Soehle v. State
| Decision Date | 29 June 1973 |
| Docket Number | No. S,S |
| Parties | Michael D. SOEHLE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 37. |
| Court | Wisconsin Supreme Court |
Raymond E. Schrank II, Graff & Schrank, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
Challenged here are very nearly all of the steps taken by the police, leading from interrogation through arrest to the bringing of criminal charges against the defendant. So we will take up, in chronological sequence, what took place on the evening of the defendant's arrest.
INTERROGATION. Police Officer Puls was sitting in a parked squad car observing the residence at 644 East Johnson Street in the city of Madison. The night before police had found a large quantity of illegal drugs in the residence. Defendant and a companion drove up and parked some distance in front of the squad car. Both men got out of the car and walked to the side door of the residence. They knocked on the door. Receiving no response, they returned to the sidewalk and walked down the street, leaving their car parked on the street. Five or ten minutes later they returned, walked about and sat on the cement steps leading to the residence. Police Officer Puls radioed for an additional officer, and both officers approached defendant and his companion. Both men were asked for identification. Defendant's objection to such stopping and interrogating is without merit. Under these circumstances it was entirely reasonable for the two police officers to stop and interrogate defendant and companion to determine their identity. 1
LICENSE CHECK. Police Officer Puls had observed the defendant drive the 1965 Plymouth Barracuda automobile and park it at the curb on East Johnson Street. He requested the defendant to produce his driver's license. The defendant did not have one, or at least could not show the officer a driver's license. Either for purpose of identification or to determine if the defendant had operated a motor vehicle without a license, the police officer was entitled to include in the interrogation a request to be shown a driver's license by the person he had observed driving the car. It has been termed "the essence of good police work" to thus briefly stop a suspicious individual either ". . . to determine his identity or to maintain the status quo momentarily while obtaining more information." 2
ARREST OF DEFENDANT. Police Officer Puls informed the defendant, when he was unable to produce a driver's license, that he was going to issue him a citation for driving a motor vehicle without a license. The defendant was then informed that he was under arrest. It was entirely proper for the police officers, when the defendant could not produce a driver's license, to place him under arrest for driving without an operator's license. There was present ". . . that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime." 3 Police Officer Puls had radioed for a vehicle license check on the automobile that the defendant was driving and had been informed that it was owned by a Walter Balsiger who did not live in Madison. Asked by the officers where he had obtained the car, defendant stated he and his companion had borrowed it from a girl whom he knew only as 'Jay.' At this point the police officers decided to take the defendant to the police station.
SEARCH OF PERSON. With the defendant under arrest and about to be taken to the police station, the police officers searched his person and the keys to the automobile were found in his possession. As to this search of the person, defendant's brief states that 'a question can be raised.' Under the circumstances here present, we find the search of the person reasonable as a protective search for weapons. Even before placing the defendant under arrest, under these circumstances, the police officers were warranted to frisk or patdown the defendant for weapons, to 'allow the officer to pursue his investigation without fear of violence.' 4 Here the search of the person was incident to arrest, the defendant having been placed under arrest and the decision reached to take him to the police station. Where a person is placed under arrest, as distinguished from being given a summons to appear in court at some future time, this court has held that it is not unreasonable for the arresting officer to search his person for weapons. 5 The search of the person here meets the test of reasonableness under these circumstances.
ENTRY INTO AUTOMOBILE. Following the decision to take the arrested defendant to the police station, the police officers decided to 'secure' the automobile which was to be left behind. Police Officer Sippl testified: 'I entered the car on the driver's side, and after assuring myself that these keys did fit that car, I reached over and locked the right front door of that car, at which time there was a motorcycle helmet laying in the front seat which I knocked . . . onto the floor, and when the helmet fell onto the floor, I noticed an automatic pistol fall out of the helmet.' It was not unreasonable for the police officers to make certain that the car was locked before they left the scene to take the defendant to the station. This was an entirely reasonable precaution to make less likely that the car would be driven off or its contents stolen or removed while it was left standing on the street. However, asked on cross-examination whether the car was already locked prior to the time he approached it, Police Officer Sippl responded, 'I believe it was.' If the doors were locked there was no reason to enter the car to lack them.
No claim is made that police entry into the car was justified as part of a weapons search limited in scope to such protective purpose. 6 With the doors locked, there could be no such purpose. 7 Nor is there any claim that this was a lawful search incident to arrest to prevent the destruction or removal of evidence. 8 Nor is there any claim that the mobility of the automobile necessitated the search as this would require reasonable grounds for belief that the contents of the automobile offended against the law. 9 The arrest of the defendant for driving without a license, even with other attendant circumstances given weight, did not provide any such probable cause basis for a warrantless search of the automobile to secure destructible evidence, and the state does not claim that it did.
Rather the state contends that, with the motorcycle helmet inadvertently knocked over by the police officer, the pistol was in plain view when the officer saw it and seized it. Where a police officer saw the questioned items in plain view while he was looking through a car window, this court held that no 'search' in the constitutional sense took place. 10 That case followed the long settled rule 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." 11 But, also in that case, this court specifically found that the officers 'had the right to be in the position from which they viewed the objects within the car.' 12 Can that be said of the policeman's entering and sitting in the car in this case? We think not. The officer testified that his intention was 'to lock up the car and secure it' and 'check the keys to see if they fit that car.' Asked why he did not do the locking and the checking from the outside of the car, not the inside, he answered that East Johnson Street is a one-way street, and the car was parked so that There are some risks involved in walking around a car to check or lock a door on the street side. But, if one waits until there is a break in the line of oncoming traffic, there is no reason why even the most prudent person would not undertake to walk around the car and safely complete the undertaking. The reason given is not sufficient to warrant a warrantless entry into a locked automobile.
It follows that the defendant's motion to suppress the gun seized during the above-described police entry into the automobile should have been granted. So the judgment of conviction on a charge of carrying a concealed weapon must be set aside; defendant's motion for withdrawal of guilty plea on such charge must be granted; defendant's motion for suppression of the gun as evidence must be granted. The case involving concealment of a dangerous weapon is returned for further proceedings, consistent with this opinion. As to the charge of possession of dangerous drugs, the gun had no materiality or relevance and that conviction is not affected by holding the gun inadmissible.
CONSENT SEARCH. Arriving at the police station, Officers Puls and Sippl were directed to seek to locate the owner of the automobile involved. They located a girl, Jane 'Jay' Balsiger, who explained that the automobile was owned by her father, Walter Balsiger of Pardeeville, Wisconsin, who had given her the use of the car for the summer. She stated she had allowed defendant and his companion to use the car on the afternoon of the day of arrest. Jane Balsiger signed a written consent to a search of the car by the police. The police, in the presence of Jane Balsiger, searched the car. She pointed out items in the car that did not belong to her. These included an attache case, a tobacco can and a locked box or container. Pursuant to such consent search, the case, can and container came into police possession, and their contents led to the charges of possession of dangerous drugs brought against the defendant.
If the consent by Jane Balsiger to the search is valid, there could be no constitutional infirmity to the manner in which the three containers came...
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