*1 it, opinion “are to be in puts resolved favor of the de- fendant.” these comments will
Perhaps make it somewhat easier for counsel to understand when there can be ah on appeal state within the framework part of the constitu- tional barrier.
I am authorized to state Mr. Dieterich Justice in this joins concurring opinion.
Holt, State, error, v. Plaintiff in Defendant error.* 30, 1962.
September 7 October * denied, costs, rehearing on January Motion for without 1963. *5 For in and oral error there were briefs argu- plaintiff ment Sherwood Slate of Milwaukee. by
For in cause was argued by the defendant error the Bowers, assistant William A. Plats and John H. attorneys with whom on the brief were John W. Reynolds, general, district attorney and William J. attorney general, McCauley, Aladin of Milwaukee and oral also A. county, argument DeBrosso, assistant district attorney. can The defendant’s contentions be grouped
Gordon, J. into five categories: separate Search and Seizure.
1. Unlawful were that her constitutional rights The defendant urges admittance to the when the officers gained infringed upon and also when of her husband they at the invitation home a search warrant. without searched the premises the officers was consistent The husband’s act of admitting on the had at least equal prerogatives his status. He with admit to his home. had others authority premises far as the court did United have to as go do not We 69, 74, 210 Fed. 1954), (2d) Cir. States v. (7th Sferas it said: when established that where seems to be well
. the rule . use or to the rights occupation have equal two persons search, consent to the evi- either may give premises, either.” can be used against disclosed dence thus case, the offi- no search conducted by In instant of the husband’s admitted having strength cers the sole *6 them; officers did until with and the met nothing they defendant. to the spoke Dent 371
The defendant relies upon People (1939), v. 33, 1020, Ill. deem case dis- 19 N. E. but we (2d) on its facts. In case the search and seizure tinguishable was the officers their entrance to by the premises; warrant, a search the officers the doorbell having rang out, and entered when a called in.” was not voice “Come It voice, of a the defendant’s but rather was that companion. an The Illinois did not this invitation the court consider by defendant or else who was authorized to admit by anyone seizure, officers. The search and which was made the conducted after the with- immediately improper entry, from out authorization the defendant. any A is this close court: Was the trial question presented court’s that Mrs. Holt consented to the search finding all reasonable under the circumstances of this case? noted that the the outset it should be prohibition At the amendment is now to evidence sub Fourth applicable mitted in state This was not true at the time of courts. decision. He relied Steffes’ Judge properly upon Wolf 25, 1359, v. Colorado 69 338 U. S. Ct. 93 Sup. (1949), however, 1782; L. latter has been Ed. the case since upset Ohio, 643, 1684, 81 6 v. 367 U. S. Ct. Mapp Sup. by 1081, 19, 1961. In L. Ed. decided on (2d) reversing June Colorado, v. Case held that evidence ob Mapp Wolf searches and seizures in violation of federal tained by in a criminal in a constitution is inadmissible trial state court. those cases federal court which have
Accordingly, of consent to search and examined seizure question In are to our decision. Channel v. United States germane 217, 219, 285 Fed. the court (2d) Cir. said: (9th 1960.), “A search and seizure be made without a search may warrant if individual his freely intelligently gives search, uncon- consent unequivocal specific coercion, duress actual or implied. taminated or by any clear and The has the burden proving government that such consent was given.” evidence positive in Judd v. United. States A similar standard is expressed it is Fed. wherein C. Cir. (2d) (D. 1951), testi- must be clear positive said that “consent proved by mony.” find demonstrating
Another reluctance expression without a search and seizure where there has been consent 1954), Cir. States v. Arrington (7th a warrant is United 630, 637, said: 215 Fed. where the court (2d) *7 their of dis- is that courts place stamp “It time high federal officers increasing this practice approval upon of con- a warrant on the theory a home without searching sent, a search why reason is shown where no particularly afforded by The protection was not obtained. warrant upon be made dependent should not Fourth amendment a search on to justify an officer attempting probity citizen Otherwise, to the the rights guaranteed consent. as to become little be so impaired the amendment will by ¿n empty gesture.” more than showing an adequate can little doubt that upon There be may a defendant one’s search of premises of consent to the Milyonico his constitutional rights. an invasion of not claim 937; 53 Fed. (2d) 1931), States Cir. v. United (7th Fed. (2d) Cir. 291 1961), v. Ziemer (7th United States 111, 116, 300 100; 239 Wis. v. Zuehlke (1941), State 269 United States (1925), v. 746. Cf. Agnello N. W. 4, 20, 32, L. Ed. 145. Ct. 70 S. Sup. U. in- of the circumstances that the maintains
The defendant of an the existence demonstrate and seizure stant search fact that of the Holt by reason unfair pressure their showed who officers confronted by police she was such with that compliance it is urged of authority; badge and not con- to be compulsive should be held authority out that State v. sensual. The defendant points Warfield W. 56, 61, court 198 N. this quoted 184 Wis. (1924), the following: “ officer, ‘It be first an premised politely must where threat, act has assumed to and without physical decently if de jure, he is de acting in his official capacity, facto, action, resent the
and a should not citizen peaceful forcibly act, is, as to the he knows the officer greatly even though belief confidently upon his exceeding authority, resting of his constitutional this submission will not impair any held, for, such action have as the courts repeatedly rights; or search to an unlawful not be taken be a consent will of the arrest, to officers but a submission merely peaceful ” law.’ the defendant’s posi- case which tends support Another Ohio, 1921), 270 Dist. v. Slusser (S. tion is United States said, 819: the court at page Fed. where Slusser, by after declaration “The search so permitted officer, his that they a display badge, with prohibition such consent was not by there to search the premises, were as will amount to but, on rights, a waiver of constitutional submission to is be attributed to peaceful contrary, the law.” officers of em- the technique concerned about
