Milburn v. State, S

• Decision Date: 02 February 1971
• Docket Number: No. S,S
• Citation: 50 Wis.2d 53,183 N.W.2d 70
• Parties: Loren W. MILBURN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. t. 42.
• Court: Wisconsin Supreme Court

Page 70

183 N.W.2d 70

50 Wis.2d 53

Loren W. MILBURN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. St. 42.

Supreme Court of Wisconsin.

Feb. 2, 1971.

Loren W. Milburn, after a trial to the circuit court, was found guilty of burglary, contrary to the provisions of sec. 943.10(1)(a), Stats. Judgment of guilty was entered on January 13, 1969. On January 27, 1969, the defendant was sentenced to an indeterminate term of five years to the state prison. Postconviction motions were denied by an order of April 27, 1970.

The appeal arises out of burglary of the Berger Brothers Salvage Yard in the city of Marinette in the early morning hours of October 24, 1968. At about 2:30 a.m. on that day, Officer Bruce Christnagel was on duty with Officer James Patenaude when the officers observed someone run in front of the Olsen Furniture Store approximately a half block away. The officers drove to the scene and there observed a 1957 blue and white Buick automobile. The occupants were Loren W. Milburn, the defendant herein, and James R. Shepherd. They stated that they had stopped in the vicinity so that Shepherd some checks bearing the imprint, 'Farmers questioned the two men, Patenaude checked the doors and windows of the Olsen Furniture Store. Everything was in order. He did not check the Berger Brothers establishment. However, the questioning did not satisfy the officers, and the suspects were asked to go to the Marinette police station for further questioning. They were there questioned by Sergeant Marvin Erdman.

Officer Christnagel left the station, and as he passed Milburn's automobile, he stopped and looked in the window. By the use of his flashlight and with additional illumination furnished by a nearby streetlight, he saw a quantity of silver coins 'all over' the seat and floor. He also saw a brown leather key case containing three keys on the front seat, and in the back seat some checks bearing the impring, 'Farmers and Merchants Bank.'

At approximately 2:50 a.m. Shepherd and Milburn were released by the Marinette police.

Later in the morning, at approximately 3:30 a.m., Officers Patenaude and Christnagel again checked the area where the suspects had been found. At this time they found that the front door of Berger Brothers was open. The Marinette police station then notified area law enforcement officers to be on the lookout for Milburn and Shepherd and their 1957 Buick. The proprietor of the establishment, Ben Berger, was notified and, upon arriving at the scene, he discovered that a back window was broken open, that a desk drawer had been entered, and that $17 to $25 in silver coins, a key containing three keys and checks bearing the imprint of the Farmers & Merchants Bank were missing from the office desk.

At approximately 4:00 a.m., Shepherd and Milburn were apprehended at a restaurant in Pestigo. While there, they had given the waitress a quantity of silver coins in exchange for paper currency. The Marinette police department was notified of the arrest and was also informed that an automobile meeting the description of Milburn's Buick was in a ditch on a Pestigo road.

Sergeant Erdman and Officer Patenaude went to Pestigo to impound the car. They had previously been informed that items similar to the ones reported missing from Berger Brothers had been seen by Officer Christnagel in Milburn's 1957 Buick. When they arrived, they found the car in a ditch, and they testified that it would have had to be towed out to be mobile. From outside the car they saw a set of keys on the front seat and coins and Farmers & Merchants Bank checks on the rear floor. The key was in the ignition. Sergeant Erdman entered the car, removed the keys, the checks, and the change. He removed the key from the ignition and locked the car. He thereafter took the keys which were found in the car and tried them in properly raised in this appeal. One of the keys opened the door.

Both defendants were charged with burglary and both pleaded not guilty. Prior to trial, defendants' counsel moved to suppress the evidence obtained from Milburn's car on the ground that it was obtained through an illegal search and seizure. The motion was denied by Judge Martineau on December 12, 1968. Trial commenced on January 7, 1969. The charges against the two defendants were, by stipulation, consolidated for trial, and both defendants waived a jury trial. The defendants declined to take the stand, and no evidence was presented on behalf of the defendants.

