State ex rel. White v. Simpson

• Decision Date: 02 November 1965
• Citation: 137 N.W.2d 391,28 Wis.2d 590
• Parties: STATE ex rel. Willie Lee WHITE, Respondent, v. Willie SIMPSON, by his gdn. ad litem, David J. Cannon, Appellant.
• Court: Wisconsin Supreme Court

Page 391

137 N.W.2d 391

28 Wis.2d 590

STATE ex rel. Willie Lee WHITE, Respondent, v. Willie SIMPSON, by his gdn. ad litem, David J. Cannon, Appellant.

Supreme Court of Wisconsin.

Nov. 2, 1965.

Pursuant to sec. 52.25, Stats., Willie Lee White signed under oath a paternity complaint on March 30, 1965, naming as defendant Willie Simpson, a minor. On March 31, 1965, pursuant to sec. 52.25, a warrant for the arrest of the defendant was executed by the deputy clerk of the county court of Milwaukee county, based on an 'Authorization for Paternity Action' issued by the assistant corporation counsel.

On April 2, 1962, the defendant was served with a copy of the complaint and was brought before the county court to answer the charge. At that time the court appointed a guardian ad litem for the defendant, and the guardian ad litem entered a special appearance.

He objected to the jurisdiction of the court on the grounds that the complaint did not state sufficient facts for the issuance of a warrant and also that the manner in which the warrant was issued was in violation of the constitutional rights of the defendant. The trial court denied the motion of the defendant and ordered the defendant either to admit or deny the allegations of the complaint. The defendant entered a denial.

The defendant concedes in this matter that the statutes relative to paternity proceedings, secs. 52.21 through 52.45, Stats., have been followed. He appeals from the order denying his motion to dismiss.

Constitutional Provisions Involved.

Fourth Amendment, United States constitution:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Sec. 11, Art. I, Wisconsin constitution:

'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.'

Cannon & Cannon, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, James E. Talaska, Asst. Corp. Counsel, Milwaukee, for respondent.

GORDON, Justice.

'We are in bondage to the law in order that we may be free.'

--Cicero,

Pro Cluentio 53

In a significant series of cases, the United States supreme Court has made it unmistakably clear that warrants for search or for arrest must meet certain minimum standards under the Fourth Amendment to the United States constitution. Jaben v. United States (1965), 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345; United States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; Aguilar v. State of Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States (1958), 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Johnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Nathanson v. United States (1933), 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159.

The guaranties of the Fourth Amendment are enforceable against the states through the due process clause of the Fourteenth Amendment. Ker v. State of California (1963), 374 U.S. 23, 30, 83 S.Ct. 1623, 10 L.Ed.2d 726; Mapp v. Ohio (1961), 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Browne v. State (1964), 24 Wis.2d 491, 502, 129 N.W.2d 175, 131 N.W.2d 169. These guaranties apply to warrants of arrest as well as to search warrants. Wong Sun v. United States (1963), 371 U.S. 471, 481, 83 S.Ct. 407, 9 L.Ed.2d 441; Giordenello v. United States, supra, 357 U.S. at 485, 78 S.Ct. 1245.

As a result of the United States supreme court cases, it is constitutionally essential that the magistrate be mindful of the underlying circumstances before he authorizes the issuance of a warrant. The magistrate may not accept without question the suspicions or conclusion of a complainant but, on the contrary, must determine the existence of probable cause after being apprised of the relevant facts. In performing this function, the magistrate or court commissioner serves as a judicial officer and must act in a neutral and detached manner. He must receive an adequate answer to this hypothetical question: 'What makes you think that the defendant committed the offense charged?' Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345.

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. In the Jaben case, at page 224, 85 S.Ct. at page 1371, Mr. Justice Harlan stated that what was required was

'* * * the enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.'

In Giordenello v. United States (1958), 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, the rule was framed as follows:

'The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrests is sought has committed a crime.'

In Aguilar v. State of Texas (1964), 378 U.S. 108, 112, 84 S.Ct. 1509, 12 L.Ed.2d 723, the court stated that Giordenello did not depend upon a requirement of the Federal Rules of Criminal Procedure but rather was based upon constitutional requirements of probable cause as expressed in the Fourth Amendment.

We have scrutinized the manner in which the warrant in the instant case was issued. The respondent has urged that the relevant constitutional requirements do not apply to civil actions. Two basic challenges are made by the appellant. It is claimed, first, that the complaint is insufficient to show the presence of probable cause and, secondly, that the corporation counsel is not a disinterested, neutral officer who is entitled to issue a warrant.

1. Arrest in a Civil Action.

Under sec. 52.45, Stats., a paternity action is a civil special proceeding; the defendant was arrested as a result of a warrant issued pursuant to sec. 52.25.

Neither the Fourth Amendment to the United States constitution nor sec. 11, art. I of the Wisconsin constitution distinguishes between civil and criminal cases as far as the issuance of warrants is concerned; we perceive no distinction. The right of an individual to be protected from improper arrests or searches applies with equal vitality to those which stem from civil actions as well as those which stem from criminal actions. The immediate impact on the individual is precisely the same whether the arrest arises from one type of case or the other. See One 1958 Plymouth Sedan v. Com. of Pennsylvania (1965), 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170. 2. The Showing of Probable Cause.

The complaint in the case at bar contains a declaration of the expectant mother, pursuant to sec. 52.25, Stats., that 'she is pregnant with a child, which, when born is likely to be born out of wedlock' and 'that the defendant above named is the father of said child.' The record does not contain any further disclosure of additional information which may have been brought to the attention of the assistant corporation counsel who authorized the issuance of the warrant.

The complaint was made by one who had direct knowledge of the facts. We believe that the unmarried mother's affidavit that the defendant was the father of the child with which she was then pregnant sets forth a sufficient basis for a finding of probable cause. This would not be...