State v. Doyle

• Court: Wisconsin Supreme Court
• Writing for the Court: COFFEY
• Citation: State v. Doyle, 291 N.W.2d 545, 96 Wis.2d 272 (Wis. 1980)
• Decision Date: 06 May 1980
• Docket Number: Nos. 77-417-C,77-418-CR,s. 77-417-C
• Parties: STATE of Wisconsin, Plaintiff in error, v. Chauncey William DOYLE, Defendant in error-Petitioner. STATE of Wisconsin, Plaintiff in error, v. Steven Craig HANDLER, Defendant in error-Petitioner.

Page 545

291 N.W.2d 545

96 Wis.2d 272

STATE of Wisconsin, Plaintiff in error, v. Chauncey William DOYLE, Defendant in error-Petitioner.

STATE of Wisconsin, Plaintiff in error, v. Steven Craig HANDLER, Defendant in error-Petitioner.

Nos. 77-417-CR, 77-418-CR.

Supreme Court of Wisconsin.

Argued April 1, 1980.

Decided May 6, 1980.

Jack E. Schairer, Asst. State Public Defender (argued), with whom on the briefs were Richard L. Cates, State Public Defender, and Ruth S. Downs, Asst. State Public Defender, for defendants in error-petitioners.

Thomas J. Balistreri, Asst. Atty. Gen. (argued), with whom on the briefs were Bronson C. La Follette, Atty. Gen., and Edward S. Marion, Asst. Atty. Gen., for plaintiff in error.

COFFEY, Justice.

Chauncey Doyle was charged with possession of marijuana with intent to deliver. Steven Handler was charged with being a party to the crime of possession of marijuana with intent to deliver. The trial court dismissed the criminal complaints against each of the defendants, finding that the police lacked probable cause to make an arrest.

The record establishes that on July 7, 1977 at approximately 3:30 p. m. two citizen informants, Mark and Leigh Livermore, observed a rust and white colored 1971 Oldsmobile Delta 98 stopped along County Highway F. They saw a young, blond male, wearing cut-off jeans and shirtless, place a green, leafy vegetable material into the trunk of the same Oldsmobile Delta 98 they had earlier observed. A second individual was observed sitting in the automobile. Approximately 15 minutes later, the Livermore brothers noticed the vehicle again parked at a different location along County Highway F and observed the same blonde male putting more green, leafy vegetable material into the car trunk. Leigh Livermore, who was familiar with marijuana as a result of his time in service with the armed forces in Vietnam, believed the green, leafy plantlike material to be marijuana. The Livermore brothers immediately reported their observations to Officer Robert Widiker, of the Hudson Police Department, who in turn relayed the information, along with a description of the occupants and the automobile, to his police chief.

Approximately 30 minutes later, Officer Widiker and another patrolman (Morrissette) observed a vehicle matching the description given by the Livermore brothers at the A & W Root Beer stand in the Hudson area. The officers followed the automobile as it left the root beer stand and shortly thereafter observed the 1971 Oldsmobile Delta 98 "go through a stop sign" and stopped the vehicle for an arterial highway violation. The police approached the vehicle and asked the driver for his license, who replied that he did not have his license on his person. Since the car was from out of state (Minnesota license plates), the officers conducted a driver's license check with the Minnesota authorities to determine the status of the operator's license. The license check identified the driver of the automobile as Chauncey Doyle, one of the defendants. The passenger in the car identified himself as Steven Handler.

During the time the automobile was stopped for the traffic violation and prior to obtaining confirmation of the driver's license status, other police officers transported the Livermore brothers to the defendant's automobile. They identified the vehicle and the two occupants as the individuals they had earlier observed parked along County Highway F, one sitting in the car and the other loading bundles of marijuana into the car trunk. Following their identification and approximately 15 minutes after the vehicle was originally stopped, the police issued the defendant, Doyle, a warning ticket for failure to obey a stop sign. The police officer then asked for permission to look into the trunk of the car but Doyle refused to grant permission. Upon Doyle's refusal to allow the officer to look into the trunk, the patrolman told the defendants to remain in their vehicle. While the defendants remained in the car, the Livermores and two police officers returned to the locations along County Highway F where the defendants had previously been observed. The Livermores pointed out several green, leafy plants similar to those that they had seen the defendant Doyle place in the car trunk. Officer Widiker, based on his police training and experience, identified the plants as marijuana. The officers also noted that the ground in the area recently had been displaced as occurs when plants are pulled out of the ground, and further noticed that the grass adjacent thereto had recently been stepped down.

