Holt v. State

• Decision Date: 30 October 1962
• Citation: 117 N.W.2d 626,17 Wis.2d 468
• Parties: Frances Lenore HOLT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 626

117 N.W.2d 626

17 Wis.2d 468

Frances Lenore HOLT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Oct. 30, 1962.

Rehearing Denied Jan. 10, 1963.

Sherwood Slate, Milwaukee, for plaintiff in error.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., John H. Bowers, Asst. Atty. Gen., Madison, William J. McCauley, Dist. Atty., Aladin A. DeBrozzo, Asst. Dist. Atty., Milwaukee, for defendant in error.

GORDON, Justice.

The defendant's contentions can be grouped into five separate categories:

1. Unlawful Search and Seizure

The defendant urges that her constitutional rights were infringed upon when the officers gained admittance to the home at the invitation of her husband and also when they searched the premises without a search warrant.

The husband's act of admitting the officers was consistent with his status. He had at least equal prerogatives on the premises and had authority to admit others to his home. We do not have to go as far as the court did in United States v. Sferas, 210 F.2d 69, 74 (7th Cir. 1954), when it said:

'* * * the rule seems to be well established that where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.'

In the instant case, no search was conducted by the officers upon the sole strength of the husband's having admitted them; the officers did nothing until they met with and spoke to the defendant.

The defendant relies upon People v. Dent (1939), 371 Ill. 33, 19 N.E.2d 1020, but we deem that case distinguishable on its facts. In that case the search and seizure was by the officers upon their entrance to the premises; not having a search warrant, the officers rang the doorbell and entered when a voice called out, 'Come in.' It was not the defendant's voice, but rather was that of a companion. The Illinois court did not consider this an invitation by the defendant or by anyone else who was authorized to admit the officers. The search and seizure, which was made immediately after the improper entry, was conducted without any authorization from the defendant.

A close question is presented to this court: Was the trial court's finding that Mrs. Holt consented to the search reasonable under all the circumstances of this case?

At the outset it should be noted that the prohibition of the Fourth Amendment is now applicable to evidence submitted in state courts. This was not true at the time of Judge Steffes' decision. He properly relied upon Wolf v. Colorado (1949), 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; however, the latter case has since been upset by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, decided on June 19 1961. In reversing Wolf v. Colorado, the Mapp Case held that evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court.

Accordingly, those cases in the Federal court which have examined the question of consent to a search and seizure are germane to our decision. In Channel v. United States, 285 F.2d 217, 219-220 (9th Cir. 1960), the court said:

'A search and seizure may be made without a search warrant if the individual freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied. The Government has the burden of proving by clear and positive evidence that such consent was given.'

A similar standard is expressed in Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 651 (1951), wherein it is said that 'consent must be proved by clear and positive testimony.'

Another expression demonstrating the reluctance to find consent where there has been a search and seizure without a warrant is United States v. Arrington, 215 F.2d 630, 637 (7th Cir.1954), where the court said:

'It is high time that courts place their stamp of disapproval upon this increasing practice of federal officers searching a home without a warrant on the theory of consent, particularly where no reason is shown why a search warrant was not obtained. The protection afforded by the Fourth Amendment should not be made dependent upon the probity of an officer attempting to justify a search on consent. Otherwise, the rights guaranteed to the citizen by the Amendment will be impaired so as to become little more than an empty gesture.'

There can be little doubt that upon an adequate showing of consent to the search of one's premises a defendant may not claim an invasion of his constitutional rights. Milyonico v. United States, 53 F.2d 937 (7th Cir. 1931); United States v. Ziemer, 291 F.2d 100 (7th Cir.1961); State v. Zuehlke (1941), 239 Wis. 111, 116, 300 N.W. 746. cf. Agnello v. United States (1925), 269 U.S. 20, 32, 46 S.Ct. 4, 70 L.Ed. 145.

