United States ex rel. Beal v. Skaff

• Decision Date: 26 November 1969
• Docket Number: No. 17748.,17748.
• Citation: 418 F.2d 430
• Parties: UNITED STATES ex rel. Harley J. BEAL, Relator-Appellant, v. Michael SKAFF, Warden, Wisconsin State Reformatory, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

418 F.2d 430 (1969)

UNITED STATES ex rel. Harley J. BEAL, Relator-Appellant, v. Michael SKAFF, Warden, Wisconsin State Reformatory, Respondent-Appellee.

No. 17748.

United States Court of Appeals Seventh Circuit.

November 26, 1969.

E. J. Morse, Jr., R. R. Roggensack, Lancaster, Wis., Morse, Morse & Roggensack, Lancaster, Wis., for relator-appellant.

Robert W. Warren, Atty. Gen., of Wisconsin, Sverre O. Tinglum, Madison, Wis., William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.

Before CASTLE, Chief Judge, MAJOR, Senior Circuit Judge, and HASTINGS, Senior Circuit Judge.

CASTLE, Chief Judge.

Petitioner, who is presently incarcerated in the Wisconsin State Reformatory, appeals from the denial by the district court of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On March 21, 1968, petitioner was convicted in the Grant County, Wisconsin, Circuit Court of illegal possession of marijuana in violation of Section 161.275(1), Wisconsin Statutes. The marijuana was seized in petitioner's home during a search conducted pursuant to a search warrant issued by a magistrate. The issue presented to the district court and on appeal concerns the validity of that warrant.

On October 23, 1967, a federal law enforcement officer informed the Grant County district attorney that a parcel, bearing the postmark of Lexington, Kentucky, having no return address, and addressed to petitioner at his residence in Platteville, Wisconsin, had been observed in the United States mail at Milwaukee, and that the contents, which were believed to be marijuana, were leaking out. The package, which had been sent by first class mail, was subsequently intercepted by local law enforcement officers in Platteville. The chief of police was permitted to examine and "dope" the outside of the parcel with a fluorescent chemical, but was not permitted to take any of the contents which had come out of the package.

Upon concluding his examination, the police chief informed the district attorney that he believed the parcel contained marijuana. The district attorney then swore to a complaint to permit a search of petitioner's residence for the parcel. The complaint is a printed form with certain portions to be completed by the affiant. As a part of the printed form there appear the words, "in and upon certain premises * * * there are now located and concealed certain things, to wit:". Immediately thereafter was typed a description of the parcel and its contents, the addressee and postmark, and the statute believed to have been violated. Following this section of the complaint appeared the facts which were advanced to support the issuance of the warrant:

"Complainant is the District Attorney for Grant County, Wisconsin, duly elected, qualified and acting. On Monday, October 23rd complainant was informed that the parcel described above had been seen by a reliable informer while in the U. S. Mail in Milwaukee, Wisconsin, and that said parcel had been damaged and the contents thereof were leaking out; that said informer is an employee of the U. S. of America, charged with duties of law enforcement and stated that he believes the contents of such package are marijuana; that said informer is acquainted with marijuana and knows its appearance in processed form; that said informer believed that the contents of such package was marijuana because of the odor, because of the presence of certain small seeds therein and because of the color and shredded form of the leaves; that Lexington, Kentucky is an area where marijuana grows wild in the U. S.; that complainant has made an investigation and is informed and believes that the premises located at 495 W. Mineral St., Platteville, Wis. are occupied by one Harley Beal, who is a former resident of the State of Kentucky; that said Harley Beal is a free lance writer, presently unemployed, and wears a beard and long hair; that the source of such information is a reliable official at the Wisconsin State University of Platteville, Wis., where the said Harley Beal\'s wife is employed as an instructor; that the complainant is informed by the acting Post Master at the City of Platteville that said parcel will be delivered at or about 12:34 P.M., on October 24, 1967, by carrier delivery to said premises."

The magistrate issued the warrant at 12:15 p. m. that same day in Lancaster, Wisconsin, which is approximately 16 miles from Platteville. The search commenced at 12:45 p. m., during which the marijuana was retrieved from a toilet bowl in petitioner's home. The parcel had actually been delivered to petitioner's residence at 11:59 a. m., but this fact was not known at the time by the complainant or the magistrate. Before the police executed the warrant, they consulted with an officer who had been stationed outside petitioner's home for several hours, and had been informed by that officer that the parcel had been delivered.

"It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention." Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723, n. 1 (1964) (emphasis in original); Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Thus, in...