State v. Taylor

Decision Date15 October 1973
Docket NumberNo. S,S
Citation210 N.W.2d 873,60 Wis.2d 506
PartiesSTATE of Wisconsin, Respondent, v. John Eric TAYLOR, Appellant. tate 99.
CourtWisconsin Supreme Court

Anthony K. Karpowitz, Legal Aid Society of Milwaukee, Crim. Appellate Div., Milwaukee, for appellant.

Robert W. Warren, Atty. Gen.; Betty R. Brown, Asst. Atty. Gen., Madison, for respondent.

HEFFERNAN, Justice.

I. Circuit Court Case No. H--5601

Milwaukee Circuit Court Case No. H--5601 arose out of the armed robbery of a motel in the city of Milwaukee. The robbery was committed at the point of a sawed-off shotgun, during the evening hours of January 10, 1972. The desk clerk described the robber as a Negro male, approximately six feet three inches tall, weighing about 200 pounds, and wearing a tan coat. On the following morning the police presented a display of pictures of possible suspects to the desk clerk, but he was unable to make an identification. That evening, the defendant Taylor was arrested with two other persons under circumstances which he now claims constituted an illegal arrest without probable cause. His plea of guilty was apparently induced by the fact that the trial court refused to suppress articles of evidence which were the fruits of the illegal arrest. Under the recently created statute, sec. 971.31(10), Stats., he takes his appeal from the order denying the motion to suppress the evidence.

The arrest was made under the following sequence of events. Shortly after 6 p.m. on the evening of January 11, 1972, a Milwaukee foot patrolman, Officer Rehorst, heard a broadcast from the central police dispatcher, which described persons whom he thought were 'wanted' for armed robbery. In fact, subsequent information revealed that Officer Rehorst had misunderstood the radio message. The dispatcher's records show that the following message was broadcast:

'Be on the lookout for below described auto and occupants. May commit armed robbery our city this evening. 1966 bluish gray Mustang bearing Wisconsin license X 55--546. Occupants 3 Negro males described as follows . . ..

'Believed to be armed with a sawed off shotgun and a 45 caliber automatic pistol.

'If car is observed keep under observation and contact Detective Bureau immediately.'

The message described the automobile with particularity, but the description of none of the occupants matched the room clerk's description of the defendant. The message as dispatched did not ask for the arrest of the occupants, nor did it say that the occupants of the car were wanted for armed robbery. Nevertheless, Officer Rehorst testified that his understanding was that they were 'wanted' for armed robbery. His good faith in this respect has not been questioned. A few minutes after Officer Rehorst received this message, he saw the automobile matching the broadcast description, including the license number. He immediately radioed other police officers in the vicinity that he had observed the wanted vehicle and that the passengers in it were three Negro males who were believed to be armed and who were wanted for armed robbery.

The message was received by Officer Leist, and within three or four minutes after hearing Rehorst's message, Leist and his partner in a squad car observed the blue Mustang. They gave chase and stopped the vehicle within a short distance. Officer Leist testified that his purpose in stopping the car, based on the information he had received in the message from Officer Rehorst, was to place the occupants under arrest for armed robbery. Officer Leist had not heard the message from the central dispatcher's office.

The occupants of the car were ordered to get out. They were informed that they were under arrest for armed robbery. When the passengers got out of the car, the interior of the car was illuminated by the lights of the squad car. At this time Leist saw a sawed-off shotgun on the rear seat of the car. Although a portion of the barrel was covered with a case, he saw enough of the object to immediately identify it for what it was. The gun was seen within seconds after the occupants got out of the car. If was seized by Officer Leist.

On the following morning the motel desk clerk was shown an additional display of photographs. The photographs now displayed included a picture of the defendant Taylor, who had been apprehended the night before. The desk clerk identified Taylor as the robber. He also identified the sawed-off shotgun as the one used in the robbery.

Taylor was charged in a complaint on January 12, 1972, and after a preliminary examination was bound over for trial to the circuit court. Upon arraignment he pleaded not guilty, but following the denial of his motion to suppress the evidence of the identification by the desk clerk of him and the sawed-off shotgun, his plea was changed to guilty. After a prima facie case was presented, the defendant was adjudged guilty and sentenced.

The defendant's motion was directed principally to the suppression of the sawed-off shotgun. If the arrest was proper, the shotgun was admissible as the result of a reasonable search for weapons incident to an arrest. The defendant argues, however, that the arrest was illegal in that, prior to the arrest, no probable cause had been established before a magistrate or otherwise that the defendant had committed any crime whatsoever. While an arrest without a warrant is lawful in some instances, defendant correctly points out that probable cause must be established as the basis for such an arrest. Ker v. California (1963), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. The record shows that, prior to the time of the arrest, there was no evidence of any police knowledge that linked the defendant with the robbery at the motel. The source of the central dispatcher's information has not been revealed. No warrant for the arrest of the three occupants of the Mustang had ever been issued. At and just prior to the arrest, the defendants were not acting suspiciously and there was nothing apparent in their conduct that would indicate that they were engaged in unlawful activities or were about to commit a crime. The description of the robber given to the police by the motel clerk did not match the physical characteristics of any of the three men in the Mustang. We conclude that no probable cause had been legally established that would justify either the issuance of a warrant or an arrest without a warrant.

