Stelloh v. Liban

• Decision Date: 29 October 1963
• Citation: 21 Wis.2d 119,124 N.W.2d 101
• Parties: Francis Conrad STELLOH, Plaintiff-Appellant, v. Merle J. LIBAN, Henry A. Huc, Elmer G. Pfeifer, John Sweeney, Richard T. Polsen, James J. Behrendt, City of Milwaukee, a municipal corporation, and City of West Allis, a municipal corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 101

124 N.W.2d 101

21 Wis.2d 119

Francis Conrad STELLOH, Plaintiff-Appellant, v. Merle J. LIBAN, Henry A. Huc, Elmer G. Pfeifer, John

Sweeney, Richard T. Polsen, James J. Behrendt, City of

Milwaukee, a municipal corporation, and City of West Allis,

a municipal corporation, Defendants-Respondents.

Supreme Court of Wisconsin.

Oct. 29, 1963.

The appeal is by the plaintiff Francis Conrad Stelloh from a judgment dismissing his complaint for false arrest and imprisonment. The plaintiff was arrested without a warrant at his apartment in the city of West Allis, Wisconsin, at 5:15 a. m., February 4, 1960, by defendant John Sweeney, a captain of the West Allis police department who was accompanied by the other defendants who were officers of either the Milwaukee or the West Allis police department. Four days later a warrant was issued charging the defendant with a misdemeanor, i. e., fornication under sec. 944.15, Stats. After being convicted on this charge in the district court of Milwaukee county, the plaintiff on appeal to the municipal court was found not guilty by a jury. This action was then brought. The defendants denied the illegality of the arrest and allege facts which they claim constitute probable cause. The jury found the defendants at the time of the arrest acted upon reasonable grounds to believe or suspect the plaintiff had committed a felony or violated the terms of his parole from Waupun State Prison. Plaintiff moved for judgment notwithstanding the verdict on the grounds the arrest was not for a felony and if it was, probable cause did not exist. The trial court in a comprehensive opinion denied the plaintiff's motions and granted the defendants' motion for judgment on the verdict.

Dominic H. Frinzi and Nicholas C. Catania, Milwaukee, Shellow & Shellow, James M. Shellow, Milwaukee, of counsel, for appellant.

John J. Fleming, City Atty., George A. Bowman, Asst. City Atty., Milwaukee, William T. Schmid, City Atty., West Allis, for respondents.

HALLOWS, Justice

The appeal comes before us without a bill of exceptions. Without a bill of exceptions, which is now designated a transcript of the reporter's notes by the new rules of this court, sec. 251.25(13), Stats., the scope of our review is necessarily confined to the record before us. Nichols v. United States Fidelity & Guaranty Co. (1961), 13 Wis.2d 491, 109 N.W.2d 131. Obviously, if no testimony is preserved on appeal, this court is powerless to review a question of fact dependent upon it or to determine the sufficiency of the evidence to support the verdict or the findings. In such cases we have said the only question is whether the judgment is supported by the pleadings and the findings or the verdict. Weyerhaeuser v. Earley (1898), 99 Wis. 445, 75 N.W. 80; Parke, Austin & Lipscomb, Inc. v. Sexauer (1931), 204 Wis. 415, 235 N.W. 785, or whether the findings support the judgment, St. Joseph's Hospital of Sisters of St. Francis v. Town of Withee (1932), 209 Wis. 424, 245 N.W. 128. See also cases in 6 Bryant, Wisconsin Pleading and Practice (Funiak & Williams), 3rd ed., p. 500, sec. 52.85. However, in this case the question raised is one of law, discussed and decided in the written opinion of the trial court which is a part of the record before us. The question may thus be considered by this court within the limitations of the record.

