State v. Koch

Decision Date10 May 1993
Docket NumberNo. 91-1604-CR,91-1604-CR
Citation175 Wis.2d 684,499 N.W.2d 152
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Robert KOCH, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent the cause was argued by William L. Gansner, assistant attorney general, with whom on the brief was James E. Doyle.

WILCOX, Justice.

This case comes to the court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats. The defendant, Robert Koch, 1 was granted leave to appeal nonfinal orders of the circuit court denying his motions to dismiss the charges against him or in the alternative to suppress evidence obtained during an allegedly unreasonable delay in bringing him before a magistrate for a judicial determination of probable cause to support his warrantless arrest. The primary issues presented in this case concern the retroactive effect of a United States Supreme Court decision, County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), which requires that a judicial determination of probable cause be made within 48 hours of a warrantless arrest and whether such a determination was made in this case. 2 We conclude that the 48-hour rule of Riverside applies retroactively to all cases not yet final and that the rule was not satisfied in this case. We affirm.

The relevant facts in this case are not in dispute. On March 17, 1991, the defendant met Kathleen Brand at a singles dance in Kenosha, Wisconsin. By March 20, 1991, the defendant and Brand agreed that they would be married. On March 22, 1991, Brand gave the defendant $10,200 which he was to combine with his own money to buy a certificate of deposit for Brand.

Joyce Gould, a friend of Brand, became concerned about the speed at which Brand and the defendant's relationship was progressing. Gould was also suspicious of the defendant's representation to Brand that he would take care of her financial circumstances. Gould hired David Ellis, a private investigator, to verify the defendant's representations regarding his identity and business connections. The defendant told Brand that he was a widower and that he was in the clothing business in New York city. Ellis was unable to verify the defendant's identity or employment information. Upon meeting with no success, Ellis contacted Brand on the morning of March 28, 1991, and indicated that he wished to confront the defendant.

At 4:30 p.m. on March 28, 1991, Ellis and Pleasant Prairie Police Sergeant Paul Ratzburg, went to the Budgetel Motel where the defendant was staying in Pleasant Prairie, Wisconsin. Ellis entered the defendant's motel room while Sergeant Ratzburg waited out of view. Ellis identified himself as a concerned friend of Brand. When the defendant refused to cooperate with Ellis's questioning, Sergeant Ratzburg was called into the room.

In response to Sergeant Ratzburg's request for identification, the defendant produced a Kentucky identification card. Sergeant Ratzburg became suspicious when the defendant could not state the address or social security number on the card. Further, Sergeant Ratzburg suspected the identification card to be false because it did not contain a state seal or the signature of the secretary of state and the back of the card was blank.

The defendant denied making any arrangements with Brand regarding investing her money and he refused to disclose the location of the money. The defendant indicated that he could return Brand's money in 48 hours.

During the questioning, Ellis noticed a blue folder with Brand's name on it. When Ellis picked up the folder, the defendant objected by seizing the other end. A struggle occurred which was broken up by Sergeant Ratzburg. As Ratzburg took possession of the folder, a white envelope fell out. The defendant grabbed for the envelope and struggled with Sergeant Ratzburg while attempting to destroy the envelope and its contents. The envelope contained a check belonging to Renae Dohrer of Coralville, Iowa. The check was payable to "Kathy Brand & Robert Koch" in the amount of $22,000. The check bore the signature of Renae T. Dohrer and was dated April 3, 1991. Sergeant Ratzburg placed the defendant under arrest for obstructing an officer.

The defendant was arrested without a warrant on Thursday, March 28, 1991, at approximately 5:00 p.m. and was placed in the Kenosha County jail. This was the Thursday before Good Friday and Easter weekend that year.

The next day, March 29, Detective Kenneth Kopesky of the Kenosha Police Department, applied for and received a search warrant for the defendant's motel room. Evidence seized during the search included checks belonging to Kathleen Brand, Renae Dohrer and Cristine Bolton; a handgun allegedly owned by Cristine Bolton; ten identification cards from various states, all with different names but bearing the photo of the defendant; a U.S. Postal Service change of address form signed by Robert Koch and directing that all mail sent to his motel room be returned to sender; letters allegedly signed by the defendant; an address book; and other miscellaneous items.

