Desjarlais v. State

• Decision Date: 30 June 1976
• Docket Number: No. 75--334--CR,75--334--CR
• Citation: 73 Wis.2d 480,243 N.W.2d 453
• Parties: William G. DESJARLAIS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 453

243 N.W.2d 453

73 Wis.2d 480

William G. DESJARLAIS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--334--CR.

Supreme Court of Wisconsin.

Argued June 3, 1976.

Decided June 30, 1976.

Howard B. Eisenberg, State Public Defender, and John E. Schairer, Asst. State Public Defender (argued), on brief, for plaintiff-in-error.

Betty R. Brown, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief, for defendant-in-error.

HANLEY, Justice.

Following issues are presented on appeal:

1. Was the arrest of the defendant rendered invalid by a lack of conformity to the Uniform Criminal Extradition Act?

2. Was the arrest of the defendant invalid under Minnesota law?

3. Was the search of the vehicle occupied by the defendant illegal so as to require suppression of its fruits?

4. Did the police conduct a lineup violative of the defendant's right to counsel?

5. Was the defendant denied due process in that the jury panel allegedly reflected intentional and systematic exclusion of American Indians?

6. Did the trial court improperly restrict the cross-examination of Mrs. LaFromboise on the topic of drug use?

7. Was an abuse of discretion committed by the sentence imposed on this defendant?

Uniform Criminal Extradition Act

The arguments concerning the validity of the defendant's arrest are rather unclear. The brief makes intermittent reference to the Uniform Criminal Extradition Act. One caption refers to the lack of an outstanding warrant in Wisconsin at the point of arrest, while the text dwells on further procedural aspects of interstate law enforcement.

Both Wisconsin and Minnesota have enacted the Uniform Criminal Extradition Act, a key portion of which provides:

'Arrest without a warrant. The arrest of a person may be lawfully made also by an officer or a private citizen without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year; but when so arrested the accused must be taken before a judge with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in sub. (13); and thereafter his answer shall be heard as if he had been arrested on a warrant.' (emphasis supplied) Sec. 976.03(14), Stats.; sec. 629.14, 1971 Minn.Stats.

Read in conjunction with preceding and following portions, the section clearly deals with arrest in the asylum state and the necessity of a complaint subsequently filed there to hold the fugitive for extradition. See sec. 976.03(13), Stats., where the complaint is made and warrant issued in the asylum state prior to arrest. Although the language of the statute implies the necessity of some prior court action in the state where the crime was committed, this court has recognized that the enabling procedure of the Uniform Act was not intended to repudiate the common law rule that an arrest may be made on probable cause to believe the subject had committed a crime in another state irrespective of a lack of complaint or warrant in that state. In State v. Klein (1964), 25 Wis.2d 394, 130 N.W.2d 816, cert. denied, 380 U.S. 951, 85 S.Ct. 1083, 13 L.Ed.2d 969, the complaint and warrant were similarly not filed and issued in Wisconsin prior to an arrest in Michigan. The arrest here cannot be called invalid because of the lack of a prior Wisconsin complaint.

Attention should be directed to the question of subsequent conformance to the provisions of the Uniform Act. As recently discussed in State v. Hughes (1975), 68 Wis.2d 662, 229 N.W.2d 655, the pre-arrest 'complaint' of sec. 976.03(13) and the post-arrest 'complaint' of sec. 976.03(14) and their Minnesota counterparts all have the purpose of securing a warrant for the further detention of the fugitive until extradition can be made. The fugitive is taken to a magistrate so that the official may verify that the person in custody is the person charged with the foreign crime and alleged to have fled the state of its commission.

To insure performance of this verification, the arresting officers are required to bring the fugitive before a magistrate 'with all practicable speed.' Defendant complains here because the officers took him to the Winona police station and held him for an identification showup later that evening. Apparently the defendant interprets the language of the Uniform Act to mean 'instantaneous.' This argument is rejected by State v. Hughes, supra, where the time element was equated with the reasonable amount of time under the facts and circumstances of the particular case. Very often complicated and slower procedures are necessary to gather the facts and documents from other states for a fugitive warrant proceeding than would be required on intrastate criminal proceedings. Desjarlais was arrested late in the evening and there was no abrogation of the Uniform Act by a showup a short time thereafter.

