State v. Kroening

• Decision Date: 04 December 1956
• Citation: 79 N.W.2d 810,274 Wis. 266
• Parties: STATE of Wisconsin, Plaintiff, v. Leonard KROENING, Defendant.
• Court: Wisconsin Supreme Court

Page 810

79 N.W.2d 810

274 Wis. 266

STATE of Wisconsin, Plaintiff, v. Leonard KROENING, Defendant.

Supreme Court of Wisconsin.

Dec. 4, 1956.

Rehearing Denied Feb. 5, 1957.

See 80 N.W.2d 816.

William P. Westphal of Ryan, Kain & Mikan, Minneapolis, Minn., Marshall Norseng, Chippewa Falls, of counsel for defendant.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Rodney Lee Young, Dist. Atty., Rusk County, Ladysmith, John H. Bowers, Madison, of counsel, for plaintiff.

BROWN, Justice.

The answer to the First Question is 'No'.

The applicable constitutional provision found in sec. 8, art. I, Wis.Const. is as follows:

'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.'

In Thornton v. State, 1903, 117 Wis. 338, 93 N.W. 1107, a person accused of rape was compelled after his arrest to surrender his shoe to be compared with footprints at the scene of the crime. We said, 117 Wis. at page 341, 93 N.W. at page 1108, that 'the prohibition against one's being compelled to be a witness against himself should not be limited to exclusion of merely oral statements against himself.' Once it is admitted that the right not to be a witness against one's self in a criminal case extends beyond mere oral statements, the line of demarcation beyond which it shall be held that a defendant's right has been violated is neither straight nor clearly marked. Mr. Justice Dodge in the Thornton opinion, supra, cites examples falling on each side of the line which are difficult to distinguish from each other on principle; the annotation to Rochin v. People of State of California (342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183) in 25 A.L.R.2d 1396 presents many others. But in the Thornton case at least we approved the taking of defendant's shoe for the purpose of incriminating him, while stating that this was not a violation of his right not to be compelled to be a witness against himself.

In Green Lake County v. Domes, 1945, 247 Wis. 90, 18 N.W.2d 348, 351, 159 A.L.R. 204, the defendant was arrested for operating an automobile while under the influence of intoxicating liquor. Under duress he was then subjected to a number of tests calculated to demonstrate his coordination or lack of it. The doctor who administered the tests thus described them:

"After a brief history was taken, defendant's mental attitude, the odor of his breath, and the congestion in the eyelids was noted, and his pulse was taken. He was given a piece of paper on which to write his name, and was subjected to a number of neurological tests, which consisted in observing the gait, observing the speech, having him protrude his tongue from,--into a midline,--testing the reflexes, both the deep reflexes such as the knee jerk and the superficial reflexes. The co-ordination is tested by having defendant stand with his feet together and his eyes closed. He is instructed to stand thus and touch the tip of his nose with the tip of each index finger alternately. And that (in answering a question as to whether defendant 'was drunk or sober based upon your observation of this man, from the tests that you gave him') defendant 'was suffering from an acute alcoholism."'

There was no evidence concerning the content of any oral or written statements by the defendant and we held: 'there does not appear to have been any violation or invasion of defendant's privilege of immunity under sec. 8, art. I, Wis.Const., by the making of the examination in question or the admission of the testimony of Dr. Schroeder in relation thereto.'

The Domes decision was approved in City of Barron v. Covey, 1955, 271 Wis. 10, 72 N.W.2d 387. There a person under arrest for drunken driving was requested to supply a sample of his urine for analysis to determine the alcoholic content. He refused, and upon his trial the prosecution was not permitted to testify that he had refused. He was acquitted. On appeal the prosecution contended that the exclusion of such evidence was prejudicial error. The defendant contended that to require his urine for analysis, with subsequent testimony respecting the alcoholic content, would be to deprive him of the right reserved by sec. 8, art. I, Wis.Const., wherefore evidence that he had claimed his constitutional right could not be introduced to his prejudice. Obviously, as the attorney general's brief states, if the privilege protected such facts, defendant's refusal to disclose them would not be admissible evidence. The precedents relied on in both our Domes and Covey decisions are discussed in the opinions in those cases, rendering it unnecessary to repeat them here. It is sufficient now to say that in the Covey case we held directly, 271 Wis. at page 14, 72 N.W.2d at page 389, that 'the offered testimony on the part of the plaintiff city * * * could not properly be excluded on the ground of violating sec. 8, art. 1, of the state constitution.' We conclude now that the Domes and Covey decisions require us to answer that an analysis of a party's bodily fluids against his will in a criminal case and explanatory testimony thereon by the analyst does not violate his privilege against self-incrimination within the meaning of sec. 8, art. I, Wis.Const.

The next question of law certified by the trial court is:

'Second Question: Does the receipt in evidence, over defendant's timely objection, of the results of an alcohol-blood test made on blood taken from the defendant while he was unconscious or semi-conscious, and without his consent and while he was not under arrest, under circumstances set forth above, violate the prohibition against unreasonable search and seizure contained in Article I, Section 11 of the Wisconsin Constitution?'

To this we reply 'Yes'.

The applicable part of sec. 11, art. I, Wis.Const. reads:

'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; * * *.'

It is well-settled in Wisconsin that a search of the person or of his immediate surroundings made incident to his arrest does not violate this constitutional provision. State v. Phillips, 1952, 262 Wis. 303, 309, 55 N.W.2d 384. It is equally well-settled that:

'* * * No search of the person or seizure of any article found thereon can be made on mere suspicion that the person searched is violating the law, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest or shall be lawfully arrested without a warrant as authorized by law * * *.' 47 Am.Jur., Searches and Seizures, Sec. 53, p. 533.

In the case at bar the defendant was not under arrest when his blood was taken nor was he arrested for more than a week afterward. Wisconsin subscribes to the federal rule that evidence obtained by illegal search and seizure is inadmissible upon the trial. State v. Cox, 1950, 258 Wis. 162, 166, 45 N.W.2d 100; Hoyer v. State, 1923, 180 Wis. 407, 193 N.W. 89, 27 A.L.R. 673; State v. Warfield, 1924, 184 Wis. 56, 58, 198 N.W. 854; Jokosh v. State, 1923, 181 Wis. 160, 193 N.W. 976. If, then, the means by which the State came into possession of defendant's blood constituted a search and seizure, not incident to his arrest, it must follow that it was an illegal one, therefore unreasonable, and testimony regarding analysis of the blood was inadmissible.

The State's first argument is that the taking of the blood sample was not a search or seizure at all in the constitutional sense. While we are willing to admit that the founding fathers probably never dreamed of such a method of criminal investigation, we do not concede that the right to security of person specified by sec. 11, art. I, Wis.Const. does not extend to portions of the body as well as to its entirety. Surely that security is impaired if public officials may without consent and without arrest, stick needles into human bodies and draw off and carry away such of the body's contents as the officials deem expedient. Counsel says the amount abstracted in this case was small and the method used was medically approved. We do not see what difference that makes to the principle involved. We do not understand, in the case of 'papers and effects', there is a minimum limit to property protected by sec. 11, art. I, Wis.Const., so that articles or other possessions may be taken away by officers of the law without a violation of the constitution if...