State v. O'Brien
| Decision Date | 30 October 1975 |
| Docket Number | No. 188,188 |
| Citation | 234 N.W.2d 362,70 Wis.2d 414 |
| Parties | STATE of Wisconsin, Respondent, v. Robert E. O'BRIEN, Appellant. State(1974). |
| Court | Wisconsin Supreme Court |
Following the entry of his plea of guilty, the defendant, Robert E. O'Brien, was convicted of possession of a controlled substance, with intent to deliver, contrary to sec. 161.41(1m), Stats. The plea of guilty was entered following the denial of defendant's motion to suppress evidence, and the focus of this appeal is on that denial of such motion.
The sequence of events leading up to the seizure of the evidence which the defendant sought to suppress is as follows:
In April, 1973, members of the Madison metropolitan narcotics squad were negotiating with one Andrew P. Jones to purchase a sizeable quantity of cocaine.
During April, 1973, the police intermittently surveyed the farmhouse occupied by Jones and observed on occasion as many as seven unidentified individuals coming and going from the house.
On April 13, 1973, several police officers, a deputy sheriff and two federal narcotics agents went to the farmhouse to execute a warrant for Jone's arrest on a charge of selling methamphetamines.
Three officers, Detectives , Marion Rhodes and Thomas Kretschman and Federal Agent Joel Gutensohn, went onto the rear porch of the farmhouse to the rear door which was partially open and which had a window in it.
Through the window of the rear door, Detective Kretschman observed a person, Roger Dulin, sitting at the dining room table. (The back door opened into the kitchen; the dining room was off the kitchen.)
Detective Kretschman stepped into the kitchen and saw, in plain view, on the kitchen table a measuring scale and a quantity of greenish vegetable matter which he recognized or believed to be maijuana.
Detective Kretschman walked through the kitchen, into the dining room, and asked Dulin if he knew where Andrew P. Jones was. Dulin replied that Jones was upstairs.
Detective Rhodes and Federal Agent Gutensohn who had followed Kretschman into the kitchen also observed the measuring scale and the quantity of greenish vegetable matter on the kitchen table. They also recognized the substance as being marijuana.
Detective Rhodes and Federal Agent Gutensohn went to the second floor of the farmhouse. In one of the three bedrooms on the second floor, Agent Gutensohn found Andrew Jones. In another bedroom, Detective Rhodes found the defendant. Both were asked to get dressed.
Detective Rhodes asked the defendant if there were other persons in the farmhouse, and the defendant told Rhodes that there were two persons on the third floor.
Detective Rhodes went to the third floor and found two persons, one sleeping in a bedroom, the other on the floor in a hallway. Federal Agent Gutensohn joined Rhodes on the third floor. Both of the persons found on the third floor were asked to get dressed.
Checking a closet or storage area (the door to which was partially open) for possible concealed persons, Detective Rhodes observed in plain view a large burlap bag and a number of green plastic bags which Rhodes and Agent Gutensohn, based on their experience as narcotics officers, recognized as the type or believed to be the type in which marijuana was customarily kept.
All five occupants of the farmhouse, including the defendant, were kept in a second floor room, and then were taken to the city-county building in Madison.
Detective Rhodes then executed a complaint for a search warrant for the farmhouse based on the following information: (1) The scale and a small plastic bag containing a 'green vegetable matter,' believed by him to be marijuana, observed on the kitchen table; (2) 'green vegetable matter,' believed to be marijuana, observed by him on the dining room table; and (3) the large green plastic bags, similar to those he had observed on prior drug raids and which on those prior occasions had proved to contain marijuana, observed in a closet or storage area on the third floor.
On April 13, 1973, the search warrant was issued by the county court of Dane county, and the search made pursuant to this search warrant resulted in the finding of approximately 180 pounds of marijuana in the farmhouse.
On July 23, 1973, defendant made a motion to suppress the evidence seized pursuant to the search warrant. Hearings on this motion were held on August 2, October 9 and 11, and December 10, 1973. On January 31, 1974, the court denied defendant's motion to suppress. On February 20, 1974, defendant pled no contest and was found guilty. Sentence was withheld and he was placed on probation for three years. Defendant now appeals from the denial of his motion to suppress.
