Laasch v. State, 76-374-CR

• Decision Date: 30 June 1978
• Docket Number: No. 76-374-CR,76-374-CR
• Citation: 84 Wis.2d 587,267 N.W.2d 278
• Parties: Karyn D. LAASCH, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 278

267 N.W.2d 278

84 Wis.2d 587

Karyn D. LAASCH, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-374-CR.

Supreme Court of Wisconsin.

Argued May 2, 1978.

Decided June 30, 1978.

Writs of error issued to review a judgment of conviction by which Karyn D. Laasch, plaintiff in error, was convicted, by a jury, of delivery of a controlled substance contrary to sections 161.16(4) and 161.41(1)(b), Stats., and to review an order of the trial court denying her postverdict motions for judgment notwithstanding the verdict and for a new trial. Laasch was sentenced to a term of two years at the Wisconsin Home for Women.

Robert J. Paul, Deputy State Public Defender (argued), with whom on the briefs were Howard B. Eisenberg, State Public Defender, and James R. Glover and Shellow & Shellow, of counsel, Milwaukee, for plaintiff in error.

James H. Petersen, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

HANSEN, Justice.

On this review, Karyn D. Laasch (hereinafter defendant), raises several issues. However, the resolution of the issue of whether the defendant was unlawfully arrested, causing the trial court to lack personal jurisdiction, is dispositive of this review.

On the afternoon of February 5, 1975, Village of Brown Deer police detective John Bendtschneider observed the defendant as she sold to a police informer, for $50, approximately one gram of what she purported to be cocaine. Chemical tests later confirmed that the substance was a form of cocaine. At approximately 9 p. m. that evening, the defendant was arrested in her apartment, without a warrant, on the basis of the sale which had been observed earlier that day.

The police believed the defendant to be intoxicated at the time of her arrest; she was held overnight and the next day gave incriminating statements to the police. Bail was set by a telephonic communication with a circuit judge. We do not know the amount of the bail, and the defendant never posted bail. She remained in custody that evening. The next morning, February 7, 1975, she was released at the direction of an assistant district attorney, on an understanding that she would cooperate with the police in attempting to secure the arrest of others involved in drug sales. These efforts apparently proved unsuccessful.

Thirteen days after she was first taken into custody, shortly before midnight on February 18, 1975, the defendant was rearrested, without a warrant, inside her apartment. She testified, and the state did not dispute, that she returned from a neighboring apartment to find police officers waiting inside her apartment, and that they had been admitted by her five-year old son.

The defendant was subsequently charged with delivery of cocaine, contrary to secs. 161.16(4) and 161.41(1)(b), Stats. By timely motions the defendant moved to dismiss the prosecution, challenging the legality of her arrest and the voluntariness of the statements she had given the police. These motions were argued to the trial court prior to the preliminary examination and were denied. The defendant was bound over for trial.

At an evidentiary hearing before Christ T. Seraphim, Circuit Judge, the defendant again argued that the arrest was illegal and that the trial court lacked personal jurisdiction over her. The trial court found that the arrest was proper and that the defendant's statements had been voluntarily made. Commencing with her initial appearance in court and continuing throughout the entire proceeding in the trial court, the defendant has maintained that her arrest was unlawful and that the trial court therefore lacked personal jurisdiction.

The arrest is challenged on three grounds. First is the thirteen-day delay between the time the police acquired probable cause to believe the defendant had committed the crime and the time of her arrest. Second is the fact that the arrest involved a warrantless entry of her home, and third is the fact that the arrest was effected at nighttime. Under these circumstances, the defendant asserts, arrest without a warrant was unlawful, absent some clear exigency justifying warrantless arrest.

The state asserts that the trial court obtained jurisdiction over the defendant at the time of her initial arrest, which was undisputedly supported by probable cause for arrest, and that this jurisdiction was not lost when the defendant was released, without bail, at the direction of an assistant district attorney. The circumstances of the subsequent re-arrest are therefore irrelevant, the state contends.

