Scaffido v. State

Decision Date01 May 1934
Citation254 N.W. 651,215 Wis. 389
PartiesSCAFFIDO v. STATE. CICERRELLO v. STATE.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Error to review judgments of the Municipal Court of Milwaukee County; Max W. Nohl, Judge. Affirmed.

Prosecution and conviction of Joseph Scaffido and Tony Cicerrello on the charge of carrying concealed weapons in violation of section 340.69, Stats. Prior to the trial pleas in abatement and motions to suppress evidence had been overruled by Judge George A. Shaughnessy. The pleas and motions, and the assignment of error in respect to the trial were based on the defendants' contention that the evidence, which was relied upon to sustain the convictions, was procured on an illegal search of the defendants while not lawfully under arrest.

Rubin & Zabel, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for plaintiffs in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William A. Zabel, Dist. Atty., and Herman A. Mosher, Deputy Dist. Atty., both of Milwaukee, for the State.

FRITZ, Justice.

The evidence upon which the court concluded that there had been no illegal search of the defendants fairly established the following facts. Shortly after midnight on January 24, 1933, the police department of the city of Milwaukee was informed by telephone that an assault with intent to rob had been committed in a nearby suburb by a group of five men, who used an automobile, which was described as a Hudson, bearing license No. 76298; and a description given of one of the men was believed by the police department to fit the defendant Joseph Scaffido. There was an immediate radio broadcast by the police department of that information, and that was heard by Officers John J. McGarvey and John Flannery, who were detectives, and also by other officers of the department. At about 1:45 a. m. those officers found a Hudson automobile with license No. 76298 at a soft drink parlor in Milwaukee. McGarvey, Flannery, and five other officers entered that place and found Scaffido seated with Cicerrello and three other men in a booth. McGarvey said to the five men, “I place you under arrest for assault with intent to rob.” Then without asking their consent, or having any warrant for their arrest or search, McGarvey searched Scaffido and Flannery searched Cicerrello, with the result that a revolver was found concealed in an inside pocket of the coat of each defendant. The five men were taken to the police station and warrants were issued for the arrest of the defendants and two of the other men on the charge of carrying concealed weapons. The fifth man was arrested on the charge of vagrancy. Convictions followed on all of those charges. However, as the victim of the assault and robbery declined to verify a complaint, no warrant was ever issued on that charge.

Defendants concede in their brief that “after a person is legally arrested for a crime the search of his person is allowable and the contents found thereon may be used as evidence for which he is arrested. If the defendants had been lawfully arrested and were legally tried on the charge of robbery, the guns found on their persons at the time of the arrest would have been competent evidence as ‘incident’ to and as a circumstance connected with the robbery.”

That recognizes the principles approved in Thornton v. State, 117 Wis. 338, 93 N. W. 1107, 1110, 98 Am. St. Rep. 924:

“* * * Not only in this country ever since the adoption of the Constitution, but in England long before, it has been usual, upon the arrest of the prisoner, to subject him to a search. This is done as well for purpose of safety of custody and incarceration, to ascertain the presence of weapons or implements of escape, as for purposes of discovery. It had become so entirely well established as not an infringement of legitimate personal rights before our Constitution was adopted, and has been so universally treated since, that it must be assumed not to have been within the class of unreasonable searches and seizures which the fourth amendment to the Constitution of the United States prohibited, in language later adopted into our own Constitution. * * *”

To the same effect see People v. Chiagles, 237 N. Y. 193, 142 N. E. 583, 32 A. L. R. 676, 679.

[1][2] However, defendants contend that at the time of the search they were not under lawful arrest, and that, consequently, the search was made in violation of sections 8 and 11 of article 1, Wis. Constitution, and article 4, of the Amendments to the U. S. Constitution, and was illegal.

As the reported assault and robbery constituted a felony, it was within the authority of Officers McGarvey and Flannery to arrest the defendants on that charge without a warrant, if on the facts which had been communicated to and broadcast by the police department, and the coinciding facts discovered by them upon finding the Hudson automobile with the described license number, and also finding the described man in the group of five men assembled in the booth, they had probable cause to believe or to...

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7 cases
  • State v. Fioravanti
    • United States
    • New Jersey Supreme Court
    • December 6, 1965
    ...16 A.D.2d 207, 229 N.Y.S.2d 685 (1962); Richardson v. State, 97 Okl.Cr. 370, 264 P.2d 371 (Crim.Ct.App.1953); Scaffido v. State, 215 Wis. 289, 254 N.W. 651 (Sup.Ct.1934). Perhaps it is more precise to say, in ultimate constitutional terms, that the arrest and the search and seizure in such ......
  • State v. Pokini
    • United States
    • Hawaii Supreme Court
    • October 10, 1961
    ...to bring out the message that Officer Lee received over the police radio did not make out a case of unlawful search. See Scaffido v. State, 215 Wis. 389, 254 N.W. 651; Silver v. State, 101 Tex.Cr.R. 512, 8 S.W.2d 144; Richardson v. State, 97 Okl.Cr. 370, 264 P.2d 371. It is evident that Mrs......
  • State v. Post
    • United States
    • Iowa Supreme Court
    • July 16, 1963
    ...appellants were validly under arrest therefor.' Also see Richardson v. State, 97 Okl.Cr. 370, 264 P.2d 371, 374; and Scaffido v. State, 215 Wis. 389, 254 N.W. 651, 652. Since this evidence was legally obtained and properly submitted to the jury, we find in this assignment no injustice or un......
  • Layton v. State
    • United States
    • Indiana Supreme Court
    • September 27, 1968
    ...than in years past. We find probable cause exists in this case for the arrest and search made by the officer. Scaffido v. State (1934), 215 Wis. 389, 254 N.W. 651; United States v. Smith (1966), 6 Cir., 357 F.2d 318; 6 C.J.S. Arrest § 6, p. 600.' Manson v. State (1967), Ind., 229 N.E.2d 801......
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