State v. Dodd

• Decision Date: 02 November 1965
• Citation: 137 N.W.2d 465,28 Wis.2d 643
• Parties: STATE of Wisconsin, Respondent, v. Melvin Douglas DODD, Appellant.
• Court: Wisconsin Supreme Court

Page 465

137 N.W.2d 465

28 Wis.2d 643

STATE of Wisconsin, Respondent, v. Melvin Douglas DODD, Appellant.

Supreme Court of Wisconsin.

Nov. 2, 1965.

Theodore W. Coggs, Milwaukee, Harvey L. McCormick, Milwaukee, of counsel, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., and Robert E. Sutton, Asst. Dist. Atty., Milwaukee, for respondent.

HALLOWS, Justice.

In respect to the claim of an unlawful search and seizure the facts seem not to be in dispute. About 10:30 P.M. on December 8, 1962, three Milwaukee police officers from the narcotics division of the vice squad arrested Dodd on an assault and battery warrant in an apartment on the north side of Milwaukee. At that time he was dressed in pajamas and was in the company of one Janice Nelson who was clothed in a negligee and a robe. Upon learning Dodd and Janice Nelson were not married and Dodd had been living at the apartment for about a month, the police placed Dodd under arrest for lewd and lascivious conduct. The officers then made a search of the apartment which consisted of a living room, bedroom, dining room, bathroom and kitchen. Off of the living room was a small closet, in which one of the police officers found a knited-shirt sweater belonging to Dodd and upon going through its pockets found two seeds of marijuana. The search continued of other clothing in the closet, a dresser, the bathroom and other parts of the apartment. Marijuana was found in clothing which belonged to Janice Nelson but that search is not before us.

Prior to trial, Dodd moved to suppress the evidence of the marijuana found in his shirt pocket on the ground the search was unreasonable in scope as a search incidental to either an arrest for battery or for lewd and lascivious conduct. Upon his trial, the evidence of the marijuana, over his objection, was allowed in evidence and the conviction resulted.

It is claimed by the state the search was reasonable because a search upon arrest may be properly made of property within the immediate presence, control and surroundings of the person arrested for weapons and for evidence of the crime of battery and further, since Dodd was clad in pajamas, the police were entitled to search the defendant's clothing as a constructive extension of his person in order to make sure he obtained no weapons while dressing. It is further claimed that because Dodd was arrested for lewd and lascivious behavior they were authorized to search the premises for evidence and fruits of that crime such as clothing, rent receipts, and keys; and if, in the process of such search, contraband material was found, it could be confiscated and would constitute evidence of the crime of possession of marijuana.

This explanation of the scope and intensity of the search as incidental to the two arrests is unconvincing and on the facts the search seems to this court to be an exploratory search for narcotics without a search warrant and wholly unjustified as an incidental search to an arrest for battery or for lewd and lascivious behavior. In Barnes v. State (1964), 25 Wis.2d 116, 130 N.W.2d 264, this court, relying on United States v. Lefkowitz (1932), 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, said an arrest may not be used as a pretext to search for evidence. In State v. Stevens (1964), 26 Wis.2d 451, p. 458, 132 N.W.2d 502, p. 506 we stated:

'A search incidental to an arrest whether of the person or place must bear a reasonable relationship in time and place to the arrest. Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169; Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. Such a search being without a warrant is limited under the rules of reasonableness and fair play by the purpose or purposes for which the defendant was arrested. Harris v. United States (1947), 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz (1950), 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. With such scope of the search, instruments, evidence, and fruits of the crime for which the defendant was arrested may be searched for and seized. Likewise, weapons and instruments of escape may be searched for an taken to insure the safety of the arresting officers and the custody of the person arrested. Agnello v. United States (1925), 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Browne v. State, supra; Stoner v. [State of] California (1964), 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. If in the process of such reasonable search contraband or other material is found which may constitute evidence of other crimes, such contraband and material may be seized. Abel v. United States (1960), 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668.'

It seems rather strange that three police officers of the narcotics division of the vice squad were necessary to arrest an ordinary citizen at 10:30 at night for a battery if that was all that was involved. A search for weapons in the clothing to be worn by Dodd would hardly include such a minute search of a pocket in a shirt as would disclose two seeds of marijuana. Nor would the search for evidence of the crime of battery as bloody clothing justify such an intensive search of a shirt pocket. Not much more can be said for the search for evidence or fruits of the crime of lewd and lascivious behavior--openly cohabiting with a person not one's spouse under circumstances which imply sexual intercourse.

Searches by police officers when incidental to an arrest or pursuant to a warrant must be reasonable. As we stated in State v. Stevens, supra, 26 Wis.2d p. 459. 132 N.W.2d p. 506: 'One test of reasonableness seems to be whether the police are looking for incriminating evidence under an exploratory or rummaging search under the guise of a proper purpose incident to a lawful arrest. Go-Bart Importing Co. v United States (1931), 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz (1932), 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.' The reasonableness of the search to be valid under the 4th Amendment to the United States Constitution and sec. 11, art. I, of the Wisconsin Constitution is limited not only in time and place but also by the purpose of the arrest. A search which might be reasonable as incidental to an arrest for one crime may be entirely unreasonable as an incident to an arrest for another crime. An arrest for possessing narcotics may ground a search which would be entirely unreasonable as a search incidental to an arrest for lewd and lascivious conduct. The record does not disclose whether Dodd was ever prosecuted on his arrest for the battery or for lewd and lascivious conduct, but whether he was or not, the facts point to an unreasonable search for narcotics as an incident of an arrest unassociated with such contraband. The search being unreasonable it was in violation of Dodd's constitutional rights and it was error to deny the motion to suppress such evidence and the admission of evidence resulting from such search being prejudicial, the conviction based thereon must be reversed.

In Case No. 7690, Dodd argues there is not sufficient evidence to sustain his conviction. After the arrest for lewd and lascivious behavior and while Dodd was out on bail he married Janice Nelson and lived with her in a dwelling on the north side of Milwaukee. On the evening of June 12, 1963, police officers had Dodd's house under surveillance and had seen two known-drug addicts enter the house around 10:00 P.M. They stayed about 45 minutes and later upon being arrested, one of these persons furnished the information upon which the search warrant was issued authorizing the search for narcotics. About 4:00 A.M. on June 13, 1963, police officers went to Dodd's home to executed the search warrant. The officers gained entrance by knocking down the kitchen door and entered the kitchen and then the bedroom. By flashlight, the officers observed the defendant standing beside his bed and his wife lying in the bed. The lights in the bedroom were turned on and a search made of the premises by the officers. The search...