State v. McGovern

• Decision Date: 19 April 1977
• Docket Number: No. 75-569-CR,75-569-CR
• Citation: 252 N.W.2d 365,77 Wis.2d 203
• Parties: STATE of Wisconsin, Plaintiff in error, v. Thomas McGOVERN, Defendant in error.
• Court: Wisconsin Supreme Court

Page 365

252 N.W.2d 365

77 Wis.2d 203

STATE of Wisconsin, Plaintiff in error, v. Thomas McGOVERN, Defendant in error.

No. 75-569-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Dec. 2, 1976.

Decided April 19, 1977.

Bronson C. La Follette, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., for plaintiff in error.

Carl L. Peterson and Peterson & Peterson, Menomonie, for defendant in error.

DAY, Justice.

This case is before us on a writ of error sought by the state to reverse an order entered by the trial court suppressing admission into evidence of a cigarette butt and a jar of material seized by police in a room in which the defendant was a visitor and alleged by the state to be marijuana. We hold that under the facts as found by the trial court the evidence was properly suppressed. We therefore affirm the trial court's order.

In the early morning hours of July 15, 1975 the Dunn County Sheriff's Department received a telephone call from a man complaining that there were loud noises, loud talking and profane language outside his bedroom window. The dispatcher radioed the zone car that there was a complaint of "loud and profane language outside (complainant's) window," and that someone was urinating on the lawn. The dispatcher did not mention any complaint of loud music in his testimony. Menomonie Police Department Officer J. M. Stevenson responded and drove to the area. Officer Ronald Mickelson in another squad car also responded.

Officer Stevenson arrived at the corner of 106th Street and Sixth Avenue in Menomonie at approximately 2:27 a. m. The house in which the defendant was arrested was on a corner of this intersection.

Officer Stevenson testified he started to walk from his car to the entrance of the house. When he was approximately five feet from a southeast window, standing on what "would be described as a sidewalk on that block," he observed a flash of light through the window and then a movement which appeared to be that of passing a cigarette from one person to another. He saw two persons sitting at a desk.

The officers proceeded to the front door. To reach the door they had to walk through a partially enclosed porch. Officer Mickelson knocked. Officer Stevenson testified someone inside asked them something to the effect, "if we had our clothes on, and Officer Mickelson replied in the manner that we had most of them on." Officer Stevenson said neither patrolman identified himself as a police officer. Before the door was opened, he said, he had formed the suspicion the moving cigarette he saw through the window was marijuana.

Dennis Mardirosian, who was living in a tent in the yard, opened the door. He denied he made any statement inquiring whether the caller at the door had his clothes on.

The entrance opened onto a small foyer with a room on the left and a room on the right. Directly ahead a stairway led to an upper floor. The house was dark, with the exception of a red bulb at the top of the stairs and a small light in the room to the right of the entrance where the defendant was sitting with a friend, John Abernathy who paid rent on the room. The porch was not lighted.

According to Mr. Mardirosian, it was dark. The man who knocked asked if he could come in. "I told him to come on in and he stepped into the doorway, and as soon as he stepped into the light where I could see him, that's the first time I recognized him as a police officer."

It is agreed Officer Mickelson then stated the officers were responding to a noise complaint.

Officer Stevenson said that while his fellow officer was talking to Mr. Mardirosian, Stevenson, standing inside the door, smelled an odor which he thought to be the smell of marijuana. Mr. Mardirosian, however, said there was no conversation. Rather, the officers proceeded directly into John Abernathy's room. The door was open.

Officer Stevenson saw the defendant seated in the room behind a desk. Defendant testified he was seated approximately six feet from the front doorway where the police first entered. He was holding a cigarette in his right hand. He placed it in an ashtray. There was no conversation for approximately ten seconds. The defendant asked the officers what they were doing there. As the defendant spoke, Officer Stevenson walked toward him in an attempt to seize what the defendant had in his hand, "under the belief that it was marijuana." After stating he was there on a noise complaint, the officer informed defendant he was under arrest for possession of marijuana.

The defendant kept talking, and as he did, he made a motion to the door causing Officer Stevenson to turn his head. As he turned, the defendant took the object from the ashtray and placed it behind him back towards Mr. Abernathy. At times during this brief period the cigarette was in the defendant's hand, and at times in the ashtray, according to the officer's account. Mr. Abernathy took the cigarette and dropped it to the floor. Officer Stevenson picked it up. He also seized a small prescription-type bottle on the desk alleged to contain marijuana.

