Schill v. State, S
| Citation | 184 N.W.2d 858,50 Wis.2d 473 |
| Decision Date | 30 March 1971 |
| Docket Number | No. S,S |
| Parties | Ronald Lee SCHILL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 106. |
| Court | Wisconsin Supreme Court |
The plaintiff in error, hereinafter the defendant, after a trial to the court, was found guilty of the possession of heroin and was sentenced to an indeterminate term of not more than five years. Postconviction motions were denied, and both matters are here on writs of error.
The circumstances which led to the defendant's arrest and subsequent conviction originated in September of 1969 when Officer Nicolas Monreal of the Milwaukee police department issued a traffic citation to the defendant for driving without a license. Upon Schill's nonappearance in court, a capias and a state traffic warrant for the defendant's arrest were issued. Officer Monreal was the complaining witness and was present in the court when the capias and warrant were issued. On October 13, 1969, he learned of the defendant's whereabouts, checked with the clerical office of the Milwaukee police department, and found that the capias and warrant were still outstanding. Without the warrant physically in his possession, he went to the defendant's apartment in the city of Milwaukee to make the arrest. It was police department policy that the officer who issued the original citation should follow up with the service of the warrant and the making of the arrest.
At 8:45 in the evening, Officer Nicolas Monreal knocked on the door of the defendant's apartment. Without opening the door, the defendant asked who was there. The officer stated in reply, 'Nicky.' At one point in his testimony he stated that he mumbled the name. He heard the defendant give a 'Serbian-sounding name, Serencoben, or something on that order.' The officer said, 'Yeh, man, open the door.' The defendant opened the door, and the officer immediately, apparently without entering, observed on a dresser two eyedroppers and a plastic bag which contained tinfoil packets that he recognized as being similar to those used in the trafficking of heroin. Defendant immediately said, 'Oh, _ _, you got me.' The officer informed the defendant he was under arrest pursuant to the capias and traffic warrant and also informed him that he was under arrest for the possession of heroin. The officer testified that he then searched the area of the dresser and found two needles and a bottle-cap cooker, which he recognized to be the paraphernalia of a narcotics user. He at this time noticed that the defendant had fresh, as well as old, needle marks on his arms.
On the following day, Officer Monreal signed a complaint, which was sworn to before an assistant district attorney. The defendant was charged with the possession of a narcotic drug in violation of sec. 161.02 (1), Stats. A warrant was never issued on the narcotics charge, and the defendant was initially held in custody on the traffic warrant. On October 24, 1969, a preliminary examination was held. The magistrate found that there was probable cause shown that the defendant had committed a narcotics offense, and he was bound over for trial to the circuit court. Prior to trial, counsel moved to dismiss the complaint and information on the grounds that the complaint was invalid and in contravention of the constitutional rights of the defendant and that the arrest was made in violation of the constitutional rights of the defendant. The motion was heard and denied.
The court held that the defendant was validly arrested on the traffic warrant and that there was no improper search and seizure inasmuch as the narcotics were in the officer's plain sight and that no search was made.
The reading of the information was waived and the matter proceeded to trial before the court. It was stipulated that the substance in the tinfoil packets was heroin. The state's only witness was Officer Monreal. The defense rested without presenting any evidence. Postconviction motions were denied, and the order denying such motions and the judgment of conviction are before us on writs of error.
Herbert S. Bratt, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Michael Skwierawski, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.
The defendant initially asserts that the traffic arrest was invalid because the officer did not have the traffic warrant and capias in his possession at the time he came to defendant's apartment and hence all subsequent police conduct that stemmed therefrom was invalid.
Secs. 954.02(6)(a) and 954.03(2), Stats. (1967), provide that physical possession of the warrant is not necessary at the time of the arrest. Under sec. 954.02(6)(a), the defendant's rights are satisfied in that he can, upon arrest, ask to see the warrant and such warrant must be shown to him as soon as possible. No such request was made at the time of the initial arrest and, in fact, the capias and warrant were shown to him within a short time after he was booked at the police station. No defect in the proceedings arises from the fact that Officer Monreal did not have the outstanding warrant in his possession at the time of the arrest.
We are also satisfied that the police officer's unobstructed view of the heroin packets through the open door did not constitute a search. In the recent case of Milburn v. State (1971), Wis., 183 N.W.2d 70, we pointed out that a police officer's view of coins and other articles inside a motor vehicle did not constitute a search in the constitutional sense. We quoted therein with approval Edwards v. State (1968), 38 Wis.2d 332, 338, 339, 156 N.W.2d 397, 401:
In Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067, the United States Supreme Court pointed out that objects that are in the plain view of an officer who has a right to be in the position from which the view is taken are subject to seizure and may be introduced into evidence.
We followed a similar rationale in State v. Dombrowski (1969), 44 Wis.2d 486, 171 N.W.2d 349.
We are thus satisfied, assuming for the moment that Officer Monreal had the right to be in the position to have the view, that no search took place and the articles were subject to seizure.
The crucial and difficult question remains of whether Officer Monreal's positioning himself so that the view could be had was the result of unreasonable police conduct that transgresses the principles of the Fourth amendment. If so, the arrest for the possession of narcotics and their seizure was invalid.
The defendant contends that the circumstances of this case were similar to the situations warned against in Ker v California (1963), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. Ker, however, was primarily concerned with the question of whether the entry by the police into the premises of the defendant was unlawful. The Supreme Court found the entry therein constitutionally antiseptic because, almost immediately before, Ker had been observed having contact with narcotics suspects and, in light of the short period of time between his exposure to narcotics suspects and the time of the entry, this was substantially equivalent to a hot pursuit. Ker had furtively eluded the police only a short time before and it was reasonable for the police officers to conclude that any announcement before entering would result in the destruction of the narcotics. Although the language of Ker is significant in demonstrating the penumbra of protection of a citizen's privacy that is afforded by the Fourth amendment, the facts are so different that they are not persuasive in the instant case.
In the instant case, it should be noted at the outset that the search, if one there was, was not made after the entry of the room but was a visual search which immediately and without the necessity of further investigation or entry gave rise to the probable cause that the defendant possessed heroin.
In this case, Officer Monreal was lawfully there for the purpose of executing a warrant. When asked who was there, he gave his own first name and he was in fact known to the defendant. It appears, however, that Officer Monreal made no attempt to correct what appeared to be defendant's assumption that the person outside of the door was one 'Serencoben.' On the other hand, the police officer did not attempt to make an entry and only entered after the door was opened and after he saw the narcotics in plain view. There is no contention that the defendant made any objection to this entry into the premises.
We pointed out in Morales v. State (1969), 44 Wis.2d 96, 170 N.W.2d 684, that, before breaking into a private place, a police officer must identify himself and his purpose and, except under special circumstances, must allow time for the door to be opened. In the instant case, there was no entry except one consented to, and there was no forcible breaking. There is absolutely nothing in the record to show that the arrest on the traffic charge was anything but proper police conduct. There is nothing to indicate that Officer Monreal engaged in any trickery or subterfuge for the purpose of securing narcotics evidence. The record, in fact, was to the contrary. He was doing precisely what the obligation of his employment required. Nor can we conclude that, when, as here, an officer in the good faith performance of his duty executes an arrest on one charge, he is required to ignore evidence of other crimes that he may come upon inadvertently in the course of his lawful duty. His obligations as a police officer are to the contrary, and it would appear that Officer Monreal acted reasonably under the circumstances. His position was not unlike that of the officers in Browne v. State (1964...
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