State v. Mabra

• Decision Date: 04 January 1974
• Docket Number: No. S,S
• Citation: 213 N.W.2d 545,61 Wis.2d 613
• Parties: STATE of Wisconsin, Respondent, v. Charles MABRA, Appellant. tate 92.
• Court: Wisconsin Supreme Court

Page 545

213 N.W.2d 545

61 Wis.2d 613

STATE of Wisconsin, Respondent, v. Charles MABRA, Appellant.

No. State 92.

Supreme Court of Wisconsin.

Jan. 4, 1974.

Howard B. Eisenberg, State Public Defender, Alvin E. Whitaker, Asst. State Public Defender, Madison, for appellant.

Robert .w. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., madison, D. Martinson, Asst. Atty. Gen., Madison,

HALLOWS, Chief Justice.

The appeal from the judgment of conviction comes too late. Although at the time of trial, sec. 958.13, Stats. (1967), was applicable to appeals and limited them to one year after the entry of judgment of conviction, this appeal comes 23 and 1/2 months thereafter. However, the appeal from the order denying a new trial is timely. While it has been said the test on appeal of a denial of a new trial is whether there has been an abuse of judicial discretion, State v. Simmons (1973), 57 Wis.2d 285, 289, 203 N.W.2d 887; State v. Wollmer (1970), 46 Wis.2d 334, 335, 336, 174 N.W.2d 491, and Babbit v. State (1964), 23 Wis.2d 446, 452, 127 N.W.2d 405, this view generally goes to the ground of the interest of justice. A judicial error is outside the rule of judicial discretion and the failure to recognize it is also in itself an error. In this case it makes no difference, as only a question of law is presented.

Pending this appeal, mabra filed a motion claiming the trial transcript did not reflect an accurate account of the trial proceedings because it omitted questions, answers, and statements of defendant's counsel relating to (1) defendant's standing to challenge the admissibility of evidence, i.e., money given to his wife earlier on the day of arrest and seized from her person after a search; (2) in chamber conferences; and (3) matters relating to additional instructions given to the jury. Mabra claims these omissions go directly to his ability to contest the admissibility in evidence against him of the money taken from his wife. He requests an evidentiary hearing to reconstruct his testimony as he remembers it and other testimony at trial. This motion is denied; if it has any merit, it is moot, because this court in this opinion will reach the questions of law which he claims he raised at trial, i.e., his standing to object to the admissibility of the money taken from his wife in a custodial search and the probable cause for the search of his wife at the scene of arrest and at the police station.

On April 14, 1970, about 1:30 o'clock in the afternoon, the Behling tavern in Milwaukee was held up by two masked and armed men, and approximately $1,900 in currency and $56 in coins were taken. Upon leaving the tavern, the shorter of the two men (later identified as Mabra at the trial) shot and killed a patron Mr. Wahl. After the shooting, one of the tavern patrons called the police. Edward Mulqueen, an electrician working across the street from the tavern, also called the police and requested an ambulance. He saw two Negro males exit from the tavern, the second man leaving immediately after Mulqueen heard a shot. These two men were observed getting into a Cadillac with a white top and blue bottom, which had pulled up in front of the tavern. Mulqueen jotted down the license plate number on the Cadillac. A police officer with the West Allis police department had seen the Cadillac with such a license plate occupied by three Negro males in the area of the robbery and murder just prior to the time of the commission of the crime.

Shortly after receiving the license plate number, police located odis Williams, the owner of the Cadillac and brother of Mabra's wife, at his place of employment, who told them his sister had borrowed his car earlier in the day and had not yet returned it. About 1 and 1/2 hours after the robbery, the Cadillac was found parked in the 500 block of North 33d street in Milwaukee and it was towed to the Safety Building. A search revealed a panty-hose stocking knotted at one end, which fit the description of the mask worn by one of the robbers, and a blue navy watch cap, which also fit the description of a hat worn by one of the robbers. The police learned the identity of Mabra's car and put out a dispatch report over the police radio to arrest the occupants of a last model two-door light-blue Pontiac Firebird with a black vinyl top, having license plate number B72978 on the ground the occupants were wanted for armed robbery and murder.

