State v. Benoit

• Decision Date: 02 May 1978
• Docket Number: No. 76-591-CR,76-591-CR
• Citation: 83 Wis.2d 389,265 N.W.2d 298
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Donald M. BENOIT, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 298

265 N.W.2d 298

83 Wis.2d 389

STATE of Wisconsin, Plaintiff-Appellant, v. Donald M. BENOIT, Defendant-Respondent.

No. 76-591-CR.

Supreme Court of Wisconsin.

Submitted on Briefs March 8, 1978.

Decided May 2, 1978.

Bronson C. La Follette, Atty. Gen., and Nadim Sahar, Asst. Atty. Gen., for appellant.

Howard B. Eisenberg, State Public Defender, and Richard M. Sals, Asst. State Public Defender, for respondent.

CALLOW, Justice.

The issues in this case involve the propriety of the trial court's decision to suppress (1) items seized pursuant to a search warrant, and (2) certain oral statements of the defendant made to police officers while the defendant was being interrogated. The case arises out of an armed robbery of a Stop-N-Go store in the city of Green Bay on January 25, 1977. On February 11, 1977, the State sought a search warrant to search the home of a suspect, Daniel Benoit. The items to be searched for were a green snorkel jacket with fur trim, blue jeans, black leather gloves, round wire-rim glasses, a brown 8 x 10 paper bag, and a .38 caliber revolver. All of these items were part of the store clerk's description of the robber. At the close of the search warrant hearing, the Hon. John C. Jaekels, County Judge, issued the warrant. The search produced a green snorkel jacket with a repair bill made out to Donald Benoit in the pocket.

The defendant was charged with armed robbery, contrary to sec. 943.32(1)(b), Stats. A preliminary hearing was held, and the defendant was bound over for trial. The defendant then moved to suppress the evidence obtained from the search, as well as an alleged oral statement made by the defendant to the police shortly before he was charged with the crime. The statement was in response to the question, "You know you weren't wearing a mask," to which the defendant answered, "I know." The State in turn moved for an order under sec. 971.31(3), Stats., that the statement challenged by the defendant and three other oral statements made by the defendant during the police interrogation were voluntary. A Goodchild hearing was held on March 17, 1977, before the Hon. James W. Byers, County Judge. However, Judge Byers made no finding of whether the statements sought to be used by the state were voluntary. Instead, Judge Byers concluded that the defendant's statements were not against interest and suppressed them on that ground.

At the conclusion of the Goodchild hearing, Judge Byers also ruled upon the admissibility of the physical evidence obtained in the search. Judge Byers concluded that because the testimony at the search warrant hearing created only a suspicion that the items sought could be found at Mr. Benoit's home the warrant lacked probable cause. Therefore he suppressed both the fruits of the search and the oral statements made by the defendant to the police and prohibited the use of any of this evidence at trial. The State has appealed both portions of the order.

I. Was There Probable Cause to Issue the Search Warrant?

A search warrant may issue only upon a finding of probable cause by a neutral and detached magistrate. However, the showing sufficient to establish probable cause necessary for the issuance of a search warrant is less than the evidence which would justify conviction and less than the evidence required in a preliminary examination. State v. Starke, 81 Wis.2d 399, 411, 260 N.W.2d 739 (1978); State ex rel. Furlong v. Waukesha County Court, 47 Wis.2d 515, 522, 177 N.W.2d 333 (1970); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The search warrant may be based on hearsay information as long as it is shown that the information is substantially reliable. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

On review of the issuance of this search warrant we are confined to the record established before Judge Jaekels. State v. Starke, supra, 81 Wis.2d at 408, 260 N.W.2d 739; Scott v. State, 73 Wis.2d 504, 508, 243 N.W.2d 215 (1976); Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We must be satisfied that Judge Jaekels was apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime and that the objects sought will be found in the place to be searched. State v. Starke, supra, 81 Wis.2d at 408, 260 N.W.2d 739; Morales v. State, 44 Wis.2d 96, 101, 170 N.W.2d 684 (1969).

