State v. Mordeszewski

• Decision Date: 03 June 1975
• Docket Number: No. S,S
• Citation: State v. Mordeszewski, 68 Wis.2d 649, 229 N.W.2d 642 (Wis. 1975)
• Parties: STATE of Wisconsin, Respondent, v. Anthony MORDESZEWSKI, Jr., Appellant. tate 192.
• Court: Wisconsin Supreme Court

Page 642

229 N.W.2d 642

68 Wis.2d 649

STATE of Wisconsin, Respondent, v.Anthony MORDESZEWSKI, Jr., Appellant.

No. State 192.

Supreme Court of Wisconsin.

June 3, 1975.

Anthony Mordeszewski, Jr., herein called the defendant, was convicted of one count of rape, contrary to Sec. 944.01, Stats., and was sentenced to a ten-year term of imprisonment.From the judgment of conviction and the order denying a motion to suppress evidence, defendant appeals.

On December 5, 1972, a criminal complaint was filed charging the defendant with two counts of burglary under Sec. 943.10(1), Stats., two counts of rape under Sec. 944.01, Stats., one count of sexual perversion under Sec. 944.17, Stats., and possession of a controlled substance, hashish, under Sec. 161.14(4)(k), Stats.The first five counts were based on two separate incidents.The possession of the hashish count was dismissed, without prejudice, upon motion of the state.Following a preliminary examination, the defendant was bound over for trial on four counts: one count of burglary, two counts of rape and one count of sexual perversion.

In the circuit court, the defendant moved to suppress certain physical evidence and statements made by the defendant after his arrest and identifications of the defendant by the victims of the rapes.After a hearing, the motions to suppress the physical evidence and the statements were denied but the identification by one of the victims was suppressed.Following these rulings on the motions, the defendant and the district attorney's office entered into a pretrial agreement pursuant to which the defendant pled guilty to one count of rape and the other counts were dismissed.

This appeal involves the denial of the motion to suppress the defendant's confession following his arrest on December 5, 1972.An order denying a motion to suppress evidence is not itself appealable, but the denial of such a motion is reviewable on appeal from the judgment.An evidentiary hearing was held in connection with this motion and the motion to suppress physical evidence, at which the facts pertinent to this appeal were elicited.

At 2:10 A.M. on December 5, 1972, the defendant was driving south on South 13th Street toward Layton Avenue in Milwaukee.Two Milwaukee policemen, Phillip Stanton and Thomas Matulis, clocked the defendant travelling at a speed of 70 miles per hour in a 30 mile per hour zone.The defendant stopped at a service station where he was detained by the officers.The officers asked for a driver's license and the defendant told them he did not have one.Officer Stanton testified that the defendant was arrested for reckless driving and driving without a driver's license.Officer Matulis testified that he advised the defendant of his rights to remain silent, to have an attorney present during questioning and to have an attorney appointed if he could not afford one and that the defendant said he understood his rights.

The defendant was instructed to walk across the street from the service station and the officers followed in the two cars.Officer Matulis searched the defendant while Officer Stanton searched his car.The defendant stated that after he was patted down, the officer began going through the defendant's pockets individually and just before the officer reached into his last coat pocket, the defendant reached into it and handed the officer some hash.Officer Matulis testified that he began a search of the defendant's person and then the defendant gave him the hash.

A patrol wagon was called and the defendant was transported to the district station.At the station, the defendant took everything out of his pockets and placed it on a table.He testified that a detective went through everything in the wallet and gave him back everything except a newspaper clipping of an article on a rape incident.

Officer Stanton testified that the defendant was arrested after he informed the officers that he did not have a driver's license.At the police station, the defendant was taken to the booking room where he was searched, his name was taken down and a fingerprint made of his right index finger.Stanton examined the defendant's wallet as part of police procedure in making a search of an arrested person for contraband and any weapons that might be used against an officer.He looked through all the papers and bills one by one.He had, in the past, found contraband in wallets and had found a razor blade wrapped in a Kleenex in a wallet on one occasion.The money and the newspaper were inventoried while other items were returned to the defendant.The newspaper clipping had the following headline: 'Mother of Two Raped by One of Two Intruders.'It was this headline which caught Stanton's attention.He read the article underneath the headline and then completed his search of the wallet.