This argument is not persuasive. The jurisdiction of a court over the person of an accused depends upon the physical presence of the accused before the judge. Pillsbury v. State, 31 Wis.2d 87, 142 N.W.2d 187 (1966); quoted in Lampkins v. State, 51 Wis.2d 564, 570, 187 N.W.2d 164 (1971). See also: Walberg v. State, 73 Wis.2d 448, 460, 243 N.W.2d 190 (1976). The instant defendant was not brought before a judge during the period of her initial arrest and no warrant was issued or served upon her. Although bail was set for her over the telephone, no bail was posted by the defendant, and she was released by the direction of the assistant district attorney. This does not constitute "physical presence" sufficient to confer personal jurisdiction. The trial court therefore did not obtain personal jurisdiction incident to the initial arrest.

The defendant argues it was unreasonable for the police to fail to procure a warrant for her arrest during the thirteen-day period between the cocaine sale and her second arrest. The defendant recognizes that sec. 968.07(1)(d), Stats., ¹ authorizes warrantless arrests when the arresting officer has reasonable grounds to believe the person arrested has committed a crime, Rinehart v. State, 63 Wis.2d 760, 768, 218 N.W.2d 323. However, she contends that regardless of this statute, her second warrantless arrest constituted an unreasonable seizure of her person prohibited by the fourth amendment to the United States Constitution, and art. I, sec. 11, of the Wisconsin Constitution.

This court has rejected the argument that whenever there is time to do so, a warrant must be obtained before making a felony arrest. In Rinehart v. State, supra, at 766, 767, 218 N.W.2d 323, 326, this court adopted the rationale of United States v. Millen (E.D.Wis.1972), 338 F.Supp. 747, 750, 751, that:

" '. . . as long as probable cause for an arrest exists, arrest warrants are unnecessary, even where there is time to obtain them. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). . . .' "

In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court approved a warrantless felony arrest made in a public restaurant some six days after the arresting officers had obtained probable cause to believe the accused had possession of stolen mail in violation of 18 U.S.C., sec. 1708. There, the Supreme Court emphasized that the necessary inquiry was not whether the officers had time to obtain a warrant, but only whether there was probable cause for the arrest. The Court held that the power to make such a warrantless arrest in a public place was not dependent upon proof of any exigent circumstances which made it impracticable to obtain a warrant. The court declined

". . . to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like." United States v. Watson, supra, at 423, 424, 96 S.Ct. at 828.

Similarly, the Model Code of Pre-Arraignment Procedure proposed by the American Law Institute in 1975 approves warrantless arrests whenever there is a reasonable cause to believe that the person arrested had committed a felony and ". . . does not require an officer to arrest under a warrant even if a reasonable opportunity to obtain a warrant exists." Model Code of Pre-Arraignment Procedure (1975), sec. 120.1 and Commentary thereto, at p. 303.

No argument is advanced that the delay in the second arrest was in any way prejudicial to the defendant, and it does not appear from the record that the of the defendant was in any way prejudiced by the delay.

There was sufficient and undisputed evidence of probable cause for the instant arrest, and the thirteen-day interval between the date of the offense and the arrest does not, by itself, invalidate the arrest.

However, we conclude that the arrest was tainted by the warrantless entry of the defendant's home. The state identifies no exigent circumstances necessitating a warrantless entry, and the record is barren of any evidence of exigency. The arrest was not made in "hot pursuit"; there was no threat to the safety of other persons; there was no risk that evidence would be destroyed, since the delivered substance had been seized at the time of the previous arrest; and any suggestion that the police feared the defendant would flee is dispelled by the fact that she had been released for approximately two weeks.

Nor was valid consent given for the entry. The defendant testified that the officers were admitted to her apartment by her five-year old son. Consent to an entry is not to be lightly inferred, but must be shown by clear and convincing evidence. Kelly v. State, 75 Wis.2d 303, 316, 249 N.W.2d 800 (1977). The burden is on the state to show a free, intelligent, unequivocal and specific waiver. Gautreaux v. State, 52 Wis.2d 489, 190 N.W.2d 542 (1971). Here there has been no showing that the defendant's five-year old son possessed the capacity, the intelligence, or the authority to give constitutionally effective consent to the midnight entry, and, under the facts of this case, a valid consent to such an entry can not be inferred. See: People v. Jennings, 142 Cal.App.2d 160, 298 P.2d 56 (1956); United States v. Linderman (E.D.N.Y.1940), 32 F.Supp....