State v. Pires

Citation201 N.W.2d 153,55 Wis.2d 597
Decision Date05 October 1972
Docket NumberNo. S,S
PartiesSTATE of Wisconsin, Appellant, v. Judith PIRES, Respondent. tate 57.
CourtUnited States State Supreme Court of Wisconsin

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for appellant.

Keegan, Polidori & Zablocki, Milwaukee, for respondent.

CONNOR T. HANSEN, Justice.

The issue presented on this appeal is whether the inculpatory statements of the defendant were seized in violation of the fourth amendment of the United States Constitution and art. I, sec. 11, of the Wisconsin Constitution. The trial court found that the statements came into the possession of the police as a result of an unconstitutional search. The resolution of the issue requires a review of the facts upon which the trial court based its findings and determinations.

November 10, 1970, Robert Pires, husband of the defendant, came home from work about 5 o'clock p.m. and in the bedroom found the defendant lying across the bed. Also on the bed was his infant child who was cold and appeared dead. He testified he thought his child had died from a fall and that his wife was having a nervous breakdown. His wife had been under psychiatric care, and he first called her psychiatrist, then his brother, and finally he called for a police ambulance. He told the police his baby was dead and his wife was having a nervous breakdown. The police ambulance arrived shortly before 5:30 p.m. and took Pires, his wife, and the infant to the hospital. The officers with the ambulance took no items from the house. Pires gave no one else permission to enter the dwelling or remove anything from it. When the ambulance left, no one remained in the home.

Lieutenant Halaska testified he was in the Safety Building in Milwaukee at about 5:20 p.m. when he received a police radio dispatch to go to the defendant's address because of a report that there was supposedly the body of a child and a semi-conscious woman in the dwelling. When he arrived at the home, he observed no activity. Very shortly a police squad with two uniformed police officers arrived. They all went to the front door, rang the doorbell, received no response and found it locked. Halaska then stationed one of the officers at the front door and he and the other officer proceeded to the back door. They knocked on the door, received no response, and upon finding the door unlocked, entered the premises. They immediately began a search of the house for victims or someone responsible for the victims. They first went to the kitchen and then to the bedroom. Their search produced no one and they did not observe the inculpatory statements of the defendant that were lying on a stand near the bed.

Sometime very shortly after this search of the premises, it appears, Halaska somehow learned that the defendant and the child were at the hospital. About 5:40 p.m. Detective Schreiber arrived at the residence. Schreiber testified that Halaska and the two uniformed officers admitted him through the front door of the premises. He was told by these officers that the apparently-dead child and the defendant, both apparent victims of an overdose of drugs, had been conveyed to the hospital from the bedroom. After this conversation, the officers all went into the bedroom and while in the bedroom they observed a clipboard on a night stand next to the bed with a pad of paper. Examination revealed that the top four pages were the inculpatory statements of the defendant which are the subject of this appeal. The officers took possession of these writings.

Halaska's testimony is somewhat ambivalent. In response to an inquiry by the court, he testified he knew nobody was in the bedroom after the first search and that there was no further reason for him to make a further search of the room. Later, however, he testified that the first search was done rather quickly and, therefore, a second search was necessary. Halaska further testified that he had no knowledge that the police ambulance had arrived and departed until after the search. He does not identify what he means by the use of the words 'the search.' If he is referring to the first search of the premises, his testimony can be reconciled with that of Schreiber. If Halaska is referring to the completion of the second search, his testimony is in conflict with that of Schreiber.

The trial court determined that the officers, without a search warrant, had a legitimate reason to enter and search the premises for victims. As to the second search, the trial court, in effect, found that once the officers had determined no victims were in the bedroom they had no constitutional right to conduct a second warrantless search. The trial court determined the note was not in plain view and in order for the officers to see it they had to be searching for evidence and not victims. The trial court, therefore, found the second search to be unconstitutional and entered an order suppressing the evidence obtained on the second search of the premises.

It has been held that credibility of police officers and others testifying at a hearing outside the presence of a jury relating to the voluntariness of defendant's incriminating statements is a question for determination by the trial court. Madkins v. State (1971), 50 Wis.2d 347, 184 N.W.2d 144. Also, we have held that when a trial court has made detailed findings of fact in connection with a confession, review of evidentiary or historical physical facts will be limited to the same review used in other factual disputes heard and determined by a trial judge. The findings of the trial court will not be upset unless they are against the great weight and clear preponderance of the evidence. State v. Carter (1966), 33 Wis.2d 80, 90, 91, 146 N.W.2d 466.

On appeal, the same standards apply for review of an order suppressing evidence. In the case now before us, we are of the opinion that the findings of the trial court were not against the great weight and clear preponderance of the evidence.

However, in prosecuting this appeal, the state presents several arguments in support of its right to seize the inculpatory writings.

One contention advanced by the state is that under the facts of this case, an 'emergency' existed and, therefore, the warrantless search of the dwelling fell within one of the 'well-delineated situations' justifying such a search.

Coolidge v. New Hampshire (1971), 403 U.S. 443, 454, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, holds:

'Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' '(T)he burden is on those seeking the exemption to show the need for it.' . . .'

The search of a dwelling presents a different situation than the search of a movable vehicle. From Carroll v. United States (1924), 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543, 39 A.L.R. 790, we find there is:

'. . . a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.'

The 'emergency doctrine' or 'exigent-circumstance rule' is founded upon the actions of police which are considered reasonable. The element of reasonableness is supplied by the compelling need to assist the victim or apprehend those responsible, 1 not the need to secure evidence.

The trial court found that the initial intrusion into Pires' dwelling was justified under this doctrine. We agree. The fact that, in reality, no one was in the dwelling, does not alter the justification for the initial entry.

In State v. Davidson (1969), 44 Wis.2d 177, 170 N.W.2d 755, the police officers observed blood on the outside door and large quantities of blood and broken glass inside the house. This court held the police officers' warrantless intrusion reasonable. However, a warrantless entry into the dwelling three days later for a further search was held to be unconstitutional.

In State v. Hoyt (1964), 21 Wis.2d 284, 297, 128 N.W.2d 645, 651, the police officers received a telephone call reporting a shooting at the Hoyt residence. The police officers received no answer to their knocks on the door but observed through the window a body on the floor. This court held:

'In the instant case the purpose of assisting the victim if still alive supplied a compelling reason for immediate entry, quite apart from the purpose of prosecuting for crime . . .

'We conclude that in the present case the officers lawfully entered the home and their observations incidental to lawful entry did not constitute an unreasonable search.'

The difficulty in applying the exigent-circumstance rule to the instant case comes into focus as a result of the second intrusion into the bedroom. Halaska testified he did not see or observe the writings on the first examination of the bedroom. It appears he knew the baby and its mother were at the hospital before the officers made the second visit to the bedroom. Most important, however, is the fact that he testified that after his first entry into the Pires' bedroom, he knew nobody was in the bedroom and there was no reason to make further inquiry into the bedroom.

Therefore, if the seizure of the inculpatory writings is to escape the taint of unconstitutionality, the rationale of the exigent-circumstances rule, applicable to the first warrantless entry of the bedroom, must somehow be extended...

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