State v. Drogsvold

Decision Date25 September 1981
Docket NumberNo. 80-1409-CR,80-1409-CR
Citation104 Wis.2d 247,311 N.W.2d 243
PartiesSTATE of Wisconsin, Plaintiff-Appellant and Cross-Respondent, v. Wayne DROGSVOLD, Defendant-Respondent and Cross-Appellant.
CourtWisconsin Court of Appeals

James E. Doyle, Jr., Dane County Dist. Atty., for plaintiff-appellant and cross-respondent.

Thomas H. Brush, Madison (argued), for defendant-respondent and cross-appellant and Oldenburg, Lent & Brush, Madison, on brief.


GARTZKE, Presiding Judge.

Defendant, Wayne Drogsvold, is charged with first-degree murder. Sec. 940.01(1), Stats. The state has appealed from an order suppressing defendant's post-arrest inculpatory statements and the evidence obtained as a result of those statements. Defendant cross-appeals from the same order which also denied his motion to dismiss the complaint and information.

The police arrested defendant in his home without a warrant. The trial court concluded that the arrest was unlawful because it was made without probable cause, in the absence of exigent circumstances, and for the purpose of obtaining evidence which would involve defendant in the homicide under investigation. The court suppressed defendant's statements because it concluded they were tainted by the unlawful arrest and because the court was unable to find beyond a reasonable doubt that the statements were voluntary. The court gave no reasons for denying the motion to dismiss. 1

We reverse the suppression order and remand for further findings. Because the trial court's disposition of that matter may affect its decision on defendant's motion to dismiss, we reverse the order on that motion and remand for further proceedings.

1. Effect Of Arrest On Subsequent Statements

The trial court concluded that Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), prevent the state from using defendant's inculpatory statements at his trial. Dunaway held that incriminating statements by a criminal defendant during an unconstitutional detention may not be used against him, unless the connection between the illegal police conduct and giving the statements is "sufficiently attenuated." 442 U.S. at 216, 99 S.Ct. at 2258. The detention in Dunaway was unconstitutional under the fourth and fourteenth amendments because the police seized defendant without probable cause and transported him to the police station for interrogation. Payton held that absent exigent circumstances or consent, the warrantless arrest of a defendant in his home violates the fourth and fourteenth amendments.

A. Probable Cause For Arrest
Undisputed Facts

The Madison police arrested defendant about 1:00 a. m., May 22, 1979. The state established, without contradiction, that the following circumstances existed prior to and at the time of the arrest.

About 10:40 p. m., May 21, 1979, Detective Grann was dispatched to the Sportsman's Bar in Madison regarding a shooting which had just occurred. Being in the area, he arrived at the bar in about one minute and saw a dead black man on the floor with a head wound. The bartender told Grann that the victim had been seated on a stool at the end of the bar. The bartender heard a "pop," saw a bottle break on the bar, and saw that the victim had fallen from the stool. The stool was about two or three feet from the street window. Grann saw what appeared to be a bullet hole in the window. The hole, the stool and the point on the bar where the bottle had shattered were in the same plane.

About 11:15 p. m. that night Detective Retelle spoke to Sandy Flak at the Sportsman's Bar. Flak told him that she had seen defendant a little after 9:00 p. m. that evening at Tiny's Bar, which is about one block from the Sportsman's Bar. Defendant had a lever action rifle. Flak saw him load the rifle two or three times. According to Flak, defendant indicated he was angry with black people because of an altercation which he had had that evening with a black man named Clarence, who was going to get a gun and shoot defendant. Flak told Retelle that defendant said he was sick and tired of bartenders "kissing all the niggers' asses" and that he was going to shoot every one of them that came through the door.

Detective Winston testified that about 12:30 a. m. that night two persons told him that between 7:00 and 7:30 p. m. they saw an altercation in the Sportsman's Bar between a white man they knew as "Wayne" Armstrong and a black man identified as "Clarence" Jones. Their description of the white man matched that of defendant Wayne Drogsvold, which the police already had obtained.

About midnight Detective Mell examined a police file which showed that defendant had been convicted of a felony, first-degree robbery, in California in 1967 and had been arrested and convicted a number of other times.

