Bast v. State

• Decision Date: 27 February 1979
• Docket Number: No. 76-763-CR,76-763-CR
• Citation: 87 Wis.2d 689,275 N.W.2d 682
• Parties: Dan D. BAST, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 682

275 N.W.2d 682

87 Wis.2d 689

Dan D. BAST, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

No. 76-763-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 31, 1979.

Decided Feb. 27, 1979.

Dan D. Bast, plaintiff in error (hereinafter defendant), was convicted, following a jury trial, of attempted armed robbery while masked, contrary to secs. 943.32(1)(b), (2), 939.32 and 946.62, Stats. He was sentenced to an indeterminate term not to exceed 3,000 days.

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

Bronson C. La Follette, Atty. Gen., and Nadim Sahar, Asst. Atty. Gen., on brief, for defendant in error.

CONNOR T. HANSEN, Justice.

The issue on appeal is whether the affidavit presented to HAROLD J. WOLLENZIEN, County Judge, set forth sufficient facts to support a finding of probable cause for the issuance of a search warrant to seize exemplars of the defendant's head hair for comparison purposes with hair found in the ski mask the assailant was wearing at the time of the attempted robbery.

The affidavit of the police officer set forth the following facts:

Doretta H. Mellum told the police that at approximately 11 p. m. on October 1, 1974, as she was arriving home, she was approached by a man wearing a brown suede waist-length jacket with knit cuffs and waistband and a dark-colored ski mask. She asked him what he wanted and he answered, " 'I want money.' " She told him to take her purse and pushed it towards him. He did not attempt to take the purse but raised a long black club-like object, which he held in his right hand, over his head and moved his left arm toward her. She tried to break the glass door to her apartment building and told him to take her money. A dog began to bark and the man turned, struck a wrought-iron support beam of the porch and ran away.

Affiant further stated that a description of the man, received from the victim and relayed over the police radio, described him as white, approximately six feet tall, 180 pounds in weight and wearing a suede leather jacket and ski mask. At 11:28 p. m. officer David Lange observed Bast lying on a lawn near Miss Mellum's apartment building. Bast said he was there trying to decide whether to visit a girlfriend who lived in the area. Subsequent investigation showed that Bast knew this woman had moved from the area sometime previously. Bast further said he had been attacked and struck by a person wearing a suede jacket. He complained of pain but declined medical attention. Officer Lange noted there were no outward signs of injury. Bast fit the physical description of Miss Mellum's attacker but was not wearing a jacket even though weather conditions required one. Two other officers went to Bast's home and asked his wife if he owned a brown suede jacket with knit cuffs and waistband. She admitted that he did.

A search of the area the following morning resulted in finding a brown suede jacket with knit cuffs and waistband, a dark ski mask and a black club. These items were found about one and one-half blocks from Miss Mellum's apartment and two blocks from the spot Bast was first observed. Miss Mellum was able to identify the jacket, mask and club as those used by her attacker. Brown human hair was found in the ski mask.

Based upon the foregoing information contained in the affidavit of the public officer, a search warrant was issued and subsequently executed. A microanalysis conducted by the state crime laboratory of the samples of the defendant's hair and hair found in the ski mask and on the jacket determined this was an unusual and uncommon type of hair and that they were all consistent with one another as to color and texture.

The trial judge denied the motion of the defendant to suppress this evidence.

A search warrant may issue only on a finding of probable cause by a neutral and detached magistrate. State v. Benoit, 83 Wis.2d 389, 394, 265 N.W.2d 298 (1978).

In reviewing a challenge to the issuance of a search warrant this court must determine whether the magistrate was apprised of sufficient facts to excite an honest belief in a reasonable mind that the object sought is linked with the commission of a crime. State v. Starke, 81 Wis.2d 399, 408, 260 N.W.2d 739 (1978). The magistrate's finding must stand unless the proof is clearly insufficient. Morales v. State, 44 Wis.2d 96, 101, 102, 170 N.W.2d 684 (1969). This review is necessarily limited to the facts before the magistrate. Starke, supra. The evidence necessary for a finding of probable cause is less than that required at a preliminary examination or for a conviction. Benoit, supra, 83 Wis.2d at 394, 265 N.W.2d 298. Although the finding cannot be based on the affiant's suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented. Starke supra, 81 Wis.2d at 409, 260 N.W.2d 739. State ex rel. White v. Simpson, 28 Wis.2d 590, 594, 137 N.W.2d 391 (1965).

In discussing probable cause to arrest in State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836 (1971), this court quoted the following definition from Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):

" 'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' . . ."

In the instant case the magistrate was shown clearly that a crime had been committed and that the evidence included hair found in the ski mask. The...