The defendant maintains that the circumstances of the instant search and seizure demonstrate the existence of an unfair pressure upon Mrs. Holt by reason of the fact that she was confronted by police officers who showed their badge of authority; it is urged that compliance with such authority should be held to be compulsive and not consensual. The defendant points out that in State v. Warfield (1924), 184 Wis. 56, 61, 198 N.W. 854, this court quoted the following:

'It must be first premised that where an officer, politely and decently, and without physical threat, has assumed to act in his official capacity, he is acting de facto, if not de jure, and a peaceful citizen should not forcibly resent the action, even though he knows the officer is, as to the act, greatly exceeding his authority, resting confidently upon the belief that this submission will not impair any of his constitutional rights; for, as the courts have repeatedly held, such action will not be taken to be a consent to an unlawful search or arrest, but merely a peaceful submission to officers of the law.'

Another case which tends to support the defendant's position is United States v. Slusser, 270 F. 818, at p. 819 (S.D.Ohio, 1921), where the court said:

'The search so permitted by Slusser, after declaration by the prohibition officer, with a display of his badge, that they were there to search the premises, was not by such consent as will amount to a waiver of constitutional rights, but, on the contrary, is to be attributed to a peaceful submission to officers of the law.'

This court is deeply concerned about the technique employed in the instant case by which the incriminating evidence was obtained. The practice employed by the police in the present case constitutes an invitation to breaches of peace and threatens the citizen's right to be secure in his home. It has the additional flaw, as suggested in the Arrington Case, supra, of encouraging police officers to circumvent the search warrant technique and to buttress their searches with a claim of consent for purposes of convenience or the overzealous desire to obtain a conviction. Trial judges are enjoined to scrutinize claims of consensual searches and seizures made in a dwelling place to satisfy themselves that the consent was, in the words of the Channel Case, 'uncontaminated by any duress or coercion, actual or implied.'

The proper way to search a dwelling place is to obtain a search warrant. A home is entitled to special dignity and special sanctity. It is noted that United States v. Rabinowitz (1950), 339 U.S. 56, 64, 70 S.Ct. 430, 434, 94 L.Ed. 653, approved a search and seizure which were incident to a lawful arrest. However, the court expressly noted that 'the place of the search was a business room to which the public, including the officers, was invited.'

Was the consent on the part of Mrs. Holt freely and intelligently given? Was it contaminated by duress or coercion? Was the search the result of Mrs. Holt's nonconsensual submission? Fully mindful of the foregoing authorities, the majority of this court is nevertheless in accord with the trial judge's conclusion that Mrs. Holt's consent in the instant case was voluntary and was freely given. We base this conclusion upon the entire record. For example, on two different occasions Mrs. Holt described the officers' conduct as follows: 'They didn't use any force on me in any way, and they were pretty courteous throughout the questioning.' 'I never told them to get out of the house. They were always polite and they treated me courteously while they were there.'

The record contains additional examples of statements made by Mrs. Holt which tend to support the trial court's conclusion that she freely gave her consent to the search. When the officers asked to talk to her privately, Mrs. Holt answered 'Yes', and she invited the officers into another room, out of the presence of her husband. After the defendant admitted that she had delivered a baby and placed it into the furnace, officer Robert Gaurke asked her if she would take them to the basement, and the defendant answered 'Yes' and then led the way to the basement. In the basement the defendant, without being asked, pointed to the furnace and said that the baby was in there. Gaurke asked her permission to go into the furnace and she said, 'If you want to, go ahead.'

While we admonish against the technique employed, we are satisfied that the trial court could reasonably conclude that no abuse occurred in this particular case. To avoid the 'brinkmanship' inherent in the present case, the police would do well to investigate and interrogate till they have enough evidence to support the issuance of a search warrant. It is appropriate for police officers, without having a search warrant, to call upon a suspect at his home for the purposes of talking with him; however, if there is to be an actual search of a home it is better that it be made with a search warrant, rather than to rely on consent.

2. Admissions and Confession

Mrs. Holt contends that her admissions and confession were...