The Madison Police Department files contained several criminal offense reports involving defendant, the latest of which was November 1977. The reports pertained mostly to fights, some with weapons. 2

A black male, Ollie Williams, reportedly had an argument with the victim shortly before the victim's death. The police sought Williams during the investigation to arrest or question him.

Six officers were dispatched about 12:30 a. m. that night to arrest defendant. They arrived at defendant's home just outside Madison about 12:50 a. m. Four armed officers watched other doors while two officers went to the front door. The house was dark, except for a night light, and quiet. There was no apparent activity within the house.

The two officers entered the unlocked screened-in front porch and knocked on the front door a number of times. One of the officers held a shotgun with one hand on the slide and the other on the trigger. Defendant came to the door and looked out the window. The officers, one of whom was in uniform, identified themselves. Defendant unlocked the door, opened it and the officers entered the house. They told defendant, who was in a bathrobe and appeared as though he had gotten out of bed, to get dressed and that he was under arrest. The arrest occurred between 1:00 and 1:05 a. m. The officers walked around the house to secure the premises but made no search and seized no evidence. Defendant said nothing. After defendant dressed himself, the officers handcuffed and took him to the police station, where defendant subsequently made the incriminating statements which the trial court suppressed.

Applicable Law

Probable cause is the sine qua non of a lawful arrest. This absolute requirement is derived from the fourth amendment, which is made applicable to the states by the fourteenth amendment. Dunaway, 442 U.S. at 208, 99 S.Ct. at 2254; Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). Probable cause requires that, at the moment the arrest was made, the officers had facts and circumstances within their knowledge and of which they had reasonably trustworthy information which are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The requirement deals with probabilities which are not technical but "are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). The quantum of evidence necessary for probable cause to arrest is less than that for guilt but is more than bare suspicion. Brinegar, 338 U.S. at 174-75, 69 S.Ct. at 1310-11.

Probable cause has been equated with reasonable grounds. Johnson v. State, 75 Wis.2d 344, 348, 249 N.W.2d 593, 595-96 (1977); Ball v. State, 57 Wis.2d 653, 659, 205 N.W.2d 353, 355 (1973). The question is whether the "facts and circumstances ... were such that police officers of reasonable caution could have believed the defendant probably committed the crime." Johnson, 75 Wis.2d at 350, 249 N.W.2d at 597. Their information need only be sufficient "to lead a reasonable officer to believe that guilt is more than a possibility." State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836, 840 (1971). The test is not, however, "the articulation of the policeman's subjective theory but the objective view of the facts." Dodd v. Beto, 435 F.2d 868, 870 (5th Cir. 1970), cert. denied, 404 U.S. 845, 92 S.Ct. 145, 30 L.Ed.2d 81 (1971). The individual officer making the arrest need not have the requisite knowledge. The question is whether "all the collective information in the police department is adequate to sustain the arrest." Johnson, 75 Wis.2d at 350, 249 N.W.2d at 596.

Scope Of Review

Having set forth the undisputed evidence and the applicable legal principles, it is necessary that we state the standard for appellate review of the trial court's finding that the police lacked probable cause to arrest defendant.

The traditional appellate standards of review cover three types of trial court action, characterized as findings of fact, conclusions of law and the exercise of discretion.

If the trial court's finding is one of fact where the facts are disputed, the reviewing court may not disturb the trial court's finding unless it is against the great weight and clear preponderance of the evidence. State v. Mazur, 90 Wis.2d 293, 303, 280 N.W.2d 194, 198 [104 Wis.2d 256] (1979); Jones v. Jenkins, 88 Wis.2d 712, 722, 277 N.W.2d 815, 819 (1979). If the finding is an inference drawn from undisputed facts, and if only one inference can be reasonably drawn from the facts, then a question of law is presented, State v. Ziegenhagen, 73 Wis.2d 656, 663-64, 245 N.W.2d 656, 660 (1976), and Kress Packing Co. v. Kottwitz, 61 Wis.2d 175, 178, 212 N.W.2d 97, 99 (1973); but if the finding is...

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