The defendant appeared before a court commissioner for an initial appearance at 1:00 p.m. on Monday, April 1, 1991. This was approximately 92 hours after his warrantless arrest. The defendant was served with a five count criminal complaint. The complaint charged the defendant with: (1) felony theft by fraud in violation of sec. 943.20(1)(d) and (3)(c), Stats., for taking Brand's money; (2) felony forgery in violation of sec. 943.38(1)(a), Stats., for falsely making a check on the account of Renae Dohrer in the amount of $22,000; (3) obstructing an officer in violation of sec. 946.41(1), Stats., with respect to the defendant's conduct towards Sergeant Ratzburg; (4) and (5) misdemeanor theft in violation of sec. 943.20(1)(a), Stats., for taking various checks belonging to Kathleen Brand and Renae Dohrer. The court commissioner made a written finding in the complaint that it stated probable cause. Bond was set at $630,000 cash.

On April 5, 1991, the circuit court granted the defendant's motion to dismiss the obstruction charge. A preliminary hearing was held on April 10, 1991, resulting in a bindover decision. The defendant was arraigned on May 9, 1991, on an information charging him with two felony and five misdemeanor counts. The defendant was newly charged with two counts of misdemeanor theft for taking checks and a .25 caliber pistol belonging to Cristie Bolton. He was also newly charged with obstructing an officer for giving the Kenosha Police Department a false name.

The defendant filed several motions following the arraignment. The defendant filed motions to dismiss the charges against him and suppress evidence on grounds of unreasonable delay in bringing him before a magistrate for a judicial determination of probable cause to support his warrantless arrest. The circuit court denied all of the defendant's motions. The defendant requested leave from the circuit court to take an interlocutory appeal to the court of appeals. We accepted certification from the court of appeals.

The court of appeals certified the following issues to be resolved by this court:

(1) What is the test for determining if new court-made rules of criminal procedure are to be applied retroactively to cases that are not yet final?

(2) Are persons arrested without warrants entitled to a prompt judicial determination of probable cause before any significant restraint is placed on the accuseds' liberty following the warrantless arrest?

The defendant raises the following additional issues:

(3) Is evidence seized during a period of unreasonable delay stemming from the state's failure to bring the defendant before a judge for a probable cause determination subject to the exclusionary rule.

(4) Did sufficient facts exist to establish probable cause and seizure of evidence at the time of the defendant's arrest?

(5) Was sufficient evidence adduced at the preliminary hearing to support a bindover as to Count 1 in the complaint alleging a violation of sec. 943.20(1)(d) and (3)(c), Stats., theft by fraud?

(6) Was sufficient evidence adduced at the preliminary hearing to support bindover as to Count 2 alleging a violation of sec. 943.38(1)(a), Stats., forgery?

(7) Was the charging of Counts 3, 4, and 7 in the information a proper exercise of prosecutorial discretion?

I.

The first issue we must address concerns the retroactive effect of the United States Supreme Court decision in Riverside which requires that a judicial determination of probable cause be made within 48 hours of a warrantless arrest. Riverside, 500 U.S. at ----, 111 S.Ct. at 1670. Riverside was decided approximately six weeks after Koch was arrested.

In the past, this court applied three criteria, modeled after the criteria applied by the United States Supreme Court, for determining whether a new rule of criminal procedure should be applied retroactively. See State v. Neave, 117 Wis.2d 359, 376, 344 N.W.2d 181 (1984); State v. Wisumierski, 106 Wis.2d 722, 729, 317 N.W.2d 484 (1982). The criteria used were: (1) the effect of the new rule on the fact finding process; (2) the extent of reliance by law enforcement authorities on the old standards; and (3) the effect on the administration of justice of a retroactive application of the new standards. Neave, 117 Wis.2d at 376, 344 N.W.2d 181.

The United States Supreme Court abandoned these three criteria in favor of a new approach in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In Griffith, the Court held that:

a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past.

Id., 479 U.S. at 328, 107 S.Ct. at 716.

We hold that the Griffith rule for...

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