State v. Paszek

• Decision Date: 30 March 1971
• Docket Number: No. S,S
• Citation: 184 N.W.2d 836,50 Wis.2d 619
• Parties: STATE of Wisconsin, Respondent, s. Gary Lee PASZEK, Appellant. tate 129.
• Court: Wisconsin Supreme Court

Page 836

184 N.W.2d 836

50 Wis.2d 619

STATE of Wisconsin, Respondent,

s.

Gary Lee PASZEK, Appellant.

No. State 129.

Supreme Court of Wisconsin.

March 30, 1971.

On April 29, 1969, Gary Lee Paszek, the defendant-appellant, was convicted of a violation of sec. 161.275(1), Stats. (possession of marijuana), and sentenced to a term of five years in the Wisconsin state reformatory. Execution of sentence was stayed. He was placed on probation for a period of three years. On June 16, 1969, probation was revoked and his sentence modified to three years in the reformatory, sentence to commence on June 17, 1969.

The defendant appeals.

The facts will be set forth in the opinion.

Thomas P. Guszkowski, Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Lee Edward Wells, Asst. Dist. Atty., Milwaukee County, Milwaukee, for respondent.

BEILFUSS, Justice.

The defendant was arrested without a warrant on January 22, 1969, at about 1 p.m., in front of the Oakland Pharmacy on Oakland avenue in Milwaukee, Wisconsin. The arrest was made by Officer William Danowski of the vice-squad of the Milwaukee police department, on information supplied to him by Mrs. Judy Darling, a clerk at the Oakland Pharmacy. The defendant was searched immediately after the arrest and a small quantity of a weedy substance was found in his pockets. This weedy substance was marijuana.

The defendant made a timely motion to suppress the introduction of the marijuana in evidence upon the ground that it was obtained as a result of an illegal search and seizure following an illegal arrest. The motion was denied, and it is the ruling on this motion which forms the basis of this appeal.

The question is whether the arrest without a warrant was illegal for want of a probable cause.

The pharmacy clerk, Mrs. Darling, testified that at approximately 10:30 a.m., on January 22, 1969, the defendant entered the pharmacy with a girl named Carol Schwabe. Mrs. Darling knew Carol Schwabe but did not know the defendant. He was introduced to her by Carol Schwabe as 'Gary.' Mrs. Darling, after some hesitancy because of instructions from her employer, sold them some gummed cigarette papers. A conversation followed and the defendant asked Mrs. Darling if she wanted to buy some marijuana. He removed a container from his pocket and handed it to her. It contained a substance which looked to her like marijuana. The defendant told her that it was marijuana from Mexico. Mrs. Darling stated that she did not want to purchase any but told them to come back to the store at about 1 p.m., that afternoon. The defendant and Carol Schwabe then had a soda at the pharmacy soda fountain and left the store about 11 a.m., indicating that they would be back around 1 p.m.

After the defendant and Carol Schwabe left, Mrs. Darling informed her employer of the occurrence and he told her to call the vice-squad of the Milwaukee police department. She called at about 11 a.m., and informed the officer with whom she spoke of the conversation she had had with the defendant. Mrs. Darling was reluctant to identify herself when speaking with the officer, but finally did so.

About twenty-five or thirty minutes later, three or four officers came into the pharmacy and Mrs. Darling spoke with Officer Danowski. She described what had taken place and then went back to her regular work. When the defendant returned to the store around 1 p.m., she indicated to Officer Danowski that he was the person who had offered to sell her marijuana.

Officer William Danowski testified that at about noon on January 22, 1969, he received a telephone call from Mrs. Darling informing him that someone was at the Oakland Pharmacy trying to sell marijuana. He stated that she identified herself with some reluctance. He then proceeded directly to the pharmacy and arrived there at approximately 12:50 p.m. Upon arriving at the pharmacy with other officers he interviewed Mrs. Darling who gave him a description of the defendant and stated that he attempted to sell her marijuana. Officer Danowski asked her if she had any idea what marijuana looked like and she stated that she did and had seen it on previous occasions.

Officer Danowski then parked his police car and kept the entrance to the pharmacy under surveillance. He observed a person matching the description given him by Mrs. Darling enter the store and followed him in a short time later. He had no conversation with Mrs. Darling at this time, but she pointed to defendant. Officer Danowski then approached the defendant, identified himself as a police officer, and stated that he had information tht the defendant possessed marijuana. He asked the defendant to step outside, advised him that he was under arrest, and made a search of his person. Officer Danowski found a small quantity of crushed weed and seeds and a packet of gummed cigarette papers in his jacket pocket. This material was placed back in defendant's pocket and he was transported to the Safety Building where his jacket was removed and the contents of his pocket forwarded to the city chemist for analysis. The city chemist testified at trial that the substance was marijuana.

Whether Officer Danowski had probable cause to arrest the defendant and search him pursuant to that arrest is a matter of federal constitutional law. 'Probable cause' to arrest is a requirement of the Fourth amendment of the United States constitution, binding upon the individual states through the Fourteenth amendment. Giordenello v. United States (1958), 357 U.S. 480, 485, 78 S.Ct. 1245, 2 L.Ed.2d 1503. This court has recognized that sec. 11, art. I of the Wisconsin constitution is substantially like the Fourth amendment of the United States constitution, and that the standards and principles surrounding the Fourth amendment are generally applicable to the construction of sec. 11, art. I. Therefore a finding of probable cause under federal standards will normally result in a finding of probable cause under state standards. Browne v. State (1964), 24 Wis.2d 491, 503, 129 N.W.2d 175, 131 N.W.2d 169. Conversely, under Giordenello v. United States, supra, a lack of probable cause under federal standards precludes a constitutionally valid finding of probable cause under state standards.

Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. Henry v. United States (1959), 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility. Browne v. State, supra, and it is well established that the belief may be predicated in part upon hearsay information. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Probable cause is defined in Draper v. United States, supra, p. 313, 79 S.Ct. p. 333 as:

"In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, supra, at 175 ((1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879). Probable cause exists where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, (69 L.Ed. 543).'

If an arrest is invalid, a search incidental to that arrest is also invalid, and if evidence obtained by a search incidental to an illegal arrest is admitted into evidence and has a prejudicial effect upon the defendant's case, then Fourteenth amendment due process requires that a subsequent conviction must be set aside. Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Conversely, if an arrest is valid, a search incidental to that arrest is proper, and evidence obtained in that search may be received in evidence.

The defendant in this case was arrested vithout a warrant and upon information supplied to Officer Danowski by Mrs. Darling. He argues that since the officer did not have any direct knowledge of Mrs. Darling's reliability as an informer he did not have sufficient probable cause to make the arrest and, consequently, any evidence found during the resulting search should have been suppressed. The defendant frames his argument against the validity of his arrest in two propositions. First of all, he argues that Officer Danowski did not possess sufficient knowledge to constitute probable cause because an arrest without a warrant on an informer's tip requires that the informant be known to the police, and that the police from their own direct knowledge know the informant to be reliable. Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Draper v. United States, supra; Browne v. State, supra. Secondly, he argues that even if the knowledge which Officer Danowski possessed had been communicated to a neutral and detached magistrate it would not have been sufficient to allow the issuance of a warrant under the two-pronged test of Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

In discussing the validity of...