State ex rel. Pflanz v. County Court for Dane County

• Decision Date: 31 October 1967
• Citation: 36 Wis.2d 550,153 N.W.2d 559
• Parties: STATE of Wisconsin ex rel. Otto E. PFLANZ, Jr., Plaintiff-Appellant, v. COUNTY COURT FOR DANE COUNTY, the Honorable William L. Buenzli presiding therein, and James C. Boll, District Attorney for Dane County, Wisconsin, Defendant-Respondents.
• Court: Wisconsin Supreme Court

Page 559

153 N.W.2d 559

36 Wis.2d 550

STATE of Wisconsin ex rel. Otto E. PFLANZ, Jr., Plaintiff-Appellant, v. COUNTY COURT FOR DANE COUNTY, the Honorable William L.

Buenzli presiding therein, and James C. Boll,

District Attorney for Dane County,

Wisconsin, Defendant-Respondents.

Supreme Court of Wisconsin.

Oct. 31, 1967.

Lawton & Cates, Richard L. Cates, John H. Bowers, Madison, for appellant.

Bronson C. La Follette, Atty. Gen., Robert E. Sutton, Asst. Atty. Gen., James C. Boll, Dist. Atty., Dane Co., John P. Koberstein, Asst. Dist. Atty., Madison, for respondents.

HALLOWS, Justice.

The sole question is whether under sec. 954.02(2), Stats., it appears from the complaint that there is probable cause to believe Otto E. Pflanz, Jr., filed fraudulent tax returns. A complaint is a written statement of the essential facts constituting the offense charged and must be made upon oath before a magistrate or other person empowered to issue warrants of arrest; but the complaint besides alleging the offense must set forth facts showing probable cause before a warrant of an arrest may issue. ¹

Prior to 1949 when the provisions of the present sec. 954.02, Stats., were enacted the practice was for the magistrate to examine the complainant and his witnesses on oath and to reduce the charge to writing in the complaint if he thought there was probable cause. Much of the basis for the making of the complaint and which established probable cause was not included in the complaint and did not appear in the record because magistrates normally kept no record of such testimony and were not required to do so. This practice of taking oral testimony to satisfy the magistrate that probable cause existed is fully set forth and was held to meet constitutional standards in State v. Davie (1885), 62 Wis. 305, 22 N.W. 411; Murphy v. State (1905), 124 Wis. 635, 102 N.W. 1087.

By ch. 631, Laws of 1949, a change of this criminal-law procedure was included in the Criminal Code revision and the procedure of executing a complaint and issuing a warrant for arrest thereon required that the complaint itself set forth the grounds for probable cause. In this respect sec. 954.02, Stats., was substantially taken from the Federal Criminal Rules of Procedure 3 and 4. See Platz, The 1949 Revision of the Wisconsin Code of Criminal Procedure, 1950 Wis.L.Rev. 28. However, in practice the complaint in any instances did not set forth completely the basis for probable cause. The district attorney generally made the decision to prosecute, prepared the complaint, and issued the warrant of arrest or if a magistrate did so he relied for the most part upon the judgment of the district attorney and in some cases of the police. Under this practice an independent judgment of probable cause by an independent magistrate was not often made. LaFave, Arrest, The Decision to Take a Suspect into Custody, 33 (1965).

Thus the practice of issuing a warrant for an arrest based upon a complaint has been the source of some misunderstanding because of the dual nature served by the complaint. For instance in the instant case the crime charged is a misdemeanor, State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609, 143 N.W.2d 437, and the complaint serves not only a charging function upon which the accused may be tried (sec. 954.036, Stats.) but also serves as a basis for his arrest. The practice in Wisconsin up to the time of State ex rel. White v. Simpson (1965), 28 Wis.2d 590, 137 N.W.2d 391, emphasized the charging aspect of the complaint because of the major role played by the district attorney in deciding whether a person should be charged at all. Overlooked in importance was the requirement of probable cause for the issuance of the warrant of arrest.

Under the present practice of issuing warrants for arrest on complaints, two essentials are necessary: (1) An independent and neutral magistrate to issue the warrant and (2) a showing of facts and circumstances upon which the magistrate can make his own independent determination of probable cause. In State ex rel. White v. Simpson, supra, we stressed the independent and neutral position of a magistrate in determining probable cause for the arrest of a person and decided that the district attorney, while more objective than a police officer, was not a disinterested person to issue the warrant in a constitutional sense because he shared with the police the responsibility for the effective enforcement of the law.

The requirement of an independent and neutral magistrate to pass upon a complaint for the arrest of a citizen is found in the constitutional mandate that 'no warrant shall be issued but upon probable cause, supported by oath or affirmation.' U.S. Const., fourth amendment; Wis.Const., art. I, sec. 11. While these constitutional provisions speak in terms of warrants for searches and seizures, they apply also to warrants of arrest. Henry v. United States (1959), 361 U.S. 98, at p. 100, 80 S.Ct. 168, 4 L.Ed.2d 134; Giordenello v. United States (1958), 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Ex parte Burford (1806), 7 U.S. (3 Cranch.), 448, 2 L.Ed. 495; McGrain v. Daugherty (1927), 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580. While the constitution requires the issuance of an arrest warrant to be based on probable cause, it does not prescribe the procedure for determining it. Wisconsin has provided for the issuance of warrants other than upon complaints in situations where the person issuing the warrant of arrest presumably has knowledge of the probable cause. ²

If, however, the arrest procedure under sec. 954.02, Stats., is used, then the underlying facts manifesting probable cause must be found in the written complaint. It is true in State ex rel. White v. Simpson supra, 28 Wis.2d at 595, 137 N.W.2d at 393, it is stated: 'The underlying facts need not be derived solely from the written complaint. Nevertheless, upon review it must appear that sufficient facts were brought to the magistrate's attention even though they are not contained in the written complaint.' While at first blush this language does not square with sec. 954.02(2), Stats., requiring probable cause to appear from the complaint, it is to be read to mean there must be sufficient facts in the complaint which are themselves sufficient to give rise to reasonable inferences which are sufficient to establish probable cause.

Since sec. 954.02, Stats., is taken from the Federal Criminal Rules of Procedures 3 and 4, the contraction placed upon these rules by the U.S. Supreme Court in Giordenello v. United States, supra, and in Jaben v. United States (1965), 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345, is persuasive if not controlling upon what constitutes sufficient facts in the instant complaint to justify the finding of probable cause by a neutral and independent magistrate.

In Giordenello the complaint charged a crime of illegally purchasing narcotics. In holding the complaint did not measure up to the standards of Rule 4 of the Federal Criminal Rules of Procedure requiring the complaint to show probable cause, the court said, 'The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complaint's belief; and it does not set forth other sufficient basis upon which a finding of probable cause could be made. We think these deficiencies could not be cured by the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer.' 357 U.S. at 486, 78 S.Ct. at 1250.

The Jaben Case is directly in point. There, the complaint charged the filing of fraudulent income tax returns by the accused in violation of the federal law and the question was the sufficiency of the complaint to show probable cause. In concluding the basis stated in the complaint was adequate, the court pointed out that the complaint included the following: (1) The complainant was identified as a special agent of the Internal Revenue Service, (2) that he investigated Jaben's tax liability for the year in question in the performance of his duties imposed upon him by law and that an examination was made of the tax returns for that year and other years, that the complaint identified and interviewed third parties with whom the taxpayer did business, consulted private and public records reflecting taxpayer's income and interviewed third parties having knowledge of the taxpayer's financial condition; and the complainant swore he had personal knowledge of the taxpayer's actual income because of his investigation.

The complaint in the instant case ³ admittedly does not contain all the source information of Jaben. It fails to identify the complainant as a person qualified to make the investigation and to form the opinion expressed therein, fails to establish that a sufficiently through investigation was made to permit anyone, no matter how qualified, to form a meaningful opinion, and it fails to establish under what circumstances the investigation was made. At most, the complaint states a man named DeYoung made an investigation of Pflanz' records and thus had personal knowledge that Pflanz had filed fraudulent income tax returns in that he reported net taxable income of X amount when he had a net taxable income of Y amount.

The Jaben Case did not lay down the maximum or ideal standards but merely the minimum. It requires a sufficient disclosure of the source of the complaint's information and knowledge and his identity and qualifications to enable the magistrate to satisfy himself that the conclusion or judgment of an expert in tax matters is probably correct. In Jaben three other justices of the supreme court would...