State v. Blumenstein

• Decision Date: 10 March 1925
• Citation: 202 N.W. 684,186 Wis. 428
• Parties: STATE v. BLUMENSTEIN.
• Court: Wisconsin Supreme Court

186 Wis. 428

202 N.W. 684

STATE

v.BLUMENSTEIN.

Supreme Court of Wisconsin.

March 10, 1925.

Certified Questions from Circuit Court, Rock County; George Grimm, Judge.

William E. Blumenstein was convicted of possessing and transporting liquor, and questions were reported to Supreme Court under St. 1923, § 4721. Questions answered.Herman L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and S. G. Dunwiddie, Sp. Dist. Atty., of Janesville, for the State.

Mistele & Smith, of Jefferson, for defendant.

DOERFLER, J.

Question No. 1 reads as follows:

“Was the search warrant void because the justice did not at the time he examined the witness under oath reduce the testimony to writing, in view of the statement of your honorable court in the Baltes Case, namely, ‘The procedure indicated and which should be followed in the issuance of search warrants is that the magistrate should examine under oath the applicant for the search warrant and his witnesses and should reduce their sworn testimony to writing, or at least so much thereof as he relied upon in issuing the warrant, and then if he finds from all the sworn testimony in the case there is probable cause for the issuance of the warrant he will reduce the complaint to writing, have it sworn to, and issue the warrant’?”

In the Baltes Case, 183 Wis. 545, on page 552, 198 N. W. 282, 285, it is said:

“The essential prerequisite to the issuance of a valid search warrant is the taking of sworn testimony from the applicant and witnesses, if any, and the judicial action upon such sworn testimony by the magistrate resulting in the finding that probable cause exists for the issuance of the warrant.”

It is also said in the same case, on page 548 (198 N. W. 284):

“The case presents the question as to what proceedings before a magistrate must be had to authorize the issuance of a valid search warrant. As more precisely presented by the facts of this case, the narrower question is, Can a search warrant lawfully issue without sworn testimony being taken by the magistrate?”

[1][2][3] Sections 4839 and 4840 of the Statutes, which provide for the issuance of search warrants, must be construed in accordance with the constitutional requirements upon the subject of searches and seizures. Under such constitutional requirements, no search warrant can issue, excepting upon a showing of probable cause. Such probable cause can only be shown by the examination by the magistrate of one or more witnesses. There is no provision in the statute requiring this examination to be reduced to writing, nor is written testimony necessary in order to satisfy the magistrate that probable cause exists. If probable cause be shown either by the sworn oral statements of the applicant or witnesses, or from such statements when reduced to writing, a search warrant may issue. The protection of the individual of his constitutional rights to immunity from unreasonable search and seizure is guarded in either instance, where the examination under oath is had. Therefore, when in the Baltes Case this court laid down certain methods constituting a proper procedure, it merely outlined and defined a method which when pursued would form a practical standard in the administration of the law in search and seizure cases. That it is desirable and advisable to reduce the examination of the sworn testimony to writing needs no comment. When such procedure is strictly followed, the written evidence of witnesses will be preserved in documentary form, and such record in the future would at all times be available, and would speak for itself as to whether or not the magistrate acted upon the showing of probable cause. Such a procedure cannot be too strongly urged upon magistrates and courts in the issuance of search warrants.

Sections 4740 and 4776, Statutes, outline the procedure necessary for the issuance of a warrant for the arrest of an offender. In construing these statutes, in Murphy v. State, 124 Wis. 635, 102 N. W. 1087, this court used the following language:

“It is pointed out that the statute requires that an oral complaint be first made to the magistrate, and he thereupon is required to put the person complaining and the other witnesses produced by him under oath, and the complaint shall then be reduced to writing, but need not have a written verification on oath appended to it, but it must be based on the sworn oral statements of the complainant and witnesses, if any are produced, made to the magistrate on examination by him. If, after such proceeding, the magistrate is satisfied that an offense has been committed and that the person accused is the probable offender, he is authorized to issue a warrant reciting the substance of the complaint and directing his apprehension. * * * It is supposed that the facts disclosed to the magistrate upon his examination on oath of the complainant and the witnesses, if any, satisfies him that an offense has been committed, and that a warrant should issue for the apprehension of the person charged.” See, also, State v. Davie, 62 Wis. 305, 22 N. W. 411;State ex rel. Long v. Keyes, 75 Wis. 288, 44 N. W. 13;State v....