Frederick H. Miller, Miller, Rothstein & Mussallem, Madison, for appellant.
Thomas J. Balistreri, Asst. Atty. Gen., Madison, for respondent.
The evidence challenged was secured under a search warrant issued on the basis of (1) observation by the police officers of a scale and marijuana on a kitchen table; (2) observation by the officers of marijuana on a dining room table; and (3) observation by the officers of large, green plastic bags, believed by them to contain marijuana, on the third floor of the farmhouse where the officers went to serve an arrest warrant.
No challenge is made to the right of the police officers to enter the kitchen to execute the arrest warrant.
No challenge is made to the right of the police officers to be in the kitchen when they observed, in plain view, the scale and marijuana on the kitchen table.
No challenge is made to the right of the police officers to be in the dining room where they observed, in plain view, the marijuana on the dining room table.
No challenge is made to the right of the police officers to be on the second floor of the farmhouse where they located and placed under arrest the person named in the arrest warrant.
No challenge is made to the right of the police officers to be on either the first or second floor of the farmhouse or to their right to see what was in plain view on such floors.
Rather the sole challenge is to the right of the police officers to be on the third floor and to their right to see even what was in plain view on such third floor. 1
However, a tri-level approach to the single challenge made is to be maintained because the reasons for the officers being on the third floor relate to and derive from what they saw or were told on the two lower floors. 2
On the first floor, in the kitchen and dining room, where they had an unchallenged right to be, the police officers observed, in plain view, the scale and marijuana on the kitchen table and the marijuana on the dining room table. No search or searching was involved. 3
Their identification of the greenish vegetable matter on the two tables, based on their experience as narcotics officers, made subject to seizure the contraband they recognized. 4 No search warrant was required for such seizure, the evidence being in plain view of law officers when they stood where they had the right to stand and their discovery of it clearly inadvertent. 5
Such right to seize or possess the contraband did not in any way identify which of the persons in the farmhouse was the possessor. Reasonable police procedures in the investigating of criminal activity then required the police officer to interrogate the persons present to determine who was the possessor of the contraband. Such entirely reasonable investigatory mandate required locating all persons present--on all three levels of the farmhouse. 6
Additionally, police observation of both the measuring scale and a quantity of marijuana on the kitchen table made entirely reasonable, under any reasonable man test, a suspicion that the marijuana measured or the larger quantity of marijuana from which that measured had been taken was nearby. This is analogous to finding the bullets, and suspecting that a gun they fitted was nearby. 7
If a bullet-ridden corpse had been found on the kitchen floor, the police officers would have been entitled to determine who was present on all three floors of the farmhouse to interrogate each such person as to what they had done or had observed in relation to the departure of the deceased. Finding the scale and marijuana warranted identical investigation and interrogation of all persons present in the farmhouse as to the crime of possession of a controlled substance.
Thus we need not deal here with the permissible limits of a search incidental to the execution of an arrest warrant. 8 We deal rather with the reasonable and required police investigation as to the ownership of contraband found in a kitchen and dining room.
It is correct to say that the police officers went to the second floor, as directed by the person sitting at the dining room table, to serve the arrest warrant on the person named. That was entirely proper, but their going to such second floor was also entirely proper for the purpose of asking the persons there about the contraband found on the first floor.
Similary, when the officers were told by the two persons on the second floor that there were two more persons on the third floor, they were entitled to go to such third floor to interrogate the persons there as to ownership of the contraband found on the first floor. They did not have to accept the head count given by the sleepers on the second floor. 9 Their right or duty extended to interrogating all persons in fact present in the farmhouse as to the contraband found in the kitchen and dining room.
It is true that the trial court held that the police officers were justified, under the circumstances here, in going to the third floor to locate persons there in order to make sure that there was no one there who could present a danger to them. 10 Such investigation to secure the premises to insure that persons, presenting a danger to arresting officers, were located, was, under the circumstances here,...
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...is sufficient to support a finding of probable cause to issue the warrant. See id. at 542, 108 S.Ct. 2529; State v. O'Brien, 70 Wis.2d 414, 424, 234 N.W.2d 362 (1975). Indeed, "[s]o long as a later, lawful seizure is genuinely independent of an earlier, tainted one . . . there is no reason ......
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