State v. Brockman

• Decision Date: 10 January 1939
• Citation: 231 Wis. 634,283 N.W. 338
• Parties: STATE v. BROCKMAN.
• Court: Wisconsin Supreme Court

231 Wis. 634

283 N.W. 338

STATE

v.BROCKMAN.

Supreme Court of Wisconsin.

Jan. 10, 1939.

Appeal from an order of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

On October 3, 1935, complaint was made to the municipal court of Brown county that on October 2, 1935, at the town of Lawrence, in Brown county, the defendant, J. B. Brockman, did wilfully and unlawfully manufacture, sell and rectify intoxicating liquors without first obtaining a permit from the state treasurer, contrary to the provisions of sec. 176.051, Stats. That defendant was arrested, and duly given a preliminary examination which resulted in his being bound over to the circuit court for trial. Prior to the trial the defendant moved to suppress certain incriminating evidence which had been obtained upon a search and seizure made in pursuance of a search warrant issued by the municipal judge of Brown county. The trial court denied the motion. The information contained two counts. The first count charged in substance that the defendant did counsel, hire and otherwise aid in the procurement and manufacture, sale and rectifying of intoxicating liquors within this state without having obtained a permit from the state treasurer. The second count charged in substance, that the defendant did wilfully and unlawfully manufacture, sell, and rectify intoxicating liquors within this state without first having obtained a permit from the state treasurer. Trial was had to the court and a jury. The defendant again moved to suppress the evidence. The court again denied the motion. The jury, by its verdict, found the defendant guilty of the offense charged in the first count of the information. Upon motions after verdict, the court held that the evidence sought to be suppressed had been unlawfully obtained by means of a search warrant which had been issued without a showing of reasonable or probable cause and that therefore the defendant's motion to suppress the evidence should have been granted. The court thereupon set aside the verdict and granted a new trial. From the order granting a new trial, the state of Wisconsin appealed. Other facts will be stated in the opinion.Orland S. Loomis, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Clarence J. Dorschel, Dist. Atty., of Green Bay, for the State.

A. B. Fontaine and G. F. Clifford, both of Green Bay, for respondent.

NELSON, Justice.

A new trial was granted because the circuit court was of the view that certain incriminating evidence adduced upon the trial was unlawfully obtained in violation of the defendant's constitutional rights guaranteed to him both by sec. 11, art. 1, of the constitution of this state and the Fourth Amendment to the Constitution of the United States, U.S.C.A.Const. The defendant contends that although the evidence was obtained by virtue of a search warrant issued by the municipal court of Brown county, the search warrant was, as a matter of law, improperly issued, because the evidence adduced prior to its issuance was insufficient to show probable cause for issuing it. Sec. 11, art. 1 of our constitution provides: “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.”

The Fourth Amendment to the Constitution of the United States is practically identical. Ch. 363, which relates to search warrants, provides in part as follows:

Sec. “363.01 Warrant to issue, when. When complaint shall be made on oath to any magistrate authorized to issue warrants in criminal cases that personal property has been stolen or embezzled or obtained by false tokens or pretenses and that the complainant believes that it is concealed in any particular house or place, the magistrate, if he be satisfied that there is cause for such belief, shall issue his warrant to search for such property.”

Sec. “363.02 In what cases. Any such magistrate, when satisfied that there is reasonable cause, may also, upon like complaint made on oath, issue such warrants in the following cases, to wit: ***

“(9) To search for and seize any intoxicating liquor, fermented malt beverages, or alcohol, possessed for the purpose of evading any law of this state, or property designed for the unlawful manufacture of intoxicating liquor, fermented malt beverages or alcohol. Any property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process.”

[1][2][3]In State v. Baltes, 183 Wis. 545, 198 N.W. 282, it was held that the words “cause” and “reasonable cause” contained in ch. 363 are synonymous with the words “probable cause” found in the constitutional provisions. It was there said [page 284]: “The term probable cause has a well-defined meaning in the law, which is the existence of such facts and circumstances as would excite an honest belief in a reasonable mind, acting on all the facts and circumstances within the knowledge of the magistrate that the charge made by the applicant for the warrant is true. ** It follows from the above definitions of probable cause that it is not necessary that there should be positive proof of the existence of the facts upon which the issuance of a search warrant is based. It is sufficient that the sworn proof is of such a character as to induce in the mind of the magistrate an honest belief that they exist.”

[4]That language was later approved in Glodowski v. State, 196 Wis. 265, 220 N.W. 227. In Kraus v. State, 226 Wis. 383, 276 N.W. 303, in further discussing the law applicable to the issuing of search warrants by magistrates, this court said [page 304]: “The evidence must be sufficiently detailed and of such a character as to permit the magistrate to come to his own conclusion whether probable cause exists. It must not be so meager as to constitute merely the conclusions of the applicant and an invasion of the judicial function of the magistrate.”

Keeping in mind this preliminary discussion as to the established law relating to the issuing of search warrants, we may now consider the evidence upon which the magistrate acted and from which he found that probable cause existed for issuing a search warrant. On October 1, 1935, R. C. McLaughlin, an enforcement inspector for the beverage division of this state, applied to the municipal judge of Brown county for a search warrant. He was sworn and testified in substance that on the preceding day he received a complaint that there was an alcohol distillery on the premises sought to be searched, that he went out there after dark the night before and got as close to the building as he could, and that coming from the premises was an odor of fermenting mash; that he smelled the odor of mash; that he was able to identify the odor and knew it was illicit liquor they were making; that no permit had been issued by the state treasury department to manufacture liquor on those premises and that he desired a search warrant for both intoxicating liquor and manufacturing equipment. Asked by the magistrate to state the information again, he testified: “My reasons are, yesterday I got a complaint or information rather, there was a still operating on that premises. Last night after dark I went out and prowled as close to the house and barn as I could; coming from those premises, evidently from the house I judge from the direction that the odor was coming from, there was an odor of fermenting mash.”

[5]The precise question for decision is whether such evidence was sufficient to induce in the mind of the magistrate an honest belief that illicit liquor was...