State ex rel. Meyer v. Keeler

• Decision Date: 12 May 1931
• Citation: 205 Wis. 175,236 N.W. 561
• Parties: STATE EX REL. MEYER ET AL. v. KEELER.
• Court: Wisconsin Supreme Court

205 Wis. 175

236 N.W. 561

STATE EX REL. MEYER ET AL.

v.KEELER.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for Grant County, granting a peremptory writ of mandamus which ordered appellant, J. G. Keeler, a deputy conservation warden, to return to the respondents certain furs, which had been illegally seized on the premises of the respondents in the city of Prairie du Chien, Wis.; S. E. Smalley, Circuit Judge.

Mandamus by the State, on the relation of Leonard R. Meyer and another, against J. G. Keeler, to compel defendant, as deputy conservation warden, to return to relators certain furs which had been illegally seized on premises of relators. From judgment granting peremptory writ of mandamus, defendant appeals.--[By Editorial Staff].

Reversed with directions.

This action was commenced on the 29th day of October, 1929, for the purpose of compelling the appellant, hereinafter called the defendant, to return to the respondents, hereinafter called the petitioners, 1,180 muskrat skins, 4 mink skins, and 2 raccoon skins, which it was claimed were illegally seized by the defendant under a search warrant which was illegal and void, because issued upon information and belief. From a judgment, in which the return of the furs was ordered, entered on the 10th day of July, 1930, the defendant appealed.

The facts are not in dispute. On the 28th day of October, 1929, at the request of the defendant and upon complaint made upon information and belief, a search warrant was issued by C. H. Speck, a justice of the peace, at Prairie du Chien, for a search of the dwelling and premises of the petitioners. Immediately after the search warrant was issued, the defendant proceeded to the dwelling and premises of the petitioners and searched the same. Before commencing the search, the defendant went into the dwelling house and read the search warrant to Ben L. Meyer, one of the petitioners. The search included not only the dwelling house but other buildings located upon the premises of the petitioners. In one of the buildings were found seven sacks of furs which were piled up with rags and other junk. The seven sacks of furs were seized and thereafter retained by the defendant, or at least by the conservation department of the state of Wisconsin. The search warrant was duly returned to the justice of the peace. Thereafter a criminal complaint was sworn to by the defendant, and a warrant, charging the petitioners with having unlawfully concealed in their possession muskrat pelts and furs, was duly issued. Upon being brought into court, the petitioners moved to suppress the evidence because illegally seized, to have the furs returned to them, and for their discharge. These motionswere granted and the defendant was ordered to return the furs to the petitioners. The defendant, however, failed to obey the order of the justice of the peace to return the property. No contempt proceeding was instituted before the justice of the peace and no appeal was taken by the state of Wisconsin from the order suppressing the evidence, discharging the petitioners, or ordering the return of the furs. Thereafter this action was commenced to compel the defendant to return the furs to the petitioners. The court below found the evidence substantially as stated and concluded that the petitioners were entitled to a peremptory writ of mandamus commanding the defendant forthwith to return the furs to the petitioners at their premises in the city of Prairie du Chien. Judgment was entered accordingly. Other important facts will be found in the opinion. The defendant, represented by the Attorney General, contends that the court erred in ruling that the petitioners were entitled to a peremptory writ of mandamus commanding defendant to return the furs to the petitioners.

John W. Reynolds, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for appellant.

Graves & Earll, of Prairie du Chien, for respondent.

NELSON, J.

The defendant concedes that the search warrant involved in this action was illegal and void and gave no right or authority to the defendant, or to the officers associated with him, to search the dwelling and other buildings belonging to the petitioners, because such search warrant was issued upon complaint made upon information and belief. Glodowski v. State, 196 Wis. 265, 220 N. W. 227;State v. Jaeger, 196 Wis. 99, 219 N. W. 281;Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520.

