Morales v. State

• Decision Date: 30 September 1969
• Docket Number: No. 6,6
• Citation: 170 N.W.2d 684,44 Wis.2d 96
• Parties: Juan G. MORALES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. St.
• Court: Wisconsin Supreme Court

Page 684

170 N.W.2d 684

44 Wis.2d 96

Juan G. MORALES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

St. No. 6.

Supreme Court of Wisconsin.

Sept. 30, 1969.

Plaintiff in error Juan G. Morales (hereinafter the 'defendant') was arrested by the Milwaukee police on February 1, 1968, about three blocks from the premises known as 1660 North Arlington Place in the city of Milwaukee. Thereafter, on conviction for violations of various traffic laws, he was sentenced to the house of correction. Such arrest was not related to the charge on which he was convicted and from which he now seeks a review.

On February 2, 1968 while defendant was incarcerated at the house of correction, an application for a search warrant for the upstairs portion of a two-family dwelling located at the above address was made to the Honorable JOHN L. COFFEY, Circuit Judge for Milwaukee county.

In support of this application Carlos Alvarez testified to the following facts: (1) That on January 29, 1968, he and a companion had been to an upper residence located at 1660 North Arlington Place; (2) that Morales resided at such location; (3) that morales had taken heroin from a kitchen drawer and had sold it to them; (4) that while in the appartment the heroin was prepared for injection and that he and his companion took 'a fix;' and (5) that he knew it was heroin because he had used heroin before and had felt the same reaction. Alvarez then identified a police photograph of Morales as being the person who had sold him the heroin. The search warrant was then issued with the photograph attached thereto.

Several hours after the warrant was issued Detective Procopio Sandoval appeared before the issuing court and testified in an effort to further substantiate probable cause for the issuance of the warrant. He testified he was familiar with the upper flat located at 1660 North Arlington Place and that he had had the premises under surveillance for approximately three hours on January 31, 1968. During this time he had observed four known narcotics users visit the residence in question. After ordering the original search warrant destroyed, the court determined that probable cause continued and issued a new warrant for the search of 'the upper premises known as 1660 N. Arlington Place, in the said City and County of Milwaukee. The entire second floor of the said premises.'

Detective Procopio Sandoval then executed said search warrant, and seized narcotics, possible narcotic paraphernalia, and several other items not pertaining to narcotics. Among these were telephone bills, a special delivery mail notice, a receipt for a registered letter and other documents which connected the defendant's name with 1660 North Arlington Place. These items were introduced into evidence but several other seized items, ¹ not disclosed by the record, were not. Also introduced against the defendant was his statement that he was addicted to heroin and had a $70--$100 a day habit.

Trial was to a jury which, on September 26, 1968, returned a verdict of guilty. On September 26, 1968, the circuit court entered a judgment of conviction and sentenced defendant to the state prison for an indeterminate term not to exceed ten years. Subsequently a writ of error was issued by this court to review the judgment.

Paul C. Konnor, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Theodore J. Hodan, Asst. Dist. Atty., Milwaukee, for defendant in error.

HANLEY, Justice.

We have presented the following issues:

(1) Does the record contain sufficient evidence to support the finding of probable cause for the issuance of the search warrant;

(2) Was the warrant executed properly;

(3) Was the seizure of 'mere evidence' pursuant to the issuance of a search warrant properly admitted into evidence; and

(4) Was it proper to introduce the defendant's statement into evidence?

Probable Cause.

It is the contention of the defendant that there was insufficient evidence to substantiate the magistrate's finding of probable cause and that the search warrant should not have been issued. In reference to a finding of probable cause this court has stated that

'* * * Like any other judicial finding, this finding of probable cause must stand, unless the proof is clearly insufficient to excite an honest belief in a reasonable mind.' Glodowski v. State (1928), 196 Wis. 265, 271, 220 N.W. 227, 230.

The burden is thus upon the defendant to establish that such evidence was clearly insufficient. In attempting to meet this burden he raises several arguments.

His first argument centers around the credibility of Carlos Alvarez, upon whose testimony the search warrant was initially issued. It is claimed that Alvarez was not 'credible' and that the magistrate should have inquired into his credibility.

