State v. Starke, 76-727-CR
| Decision Date | 03 January 1978 |
| Docket Number | No. 76-727-CR,76-727-CR |
| Citation | 260 N.W.2d 739,81 Wis.2d 399 |
| Parties | STATE of Wisconsin, Plaintiff in Error, v. Murill STARKE, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Murill Starke, defendant in error, moved to suppress evidence seized pursuant to two search warrants. The trial court granted the motion to suppress the evidence and in doing so issued three orders. Writs of error issued at the instance of the State of Wisconsin, plaintiff in error, to review these orders.
Edward S. Marion, Asst. Atty. Gen. (argued), for plaintiff in error; Bronson C. La Follette, Atty. Gen., on brief.
Willis B. Swartwout III (argued), Gary L. Heiber and Swartwout & Heiber, New Berlin, on brief, for defendant in error.
The defendant, Chief of Police of the village of Pewaukee, was arrested on August 6, 1976, in his office by Lieutenant James Chase, Detective John Willert and two other detectives, all of the Waukesha county sheriff's department. The arrest was made pursuant to a complaint and warrant dated the same day, which charged the defendant in error with the following four offenses: (1) Theft, contrary to sec. 943.20(1)(a), Stats.; (2) procuring and causing to be presented a false and fraudulent insurance claim, contrary to secs. 943.395 and 939.05; (3) obstructing justice, contrary to sec. 946.12(3); and (4) misconduct in public office, contrary to sec. 946.12(3).
The fourth count concerned a warrant issued December 12, 1975, for the arrest of Starke's niece, one Linda Edwards, on a charge of speeding. The complaint alleges that although Starke told two officers that the speeding fine had been paid and the matter had been settled, a check of the court records indicated that the warrant was active and had not been served, and that the fine had not been paid. According to the complaint, Linda Edwards had been seen at Starke's home on several occasions but had not been arrested as required by law, and officers of the Pewaukee police department did not feel that they could apprehend Linda Edwards in view of her relationship to the defendant.
In the course of his arrest, the defendant read or was read the charges against him, including the fourth charge, the alleged failure to execute the Linda Edwards arrest warrant. At that point the defendant removed from his desk and exhibited to the officers a warrant for the arrest of Linda Edwards. The defendant testified that he offered the warrant to the officers, and they refused it; they denied that the warrant was offered to them.
In any event, Starke then returned the warrant to a drawer on the right hand side of his desk, closed the drawer and locked it before being taken to the sheriff's department.
Approximately three hours later, at about 7 p. m., Lieutenant James Chase obtained a search warrant authorizing the search of "(t)he police department offices located at the village hall . . . in the Village of Pewaukee . . ." for "(o)fficial papers, warrants and other property belonging to the Village of Pewaukee," as evidence of misconduct in public office, contrary to sec. 946.12, Stats.
This search warrant was issued by a circuit judge on the basis of an affidavit executed by Lieutenant Chase. This affidavit stated that an investigation of the defendant's conduct as chief of police had indicated that laws had been violated; that evidence of such violations might be found in the defendant's desk and files; that when the defendant was arrested, he had produced a certified copy of a warrant which was the subject of a pending criminal charge against him, and had locked the warrant in his desk; and that the defendant had refused the demands of the Pewaukee village trustees and village police committee that he surrender his keys.
The search warrant was executed at approximately 8 p. m. Upon opening the desk drawer, the officers recovered the Linda Edwards warrant and an arrest warrant for Kenneth E. Hanson. They then proceeded to inventory other items in the desk, files and office, and seized some thirty-six items from the desk, including an envelope containing money.
On August 13, 1976, a second search warrant was issued, authorizing a search of the Waukesha County Marine Bank, Pewaukee Branch, for ". . . (a) checking account having records of deposits and pay-outs on monies which were properly the funds of the Village of Pewaukee from the account of Murill Starke . . ." This warrant was supported by the affidavit of Waukesha county sheriff's Detective John R. Willert.