Insofar as the record reveals, no person within the police department had reliable knowledge or information from any source which would warrant a prudent person to believe that Taylor had either committed an offense or was in the course of unlawful conduct. See Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Leroux v. State (1973), 58 Wis.2d 671, 683, 207 N.W.2d 589.

The arresting officer, however, believed there was probable cause for the arrest. He had received information that the occupants of the car were wanted for armed robbery. As was later revealed, the defendant was not wanted for armed robbery at the time of his apprehension and there was no probable cause then for arresting him.

The recent United States Supreme Court case of Whiteley v. Warden (1971), 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, is instructive in this case. Therein, a police officer arrested the defendants on the basis of an all-state bulletin advising that the defendant and another were wanted for burglary. Prior to the broadcast, the sheriff of the county where the offense occurred signed a complaint before the local magistrate and secured a warrant. The defendants were arrested in another county. At the time of their arrest, the officers searched the interior of the car, where they found coins that corresponded with those taken in the robbery; and in the trunk, which they opened, they found burglary tools. It was later determined that probable cause had not been established for the issuance of a warrant, because sufficiently reliable information had not been presented to the magistrate. The court concluded that, where the initial arrest warrant was not based on probable cause, any subsequent arrest based on that warrant was illegal. The court stated, at pages 568, 569, 91 S.Ct., at page 1037:

'. . . the complaint on which the warrant issued here clearly could not support a finding of probable cause by the issuing magistrate. The arresting officer was not himself possessed of any factual data tending to corroborate the informer's tip that Daley and Whiteley committed the crime. Therefore, petitioner's arrest violated his constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should have been excluded from his trial.'

Since there was indeed a search in the constitutional sense in Whiteley, the burglary tools and the coins found in the vehicle should not have been used at trial. The state in Whitely, however, made the argument that the officers who made the arrest had probable cause on the basis of the radio dispatch to believe that the individuals arrested were those described in the bulletin and that it was reasonable for them to assume that whoever authorized the bulletin had established probable cause for the arrest of the fugitives. The state in Whiteley argued, at page 568, 91 S.Ct., at page 1037:

'To prevent arresting officers from acting on the assumption that fellow officers who call upon them to make an arrest have probable cause for believing the arrestees are perpetrators of a crime would . . . unduly hamper law enforcement.'

The Supreme Court responded to this argument by stating, at page 568, 92 S.Ct., at page 1037:

'We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the...

To continue reading

Request your trial
84 cases
  • State v. Matthews, Cr. N
    • United States
    • North Dakota Supreme Court
    • January 31, 1974
    ...of the States by the Federal Constitution. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Taylor, 60 Wis.2d 506, 210 N.W.2d 873 (1973). CONSTITUTIONALITY OF THE SEARCH We start with three basic premises: One, as stated in State v. Gagnon, 207 N.W.2d 260, 26......
  • State ex rel. Briggs & Stratton Corp. v. Noll
    • United States
    • Wisconsin Supreme Court
    • March 3, 1981
    ...see, e. g., Carpenter v. Dane County, 9 Wis. 249 (1859); Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923); State v. Taylor, 60 Wis.2d 506, 522, 210 N.W.2d 873 (1973); State v. Doe, 78 Wis.2d 161, 171, 254 N.W.2d 210 (1977); Terry v. Percy, 81 Wis.2d 693, 697-700, 767 N.W.2d 380, 382-83 (197......
  • State v. Packard
    • United States
    • Connecticut Supreme Court
    • May 26, 1981
    ...State v. Delahunt, 401 A.2d 1261, 1264-65 (R.I.1979); Wyatt v. State, 566 S.W.2d 597, 600 (Tex.Cr.App.1978); State v. Taylor, 60 Wis.2d 506, 522-23, 210 N.W.2d 873 (1973). Since at the time of the voice-up, criminal charges had not been formally made nor had adversary judicial proceedings b......
  • State v. Drogsvold
    • United States
    • Wisconsin Court of Appeals
    • September 25, 1981
    ...613, 625-26, 213 N.W.2d 545, 551-52 (1974); Laster v. State, 60 Wis.2d 525, 532-35, 211 N.W.2d 13, 16-18 (1973); State v. Taylor, 60 Wis.2d 506, 513, 210 N.W.2d 873, 877 (1973); Soehle v. State, 60 Wis.2d 72, 76, 208 N.W.2d 341, 344 (1973); Leroux v. State, 58 Wis.2d 671, 681-86, 207 N.W.2d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT