State v. Beal

• Citation: 40 Wis.2d 607,162 N.W.2d 640
• Parties: STATE of Wisconsin, Respondent, v. Harley J. BEAL, Appellant.
• Decision Date: 26 November 1968
• Court: United States State Supreme Court of Wisconsin

Page 640

162 N.W.2d 640

40 Wis.2d 607

STATE of Wisconsin, Respondent, v. Harley J. BEAL, Appellant.

Supreme Court of Wisconsin.

Nov. 26, 1968.

Rehearing Denied Feb. 4, 1969.

Morse, Morse & Roggensack, Lancaster, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, James B. Halferty, Dist. Atty., Grant County, Lancaster, for respondent.

CONNOR T. HANSEN, Justice.

The defendant presents four issues on this appeal.

(1) Whether the motion to suppress the evidence should have been granted because the complaint for the search warrant was based on hearsay?

(2) Whether the issuance of the search warrant was predicated on future acts or contingencies?

(3) Whether the inspection of the parcel at the post office constituted an unreasonable search?

(4) Whether the trial court abused its discretion in denying probation to the defendant?

In October, 1967, the district attorney for Grant county was informed by a 'federal employee charged with duties of law enforcement' that a first class parcel addressed to the defendant in Platteville, and leaking a substance believed to be marijuana, was seen while in the United States mails at Milwaukee. The parcel was placed in a large envelope and mailed to the postmaster at Platteville.

The following morning the parcel arrived at the Platteville post office. The assistant postmaster opened the envelope revealing the package. This was done in the presence of the Platteville chief of police. The chief was permitted to examine the package and observe that shredded material trickled out of the package where it was damaged. The chief was allowed to look at the package and place some fluorescent powder on the outside of it for identification purposes. He was not permitted to open it, probe into it or take any of the material which had leaked out of the package. The package was retained by the assistant postmaster, and at 11:59 a.m. the package and its loose contents were delivered to the defendant.

Upon leaving the post office, the chief of police telephoned the district attorney at Lancaster and told him what he had seen. The district attorney swore to a complaint for a search warrant to permit a search for the parcel at the defendant's residence. The complaint of the district attorney was based upon information he had received from the federal employee in Milwaukee, and information concerning the defendant's identity obtained from an official at Plattevill University. The complaint did not mention the inspection of the package at the Platteville post office by the chief of police.

The search was made about forty-five minutes after the package was delivered to the defendant. Plant material was retrieved from the water in defendant's toilet bowl while the water was still in motion. At the trial, the material was identified as marijuana.

The defendant was taken into custody when the search was completed, but then released pending laboratory test results. He was formally arrested two days later, waived preliminary hearing and was bound over to the circuit court for trial.

Prior to arraignment, the defendant made a motion before the Hon. Richard W. Orton, Circuit Judge for Grant county, to suppress the evidence seized through the use of the search warrant. The motion was denied. An affidavit of prejudice was subsequently filed. Hon. Kent C. Houck was assigned to hear the case. The motion to suppress was renewed and again denied.

Search Warrant

Since art. I, sec. 11 of the Wisconsin Constitution is substantially like the fourth amendment of the United States Constitution, we have held that the standards and principles surrounding the fourth amendment are generally applicable to the construction of art. I, sec. 11, and that a finding of probable cause under federal standards will normally result in a finding of probable cause under state standards. Browne v. State (1964), 24 Wis.2d 491, 503, 129 N.W.2d 175, 131 N.W.2d 169, certiorari denied, 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706, rehearing denied, 380 U.S. 959, 85 S.Ct. 1094, 13 L.Ed.2d 977.

An evaluation of the constitutionality of a search warrant should begin with the rule that 'the informed and deliberate determinations of magistrates empowered to issue warrants * * * are to be preferred over the hurried action of officers * * * who may happen to make arrests.' United States v. Lefkowitz (1932), 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775.

'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States (1948), 333 U.S. 10, 13--14, 68 S.Ct. 367, 369, 92 L.Ed. 436.

A search warrant may issue only upon a finding of probable cause. In spite of dicta to the contrary in Glodowski v. State (1928), 196 Wis. 265, 273, 220 N.W. 227, the term 'probable cause' means less than evidence which would justify condemnation or be competent in a preliminary examination. The criterion of admissibility in evidence 'goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and that what is required to show probable cause for arrest or search. * * * There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.' Brinegar v. United States (1949), 338 U.S. 160, 172--173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879; United States v. Ventresca (1965), 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684.

Thus in the federal system a finding of 'probable cause' may rest upon evidence which is not legally competent. Ventresca, supra; Draper v. United States (1959), 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327. Hearsay may be the basis for issuance of a search warrant 'so long as there (is) a substantial basis for crediting the hearsay.' Jones v. United States (1960), 362 U.S. 257, 272, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 78 A.L.R.2d 233.

We conclude that these standards should be applied in this state. Henceforth a complaint for the issuance of a search warrant may be based on hearsay information and need not reflect the direct personal observations of the complainant as long as the magistrate is informed in the manner provided by sec. 963.02, Stats. ¹ of the underlying circumstances supporting the complainant's averment on information and belief that the informant, whose identity by name need not be disclosed, was credible or his information reliable. Aguilar v. Texas (1964), 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723.

By establishing these standards for the issuance of a search warrant we also eliminate an anomaly in our law as regards the standards for issuing arrest warrants and search warrants. See the opinion of Mr. Justice Currie, concurring in State v. Luczaj (1960), 9 Wis.2d 199, 204, 100 N.W.2d 368. Though the basis for issuance of each is 'probable cause,' the former could be issued on information and belief and prior to this decision the latter could not. Our holding today will establish the same procedure for determining 'probable cause' for the issuance of a search warrant and for the issuance of an arrest warrant.

In applying these rules to the present case, though the complaint here should not necessarily be taken as a model, we cannot say that there was so little basis for accepting the hearsay here that the magistrate acted improperly.

The critical portion of the complaint sworn to by the district...