Ervin v. State
| Decision Date | 20 December 1968 |
| Citation | 163 N.W.2d 207,41 Wis.2d 194 |
| Parties | William ERVIN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Nathaniel D. Rothstein, Milwaukee, for plaintiff in error.
Bronson C. La Follette, Atty, Gen., Madison, David J. Cannon, Dist. Atty., Milwaukee County, Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for defendant in error.
It is the position of the defendant that his arrest and subsequent search were both illegal because the curfew proclamation of the mayor of Milwaukee and the statute authorizing it are alike unconstitutional. This is an across-the-board challenge to the constitutionality of the mayor's proclamation and to the enabling statute in any situation and under any circumstances.
There is no claim made here That the community Situation in the summer of 1967 did not warrant the mayor's use of the power to declare a curfew as granted by the legislature. In fact, there is nothing in this record to even suggest what the conditions were in Milwaukee when the curfew was imposed. The district attorney and defense counsel stipulated that the testimony taken on the motion to suppress evidence was to stand as the testimony and the only testimony taken at trial. At the hearing on the motion to suppress evidence, the only witness to testify was the officer who conducted the search and seized the marijuana found on the person of the defendant. So it is neither possible nor necessary to recreate the combination of widespread lootings, sniping from rooftops and multiple arsons that led the common council and the mayor to impose the curfew. The defendant is asserting that no matter how widespread the community chaos, anarchy and disorder, under no possible set of circumstances can the imposition of a community-wide curfew be upheld.
Likewise, there is here no narrowed challenge to the unconstitutionality of the curfew as specifically applied to the defendant. There is no testimony whatsoever as to where he was going or what he was going to do when he got there at the time of his arrest. Why he was on the streets at all must be left entirely to conjecture. For this reason the district attorney contends that the defendant lacks standing to raise the question of the constitutionality of the curfew proclamation. 1 We believe he has such standing, but only to challenge the proclamation and the statutory authorization on their faces, generally and not specifically as it relates to him.
The Wisconsin statute under consideration authorizes the common council of cities of the first class, and in certain situations, the mayor acting for the council, to declare an emergency within such city and do what is necessary in such emergency, including the barring, restricting or removing of all unnecessary traffic from the local highways. 2 Under this statute the mayor of Milwaukee issued his curfew proclamation, and his compliance with the statute is not at issue. 3
Defendant asserts that imposing a curfew involves a restriction of movement of people within the community. Obviously, restriction of movement is a predictable and inescapable result of a curfew proclamation or ordinance if it is enforced. Defendant then argues that full freedom of movement is protected by the First Amendment to the United States Constitution, 4 made applicable to state and local governments by the 14th Amendment to the United States Constitution. 5. Defendant concludes that the curfew proclamation was violative of the rights of the defendant under the First and Fourteenth Amendments.
We would not deny the relatedness of the rights guaranteed by the First Amendment to freedom of travel and movement. If, for any reason, people cannot walk or drive to their church, their freedom to worship is impaired. If, for any reason, people cannot walk or drive to the meeting hall, freedom of assembly is effectively blocked. If, for any reason, people cannot safely walk the sidewalks or drive the streets of a community, opportunities for freedom of speech are sharply limited. Freedom of movement is inextricably involved with freedoms set forth in the First Amendment.
The freedom to move about is a basic right of citizens under our form of government, in fact, under any system of ordered liberty worth the name. It was not added to our United States Constitution by the enactment of the first ten amendments. It is inherent, not only in the Bill of Rights, but in the original document itself. It has properly been termed 'engrained in our history' and 'a part of our heritage.' 6 However, freedom to walk under sniper's bullets, to travel under a fusillade of gunfire, to leave one's home only to encounter milling mobs blocking every thoroughfare is not freedom of movement. A municipal curfew as was imposed in Milwaukee, is an emergency measure undertaken to restore order in the community. There is no claim made here and the fact may well be that the only alternative was accelerating community anarchy. The cause of liberty is never served by surrender to anarchy.
The purpose and result of the mayor's curfew proclamation was not to destroy freedom of movement, but to restore it. This is not the occasion and we are not the agency to analyze the causes of riots and disorders in major American cities in the summer of 1967, Milwaukee among them. Whether municipal authorities faced the phenomenon of simultaneous spontaneity, psychic contagion or planned escalation is not the question for us to answer. Whatever the cause, given the fact of widespread riotous conditions and criminal activities, the restoration of 'domestic tranquility' becomes, not alone a constitutional right, but a constitutional obligation. The temporary imposition of a curfew, limited in time and reasonably made necessary by conditions prevailing, is a legitimate and proper exercise of the police power of public authority. To argue contrariwise is to give to a mob a power to oppress that under our Constitution is not given to the state itself. The Constituion protects against anarchy as well as tyranny.
In testing the validity search of the person here involved, the chronology of events becomes highly material. While the entire search took approximately two minutes, even so brief an inspection has its sequence of events. There is a dispute between defendant's counsel and district attorney as to such chronological sequence. However, the record, direct and cross-examination included, establish the sequence to be as follows:
1. The police officer searched the trouser pockets, checked the pants legs, found nothing.
2. The officer checked the waistband of defendant's trousers, found the packet containing marijuana.
3. The officer concluded that the defendant had no weapons on his person.
4. The officer examined the pockets of defendant's sweater and found the marijuana cigarette butt.
It is unreasonable searches and seizures that are prohibited by state and federal constitutions. 7 When a person is lawfully arrested, it is not unreasonable for the arresting officer to make a contemporaneous search of the person of the accused for weapons. 8 It is not only proper but prudent for the arresting officer to make certain that the person arrested is not carrying a gun, knife or other dangerous weapon. The law does not require a law enforcement officer to wait until a weapon is displayed or used to remove the danger of a weapon-involved assault upon him.
Defendant argues that the two minute search was too exhaustive to be justified as a search for weapons. Specifically, he contends that it is enough to 'pat down' a defendant from the outside to remove any possibility of weapons being concealed on his person. It is true that there are limits to the type and extent of searching that can be reasonably related to a looking for weapons. A 'minute search of a pocket in a shirt' not being worn by the arrested person, actually hanging in a closet off the living room, was held to be beyond the pale of permitted searching for weapons. 9 Where an automobile driver, aplaced under arrest for a traffic violation, was 'patted down' for weapons, and then the pocket of his overcoat examined with a flashlight, this court held the flashlighting, following the 'patting down' to go beyond the limits of a reasonable search for weapons. 10 In the case before us, the officer stayed well within such outer limits. In the light of the turbulent community situation then prevailing, he had every reason for a quick but thorough examination to remove the possibility of the arrested person being armed. He testified that weapons can be hid...
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