Muetze v. State

• Decision Date: 14 June 1976
• Docket Number: No. 75--92--CR,75--92--CR
• Citation: 243 N.W.2d 393,73 Wis.2d 117
• Parties: Kenneth P. MUETZE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 393

243 N.W.2d 393

73 Wis.2d 117

Kenneth P. MUETZE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 75--92--CR.

Supreme Court of Wisconsin.

Argued May 5, 1976.

Decided June 14, 1976.

Howard B. Eisenberg, State Public Defender, and John E. Schairer, Asst. State Public Defender, for plaintiff in error.

Thomas J. Balisteri, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

BEILFUSS, Chief Justice.

The principal issue is whether a search warrant can be validly issued when based upon an affidavit disclosing private communications between husband and wife.

On May 22, 1973, at Bangor, Wisconsin, a hardware store was broken into and several small appliances stolen. This burglary was reported to the La Crosse County Sheriff's Department.

On May 23, 1973, two detectives of the La Crosse City Police Department responded to a domestic call at 607 Wall Street. At that address they talked to Geraldine Muetze, the defendant's wife. She told the officers her husband had shown her several small appliances in the basement and told her he could be making $50 per week on 'this kind of stuff.' The La Crosse city police officers gave this information to the La Crosse County Sheriff's Department.

Within the next few days the defendant and his wife separated. He moved to 125 1/2 North Third Street and she to another address. On May 29, 1973, Deputy Sheriff Lisota served divorce papers on the defendant at the North Third Street address.

On May 30, 1973, Deputy Lisota made an affidavit in support of a search warrant for the North Third Street address to search for the articles taken during the Hussa burglary. The affidavit in part is as follows:

'2. On May 23, 1973, I received the following information from Detective Michael Abraham and Detective Donald Wenger of the La Crosse City Police Department. In an official report and by personal conversation Detectives Abraham and Wenger reported that on May 23, 1973, they responded to a domestic call at 607 Wall Street. They had conversation with a Mrs. Geraldine Muetze of La Crosse, who was then residing at 607 Wall Street. Mrs. Muetze related to Detectives Abraham and Wenger that upon her arrival at home on May 22, 1973, her husband Kenneth Muetze, who was unemployed, took her to the basement of their home, and showed her several small household appliances. She stated that there were at least two irons of a General Electric brand, portable hand mixers, and a can opener, and a black and white TV. When she asked her husband where he got the articles, he would not tell her, but said that 'he could be making a $50.00 a week from now on on this kind of stuff.'

'Mrs. Muetze produced one of the steam irons, still in its original packaging, and turned it over to Detectives Wenger and Abraham.

'The iron, now in the possession of the Sheriff's Department, is in its original package, taped shut, with a shipping label affixed addressed to Hussa Hardware, Bangor, Wisconsin. Mr. Oscar Hussa of Hussa Hardware has identified the iron as one which was stolen from his hardware store on the late evening of May 21, or early morning of May 22, 1973.

'. . .

'She further related that shen she arrived at home on May 23, 1973, these items were removed from the house at 607 Wall Street. Mrs. Muetze later related that she and her husband had moved from 607 Wall Street, and that she presently resides at 432 Rose Street in North La Crosse in an upper rear apartment. She believed that her husband was living at 125 1/2 North Third Street, La Crosse, with his brother Terry Muetze and a Richard Ness.

'3. On May 29, 1973, at 3:15 p.m., the affiant served a divorce summons on Kenneth Muetze at 125 1/2 North Third Street. Kenneth Muetze stated that he was living there temporarily because of marital problems.

'4. Affiant believes Mrs. Geraldine Muetze to be a reliable source of information, although he does not know her personally. She is a private citizen coming forward with information to aid the police. She was an eyewitness to the events she describes, and has produced a portion of what she has seen, to verify the truth of what she says. Although she admits her motive in informing the police was to serve her own self interests, her description of what she produced was accurate, and proved to be truthful. In addition, the other facts which she related also proved to be true and correct.

