Glodowski v. State

• Decision Date: 18 June 1928
• Citation: 196 Wis. 265,220 N.W. 227
• Parties: GLODOWSKI v. STATE.
• Court: Wisconsin Supreme Court

196 Wis. 265

220 N.W. 227

GLODOWSKI

v.STATE.

Supreme Court of Wisconsin.

June 18, 1928.

Error to the Circuit Court of Portage County; Byron B. Park, Circuit Judge. Reversed.

Nick Glodowski sued out a writ of error to reverse the judgment entered April 16, 1927 which imposed a fine for a violation of the Prohibition Act (St. 1923, § 165.01).

Before a search warrant was issued to search the home of the defendant for intoxicating liquor, the sheriff, who applied for the warrant, was sworn and testified:

“I am the sheriff of Portage county, Wis. I have direct information from men who have seen liquor sold by Nick Glodowski and his wife, and who claim to have bought moonshine whisky from (them). From this information I believe that illicit liquor is being kept and sold unlawfully at the premises described above.”

This was the only record made of any proof taken before the warrant was issued. Later, upon motion to suppress the evidence secured at the time the search was made, the defendant established that the premises searched were his home, and offered to prove that no liquor had ever been sold therein, and the magistrate who issued the warrant supplemented the record by testifying to further statements made by the sheriff under oath before the warrant was issued. The motion to suppress was denied. The evidence secured on the search was received. The defendant was found guilty and sentenced.Martens & Meleski, of Stevens Point, for plaintiff in error.

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Walter B. Murat, Dist. Atty., and W. E. Atwell, Sp. Dist. Atty., both of Stevens Point, for the State.

STEVENS, J.

1. The fundamental question presented is whether “probable cause, supported by oath or affirmation,” was established before the magistrate issued the search warrant, as required by section 11, art. 1, of the Constitution of Wisconsin.

This constitutional mandate is couched in almost the identical language of the Fourth Amendment to the federal Constitution. This was one of the ten amendments which constituted what has aptly been called our national Bill of Rights.

The failure of the convention to incorporate this bill of rights in the original draft of the Constitution was one of the chief objections raised to its adoption. Massachusetts finally set the example, which was followed by other states, which undoubtedly was one of the most potent factors in securing the adoption of the Constitution, when she proposed substantially these amendments at the time that she voted to ratify the Constitution.

None of these amendments which constitute the Bill of Rights was more strenuously insisted upon than the one which prohibits unreasonable searches and seizures. It has been said that the opening scene of the American Revolution was enacted when James Otis made his dramatic defense of the rights of the colonists when he appeared in opposition to the application of the officers of the crown for the issuance of writs of assistance, which were general search warrants which authorized the officers to search any place that they might select, without either the place to be searched or the goods to be seized being specified in the warrant.

The memory of the outrages inflicted upon the colonists under these writs of assistance led the people of the original thirteen states to insist that the fundamental law of the new republic should be so framed as to prevent the recurrence of these abuses in connection with searches and seizures.

The people of this state made the same guaranty against unreasonable searches and seizures a part of their fundamental law. Until the people shall see fit to change this constitutional mandate, each department of government must give full force and effect to this command of the people, even though it may seem at times to render more difficult the apprehension and punishment of those who violate the laws of the state. The preservation of the rights guaranteed by the Constitution is of greater moment than the detection of any crime or the punishment of any single offender.

[1] 2. When the rights secured by the constitutional provision are violated and papers and effects taken by an unreasonable search and seizure, the only method of protecting one whose constitutional rights have been invaded is for the court to order these papers and effects returned to the owner.

“As a rule, courts require this motion to be made previous to the trial in order to avoid the necessity of entering upon a collateral inquiry during the course of the trial. However, where the offer of the evidence is accompanied with the disclosure showing that the evidence was obtained through a violation of the defendant's constitutional rights by an officer of the state, and under circumstances where the protection of a defendant in his constitutional rights does not involve an interruption of the usual course of the trial, the evidence should not be received even in the absence of a previous motion to suppress.” State v. Warfield, 184 Wis. 56, 62, 198 N. W. 854, 856.

See, also, State v. Baltes, 183 Wis. 545, 553, 198 N. W. 282.

[2][3] 3. Before a search warrant can be issued, the magistrate must perform a judicial function by determining whether probable cause has been established by oath or affirmation. “It is not a mere ministerial or administrative act.” State v. Baltes, 183 Wis. 545, 552, 198 N. W. 282, 285. Like any other judicial finding, the finding of probable cause must be based upon proof of facts and circumstances.

“The applicant for the search warrant cannot, by merely filling in a blank and swearing to it, secure a valid search warrant. He cannot substitute himself for the magistrate, nor does the statute permit the magistrate to abdicate his judicial duty of determining whether or not probable cause exists.” State v. Baltes, 183 Wis. 545, 552, 198 N. W. 282, 285.

See, also, Hansen v. State, 188 Wis. 266, 268, 205 N. W. 813.

It follows that a search warrant cannot be issued upon a statement under oath based entirely upon information and belief, unless competent evidence of the facts which are the basis of the belief are stated, and unless those facts are sufficient to support a finding of probable cause. If the complaint contains a bare statement on information and belief, without giving the basis for the same, it permits the complainant to determine probable cause, rather than the magistrate, whose duty it is to perform this judicial function.

“The immunity guaranteed by the Constitution should not be lightly set aside by a mere general declaration of a nonjudicial officer that he has reason to believe and does believe, etc. The undisclosed reason may fall far short of probable cause.” Wagner v. United States (C. C. A.) 8 F. (2d) 581, 584.

This is the rule that is applied by the federal Supreme Court under the Fourth Amendment, which contains a mandate identical with that in our state Constitution. Byars v. United States, 273 U. S. 28, 29, 47 S. Ct. 248, 71 L. Ed. 520, 522.

[4] 4. “The term ‘probable cause’ has a well defined meaning in the law, which is the existence of such facts and circumstances as would excite an honest belief in a reasonable mind, acting on all the facts and circumstances within the knowledge of the magistrate, that the charge made by the applicant for the warrant is true. * * * It follows from the above definitions of probable cause that it is not necessary that there should be positive proof of the existence of the facts upon which the issuance of a search warrant is based. It is sufficient that the sworn proof is of such a character as to induce in the mind of the magistrate an honest belief that they exist. As was said in State v. Davie, 62 Wis. 305, 308, 22 N. W. 411 [412]: ‘The words probable cause do not mean actual and positive cause.’ ” State v. Baltes, 183 Wis. 545, 549, 550, 198 N. W. 282, 284.

5. The court has not overlooked the fact that this court has consistently held that a complaint on information and belief is sufficient to meet the requirements of section 361.02 of the Statutes authorizing the arrest of offenders. State v. Davie, 62 Wis. 305, 307, 308, 22 N. W. 411;Murphy v. State, 124 Wis. 635, 646, 102 N. W. 1087. Doubtless the state should be as ready to guard the liberty of one's person against unwarranted arrest, as to protect his property from unreasonable searches and seizures. But the power of this court is limited to interpreting the Constitution and the Statutes as it finds them. “Courts have no power to throw the law into a melting pot, and recast it at pleasure.” Ricketson v. Milwaukee, 105 Wis. 591, 604, 81 N. W. 864, 868 (47 L. R. A. 685). The people have seen fit to place in their fundamental law this provision protecting their property from unreasonable searches and seizures, without providing any similar protection against unwarranted interference with personal liberty...