Officer Stanton said he then asked the defendant to go into a small interrogation room, advised him of his constitutional rights to remain silent and to an attorney being present during questioning.Stanton's interrogation of the defendant lasted approximately 10 minutes.This questioning ended when the defendant stated he did not want to spend thirty years in jail and would talk when he'got down to the Vice Squad.'Stanton testified he made no offers to drop any charges against the defendant, but he did tell the defendant that the charges against him were minor compared to what the clipping contained.Officer Stanton had never seen the defendant prior to the arrest.

After being taken to the Milwaukee Vice Squad, the defendant was questioned by Robert Bruska and Richard Abram of the Vice Squad at 4:15 A.M.The defendant was advised of his rights and the charges against him and told that they wanted to talk to him about some rapes on the south side of Milwaukee.The defendant initially said he had the clipping because he thought he knew the woman, but he later admitted that he was the one responsible.This interrogation lasted between 30 and 45 minutes and no threats or promises were made or force used to get the defendant to confess.

On July 31, 1973, the court made its findings.It first found that the arrest of the defendant was proper and that a pat down search of the defendant for the possible presence of weapons was then appropriate.It further found that:

'. . . the act of the defendant in handing over to the officers the contraband in question resulted from a conclusion on his part that the officer intended a search of all of the pockets in his jacket.The Court finds that the defendant's action in extracting the contraband, . . . referring to the controlled substance which were (sic) the subject of a prior charge, prior formal charge, in extracting the contraband from his pocket and handing it to the officer was clearly an erroneous anticipatory act done at his peril, and that as a consequence the material did not come into the officers' possession by virtue of a search and seizure.'

On the basis of these findings, the court denied the motion to suppress that evidence.

As to the search of defendant's wallet, the court found it had multiple justifiable purposes and was not solely a custodial search for inventory and safekeeping purposes.The court said that Officer Stanton was also looking for weapons and any further evidence of one of the offenses with which the defendant was then charged, the possession of a controlled substance, which it found to be reasonable and prudent conduct under the circumstances.

Because the officer had never seen and knew nothing of the defendant, the court said that his scanning of the contents of the wallet could under no circumstances be held to constitute a search for evidence as to other unknown offenses or crimes.The court further said that the officer was not required to ignore the newspaper clipping when he discovered it.The court then denied the motion to suppress this physical evidence, stating that this search was one incidental to a valid arrest and having a valid purpose and was reasonable in scope and conduct so that any material obtained thereby is admissible into evidence.

The trial court also held that the statements made by the defendant were the free and voluntary product of his will and not contaminated by constitutional infirmities and are, therefore, admissible.

Shellow & Shellow by James M. Shellow and David P. Jenkins, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for respondent.

HANLEY, Justice.

The sole issue presented upon this appeal is whether the defendant's confession should have been suppressed on the grounds that it was the product of illegal detention and prior illegal searches.

The defendant does not challenge the trial court's determination that the defendant's rights under Miranda v. Arizona(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 were observed, but rather he contends that his confession was obtained by the exploitation of the fruits of illegal police conduct and, therefore, should have been suppressed under Wong Sun v. United States(1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

It is the defendant's position in this case that his confession was obtained by an illegal exploratory search after being stopped for a traffic violation, an illegal detention and search at the district police station and the confrontation of the defendant with the fruits of the illegal station-house search during the questioning of the defendant by the Vice Squad officers.

The defendant first contends that the hashish found on him was obtained by an illegal search of his person.He argues that his turning it over to the police officer was the result of his submitting to the authority being asserted by the police and, therefore, was the result of a search.As noted, the trial court found that this was an 'erroneous anticipatory act' resulting from a conclusion by the defendant that the officer intended to...