'5. On the basis of the above information, affiant believes that the articles stolen from Hussa Hardware were on May 22, 1973, and still are, in the possession or control of Kenneth Muetze at his present residence, contrary to Section 943.34 Wis. Stats., and are evidence of a violation of Sec. 943.34 and 932.10 Wis.Stats.'

Based on this affidavit, a warrant was issued authorizing the search of the 125 1/2 North Third Street apartment. The warrant was executed in the afternoon of May 30, and the return was filed on May 31. The return indicated that a number of small appliances had been seized at the apartment.

On June 1, 1973, a criminal complaint was issued charging Kenneth Muetze with burglary. A preliminary hearing was held, probable cause was found, and the defendant was ordered held for trial in the circuit court on the burglary charge. At his arraignment in circuit court on June 18, 1973, the defendant stood mute and a plea of not guilty was entered in his behalf.

A Goodchild-Miranda hearing was conducted on June 29, 1973, to suppress statements given by the defendant while in custody. Those statements contained inculpatory remarks concerning his involvement in the burglary. Following the hearing the circuit court concluded that the statements had been made knowingly and intelligently and were not the result of coercion, force or promise. Subsequently, on July 19, 1973, the circuit court heard a motion by the defense to suppress the fruits of the search of the defendant's apartment. In support of the motion to suppress, the defendant argued that the search warrant was invalid because based in substantial part upon the disclosure of private marital communications. On August 20, 1973, an order, accompanied by a memorandum decision, was entered denying the motion to suppress.

The case was tried to a jury on September 17 and 18, 1973. The state's case consisted of testimony from three witnesses. The owner of the hardware store, Oscar J. Hussa, testified as to matters involving the discovery and reporting of the burglary and his subsequent identification of the items recovered as a result of the search. Richard Ness, an accomplice in the break-in, testified as to the defendant's role as a lookout. Deputy Lisota testified to the execution of the search warrant and to the statements made to him by the defendant while incarcerated in the La Crosse county jail. No witnesses were called by the defense. The jury returned a verdict of guilty on the burglary charge.

The defendant filed motions after verdict seeking a judgment of acquittal or, in the alternative, a new trial on the ground that the trial court erred in admitting any evidence obtained as a result of the May 30 search. It was again argued the search was illegal because based in substantial part upon the disclosure of private marital communications. An order denying the defendant's motions was entered on December 23, 1974.

At the time this case was tried the marital privilege was governed by the provisions of sec. 885.18, Stats.1971. That section provided:

'Husband and wife. A husband or wife shall be a competent witness for or against the other in all cases, except that neither one without the consent of the other, during marriage, nor afterwards, shall be permitted to disclose a private communication, made during marriage, by one to the other, when such private communication is privileged. Such private communication shall be privileged in all except the following cases:

'(1) Where both husband and wife were parties to the action;

'(2) Where such private communication relates to a charge of personal violence by one upon the other;

'(3) Where one has acted as the agent of the other and such private communication relates to matters within the scope of such agency;

'(4) Where such private communication relates to a charge of pandering or prostitution;

'(5) Where such private communication relates to the abuse of a child by the husband or wife or both.'

The defendant points out that the affidavit presented in support of the request for the warrant to search his apartment contains references to statements made by his wife to city of La Crosse police detectives. Those statements were to the effect that when mrs. Muetze arrived home on May 22, 1973, the defendant took her to the basement and showed her several small appliances. When Mrs. Muetze asked her husband where he got the items the defendant refused to tell her but stated that 'he could be making $50.00 a week from now on on this kind of stuff."

The state concedes that these statements constitute the disclosure of private marital communications within the meaning of sec. 885.18, Stats.1971. Although there is but a limited reference in the affidavit to what the defendant actually said to his wife, 'private communications' are not limited to oral or written exchanges but may also include expressive acts which are intended to convey information of a privileged character. ¹ We believe that the defendant's action in taking his wife to the basement and showing her the items in question, when considered together with his statements, was such an 'expressive act' as would constitute a 'private communication' within the meaning of the statute.

The state contends that there is no authority for a broad exclusionary rule which would require the suppression of all information and leads obtained from the use of out-of-court disclosures of private marital communications. The marital privilege is no more than a rule of evidence. Law enforcement...