A motion to dismiss the case on the grounds that the state had failed to adduce evidence showing the defendants guilty beyond a reasonable doubt was denied by the trial judge, and the trial court thereupon found the defendants guilty, and they were each sentenced to an indeterminate term of five years.

Motions for a judgment notwithstanding the verdict and for a new trial were denied in a written decision of the court on April 27, 1970.

The defendant Milburn has taken a writ of error to this court to review the judgment and the order denying motions after verdict.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz and Thomas J. Balistreri, Asst. Attys. Gen., Madison, Daniel J. Miron, Dist. Atty. for Marinette Co., Marinette, for defendant in error.

HEFFERNAN, Justice.

In State v. Escobedo (1969), 44 Wis.2d 85, 170 N.W.2d 709, we pointed out the inappropriateness of using the motion for judgment notwithstanding the verdict in a criminal trial to raise the question of the sufficiency of the evidence. However, a proper motion for new trial based upon specific allegations of the insufficiency of evidence was made, and we therefore conclude that the sufficiency of evidence is properlu raised in this appeal.

Defendant's first contention is that the items admitted as the consequence of the officer's investigation of Milburn's automobile were the result of an unconstitutional search and seizure. We do not agree.

As stated in the summary of the facts, Officer Christnagel saw the questioned items--the keys, the coins, and the check blanks--as a result of looking through the window of the automobile. They were in plain view. Later, having that knowledge of Christnagel's discovery, Sergeant Erdman and Officer Patenaude went to the place where the vehicle had gone into a ditch and there, before entering the car, saw the items inside the vehicle.

It was stipulated by the parties that the search was neither consented to nor was it made incident to an arrest. The propriety of the seizure rests upon the determination of whether it was a search in a constitutional sense, and, if it was, whether the search and the subsequent seizure was unconstitutional as being unreasonable.

We conclude that the facts in this case indicate that no 'search' in the constitutional sense took place. In Edwards v. State (1968), 38 Wis.2d 332, 338, 339, 156 N.W.2d 397, 401, we pointed out that:

'A search can be conducted by one's eyes alone. However, 'A search implies a prying into hidden places for that which is concealed.' It is not a search to observe what is in plain view.'

In Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, the United States Supreme Court said:

'It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.'

It is uncontradicted that the items seized were first seen through the windows of the Milburn car by Officer Christnagel and were subsequently viewed by Sergeant Erdman and Officer Patenaude when they shined the flashlight into the windows of the vehicle in a ditch near Pestigo. The officers had the right to be in the position from which they viewed the objects within the car. The defendant relies on the definition of a search in Haerr v. United States (5th Cir. 1957), 240 F.2d 533, 535, and quoted with approval in United States ex rel. Stacey v. Pate (7th Cir. 1963), 324 F.2d 934, 935:

"A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest."

We believe that this definition is not apposite to the facts herein, for the view was not pursuant to an exploratory investigation or quest. The items were plainly before the officers when they came upon the automobile. Moreover, they had received prior reliable information about the existence of these items in the car and, hence, they were not engaged in a 'quest' for evidence about which they had no prior knowledge. In any event, this court in State v. Dombrowski (1969), 44 Wis.2d 486, 171 N.W.2d 349, refused to follow this narrow definition of a search. There, an automobile and the body of a murder victim were discovered on the same farm. An officer noticed that the back seat of the car was blood stained. He procured a search warrant, went back to the vehicle, and seized a number of items from the vehicle. The following day an officer of the state crime laboratory, without a search warrant, seized a blood soaked section of the floor mat and a blood stained sock. We held:

'* * * they were items in plain view when Undersheriff Howard was by the Dodge * * *. (T)hese items were in plain view and subject to seizure without a warrant.' (Pp. 498, 499, 171 N.W.2d p. 356)

We therefore conclude that, under the circumstances of this case, the observations of Sergeant Erdman and Officer Patenaude did not constitute a search and the objects could be seized and were properly admissible into evidence without the formality of a search warrant.

Having concluded that the conduct of the officers did not constitute a search in a constitutional sense, we are not obliged to pursue the question of whether the seizure would be unreasonable if a search...