No music emanated from Mr. Abernathy's room. The only music came from upstairs. Officer Stevenson stated he heard the music because there was no door or enclosure going to the stairway. The trial court found there was "no unusual or extraordinary noise coming from such house." ¹

The trial court found the house was a roomy house with the foyer being a common area.

The dispositive issue in this case is whether the police had a right to be standing in the foyer when Officer Stevenson smelled the odor which he thought was marijuana. Within moments, he entered the room in which Mr. Abernathy and the defendant were seated in an attempt to seize what the defendant had in his hand "under the belief that it was marijuana." No claim is made the police had probable cause to believe a crime was being committed when the officer saw through a window the glowing object being passed, one hand to another, in the dimly lit room. Nor is it contended the smell of marijuana was discernible outside the house. On the contrary, Officer Mickelson testified he did not smell anything until he and his fellow officer were inside the house.

Noise, the basis of the complaint to which the officers were responding, was not a justification for the entry, and the state does not argue that it was.

The trial court's finding there was no unusual or extraordinary noise coming from the house is not against the great weight and clear preponderance of the evidence and must be accepted here. State v. Elam, 68 Wis.2d 614, 624, 229 N.W.2d 664 (1975); State v. Pires, 55 Wis.2d 597, 603, 201 N.W.2d 153 (1972).

The basic rules applicable to warrantless searches were summarized in State v. Bell, 62 Wis.2d 534, 539, 540, 215 N.W.2d 535, 539 (1974):

"The fourth amendment to the United States Constitution proscribes unreasonable searches and seizures. Recently the supreme court has stated that the ultimate standard set forth in the fourth amendment is reasonableness. Cady v. Dombrowski (1973), 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706. This court has consistently adhered to the view that reasonableness is to be determined by the facts and circumstances presented in each case. State v. Pires (1972), 55 Wis.2d 597, 201 N.W.2d 153; State v. Davidson (1969), 44 Wis.2d 177, 170 N.W.2d 755; Edwards v. State (1968), 38 Wis.2d 332, 156 N.W.2d 397. The fundamental rule applicable to searches and seizures is that warrantless searches are per se unreasonable under the fourth amendment except under certain well-defined circumstances. Johnson v. United States (1948), 333 U.S. 10, 13, 14, 68 S.Ct. 367, 92 L.Ed. 436; Coolidge v. New Hampshire (1971), 403 U.S. 443, 454, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564. One of the exceptions to the warrant requirement is the plain-view doctrine, and this court has held that a seizure following a plain view is not the product of a search. Day v. State (1973), 61 Wis.2d 236, 212 N.W.2d 489; State v. Taylor (1973), 60 Wis.2d 506, 210 N.W.2d 873; Soehle v. State (1973), 60 Wis.2d 72, 208 N.W.2d 341; Mears v. State (1971), 52 Wis.2d 435, 190 N.W.2d 184; Warrix v. State (1971), 50 Wis.2d 368, 184 N.W.2d 189; State v. Hebard (1971), 50 Wis.2d 408, 184 N.W.2d 156; Milburn v. State (1971), 50 Wis.2d 53, 183 N.W.2d 70; State v. Brown (1964), 25 Wis.2d 413, 418, 130 N.W.2d 760; Edwards v. State (1968), 38 Wis.2d 332, 156 N.W.2d 397."

The state argues this case fits the plain view exception to the warrant requirement. Four prerequisites must be met to invoke the doctrine. The police must have a prior justification for the intrusion which placed them in the position to observe the evidence in plain view, the evidence must be in plain view, the discovery must be inadvertent, and the item seized, in itself or in itself with facts known to the officer at the time of the seizure, provides probable cause to believe there is a connection between the evidence and criminal activity. Bies v. State, 76 Wis.2d 457, 464, 251 N.W.2d 461 (1977). State v. Elam, supra, 68 Wis.2d at 621, 622, 229 N.W.2d 664.

The doctrine of plain view merely supplements the prior justification for the initial intrusion, State v. Pires, supra, 55 Wis.2d at 608, 201 N.W.2d 153; the right of the officer to be in the place where the inadvertent view occurs is fundamental to the validity of what follows. State v. Spraggin, 71 Wis.2d 604, 610, 239 N.W.2d 297 (1976). ² The state justifies the initial intrusion by the consent of Mr. Mardirosian.

A search of property, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the fourth amendment. United States v. Matlock, 415 U.S. 164, 165, 94 S.Ct. 988, 990, 39 L.Ed.2d 242, 246 (1974).

Sec. 968.10(2) reads,

" . . . Searches and Seizures; When Authorized. A search of a person, object or place may be made and things may be seized when the search is made:

(2) With consent; . . . "

When a...