State v. Elam, No. S
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | CONNOR T. HANSEN |
| Citation | 229 N.W.2d 664,68 Wis.2d 614 |
| Parties | STATE of Wisconsin, Appellant, v. Harold ELAM, Respondent. tate 180. |
| Decision Date | 03 June 1975 |
| Docket Number | No. S |
Page 664
v.
Harold ELAM, Respondent.
Page 665
[68 Wis.2d 615] Harold Elam, the defendant-respondent, is being prosecuted in Brown county, Wisconsin, for possession of a controlled substance with intent to deliver, contrary to sec. 161.41(1m), Stats.
The motion of the defendant to suppress evidence because it was obtained as a result of an unlawful search of the premises was denied.
A second motion of the defendant to suppress the evidence for the reason that a transcript of the search-warrant testimony was not filed within the time limit prescribed by sec. 968.17(2), Stats., was granted.
The state appeals from the order suppressing the evidence, and the defendant seeks review of the denial of his order motion for suppression.
Page 666
Bronson C. La Follette, Atty. Gen., Robert D. Martinson, Thomas J. Balistreri, Asst. Attys. Gen., Madison, for appellant.
[68 Wis.2d 616] Howard B. Eisenberg, State Public Defender, Madison, for respondent.
CONNOR T. HANSEN, Justice.
We affirm the order denying the motion of the defendant to suppress the evidence and reverse the order of the trial court suppressing the evidence.
The facts which give rise to this appeal stem from the arrest of Elam in Brown county on February 7, 1973, on a warrant issued by Milwaukee county on December 14, 1972, charging him with selling a controlled substance. On February 7, 1973, Detective Richard E. Rice and Lieutenant Milton Steeno of the Green Bay police department, acting upon reliable information furnished by the FBI and the Wisconsin Department of Justice, preceeded to an apartment building at 1151 Brosing street in the city of Green Bay, Brown county, for the purpose of serving the Milwaukee arrest warrant on the defendant. The officers, announcing their identity and purpose, knocked on the door to the suspect's apartment for 1/2 hour with no response, saw a man's face in the apartment window and ultimately obtained a pass key and entered the premises.
The officers entered the living room of the apartment, announcing that they were police officers with a warrant for the arrest of the defendant. There is some conflict in the testimony of Detective Rice whether or not he checked in a closet in the living room for the defendant. The officers proceeded through the kitchen, to the bathroom, where, through a partially open door, they saw female in the bedroom. Announcing their purpose, the officers entered the bedroom. Upon questioning, the female identified herself as Sally Maedke. Detective Rice testified that he inquired as to whether the defendant was present and Maedke replied in the negative. Maedke denied that the question was asked.
[68 Wis.2d 617] Detective Rice then observed that the bedroom closet door was ajar, opened the door and discovered the defendant with a gun at his side which the defendant dropped to the floor upon order. After the defendant was removed from the room with handcuffs on, Detective Rice entered the bedroom closet to retrieve the defendant's gun and observed a box on the closet floor containing what he believed to be marijuana.
After the defendant was removed from the premises, Detective Rice and others looked the apartment over. At one point, Detective Rice testified that this was done to insure that no additional people were hiding in the apartment. At the subsequent hearing for the motion to suppress, he stated that the additional search was to observe things that might be in plain view which would support obtaining a search warrant of the premises. In the process, Detective Rice observed in the doorway of the closet in the living room certain paraphernalia associated with the preparation and injection of narcotic drugs. Detective Rice testified that the door to the closet was partially ajar, about a foot, exposing the contents. At the search-warrant hearing, Rice testified that he opened the closet door to see if anyone was hiding. At the suppression hearing he stated that the paraphernalia was visible through the crack in the door and that he may have opened the door further only after observing the contents. Daniel J. Hughes and James Enzler, narcotic agents for the Wisconsin Department of Justice, who arrived at the scene after the defendant had been apprehended, testified that upon entering the living room the closet door was open and the paraphernalia was on the floor in front of the closet.
There was also some confusion concerning the number of times the police investigated the bathroom of the apartment. Detective Rice testified at the search-warrant hearing that he checked the bathroom after the [68 Wis.2d 618] arrest and saw unmarked pill bottles in the open medicine cabinet. His purpose in
Page 667
entering the bathroom was stated to be to look in the shower stall for other persons. At the suppression hearing, Detective Rice testified that he checked the bathroom before the arrest. At that hearing, he did not state when he discovered the medicine cabinet.It was undisputed that after the arrest, Maedke was asked for, but declined, permission to search the apartment.
Subsequent to the events described above, Detective Rice applied for and obtained a search warrant for the apartment on the day of the arrest, February 7, 1973. A search was made that afternoon. The articles seized were the subject of the motions to suppress and included various controlled substances and the associated instruments of preparation and injection found in the closets, the medicine cabinet, a suitcase and various other locations. The warrant was issued on the basis of the testimony of Detective Rice and Agents Enzler and Hughes as to what they observed at the time of and shortly after the arrest. After Elam was arrested in Brown county on the Milwaukee warrant, he was released to the Milwaukee authorities. He plead guilty to the Milwaukee charge and received a five-year sentence.