Following their observations and investigation, the police officers returned to the defendant's car and placed the defendants, Doyle and Handler, under arrest for possession of marijuana with intent to deliver. ¹

After the arrest, the police had the defendant's car towed to the Hudson City Police Garage. The next day the police obtained and executed a search warrant for the defendant's automobile. Their request for a search warrant was based on the information the Livermores provided to the police and the personal observation of Officer Widiker at the two locations along County Highway F where marijuana was found. The search of the vehicle's trunk revealed "a large bundle, approximately 5 feet long, of freshly uprooted green, leafy material." It was subsequently found to be positive marijuana after the officers performed a Wisconsin law enforcement field test procedure.

Criminal complaints were then issued after the execution of the search warrant. The defendant, Doyle, was charged with possession with intent to deliver a controlled substance (marijuana), contrary to sec. 161.41(1m), ² Stats. Handler was charged with being a party to the crime of possession with intent to deliver marijuana, contrary to sec. 161.41(1m) and sec. 939.05, ³ Stats. Later that same day, an amended and more complete complaint was issued setting forth the personal observations of Mark and Leigh Livermore, along with those of Officers Widiker and Wiegand, as the basis for the charges issued against the defendants.

Following their initial court appearances, the defendants filed motions requesting "an order dismissing the complaint" for lack of personal jurisdiction on two separate grounds:

1. that the complaint contains insufficient facts to show probable cause that a crime has been committed and the defendants committed it; and

2. that the police lacked probable cause to arrest the defendants and thus their arrests were unlawful. The trial court denied the defendants' motion challenging the sufficiency of the complaints. ⁴ The trial judge at the hearing initially denied the defendants' motion alleging the arrests were invalid finding there was no probable cause, in the following language:

"The complaint in both these matters supports the State's position that a valid arrest was made."

Following the court's denial of the defendants' motions, the defense, without a motion to reopen, informally asked and received permission of the court to call the defendant, Doyle, to the stand in an attempt to rebut and overturn the court's finding that their arrests were valid. He testified that the police had pulled his car over for allegedly driving through a stop sign. Further, he testified that after approximately 15 minutes, Officer Morrissette issued him a warning ticket and the officer also asked whether he could look into the trunk of the vehicle, but Doyle refused to give him (Officer Morrissette) permission. Doyle stated that he was then told to "wait here" and the officer returned to his police car. At this time, Doyle said that additional cars arrived on the scene and the occupants of those cars, along with the police officer who stopped him, got out of their cars, "stood behind my car and talked" for about a half an hour. Nothing was said to him during this time. Thereafter, he was read his Miranda rights and placed under arrest for possession of marijuana.

At the conclusion of Doyle's testimony, the trial court stated:

"It was obvious from the testimony, and it's not controverted on the face of the complaint because it doesn't say anything more than that, that Officer Morrissette had stopped the vehicle, referred to the driver's license for going through the stop sign and so forth. Now the issue becomes one of whether or not in fact a ticket was given or whether in fact a warning ticket. The defendant has testified that he was given a warning ticket for going through the stop sign. The officer had completed his duty. He had completed his contact with the defendant Doyle at that time. He had no further reason having done that to hold him. Any further holding was an arrest without cause, and the Court would grant your motion to dismiss."

Thus, the trial court ordered that the criminal complaints charging the defendants with possession of marijuana with intent to deliver be dismissed.

The state then obtained writs of error requesting that this court reverse the orders of the trial court dismissing the complaints but rather to hold the defendants' arrests valid. In response, the defendants, Doyle and Handler, each filed a motion to dismiss the state's review on the ground that the order dismissing the criminal complaints was not appealable, pursuant to sec. 974.05, Stats. ⁵ This court, in orders dated July 18, 1978, denied the defendants' motions to dismiss the state's appeal, stating:

". . . the court having determined that the order in question is a final order adverse to the state made before jeopardy had attached, and therefore is appealable under sec. 974.05(1)(a), Stats., see: State v. Bagnall, 61 Wis.2d 297, 212 N.W.2d 122 (1973)." ⁶

This court ordered the case transferred to the court of appeals for consideration on the merits.

The court of appeals reversed the trial court's order dismissing the complaints. The court held that the dispositive issue on appeal was the propriety of the...