State v. Gums

• Decision Date: 30 June 1975
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Plaintiff-in-Error, v. Norma Jane GUMS, Defendant-in-Error. tate 183.
• Court: Wisconsin Supreme Court

Page 813

230 N.W.2d 813

69 Wis.2d 513

STATE of Wisconsin, Plaintiff-in-Error, v. Norma Jane GUMS, Defendant-in-Error.

No. State 183.

Supreme Court of Wisconsin.

June 30, 1975.

The defendant, Norma Jane Gums, was charged with having possessed hashish and cocaine with intent to deliver in violation of sec. 161.41(lm)(b), Stats. Subsequently the complaint was amended and the information charged defendant with possession of hashish, marijuana and methamphetamines with intent to deliver. The defendant moved to suppress evidence seized under a search warrant issued on March 8, 1974. The trial court granted the motion ordering all evidence suppressed that was seized in defendant's residence as a result of plain view observance or of a search pursuant to the warrant. The trial court held that the entry of the police officers into defendant's home was proper and lawful, but that the scope of such entry had been unreasonably extended by the police officers following such lawful entry. By writ of error the state seeks appellate review of the order of the circuit court suppressing evidence.

Bronson C. LaFollette, Atty. Gen., and Robert D. Martinson, Wm. L. Gansner, Asst. Attys. Gen., Madison, for plaintiff-in-error.

Patrick R. Doyle, La Crosse, for defendant-in-error.

ROBERT W. HANSEN, Justice.

The 'exclusionary rule' is that, where constitutional guaranties have been invaded, derivative evidence cannot be introduced against an accused at trial. ¹ The rule has its critics. ² It is a sanction to deter future unlawful police conduct. ³ Its purpose is to prevent, not to repair. ⁴ However, the rule does not mean that whenever the constable errs the criminal goes free. The law does not require that policemen in the performance of their official duties make no errors whatsoever. ⁵ Such an expectation would be unrealistic. ⁶ The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived a defendant of a constitutional right. ⁷ The court that authored the exclusionary rule has said of it: 'Where the official action was pursued in complete good faith, however, the deterrance rationale loses much of its force.' ⁸ Thus, as to any given set of facts, we are directed by the high court that the exclusionary rule requires: 'Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.' ⁹

In the case before us the issue is whether the exclusionary rule requires the suppression of evidence seized under a search warrant, issued on the basis of observations made by police officers in the kitchen and living room of the defendant. No question as to a search or searching is involved. There was no search here. ¹⁰ The contraband observed was in plain view of the officers or of anyone who happened to be in the kitchen or living room. Rather the claim is that the officers had no right to stand where they stood when they saw what they saw. ¹¹ An ancient Sioux Indian proverb suggests: 'Judge no man until you have walked in his moccasins for three moons.' In that spirit we will retrace the steps taken by the law officers from police station to kitchen and living room, and review the defendant's challenges to each of the steps taken as to its propriety and reasonableness under the circumstances.

POLICE AT THE STATION. At police headquarters the two detectives were given the assignment of apprehending and placing in custody on John Rice. The mandate to arrest was contained in a probation violation warrant, issued by the administrator of the division of corrections of the state department of health and social services, charging that John Rice had absconded from probation supervision and directed that he be arrested and placed in custody. Defendant sees the two officers as dispatched to make a warrantless arrest, analogizing their situation with that of police officers dispatched to go to a house because of a report that the body of a dead child and semi-conscious woman were in such house. ¹² The analogy will not hold. True it is that the two detectives here were not serving a criminal warrant, charging a citizen with the commission of a crime. But they were serving a probation violation warrant, charging one earlier convicted of crime and placed on probation with having broken the conditions of his probation. ¹³ The mandate to the officers was identical: to apprehend and place in custody the person named in the warrant. As to risks likely to be encountered, including the chance of escape and danger of violent resistance, there is no basis for believing them to be less in placing a probation violator in custody than in placing an accused under arrest. Given information that John Rice was in a house occupied by the defendant, the two officers left the station and proceeded to her home.