In support of the warrant, the State presented an affidavit of Lt. Norman Daniels stating the grounds for the warrant as:

"Statements taken from (1) the Stop & Go Store clerk after January 25, 1977, who was the victim of the armed robbery on said date, about the crime & description of the individual who robbed her; (2) a John Doe informant who knows the person who committed the armed robbery at the Stop & Go Store on January 25, 1977, and has given Lt. Daniels numerous facts about the suspect which corroborate the Stop & Go clerk's story."

The court also heard oral testimony from another detective and from the informant himself. The John Doe informant was the suspect's brother, Charles Benoit. ¹ Charles testified that he called his brother Donald on the phone, and his brother told him that he committed an armed robbery at the Stop-N-Go. He doubted his brother's assertion, so he checked the newspaper for an article about the robbery. After he found the article, he called his brother back and said: "I guess you did do it then," and his brother replied, "Yes." His brother wanted him to read the article to him over the phone. He read it, and he stated his brother said: "(G)ee the lady at the store saw more than he had wanted her to because he had his face covered up and everything else." Charles also testified that, although the paper reported the robber took $50, his brother told him he got approximately $67. He stated that his brother wears a green snorkel jacket kept at his home at 922 Division Street and that his brother also wears wire-rimmed glasses, black leather gloves, and blue jeans. His brother told him at a later date that the gun he used in the robbery was a .38 revolver. Neither the State nor the court inquired as to Charles Benoit's reliability as an informer.

Charles' testimony was corroborated by the testimony of Sgt. Richard Rice who testified that the store clerk told him the robber was in his early twenties, about five feet ² tall, slender build, wearing wire- rimmed glasses, a fur-trimmed green snorkel jacket, and blue jeans; that the robber entered the store with a brown paper Prange bag, pointed a gun at her; and that he told her to put the money in the bag or "I will blast you."

Judge Jaekels observed that he did not find the jacket, blue jeans, glasses, and gloves very "unique." He asked the State whether it believed the items to be seized were still at the defendant's residence and whether if the items were found and seized, they would be evidence against Donald Benoit in a criminal prosecution. The State answered both questions, "yes," and Judge Jaekels found probable cause.

Both the State and the defendant agree that the store clerk is a citizen informant and that her hearsay declarations contained in Lt. Daniels' affidavit and Sgt. Rice's testimony are reliable for purposes of a search warrant hearing even without some actual showing of reliability. But both sides also agree that her description of the robber does not in itself sufficiently distinguish him from the general populace to establish probable cause. Both sides agree that a finding of probable cause depends upon the sufficiency of the oral testimony of the informant Charles Benoit.

The defendant contends that Charles Benoit's statement that his brother told him he committed the Stop-N-Go robbery is hearsay and that the trial court was not entitled to rely on it absent any evidence that Charles Benoit is a reliable informant. The defendant contends that because Charles is an informant the Aguilar restrictions apply. In Aguilar v. Texas, supra, 378 U.S. at 114, 84 S.Ct. 1509, the Supreme Court held that, where a police officer's affidavit is based on information supplied by an unnamed informant, the officer must provide the magistrate with (1) the underlying circumstances from which he concludes that the informant is reliable, and (2) information showing the manner in which the informant obtained his information is reliable. Scott v. State, supra, 73 Wis.2d at 509, 243 N.W.2d 215; Rainey v. State, 74 Wis.2d 189, 197, 246 N.W.2d 529 (1976).

This court has stated that an Aguilar situation exists when the informant does not appear in person before the magistrate, and the magistrate must determine the informant's reliability from the facts sworn to by law enforcement officers. Rainey v. State, supra at 198, 246 N.W.2d 529; Morales v. State, supra, 44 Wis.2d at 102-3, 170 N.W.2d 684. As the Supreme Court in Aguilar recognized, without such a showing that the unnamed informant is reliable:

". . . 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' (Citations omitted). . . ." Aguilar v. Texas, supra, 378 U.S. at 115, 84 S.Ct. at 1514.

But in Rainey this court emphasized that, when the informant testifies personally, the magistrate is "in a position . . . to personally observe the informant and to evaluate for himself, first hand, the informant's reliability and credibility, as (is) his judicial function." 74 Wis.2d at 199, 246 N.W.2d at 533. Thus in Rainey this court upheld a finding of probable cause based solely on the informant's personal testimony that he observed the defendant sell narcotics. The court so held despite the fact that the identity, the reliability, or the truthfulness of the informant was not established....