State v. Cox

• Citation: 45 N.W.2d 100,258 Wis. 162
• Parties: STATE, v. COX.
• Decision Date: 05 December 1950
• Court: United States State Supreme Court of Wisconsin

Page 100

45 N.W.2d 100

258 Wis. 162

STATE, v. COX.

Supreme Court of Wisconsin.

Dec. 5, 1950.

Rehearing Denied Feb. 6, 1951.

W. J. Boyle, Darlington, Laurence W. Hall, Madison, for appellant.

Thomas E. Fairchild, Atty. Gen., William A. Platz, Asst. Atty. Gen., John A. Moore, Dist. Atty. Winnebago County, Oshkosh, for respondent.

FAIRCHILD, Justice.

This defendant was found guilty by a jury of having received stolen property of the value of $95 and concealing and aiding in the concealment of stolen property of the value of $636. A warrant was issued on January 16, 1950, in which defendant was charged with having committed the crimes on January 13th of that year. The evidence sufficiently establishes that the clothing in question had been stolen and that it was later found in possession of the defendant, and that on January 13, 1950, he was doing the things charged against him. The articles were seized at the time of his arrest in an automobile which was in his possession and which he was then operating.

The articles referred to were offered in evidence, together with testimony showing the ownership and the unlawful taking. The defendant sharply challenges the propriety of permitting that testimony to be offered against him, because, as he asserts, the search of the automobile and seizure of articles found therein were made without a search warrant. If the search and seizure were unlawful, it follows that the evidence was improperly admitted, and that a new trial should be granted. But it is considered that the search was predicated upon and warranted by a preceding lawful arrest, and that at the time the articles were under his control, that is, they were in his possession. It is conceded, of course, that no warrant for the arrest of the defendant had been issued at the time of his apprehension. However, it does appear that the officers were searching for two men who had committed the crime of larceny in 1948. The Neenah police department had been informed that those identical men were in the vicinity on this day and had been in the very store from which, as alleged, they had stolen merchandise in October 1948. Their conduct at all the times which are material here was such as to show they were engaged in an effort to steal mechandise after or according to a method often described as shoplifting. This information was communicated to the police. The information thus given supplied the officers with grounds to arrest the two men without a warrant. It is provided by statute that an arrest by a peace officer without a warrant for a misdemeanor is lawful whenever the officer has reasonable grounds to believe that the person to be arrested has committed a crime and will not be apprehended unless immediately arrested. Section 361.44(1), Stats.1947 reads: 'An arrest by a peace officer without a warrant for a misdemeanor is lawful whenever the officer has reasonable grounds to believe that the person to be arrested has committed a misdemeanor and will not be apprehended unless immediately arrested or that further personal and property damage may likely be done unless immediately arrested.'

With relation to the arrest of the defendant Cox, of course an arrest cannot be made on a mere suspicion that one may have committed a crime or that he is engaged in the commission of one. To warrant an arrest there must be at the time in the possession of the officer information which goes beyond suspicion and brings into existence occasion to act on facts constituting probable cause. Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused guilty. Diers v. Mallon, 46 Neb. 121, 64 N.W. 722, 50 Am.St.Rep. 598; Hawkins v. Lutton, 95 Wis. 492, 70 N.W. 483. In that case, 95 Wis. at page 499, 70 N.W. at page 485, it is said: 'The authority of conservators of the public peace to make arrests in such cases should be liberally construed and upheld, but always at the risk that they will be liable if it be misused or abused.' Probable cause, however, does not depend upon the actual state of the case in point of fact, as it may turn out upon legal investigation, but on knowledge of the facts and circumstances which would be sufficient to induce a reasonable belief in the truth of the accusation. And circumstantial evidence may constitute probable cause.

The signs of probable cause appearing, including information given the officer by reliable informants, he is to act. Courts have held that where an officer of the law had direct personal knowledge from seeing certain things that the suspected person is committing a crime in his presence, he may lawfully arrest him as well as when the signs show him to have committed a crime not in the presence of the officer. Day v. U. S., 8 Cir., 37 F.2d 80. While the law concerning search and seizure was much discussed during the prohibition period, the general and fundamental rules applying to the administration of law are to be followed. In the case of Carroll v. U. S., 267, U.S. 132, 45 S.Ct. 280, 283, 69 L.Ed. 543, Mr. Chief Justice Taft said: 'On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.' While that case treated with the violation of the prohibition act, he observed: 'The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.' It appears that that case is authority for the doctrine that search for and seizure of stolen goods is to be considered as on a different basis and as totally different from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained or for using them as evidence against him.

In searching for two men who had committed a crime in 1948, there was an unexpected discovery of evidence which suggested the commission of a more recent transgression. This discovery brought to the knowledge of the officers sufficient facts and circumstances to cause them to realize that probable cause existed to warrant an arrest if the perpetrators of this more recent crime could be found. The defendant Cox was not known to be involved in any of the circumstances at the moment when the information was carried to the police department before what may be described as the pursuit of the two men began. But important information came to the officers before they arrested Cox, as will appear from noting the developments arising out of the officers' pursuit of the two men accused of the 1948 larceny. The defendant Cox had at the time of this discovery placed himself well within the connection or relation of aider and abetter and of acting in concert with the men whom the officers were seeking. At the time of the arrest there existed facts known to the officer constituting reasonable grounds for probable cause to believe that the actors in this shoplifting enterprise had acquired possession of articles of merchandise. The facts were such that the officers in the light of their knowledge, because of information conveyed to them and things which they had seen, could reasonably infer a continuance of the illegal and criminal acts of the two men with the knowledge of the defendant Cox and also that he was then taking part and excaping with the goods believed to have been stolen recently.

After the police headquarters had been informed that the perpetrators of the crime or misdemeanor of 1948 were again in the neighborhood and attempting to carry out their designs, Officer Schmidt received the information through a message communicated through a police call box telling him to go to Kiefer's store to investigate the complaint. Captain Kohfeldt testified that he saw Schmidt go to the telephone and saw him again 'a very short time later. He came back out on North Commercial Street, on the west side of the street, and turned to his right a few paces and then returned out to the middle of the intersection where I was. * * * He told me that--he asked me if I had seen the two tall men that he had helped across the street a few minutes earlier. * * * He stated that he had been down to Kiefer's Clothing, and that two men that had been in there previously--when a suit was missing--were recognized in there by Tuckis, and had just left there.' In answer to the question 'Did he describe the two men who were in the store to you?' the officer answered: 'He did, to the extent of saying that they were two tall men, one carrying a brief case, and that he had helped them across the street shortly before that and had I seen them.' He further testified: 'I had seen them cross the street from the north side of West Wisconsin Avenue to the south side of West Wisconsin Avenue.' The next time Kohfeldt saw these men after they had walked across the street they were in a green car which evidently had been awaiting their coming. Kohfeldt stopped the car at the intersection, and he described the car as a 'green late model car with a foreign license on it, red numerals with a luminous or silver background.' At the time he saw these men Cox was with them in this automobile. The officer had a conversation with Cox, who was driving, about attempting an illegal left-hand turn. He later recognized the driver as Cox. The circumstances just detailed came to the attention of the officers before the arrest of Cox was made. Now with respect to the arrest, it came about in this way: When Kohfeldt learned what had occurred in the Kiefer store, he called a squad car to...