The defendant, however, contends that since the furs and skins were found and seized in a building other than a dwelling house, which he asserts he had a right to search without a search warrant, pursuant to the provisions of section 29.05 (6) of the statutes, they were not illegally seized and therefore they should not have been ordered returned to the petitioners. Section 29.05 (6) is as follows: “They shall seize and confiscate in the name of the state any wild animal, or carcass or part thereof, caught, killed, taken, had in possession or under control, sold or transported in violation of this chapter; and any such officer may, with or without warrant, open, enter and examine all buildings, camps, vessels or boats in inland or outlying waters, wagons, automobiles or other vehicles, cars, stages, tents, suit cases, valises, packages, and other receptacles and places where he has reason to believe that wild animals, taken or held in violation of this chapter, are to be found; but no dwelling house or sealed railroad cars shall be searched for the above purposes without a warrant.”

Whether this section of the statute is unconstitutional because violative of article 1, § 11, of the Constitution of the state of Wisconsin, we need not here decide for the reason that the search involved in this action was clearly made under and by virtue of the illegal search warrant with which the defendant was concededly armed at the time of the search. It is undisputed that the defendant deemed it necessary to obtain a search warrant before proceeding to make the search; that the search warrant, immediately after it was issued, was taken to the petitioners' home, where the defendant informed the petitioners, or at least one of them, that he was about to make a search pursuant to the search warrant which he then and there read to one of the petitioners; that immediately thereafter the search commenced and continued until the furs and skins mentioned were seized. That the search was made under and by virtue of the search warrant further appears from the return of the defendant thereto annexed. The return is as follows, omitting the formal parts:

“I hereby certify that in pursuance of the within warrant, I searched for the goods therein described at the place mentioned, and found the following goods, to-wit: 7 sacks of muskrat and other furs

And the goods so found I have in charge and custody.

J. G. Keeler, Deputy Game Warden.”

[1] In Davis v. State, 187 Wis. 115, 203 N. W. 760, 761, it appears that the officers in that action made their search under a search warrant, according to the return made, but later attempted to justify their search on the ground that they raided the premises, not by authority of the search warrant, but because it was a disorderly place, which they had a right to break into in order to arrest the occupants. In disposing of the claim made by the state in Davis v. State, supra, Mr. Justice Owen, speaking for this court, said: “We have carefully considered the evidence in this case, and we regard the attitude of the state as nothing more nor less than a flimsy and transparent attempt to avoid the consequences of the decision of this court in State v. Baltes, 183 Wis. 545, 198 N. W. 282, where this court held that a search warrant so issued was void. It will be noted that the search warrant was issued at a time when it was not uncommon for search warrants to issue upon a complaint made upon information and belief, that the raid was made the very day of its issue, and that the return of the officer showed that they had searched the premises of defendant described in the search warrant, had found therein a bottle of moonshine whisky, and pursuant to said search warrant had placed the defendant under arrest. There is much authority for the proposition that this return is conclusive upon the state that the raid was made pursuant to and by virtue of this search warrant. 2 Ency. of Evidence, p. 974, and many cases there cited.” While the Davis Case probably does not squarely decide that a return to a search warrant is conclusive upon the state, such is the tenor and effect of the decision. This court is of the opinion that when a search warrant is secured under which certain officers clearly act, and where there appears to be no justification for any claim other than that the search and seizure were made under and by virtue of such search warrant, which is duly returned into court, the state is concluded thereby and should not be permitted to claim as an afterthought that, although the search under the search warrant was illegal, yet, because the search could have been made without a search warrant, it is therefore, notwithstanding the illegal warrant, legal and valid. We think that a citizen has the right to know at least under what claim of authority his premises are being invaded and searched by officers of the law.

The search warrant being clearly illegal and the search and seizure void, the question arises as to whether or not the furs and skins must be returned to the petitioners or put back in the place from whence they were illegally taken. In other words, do the rights of the petitioners, guaranteed to them by the Fourth Amendment to the Constitution of the United States and by article 1, § 11 of the Constitution of the State of Wisconsin, require that the particular furs and skins involved in this action be returned to them? This presents both an interesting and an important question.

[2] As w...