Willert's affidavit stated (1) that he had participated in a criminal investigation of the defendant; (2) that it had been learned that the defendant, using police department stationery, had ordered five revolvers for the use of the village; (3) that the revolvers were sold to the defendant at police department prices, with a federal tax exemption; (4) that the defendant had sold one of the revolvers to a private citizen and received a check for $155, some $53.60 more than the price of the revolver; (5) that the check had been payable to the defendant and had been endorsed and cashed by him; (6) that the affiant was in possession of a copy of this check; (7) that several identified checks executed by the Waukesha County Technical Institute to the order of the chief of police had been endorsed by the defendant personally and not by the village clerk-treasurer, the rightful recipient of the funds; (8) that police department books were being audited, and (9) that the banking records were needed to complete the audit and the investigation of possible misappropriation of funds. The return on this second warrant stated that examination of the defendant's bank records indicated that two deposits constituted possible evidence.
On September 2, 1976, an amended complaint was filed charging the defendant with nine counts of misconduct in office. A second amended complaint was filed on November 24, 1976. This complaint charged thirteen counts of misconduct in office.
In January, 1977, a special prosecutor was appointed, a request for substitution of judge was granted, the defendant waived preliminary examination, and the information was filed.
Defendant then moved to suppress the evidence obtained in the two searches and the "products" of the searches. At the hearing on the motion, on April 7, 1977, the trial court heard testimony regarding the issuance and execution of the first warrant, withholding decision on the state's argument that it would be improper to supplement or go behind the record which had been before the examining magistrate. No testimony was taken with regard to the second warrant. The trial court subsequently ruled that a reviewing court must restrict its inquiry to the record before the magistrate at the time of issuance of a search warrant, thereby indicating that it had disregarded such testimony given at the hearing. 1
On April 22, 1977, the trial court granted the suppression motion. The court found that the first search warrant was not supported by probable cause because the supporting affidavit did not state that the affiant had seen the Linda Edwards warrant nor did it state the nature of the pending charges or their relationship to the items sought. The trial court considered a reference in the affidavit to a second warrant observed by the affiant to be irrelevant. The court also indicated that allegations regarding the defendant's refusal to surrender his keys were not adequately substantiated. Further, the court held that the warrant was overbroad in its description of property to be seized and in permitting a search of the entire office of the defendant.
With regard to the second warrant, the court considered the supporting affidavit inadequate because it did not state how the affiant had obtained the copy of the check used to pay for the revolver, how additional checks represented criminal activity, why it was significant that the checks had not been endorsed by the village clerk, which of the defendant's bank accounts was to be searched, or why the checks were significant.
The trial court stated that its suppression ruling extended not only to the evidence seized in the two searches, but also to "everything which was obtained" after the August 6, 1976, search warrant. After a recess, the state moved for a continuance to allow it to appeal from the suppression order. This motion was denied. In view of these rulings, the prosecutor stated that he could not present a prima facie case and was unable to proceed. At this point the defendant's counsel moved to dismiss the prosecution, and the motion was granted.
On the basis of these rulings, an order dismissing the prosecution and discharging the defendant was entered on April 22, 1977. A second order was entered May 6, 1977, suppressing the evidence obtained pursuant to the two search warrants and all evidence obtained subsequent to execution of the first warrant. A third order, also entered May 6, 1977, denied the state's motion for a continuance. Writs of error issued to review these orders.
Other facts are set forth in consideration of the issues which are:
1. Did the trial court err in suppressing the evidence seized pursuant to the search warrant of August 6, 1976?
2. Did the trial court err in suppressing the evidence seized pursuant to the search warrant of August 13, 1976?
3. Did the trial court err in suppressing all evidence obtained by the state subsequent to the execution of the first search warrant?
4. Did the trial court abuse its discretion in denying the request for a continuance?
5. Did the trial court err in dismissing the action?
Before considering the issues, we first observe that it is our conclusion that this case must be remanded for an evidentiary hearing.
SEARCH WARRANT OF AUGUST 6, 1976.
This search warrant was directed to the office of the defendant, Chief of Police. At the outset, the state argues that because of the facts...
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