State ex rel. Warrender v. Kenosha County Court, Branch 3

• Decision Date: 28 March 1975
• Docket Number: No. 482,482
• Citation: 67 Wis.2d 333,227 N.W.2d 450
• Parties: STATE ex rel. Robert T. WARRENDER, II, Appellant, v. KENOSHA COUNTY COURT, BRANCH 3, et al., Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 450

227 N.W.2d 450

67 Wis.2d 333

STATE ex rel. Robert T. WARRENDER, II, Appellant, v. KENOSHA COUNTY COURT, BRANCH 3, et al., Respondents.

No. 482 (1974).

Supreme Court of Wisconsin.

March 28, 1975.

The appeal is from an order quashing the defendant's petition for a writ of habeas corpus. The application for the writ was based on the alleged lack of jurisdiction of the county court of Kenosha County over the defendant in a criminal action for possession of a dangerous substance.

On August 27, 1972, Robert T. Warrender, II, (hereinafter defendant) was issued a uniform traffic citation and complaint for allegedly operating a vehicle with an expired registration in violation of Sec. 7.01 of the city of Kenosha Code of Ordinances adopting Sec. 341.04(1), Stats. The defendant was notified to appear in the Municipal Court of the city of Kenosha at 9:00 A.M. on September 8, 1972, but he failed to appear at that time.

The Municipal Court Justice for the city of Kenosha authorized the issuance of a warrant for defendant's arrest. This warrant, on its face, purports to be based on the complaint of one Frank Stella in writing on oath that defendant violated Sec. 7.01 of the Kenosha ordinances by operating his automobile with an expired registration on August 27, 1972. Frank Stella signed a Wisconsin Uniform Traffic Citation and Complaint on September 8, 1972 and was sworn before the Justice. The Complaint states:

'The undersigned, an officer for and in behalf of the City of Kenosha states (on information and belief) that said defendant did on 8--27, 1972 at 2:02 A.M. violate Ord. No. 7.01 adopting Stat. No. 341.04(1).'

The violation is described as 'Expired Registration.' The defendant is named. The defendant's address, driver's license number, vehicle plate number and year of expiration, and type of vehicle is given; additionally, the location of where the violation took place and various conditions existing at the time are described.

The defendant was arrested pursuant to the warrant by Kenosha police on February 6, 1973. He was taken to the Kenosha Police Department. There a custodial search of the defendant was conducted and a bag of vegetable material was found which is alleged to be marijuana. On the basis of this finding the defendant was charged with possession of marijuana in violation of Sec. 161.41(3), Stats., by issuance of a criminal summons and complaint on February 19, 1973.

The defendant appeared and pled not guilty to the ordinance violation on February 6, 1973. On March 21, 1973, the ordinance violation charge was dismissed for lack of evidence.

The summons issued on the marijuana charge required defendant's appearance on February 27, 1973. He posted a personal recognizance bond the same day of his appearance on February 27, 1973.

The defendant again appeared in county court on March 6, 1973. At that time, according to the petition for habeas corpus, the defendant 'objected to the jurisdiction of Respondent Court alleging that the criminal complaint proffered to the Court failed to state sufficient facts for the Court to assume jurisdiction pursuant to the Fourth Amendment of the United States Constitution.' Subsequent to this appearance, a formal motion was filed along with a motion to suppress. The motion to dismiss the criminal complaint was based on the theory that the complaint did not state sufficient facts for a neutral and detached magistrate to determine that there is probable cause to believe that a crime of possession of marijuana, contrary to Sec. 161.41(3), Stats., was committed and that the defendant committed it. The argument made was that the complaint failed (1) to identify the complainant as a person qualified to make the 'field test' or to form an opinion thereon; (2) to establish that a sufficiently thorough test was conducted, and (3) to establish the nature nad purpose and technique of the field test for an interpretation that the substance was in fact marijuana. The motion to suppress evidence was based on the argument that custodial search was based on an arrest warrant which was issued without sufficient facts being presented to the Municipal Court for it to find probable cause that the violation alleged in the Uniform Traffic Citation and Complaint had been committed.

There appears to be a question as to whether the defendant entered a plea of not guilty on March 6th or March 12th of 1973. The state, while noting the question, has recognized that March 12th is the date established in the record on this appeal.

At a hearing on May 1, 1973, the county court denied the motions of the defendant. On May 3, 1973, the petition for a writ of habeas corpus was filed in the circuit court of Kenosha County. In the petition, the defendant's counsel's position was that the arrest was invalid because there was no probable cause shown for the issuance of the warrant. Because the arrest was illegal, the search was illegal and, therefore, the court did not have personal jurisdiction over the defendant pursuant to the criminal complaint of February 19, 1973.

The writ of habeas corpus issued May 3, 1973 was quashed by the order of the Circuit Court on September 21, 1973. The Circuit Court certified three issues to be presented to this court.

On December 11, 1973, this court granted permission to appeal. By order of this court dated August 1, 1974, question 5 of defendant's brief and the arguments in support of that question were stricken from the defendant's brief, upon motion of the respondents.

James C. Wood & Associates, by Dennis W. Egre, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., by David J. Becker, Asst. Atty. Gen., Madison, for respondents.

HANLEY, Justice.

The following issues are presented upon this appeal:

1. Is a writ of habeas corpus an appropriate remedy to review whether either a criminal complaint or an arrest is legally sufficient to grant the trial court personal jurisdiction over a criminal defendant, or whether evidence seized pursuant to a search incident to the arrest should be suppressed?

2. Did the defendant waive his objection to the personal jurisdiction of the county court over him?

3. Was the municipal court presented with sufficient facts to determine that there was probable cause to believe that the defendant violated Sec. 7.01 of the Kenosha ordinances so as to justify the issuance of the arrest warrant?

Habeas Corpus

The defendant argues that a writ of habeas corpus is the proper remedy for challenging the jurisdiction of a trial court over a criminal defendant. Respondents do not argue to the contrary.

In State ex rel. Hussong v. Froelich (1974), 62 Wis.2d 577, 215 N.W.2d 390, this

court ruled on the validity of a bindover challenged by the use of habeas corpus on the basis that there was insufficient evidence produced at the preliminary hearing to establish probable cause. Also, in State ex rel. Dore v. Stoltz (1969), 42 Wis.2d 534, 167 N.W.2d 214, this court held that habeas corpus was an appropriate remedy to challenge the validity of complaints and bindovers.

In State ex rel. Kanieski v. Gagnon (1972), 54 Wis.2d 108, 112, 194 N.W.2d 808, 810, this court said:

'An action for habeas corpus is a collateral proceeding which normally can be used to raise questions concerning the jurisdiction of the convicting court, the validity of the conviction as against a charge that the law under which the defendant was convicted is void, and constitutional defects in the conviction process; it is normally not used to raise such questions as the sufficiency of the evidence.'

Under the above authority, habeas corpus is available to challenge the jurisdiction of the county court over the person of the defendant. It also is available to challenge the ruling on the motion to suppress evidence in this case because of the constitutional issues involved in that ruling. On this point defense counsel shows that there may be no other adequate remedy at law available to the defendant. This contention is based on this court's decision in State v. Ryback (1974), 64 Wis.2d 574, 219 N.W.2d 263. In that case, this court held a defendant in a possession of marijuana case, who consents to the preferential treatment available under Sec. 161.47(1), Stats., connot appeal while the judgment of conviction is deferred and the defendant is placed on one year's probation. If a defendant consents to such treatment he cannot appeal. This procedure is available only once and, therefore, if the treatment is elected after conviction in a case where the evidence should have been suppressed, the defendant loses the opportunity to make use of Sec. 161.47(1), Stats., in the future even though he should not have been convicted in the first instance. Habeas corpus is an appropriate remedy to review in this case.

Waiver

The respondents argue that the defendant submitted to the jurisdiction of the county court over his person and waived objection to its lack of such jurisdiction. The prosecution of the defendant for possession of a controlled substance was commenced by the issuance of a complaint. Based on that, a summons was issued by the district attorney. In response to that complaint and summons, the defendant appeared before the trial court on February 27, 1973.

On March 6, 1973, defendant appeared with counsel and an objection was made to the court's jurisdiction over the defendant's person. The petition for the writ of habeas corpus states that this objection was on the grounds that 'the criminal complaint proffered to said Court failed to state sufficient facts for said Court to assume jurisdiction pursuant to the Fourth Amendment of the United States Constitution.' A formal motion was filed along with a motion to suppress. The written motion to dismiss for lack of jurisdiction is based on the test for marijuana not being sufficient. The motion to suppress was based on the allegedly invalid arrest resulting in the search being unlawful.

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