State v. Collins, No. 84-1846-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: WEDEMEYER
• Citation: 122 Wis.2d 320,363 N.W.2d 229
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Samatra COLLINS, Defendant-Appellant.
• Decision Date: 19 October 1984
• Docket Number: No. 84-1846-CR

Page 229

363 N.W.2d 229 122 Wis.2d 320 STATE of Wisconsin, Plaintiff-Respondent,
v.
Samatra COLLINS, Defendant-Appellant. No. 84-1846-CR. Court of Appeals of Wisconsin. Submitted on Briefs Sept. 17, 1984.
Opinion Released Oct. 19, 1984.
Opinion Filed Oct. 19, 1984.

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[122 Wis.2d 321] Louis B. Butler, Jr., Asst. State Public Defender, Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., for plaintiff-respondent; [122 Wis.2d 322] Jerome S. Schmidt, Asst. Atty. Gen., Madison, of counsel.

Before WEDEMEYER, P.J., and MOSER and SULLIVAN, JJ.

WEDEMEYER, Presiding Judge.

Samatra Collins appeals from a conviction of burglary, party to the crime, contrary to secs. 943.10(1)(a) and 939.05, Stats. He contends that because he was arrested in his home by officers who gained entry through use of an invalid warrant, the trial court had no personal jurisdiction over him and the charges should therefore be dismissed. He also contends that his confession to burglary should be suppressed because it was the fruit of the unlawful arrest and because it was taken in violation of his right to have counsel present at the interrogation. We hold that the charges need not be dismissed, because the arresting officers entered Collins' home in objectively reasonable reliance on an arrest warrant which they only later discovered was invalid. We further hold that Collins' statement must be suppressed because it was taken in the absence of counsel after Collins invoked his right to have counsel present. We therefore reverse Collins' conviction and remand the case for proceedings consistent with this opinion.

On January 20, 1983, two men confessed to having committed several burglaries and one implicated Collins as an accomplice. The investigating officer had a teletype sent that Collins was wanted for burglary, and an entry was made into the police department's NCIC (National Crime Information Center) computer system that a "temporary felony want" ¹ was out for Collins. [122 Wis.2d 323] On the morning of January 21, 1983, Officer Bayer learned that Collins was wanted for burglary. He called the police department's Detective Clerical Division and was told that the sheriff's department had a speeding warrant for Collins. ² Bayer went to Collins' home, intending to arrest him on the traffic warrant and to question him about the burglaries.

When Bayer arrived at Collins' home, Collins' mother answered the door. Bayer told her he was there to arrest Collins on the traffic warrant, and Mrs. Collins let

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him in. ³ When Collins entered the room, Bayer said he was there to arrest him on the warrant. Collins said he had paid the warrant. Bayer used the Collinses' telephone to call the Detective Clerical Division to check the warrant. He found that there was no warrant, but was told that Collins was wanted on a "temporary warrant" for burglary and that there was probable cause to arrest him. ⁴ Bayer then placed Collins under arrest.

The record is somewhat unclear as to precisely what occurred next. Collins testified he told Bayer he wanted to talk to his attorney, David Sweet. Bayer also testified that Collins asked to call his attorney. Bayer later testified that it was Mrs. Collins who mentioned the attorney. Bayer telephoned Sweet's office but could not reach him. He left a message saying that he was taking [122 Wis.2d 324] Collins into custody and gave a number where Sweet could contact his superior officer. Collins knew that Bayer was making the call and that Sweet was unavailable.

When Collins arrived at the police station, he telephoned his mother to see whether Sweet had called. Sweet had not, and Mrs. Collins promised to try his office again. Sweet telephoned the police station between 3:50 and 4:10 p.m. The officer he spoke to would not allow him to speak to Collins and refused to tell Collins he had called. The officer said if Sweet were to come down to the station he would not be allowed to see Collins unless Collins asked for him. Collins testified he would have wanted to talk to Sweet had he known Sweet had called.

After Bayer conveyed Collins to the police station, he turned him over to Officers Jones and Jordan for interrogation. He did not tell them he had talked to Collins about the burglaries or that he had called Collins' attorney. Jones and Jordan began questioning Collins shortly after 4:00 p.m. The officers' testimony and Collins' testimony conflict as to whether, after receiving Miranda warnings, Collins asked again to talk to his attorney. The trial court found that he did not. Collins eventually confessed to several burglaries.

Collins moved to dismiss the charges and to suppress his statements. He argued that his arrest violated the fourth amendment to the United States Constitution and art. 1, sec. 11 of the Wisconsin Constitution. He also argued that the statements were the fruit of the illegal arrest and that they were taken in violation of his rights under the fifth amendment to the United States Constitution. The trial court denied the motions. Regarding the arrest, it held that Bayer used no subterfuge to gain entry to Collins' home and that his actions were reasonable. Regarding the statements, it held that Collins had knowingly and voluntarily waived his right to counsel and that the statements were voluntary.

[122 Wis.2d 325] ARREST

It is undisputed that there was no outstanding warrant for Collins' arrest at the time Bayer entered Collins' home to arrest him. The state does not argue that exigent circumstances or consent justified the entry. The United States Supreme Court held in Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639 (1980), that the fourth amendment to the United States Constitution "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Similarly, in Laasch v. State, 84 Wis.2d 587, 595-96, 267 N.W.2d 278, 283-84 (1978), the Wisconsin Supreme Court held that "absent exigent circumstances, the entry of one's dwelling without consent to effect a warrantless felony arrest on probable cause, is unlawful" under

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art. 1, sec. 11 of the Wisconsin Constitution and the fourth amendment. Collins' arrest therefore was unlawful under both the federal and the Wisconsin constitutions.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), evidence was...