., ¹ is identical to that of the Fourth amendment, United States Constitution. This court long prior to Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, had aligned itself with the federal rule that evidence secured as a result of a search and seizure that violates constitutional rights is inadmissible against a defendant charged with crime. Hoyer v. State (1923), 180 Wis. 407, 193 N.W. 89. Thus the Mapp Case, in making the Fourth amendment applicable to the states, has brought no change in Wisconsin in this respect. However, the decisions of the United States supreme court as to what acts constitute unlawful searches and seizures under the Fourth amendment are by that decision made controlling on all state courts. The Mapp decision also enhances the weight to be accorded by the states to other federal court determinations in this sphere.

Consent to Search.

Before reaching the issue of whether defendant's constitutional rights were violated by the search in this case which revealed that he was the possessor of marijuana, we must first dispose of the threshold contention of the state that the voluntarily consented to such search. This contention is grounded upon defendant's statement to the two officers, 'Go ahead. I am clean.' On the other hand, defendant maintains that this consent was the product of duress and therefore not voluntary.

In Holt v. State (1962), 17 Wis.2d 468, 117 N.W.2d 626, we were faced with the issue of whether voluntary consent had been given to search a home without a search warrant. While that case involved search of premises and not of the person, we deem the guiding principles to be applied in determining whether a consent to search has been tainted by duress are the same. These principles are: a search and seizure are not in violation of constitutional rights if the person freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied; the state has the burden of proving by clear and positive evidence that such consent was given. Holt v. State, supra, pages 474, 475, 117 N.W.2d 626. See also United States v. Smith (2d Cir.1962), 308 F.2d 657, 663; McDonald v. United States (10th Cir.1962), 307 F.2d 272, 274; Channel v. United States (9th Cir.1960), 285 F.2d 217, 219; Judd v. United States (1951), 89 U.S.App.D.C. 64, 190 F.2d 649, 650.

In the instant case we do not have the benefit of any finding of fact by the trial court with respect to whether or not defendant voluntarily consented to the search. We, therefore, must make our own independent determination of this factual issue upon the evidence before us. The rule in the federal courts is that, where the trial court upon conflicting evidence finds that the search was voluntarily consented to, such finding will not be upset unless clearly erroneous. McDonald v. United States, supra, 307 F.2d at page 275; United States v. Page (9th Cir.1962), 302 F.2d 81, 85; United States v. Ziemer (7th Cir.1961), 291 F.2d 100, 102.

The federal cases also hold that where, as here, the defendant is under arrest, the government's burden to prove voluntary consent is greater. United States v. Page, supra, 302 F.2d at page 84; Judd v. United States, supra, 190 F.2d at page 651. The instant defendant was not only under arrest, before the search was undertaken and he made the statement indicating consent, but he had been informed by one of the officers in effect that this justified the search. On the other hand, defendant was asked this question and gave this answer thereto:

'Q. Did you know that there was marijuana in any of your pockets at the time the officers searched your clothes on December 8, 1962?

'A. I did not.'

This facet of the evidence makes the instant case closely akin to the situation where the defendant permits a search of his home or apartment in the mistaken belief that he has nothing there which will incriminate him. The latter situation has been held to fall within the scope of voluntary consent. United States v. De Vivo (D.C.N.Y.1961), 190 F.Supp. 483; United States v. Dornblut (2nd Cir.1958), 261 F.2d 949, cert. denied (1959), 360 U.S. 912, 79 S.Ct. 1298, 3 L.Ed.2d 1262. See also United States v. Smith, supra, 308 F.2d at page 663.

The facts in both the De Vivo and Dornblut Cases are readily distinguishable from those in the instant case. In De Vivo the officers courteously requested permission to search without any indication that they would have made the search if permission had been refused. This was also the situation in Holt v. State, supra, except there the defendant had reason to believe the body of the baby might be found. ² The defendant in Dornblut invited the federal officers up to his apartment and told them, 'Go right in. You can look around.' In none of these cases was the defendant under arrest when the consent to search was given.

This is a close case on the issue of consent, because defendant thought he was 'clean.' Nevertheless a majority of the court conclude that the consent given was tainted with duress and therefore not freely and voluntarily given. Not only was defendant then under arrest but he knew from the statement of the officer that his person would be searched regardless of whether he consented or not.

legality of the Search.

On this writ of error we are not concerned with the legality of the search of defendant's automobile but only with the search of his person. Furthermore, no question has been raised about the validity of defendant's arrest for the traffic offense which preceded the search. Therefore, the validity of the search depends upon whether or not it was justified by the arrest.

This court very recently reaffirmed the well recognized principle of criminal law that the police following a valid arrest 'may, without a search warrant, conduct a search of the person in order to protect themselves.' Browne v. State (1964), 24 Wis.2d 491, 502, 129 N.W.2d 175, 180. The United States supreme Court earlier this year in Preston v. United States (1964), 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, stated:

'Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925) .'

Up to now there has been no decision by the United States supreme court which qualifies the above stated rule and makes it inapplicable to arrests for minor traffic violations. The Illinois and Michigan courts have adopted such a qualification. People v. Watkins (1960), 19 Ill.2d 11, 166 N.E.2d 433; People v. Mayo (1960), 19 Ill.2d 136, 166 N.E.2d 440; People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16; People v. Zeigler (1958), 358 Mich. 355, 100 N.W.2d 456. While the Mayo and Gonzales Cases dealt with the search of a defendant's car and not his person, it is clear that these two courts do not draw any distinction between the two. However, from the standpoint of the reasonableness of the search for weapons in order to protect the life of the arresting officer, the search of the trunk of a car might well be held to stand in a different category from that of the search of the person of the defendant.

The view that not every case of a lawful arrest for a traffic violation justifies a search of the person of the defendant for weapons finds support in these articles and comments in law reviews: Simeone, Search and Seizure Incident to Traffic Violations, 6 St. Louis University Law Journal (1961) 506; Note, Search and Seizure--Search Incident to Arrest for Traffic Violation, 1959 Wisconsin Law Review, 347; Note, Search and Seizure Incident to Traffic Violations, 14 Hastings Law Journal (1963) 459. A contrary view is expressed in Agata, Searches and Seizures Incident to Traffic Violations--A Reply to Professor Simeone, 7 St. Louis University Law Journal (1962) 1. The Gonzales Case is criticized as unsound in, Limitation on Expanding Scope of Legality of Searches and Seizures in Michigan, 9 Buffalo Law Review (1960) 382.

We are not persuaded that where a traffic offender actually is arrested, as distinguished from being handed a summons to appear in court at some future time, that it is unreasonable for the arresting officer to search his person for weapons. In a recent California case the court took note of numerous attacks which have been made upon law enforcement officers seeking to interrogate occupants of automobiles. People v. Davis (1961), 188 Cal.App.2d 718, 722, 10 Cal.Rptr. 610. A striking example of this is afforded by Brook v. State (1963), 21 Wis.2d 32, 123 N.W.2d 535. Some of the most...