Browne v. State

Decision Date30 June 1964
Citation24 Wis.2d 491,129 N.W.2d 175
PartiesArthur Herbert BROWNE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtWisconsin Supreme Court

Gerald Powers, Milwaukee, Sherwood Slate, Milwaukee, of counsel, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Betty R. Brown, Ass't. Atty. Gen., Madison, William J. McCauley, Dist. Atty., Richard Surges, Asst. Dist. Atty., Milwaukee, for defendant in error.

WILKIE, Justice.

Four issues are raised on this review:

1. Is sec. 161.02(3), Stats., unconstitutional in that it imposes cruel and unusual punishment in making it a crime for a person to take or use narcotics not in pursuance to a prescription for permitted use?

2. Were the items of physical evidence improperly admitted against Browne because they were obtained as a result of an illegal search and seizure, the illegality of the search in turn being a result of an illegal arrest?

3. Were Browne's admissions improperly admitted into evidence against him?

4. Was the trial court's refusal of Browne's request to represent himself a per se denial of a state constitutional right, guaranteed by sec. 7, art. I, Wisconsin Constitution?

Constitutionality of Criminal Conviction for Use of Unprescribed Narcotic Drugs

Sec. 161.02(3), Stats., establishes three offenses involving the use of narcotics. It provides that no person shall take or use narcotic drugs (1) 'hbitually' or (2) 'excessively' or (3) 'except in pursuance to a prescription for permitted use as prescribed * * *.' The latter offense embraces a single instance of use and it was with this offense that Browne was charged.

The defendant contends that to make a crime of such use of unprescribed narcotic drugs by a person who is addicted to the use of narcotics constitutes cruel and unusual punishment in violation of substantive due process within the meaning of the Fourteenth amendment of the United States Constitution. He relies upon Robinson v. California 2 as the sole support for his argument.

Robinson is clearly distinguishable. The California statute that was held unconstitutional made it a crime to be a drug addict. Robinson came to California from Oregon and was charged with the status crime of being addicted to the use of narcotics. He was not charged with, nor was there any evidence offered of any particular incident of use of drugs either in California or otherwise. The United States supreme court, in reversing a judgment of conviction, stated, 370 U.S. at page 666, 82 S.Ct. at page 1420:

'This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the 'status' of narcotic addiction a criminal offense, for which the offender may be prosecuted 'at any time before he reforms.' California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.'

Robinson does not invalidate any state statute, such as sec. 161.02(3), Stats., that makes it a crime for a person, whether an addict or not, to take and use narcotic drugs without a legal prescription. In the case at bar Browne was not charged with being an addict but with a specific act of taking and using drugs not pursuant to a prescription.

We must conclude that there is no merit to the defendant's contention that the statute is unconstitutional.

Search and Seizure

Whether the state police had probable cause to arrest a defendant and search him and his premises pursuant to that arrest, is a matter of federal constitutional law. 'Probable cause' to arrest is a requirement of the Fourth amendment of the United States Constitution, binding against the states through the Fourteenth amendment. 3 In an arrest is invalid, a search incidental to that arrest is also improper and if evidence obtained by a search incidental to an illegal arrest is admitted into evidence and has a prejudicial effect upon the defendant's case, then Fourteenth amendment due process requires that a subsequent conviction must be reversed. 4 Conversely, if an arrest is valid, a search incidental to that arrest is proper and evidence obtained in that search may be received in evidence.

Our first attention must be directed to the federal constitutional law as to the legality of the arrest. Since sec. 11, art. I of the Wisconsin Constitution is substantially like the Fourth amendment of the United States Constitution, we have held that the standards and principles surrounding the Fourth amendment are generally applicable to the construction of sec. 11, art. I, and that a finding of probable cause under federal standards will normally result in a finding of probable cause under state standards. 5

Probable cause to arrest refers to that quantum of evidence which would lead a police officer, acting as a reasonable man to believe that the defendant probably committed a crime. 6 While the standard is objective (good-faith belief by the officer is not sufficient), it is not necessary that the evidence be sufficient to prove ultimate guilt beyond a reasonable doubt, or even that it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility. Moreover, the belief may be predicated in part upon hearsay information. 7

Assuming a valid arrest predicated upon probable cause (with or without an arrest warrant), 8 the police may, without a search warrant, conduct a search of the person in order to protect themselves, 9 and they may also search premises immediately under his control if there is also probable cause to believe the search will reveal evidence and instrumentalities of the crime for which the arrest was made. 10 In Harris, the defendant was arrested on a check forgery charge. It was reasonable under the circumstances to believe that documentary instrumentalities of the crime were present in his apartment. That a search of the four-room apartment revealed forged draft cards, the offense for which he was ultimately convicted, did not alter the legality of such search, given the legality of the arrest and the probability of discovering instrumentalities of check forgery at the time of arrest. In Rabinowitz the defendant was arrested for forgery of stamps. Under the circumstances, it was probable that instrumentalities of the crime were in his office, the site of the arrest. A search of the office revealed such stamps, and was held to be a legal search pursuant to a valid arrest. In Abel the defendant was arrested pursuant to an administrative warrant, as a deportable alien. A search of the premises for proof of alien status was held to be a reasonable search, pursuant to a valid arrest.

To be distinguished from these circumstances is the case in which a policeman validly arrests a person for vagrancy, takes him into custody, and then sometime later searches his impounded automobile. Under these circumstances, the United States supreme court has held that the search, even though following upon a valid arrest, was too remote in time and place to be deemed reasonably incidental to such arrest. 11 Moreover, such a search of an automobile is not likely to reveal evidence of the status crime of vagrancy.

We now apply these principles to the case at hand. When the vice squad officers observed Browne seize a hypodermic needle and syringe lying next to him on the bed and throw the paraphernalia on the floor, this observation, coupled with their knowledge of his prior drug offenses, gave them probable cause to believe that he was violating sec. 161.02(3), Stats. From their experience as vice squad officers, these men could reasonably conclude that possession of this paraphernalia was correlated with an illegal use of drugs. Sec. 161.02(3) provides, in part, that possession of a 'hypodermic syringe or needle * * * shall be prima facie evidence of the unlawful use of such drugs.' If possession of such instrumentality is legally sufficient evidence of guilt, a fortiori, the officers had 'probable cause' to arrest because 'probable cause' denotes a lesser quantum of evidence than legally sufficient evidence to convict.

Under these circumstances 'probable cause to arrest' also supports a determination of probable cause to believe that evidence and instrumentalities of the crime are within the immediate control of the person arrested. General police experience reveals that most illegal users of narcotics maintain either the drugs or the instrumentalities in use in their rooms, apartments and homes. Therefore, a search pursuant to a valid arrest under these circumstances was reasonable. 12

To make the arrest valid and the search incidental to the arrest reasonable, it is also necessary to determine whether there was any violation of constitutional rights on the part of the police in entering the building and proceeding to the upstairs kitchen. To say that as long as probable cause appears at any time during the course of the police conduct the arrest is valid would be to permit the police to enter every home in the community as a part of a general dragnet operation and make observations, and then if such observations yielded sufficient evidence of probable cause, execute 'valid' arrests. This would defeat the values which the Fourth amendment and sec. 11, art. I, seek to protect.

At the moment the officers entered the kitchen they lacked probable cause to arrest. To arrest for probable cause, upon an informer's tip alone, requires that the informant be known to the police, and that the police from their own direct knowledge know the...

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