In response to the radio bulletin, at about 5:30 p.m., the policemen spotted and stopped the Mabra auto at North 3d and Garfield avenue in Milwaukee. They arrested Mabra and his wife for armed robbery and murder. A 'pat down' weapons search was made of Mabra and both were taken to the police station. At the police station, a custodial search of Mrs. Mabra disclosed $40.20 in her handbag ($16 in one dollars bills; 100 dimes; 73 nickels; 41 quarters) and $593 in currency and $1 in coins were found in an eye-glass case in her bra.

At trial, there was some question whether both the issue of the lawfulness of the search of Mrs. Mabra and the standing of Mabra to raise the question of an unreasonable search of his wife were raised. On this appeal, we take the view that both questions are before us. While Mrs. Mabra was arrested for the crime of armed robbery and murder, she was not charged with the crimes. The trial court held Mabra had no standing to suppress evidence or object to the admission of evidence taken from another person, namely, his wife. Mabra does not question the generally accepted view that the Fourth Amendment's constitutional protection extends only to those persons whose rights have been violated by an illegal search and seizure but submits that 'the mere intrusion of an arresting officer into an automobile which he occupied with his wife gave him standing to contest the legality of the seizure of the money from her.' Pro se brief of Mabra, p. 1. However, the search of Mrs. Mabra was not in the automobile or at the location of the arrest but at the police station and any argument based on the intrusion of his presence must be based on the extension of that concept to the police station.

In justifying the search of Mrs. Mabra at the police station, the state based it on 'proximity' and we take this to mean the relationship both physically in the car and apparently with the crime. Consequently, Mabra argues the search of his wife was directed at getting evidence against him and the search of her was incidental to his arrest and thus a violation of his Fourth Amendment right; and alternatively, any search in the car was in his presence and carried over to the police station and this gives him standing to object.

The courts have wavered on the scope and rationale of standing to raise the unlawfulness of a search and seizure. In Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the United States Supreme Court took the view that 'to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of the search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of the search and seizure directed at someone else.'

This view of standing was based on the theory that a search and seizure must be an invasion of a person's personal right of privacy rather than on the older trespass theory or local theory. Privacy rested upon ownership, possession or a substantial interest in the property seized. This, of course, created an inescapable self-incrimination dilemma in those cases where mere possession was an essential element of the crime. To overcome this, the court granted 'automatic' standing when the defendant was legitimately on the premises and when the search took place in cases where possession was an essential element of the offense. This holding was reaffirmed in Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. In Alderman v. United States (1969), 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, the court rejected the argument that the police deterrent rationale for the exclusionary rule (see Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601) logically required the abrogation of the standing requirement and the formulation of a rule which would allow a defendant to object to the admissibility against him of any unconstitutionally seized evidence. ¹ The court adhered to the doctrine that Fourth Amendment rights were personal and could not be vicariously asserted. The standing requirement since has been upheld in Combs v. United States (1972), 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308, and Brown v. United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, and by many lower federal courts. ² Recently this court has reviewed another aspect of 'standing' in State v. Christel (1973), 61 Wis.2d 143, 211 N.W.2d 801; see also Hayes v. State (1968), 39 Wis.2d 125, 158 N.W.2d 545.

California is the only jurisdiction which recognizes that the exclusionary rule rationale applies to all defendants, thus permitting each defendant to object to evidence obtained in violation of another's Fourth Amendment rights. People v. Martin (1955), 45 Cal.2d 755, 290 P.2d 855; People v. Sneed (1973), 32 Cal.App.3d 535, 108 Cal.Rptr. 146. New York has accomplished the same result by statute. See New York Code of Criminal Procedure sec. 813--C, McKinney's Consol.Laws (McKinney Supp. 1971). This code provides that any person having reasonable grounds to believe the product of a search may be used as evidence against him has standing to challenge the search. People v. Smith (1962), 35 Misc.2d 533, 230 N.Y.S.2d 894. The state of Oregon has proposed the adoption of such a rule. Oregon Criminal Law Revision Commission, Part II, Pre-Arraignment Provisions, Art. 5, Search and Seizure, Preliminary Draft, No. 3, May 1972, sec. 40(1). Many commentators have...