The record is unclear as to whether a fugitive complaint hearing was held in Minnesota. It is possible that the Minnesota authorities may have merely turned the defendants over to La Crosse police the next day when the Wisconsin complaint was filed. However, there is a document in the record which would indicate that the initial appearance was not held in Wisconsin until March 16, 1973. It is possible that the defendant was held in Minnesota until that time for Uniform Act extradition proceedings.

Appellate counsel for Desjarlais has tried to capitalize on this ambiguity by reference merely to the time gap. No verification of harmful or harmless causes of the delay is provided, the issue not being raised before trial by appointed trial counsel nor being asserted by post-trial motion. A chance to make a record of facts connected with the delay was waived.

It is the burden of the defendant to produce facts showing that he was not expeditiously brought before a magistrate. The state does not assume the initial burden of showing that the period of detention was not unreasonable, Pinczkowski v. State (1971), 51 Wis.2d 249, 253, 186 N.W.2d 203, especially where the facts of the time and place of custody are not shown on the appellate record.

Even if some of the purported deficiencies were shown at this time, they would not invalidate the conviction here. The law is well settled that an illegal arrest or detention does not automatically void a subsequent conviction. Gerstein v. Pugh (1975), 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54. Invalidity of arrest is mainly asserted in reference to suppression of evidence seized only pursuant to such arrest, but some assertions of arrest invalidity (as well as assertions of other procedural errors) are raised only to challenge the present confinement of the accused. The alleged deficiency to compliance with the Uniform Act and/or the alleged delay in the initial appearance are both 'defects in the institution of the proceedings,' sec. 971.31(2), Stats., as is the more specific defect of an invalid arrest. These errors statutorily must be raised before trial by motion or be deemed waived. Sec. 971.31, Stats., formalizes the procedure of raising, for example, the personal jurisdiction deficiency of an illegal arrest, Lampkins v. State (1971), 51 Wis.2d 564, 187 N.W.2d 164; see also Gaertner v. State (1967), 35 Wis.2d 159, 150 N.W.2d 370, a defect which could be waived under the case law if not timely raised, State ex rel. LaFollette v. Raskin (1966), 30 Wis.2d 39, 139 N.W.2d 667.

No attempt was made to raise the above deficiencies before trial, perhaps because the remedy for such errors would merely be the reinstitution of proceedings upon the defendant's release. The issue of an invalid arrest through a lack of probable cause was the only one raised by motion and thus preserved for appeal. Some reference is made to a lack of counsel at a point where a challenge could be made, but it appears that counsel was appointed for the defendants and had ample time to undertake those specific challenges that must be made before a preliminary examination, sec. 971.31(5)(c), Stats., or within ten days of the arraignment, sec. 971.31(5)(a), Stats. Appropriate challenges affecting the substance of the prosecution were made. Apparently the trial court addressed the application of the Uniform Act in pre-trial motions simply because the state supplied argument on it in reference to the validity of the Minnesota arrest on 'probable cause' without the necessity of a Wisconsin complaint or warrant. The provisions of the Uniform Criminal Extradition Act did not affect the validity of the arrest.

Probable Cause for Arrest

The validity of the arrest, specifically in regards to the authority of the officer to make such an arrest, is to be determined by the law of the state where the arrest occurred, Kluck v. State (1967), 37 Wis.2d 378, 389, 155 N.W.2d 26; State v. Klein, supra, 25 Wis.2d at 398, 130 N.W.2d 816, here Minnesota. Minnesota officers may arrest without a warrant upon possessing probable cause to believe a felony has been committed by the subject. State v. Klein, supra, is authority in this state for assuming that the officer's arrest power embraces the common law power to arrest even if the felony was committed in another jurisdiction.

' Probable cause' under Minnesota standards equates with that demanded by the Fourth Amendment, State v. Purdy (1967), 278 Minn. 133, 153 N.W.2d 254, which is the same standard required in this state, Browne v. State (1964), 24 Wis.2d 491, 503, 129 N.W.2d 175, 131 N.W.2d 169, cert. denied, 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706. On the question of probable cause, this court has often approved the proposition that a police force is considered as a unit; where there is police-channel communication to the arresting officer who acts in good faith on such communication, his arrest is valid if probable cause is shown by the facts possessed by the...