POLICE AT THE DOOR. Arriving at the home, one detective stationed himself at the rear door and one knocked on the front door. Three minutes later, an occupant, Maggie Colleran, answered the knock. (Defendant was not home at the time and did not arrive home until after the search warrant was issued and illegal drugs seized.) The detective showed his badge, identified himself and asked if John Rice was there. The lady who answered the knock said that she though so, and said, 'Just a minute. . . .' A voice shouted from inside '. . . yes, he's upstairs.' The door was closed, and the detective heard sounds of people moving about rapidly. Fearing an escape attempt, the detective ordered that the door be opened, and was informed by the lady that the door was open and unlocked and that 'We are waiting for him to come down.' The detective stepped across the threshold. Defendant claims that the detective was not entitled to enter the house to arrest John Rice. Given the probation violation arrest warrant, and the exigent circumstances of reason to believe that an escape might be attempted, the detective had the right to enter the home only if he had '. . . probable cause to believe that the suspect will be found on the premises.' ¹⁴ Here the detective clearly had probable cause to believe that John Rice was inside the house. If he never had it before, he had probable cause to so believe by reason of the information given him by the lady who answered the door. We agree with the trial court finding that here entry into the house was proper, warranted and reasonable.

POLICE ON THE STAIRS. When the detective entered the house, he started up the stairs. There were at the time a half-dozen or so persons either on the stairs, at the foot of the stairs or at the top of the stairs. A man started down the stairs, stating that his name was John Rice. Those present, including the detective's partner, went to the foot of the stairs. As the arresting officer testified, 'We come down to the foot of the stairs and its kind of congested right there with seven people and two detectives.' The officer testified that the space at the foot of the stairs was five or six feet square. 'Not wide enough to contain nine people.' So the officer directed those present to go to the immediately adjacent kitchen. This room was four to five feet from the doorway, or, as the officer testified, '. . . you take three steps and you're in the kitchen.' Defendant claims this moving of the group into the kitchen was an unreasonable intrusion or extending of the entry. Under these circumstances, we hold that it was not. The officer gave as the reason for moving from the crowded foot of the steps to the kitchen, 'Because it was easier to keep an eye on everybody and it wasn't congested.' That is an adequate and sensible reason for moving nine persons from a crowded space at the foot of a stairway into an immediately adjacent room. Compression increases volatility of crowds and gases. Convenience, comfort of those crowded together, and control of the situation make entirely prudent and proper the move to the room that was three steps away.

POLICE IN THE KITCHEN. Once in the kitchen, one of the detectives asked the man who had stated his name to by John Rice to give some proof of his identity. The officers did not know John Rice so the inquiry was appropriate. The man who identified himself as John Rice could furnish no identification--no driver's license, no Social Security card, no credit card or identification of any kind. Asked 'Do you have some identification somewhere to prove that you are John Rice?' the man being questioned answered, 'No.' At this point in time and space, the police officers determined to seek additional information to verify that the person who stated his name was John Rice was the John Rice named in the probation violation warrant. Defendant argues that they then '. . . had no articulate facts to say they had the wrong man. . . .' That may be true, but it is also true that they had no facts corroborating the individual's self-identification of himself as John Rice. Should they leave with the wrong person, the true fugitive's escape might be facilitated. ¹⁵ The officers were entitled to take into consideration the possibility of a suit for damages in a civil action for false imprisonment based on a failure to make reasonable inquiry as to the identity of the person placed under arrest. ¹⁶ On the right of the police under appropriate circumstances to detain a person for interrogation, our court has held that it is '. . . 'the essence of good police work' to briefly stop a suspicious individual 'in order to determine his identity or to maintain the status quo momentarily while obtaining more information. " ¹⁷ In view of the entire absence of corroborating proof of a self-identification, we hold it entirely reasonable for the police officers here to seek to verify that the person who stated his name was John Rice was, in fact, the John Rice named in the probation violation warrant. The right of the police to verify...