In attacking Alvarez's credibility, defendant points to several factors which were not considered by the magistrate when the warrant was issued. The first of these is the testimony of Mrs. Sandra Morales, wife of the defendant, that prior to her marriage she had dated Carlos Alvarez, until discovering that he was already married. Defendant also indicates that Alvarez ultimately testified he had never been to the Morales apartment prior to the time he purchased the heroin and he therefore could not reasonably have testified that the premises were rented by him.

Although such factors might cast doubt upon Alvarez's credibility, they are irrelevant in that this court has stated:

'* * * One can challenge the legality of a search only upon the record established before the magistrate when he authorized issuance.' State v. Mier (1948), 254 Wis. 180, 185, 35 N.W.2d 196, 198.

Although the brief of the defendant fails to indicate where in the record this testimony is located, it clearly was not heard by the magistrate prior to his issuance of the warrant. This testimony occurred during the trial.

As to the magistrate's failure to inquire into the credibility of Alvarez, it is sufficient to state that no such duty exists. As indicated by the state's brief, '* * * These questions are relevant only where the application for the warrant is based on hearsay information supplied by an unnamed informant.' See Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; and State v. Beal (1968), 40 Wis.2d 607, 162 N.W.2d 640. Alvarez testified as to facts of which he was personally aware; and the magistrate, having heard such testimony, was justified in accepting it as trustworthy.

Error is also assigned to the warrant's issuance on the ground that too great a length of time elapsed between events described by both Alvarez and Detective Sandoval and the issuance of the warrant. He claims their testimony was 'stale' and therefore insufficient to support the finding of probable cause.

As pointed out by the state's brief, an annotation located at Annot. (1965), 100 A.L.R.2d 525 contains numerous cases dealing with the permissible time lapse between the occurrence of the facts relied upon and the making of the affidavit or issuance of the warrant. An examination of these cases indicates that, as stated in footnote 12, page 534 of the annotation, '* * * an interval of less than 4 days has never been held so unreasonable as to vitiate a search warrant, while, on the other hand, an interval of more than 49 days has always been held an unreasonably long delay.'

The testimony by Alvarez concerned activities occurring four days prior to the issuance of the warrant, while Detective Sandoval's testimony concerned observances occurring two days prior to issuance. Such brief periods should not render the evidence 'stale' and thereby vitiate the magistrate's finding of probable cause.

In attacking the magistrate's finding, the defendant also urges a somewhat unique argument upon this court. The essence of this argument is that the court's issuance of the second warrant is in itself sufficient proof that Alvarez's testimony was neither credible nor sufficient to establish probable cause. He then speculates that the initial warrant was executed, and since illegal at its inception, it could not be legalized by Detective Sandoval's subsequent testimony.

The state correctly states that this is sheer speculation and argues that it should not be punished for taking added precautions to insure a proper basis for the issuance of search warrants. It is agreed that a proper basis must be shown for the issuance of warrants. However, the procedure followed by the district attorney's office does raise suspicion as to whether a search was in fact made pursuant to the original warrant which was subsequently feared invalid. In cases such as this where the defendant is in custody when both warrants are issued it is impossible to substantiate a claim of improper execution. In order to insure public confidence in the integrity of the police such procedure should be avoided.

We think Detective Sandoval's testimony was superfluous since the testimony of Alvarez was sufficient to support a finding of probable cause. Thus there has been no miscarriage of justice.

The defendant's final contention as to the warrant's invalidity is that it failed to adequately describe the property to be searched. In Chruscicki v. Hinrichs (1928), 197 Wis. 78, 80, 81, 82, 221 N.W. 394, 395, this court stated:

"The prevailing rule is that the place to be searched is sufficiently described if the officer to whom the warrant is directed is enabled to locate it with certainty.' * * * 'This does not necessarily require the exact legal description to be given, such as ordinarily appears in deeds of record in the county recorder's office. * * *'

'* * *

'The purpose of requiring the warrant to particularly describe the property to be searched is to direct the officer to the exact place to be searched and to guard against...