Meanwhile, he was charged with the instant offense by the Brown county authorities. Elam was returned to the Brown county authorities and made his initial appearance on that charge on December 11, 1973. The transcript of the February 7, 1973, search-warrant hearing was filed December 28, 1973. The information was filed February 8, 1974.
The following issues are dispositive of this appeal:
1. Did the trial court err in voiding the search warrant and suppressing the evidence seized for a failure of the state to file a transcript of the search warrant proceedings within the time limit provided by sec. 968.17(2), Stats.?
[68 Wis.2d 619] 2. Did the trial court err in not suppressing the evidence for the reason that the facts establishing probable cause to issue the search warrant were the fruits of an illegal search?
FILING OF TRANSCRIPT.
Section 968.17(2) Stats., provides:
'(2) An affidavit or complaint made in support of the issuance of the warrant and the transcript of any testimony taken shall be filed with the clerk within 5 days after the date of the execution of any search warrant.'
The transcript, which served as the basis for issuing the search warrant in this case, was not filed until December 28, 1973, more than ten months after the execution of the search warrant. The trial court found that the delay in filing the transcript did not prejudice the defendant but suppressed the evidence seized based solely on a technical violation of the statute. The finding of no prejudice was presumably based on the fact that the defendant, who was not returned to the control of the Brown county authorities until December 11, 1973, had ample time to study the transcript in preparation for a suppression motion as the defendant could not challenge the validity of the search warrant until after the filing of an information against him. 1 The information in this case was not filed until February 8, 1974.
On appeal, the defendant concedes that the trial court erred in suppressing the evidence for a technical violation of sec. 968.17(2), Stats.
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State Of Wis. v. Sveum, No. 2008AP658-CR.
...of a warrant is “a ministerial duty which [does] not affect the validity of the search absent prejudice to the defendant.” State v. Elam, 68 Wis.2d 614, 620, 229 N.W.2d 664 (1975) (citing Meier, 60 Wis.2d 452, 210 N.W.2d 685); accord 2 Wayne R. LaFave, Search and Seizure § 4.12(c) (4th ed. ......
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State v. Popenhagen, No. 2006AP1114-CR.
...the defendant were in any way prejudiced." Id. at 459-60, 210 N.W.2d 685 (emphasis added). ¶ 123 This theme was echoed in State v. Elam, 68 Wis.2d 614, 229 N.W.2d 664 (1975), where the defendant moved to suppress evidence because a transcript of the search warrant testimony was not filed wi......
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State v. Phillips, No. 95-2912-CR
...v. State, 84 Wis.2d 587, 594, 267 N.W.2d 278 (1978)(citing State v. McGovern, 77 Wis.2d 203, 214, 252 N.W.2d 365 (1977)); State v. Elam, 68 Wis.2d 614, 621, 229 N.W.2d 664 (1975). In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the United States Supreme Cou......
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State v. Drogsvold, No. 80-1409-CR
...74 Wis.2d 390, 399-400, 246 N.W.2d 675, 680-81 (1976); Sanders v. State, 69 Wis.2d 242, 255, 230 N.W.2d 845, 853 (1975); State v. Elam, 68 Wis.2d 614, 624-25, 229 N.W.2d 664, 670 (1975); Rinehart v. State, 63 Wis.2d 760, 768, 218 N.W.2d 323, 327 (1974); State v. Bell, 62 Wis.2d 534, 542-43,......
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State Of Wis. v. Sveum, No. 2008AP658-CR.
...of a warrant is “a ministerial duty which [does] not affect the validity of the search absent prejudice to the defendant.” State v. Elam, 68 Wis.2d 614, 620, 229 N.W.2d 664 (1975) (citing Meier, 60 Wis.2d 452, 210 N.W.2d 685); accord 2 Wayne R. LaFave, Search and Seizure § 4.12(c) (4th ed. ......
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State v. Popenhagen, No. 2006AP1114-CR.
...the defendant were in any way prejudiced." Id. at 459-60, 210 N.W.2d 685 (emphasis added). ¶ 123 This theme was echoed in State v. Elam, 68 Wis.2d 614, 229 N.W.2d 664 (1975), where the defendant moved to suppress evidence because a transcript of the search warrant testimony was not filed wi......
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State v. Phillips, No. 95-2912-CR
...v. State, 84 Wis.2d 587, 594, 267 N.W.2d 278 (1978)(citing State v. McGovern, 77 Wis.2d 203, 214, 252 N.W.2d 365 (1977)); State v. Elam, 68 Wis.2d 614, 621, 229 N.W.2d 664 (1975). In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the United States Supreme Cou......
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State v. Drogsvold, No. 80-1409-CR
...74 Wis.2d 390, 399-400, 246 N.W.2d 675, 680-81 (1976); Sanders v. State, 69 Wis.2d 242, 255, 230 N.W.2d 845, 853 (1975); State v. Elam, 68 Wis.2d 614, 624-25, 229 N.W.2d 664, 670 (1975); Rinehart v. State, 63 Wis.2d 760, 768, 218 N.W.2d 323, 327 (1974); State v. Bell, 62 Wis.2d 534, 542-43,......