The main issue in the trial below was whether probable cause existed for the arrest of the plaintiff. As part of the basis for probable cause the police officers were permitted to testify concerning statements made to them by undisclosed informants. These statements had to do with linking the plaintiff to an abduction and murder of a citizen of Milwaukee about a month earlier and which crime was still unsolved. The trial court sustained the admissibility of this evidence without requiring a disclosure of the identity of the informers and gave no instruction to the jury to disregard this testimony. The plaintiff contends that where the police officers assert that probable cause for the arrest is founded upon information of informants, he is entitled to the production of the names of the informants so their reliability may be tested or in the alternative their names and such evidence of their reliability should be presented to the court in camera so such reliability may be determined by the court. Implicit in the problem is the question of whether there were in fact informants and if so whether such informants were sufficiently reliable so that their information under the circumstances could constitute a basis, either alone or together with what was known to the police, of reasonable cause for the arrest.

The defendants argued no error was committed by the trial court in refusing to allow a disclosure of the names of the informants by the police and in any event the denial was not prejudicial to the plaintiff as there were other grounds for the arrest. These grounds appear in the answer which alleges a citizen of Milwaukee was abducted and murdered in January of 1960 and the defendants were assigned to investigate and apprehend the murderer. Clues were discovered which tended to link the plaintiff with that abduction and murder, and a constant surveillance was maintained by the West Allis and Milwaukee police officers of the plaintiff who was a convict on parole. The plaintiff was suspected because of his conduct in violation of his parole, and in the early morning of February 4th he was seen leaving a downtown restaurant with a woman and driving to his apartment in the city of West Allis. A short time thereafter the lights were extinguished; the police were informed the woman was married to another person. At about 5:15 a. m., at the insistence of the defendants the plaintiff allowed the defendants to enter his apartment and he was thereupon arrested.

It is true this court will assume in the absence of a transcript of the evidence that every fact essential to sustain the judgment was proved upon the trial. Joachim v. Madison Dental Clinic (1934), 216 Wis. 261, 257 N.W. 143; City of Madison v. Chicago, Milw., St. P. & Pac. R. Co. (1958), 2 Wis.2d 467, 87 N.W.2d 251. But the instant case is complicated because the defendant after his arrest was charged with a misdemeanor which he successfully defended and the issue below involved a justification for an arrest for a felony or for violation of his parole.

Perhaps the case was not tried for an arrest of a misdemeanor without a warrant because such an arrest could not be justified on the facts. It could hardly be claimed the plaintiff would 'not be apprehended unless immediately arrested' which is an alternative requirement in addition to 'reasonable grounds to believe that the person to be arrested has committed a misdemeanor.' Sec. 954.03, Stats. No such limitation qualifies the common-law rule for an arrest without a warrant for a felony. At the time of the arrest the defendants did not state to the plaintiff with what he was charged. There apparently was some talk of various grounds but the trial court's opinion points out the arresting officer did not explicitly state the reason for the arrest. However, the lack of such statement does not necessarily invalidate the arrest but it may be taken into consideration in determining probable cause. An arrest without a warrant for a felony is valid if there is reasonable and probable grounds of suspicion or to suspect that the person arrested has committed a felony. State v. Phillips (1952), 262 Wis. 303, 55 N.W.2d 384. Reasonable grounds to believe means 'a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused guilty.' The word 'suspicion' does not mean mere suspicion. State v. Cox (1950), 258 Wis. 162, 45 N.W.2d 100; 4 Am.Jur., Arrest, p. 18, sec. 25; 6 C.J.S. Arrest § 6, p. 584. Nor does probable cause, or as sometimes stated 'reasonable cause to believe,' depend upon the outcome of the subsequent prosecution resulting from the arrest. Probable and reasonable cause in this case depended upon the fact information given to the police and its sufficiency and the reliability of the informants.

The plaintiff admits, as well he must, that there exists a privilege based on public policy on behalf of the government not to disclose the names of the informers. This is a general rule in criminal cases. Wigmore on Evidence (1961), McNaughton Revision, Vol. VIII, p. 761, sec. 2374; see also 76 A.L.R.2d 262. The basis for the privilege is grounded upon the duty of every citizen to aid in the enforcement of the law. To encourage such citizen-participation in law enforcement, it is essential the informer's identity not be disclosed. Regardless of the informer's motive, he is entitled to protection for 'himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him.' ^* In addition, the government has an interest in non-disclosure of informers because of the use of professional informers whose usefulness would be terminated by disclosure. Wigmore on...