This court is deeply evi- incriminating which the in the instant case by ployed *8 police by The practice employed dence was obtained. breaches of an invitation to case constitutes in the present in his to be secure citizen’s right and threatens the peace flaw, in the as suggested It has the additional home. officers to Case, police of supra, encouraging Arrington and to buttress technique circumvent the search-warrant of con- consent for purposes a claim of searches with their a conviction. desire to obtain venience or the overzealous of consensual scrutinize claims are to enjoined Trial judges to satisfy in a dwelling place made and seizures searches was, in the of the Channel themselves that consent words Case, coercion, or actual or “uncontaminated duress by any implied.” obtain search a is to way place
The to proper dwelling and a is entitled to special dignity search warrant. A home States v. Rabinowitz It is noted that United special sanctity. 56, 64, Ed. S. Ct. 94 L. 339 U. (1950), Sup. a a and which was search seizure incident approved However, noted that lawful the court expressly arrest. room to “the of a business which the the search was place officers, was invited.” public, including in- Mrs. Holt and freely Was the consent on the part duress or it contaminated by Was telligently given? Holt’s noncon- Was the search the result of Mrs. coercion? mindful of the author- foregoing sensual submission? Fully ities, is nevertheless accord court this majority consent Mrs. Holt’s with the trial conclusion that judge’s and was voluntary freely given. in the instant case was record. For ex- conclusion the entire We base this Mrs. described on two different occasions Holt ample, use force any didn’t “They officers’ conduct as follows: were courteous pretty through- on me in any way, they them to “I never told out get out the questioning.” me treated they the house. were They always polite there.” were they while courteously of statements The additional examples record contains court’s which trial Holt tend support made Mrs. her consent to the search. gave that she freely conclusion privately, asked to talk to the officers When an- “Yes,” invited the officers into and she answered Holt After the room, of her husband. presence out of the other baby placed had delivered that she admitted defendant furnace, asked her if she Gaurke Officer Robert into the it basement, an- and the defendant take them would *9 “Yes,” and swered then led to the basement. In the way defendant, asked, the the basement without being to pointed the furnace said the in that was there. Gaurke baby said, her asked to into furnace go the and she permission to, “If want you go ahead.”
While we admonish the technique we against employed, are satisfied that the trial court could conclude reasonably no abuse occurred in this case. To particular avoid case, in the inherent “brinkmanship” present police would do well to till investigate interrogate they have evidence to of a enough issuance search warrant. support officers, It is for without a appropriate police search having warrant, to call a at suspect his home for the pur- him; however, of with if poses there is to be an talking actual search a is home it better that it be made with warrant, a search rather than to on consent. rely
2. Admissions and Confession. Mrs. Holt contends her admissions and confession were obtained and should not have been illegally received in evidence her. It is true against unquestionably that with- her out own declarations Holt could not have been found of murder. Her guilty their challenges receipt follow two argument: lines of principal The statements (1) were not reason of her voluntary by been having detained without food for six on police hours her day arrest, which time she was during constantly interrogated, (2) officers failed her of her apprise constitu- tional not to incriminate herself. right record,
We have examined the carefully and we are that Mrs. satisfied Holt’s declarations were voluntarily made. The instructed jury properly her disregard if statements it were they believed It is voluntary. her to the given noted that statement district taken attorney, counsel, confirms presence large number of *10 the state at the which were relied upon by the admissions trial. an in this state that accused
There is no hard-and-fast rule not to incrimi- right be of his constitutional must informed 7 This in State v. Bronston (1959), nate himself. court 641, 504, 627, 97 N. W. said: (2d) Wis. (2d) at officials “The was not advised by police defendant I, 8, of sec. art. time of his his under interrogation right Const., that in- to refuse to answer questions might Wis. inadmissible criminate not him. Confessions are necessarily self- against failure to advise of the constitutional right for 582, 586, 259 Link v. (1935), incriminaton. State Wis. 416; 428, 261 N. State v. Whatley N. W. W. (1933), 245 N. In the instant case we 210 Wis. W. 93. defendant, because of his intelligence are convinced that the education, publicity and the magazine newspaper of has in the few past years right that been given self-incrimination, such was well aware of citizens against at time of his tight interrogation.” of she had two completed years Holt testified that school, and was that she read newspapers pretty high an the time. is not with the events of She well conversant court in whose behalf the illiterate or unintelligent person law-enforcement upon stricter standard might impose self-incrimination. against relative the privilege officers addition, that she was there was credible testimony In amendment. en the Fifth While rights aware her under that she was heard state headquarters route to the police further based questions did intend to answer any she not This reflects the Fifth amendment. pronouncement which obviates doubts any of her rights an awareness a caution she needed about otherwise exist that might herself. not to incriminate right constitutional Case, supra, writing Mr. In the Bronston Currie, Justice court, 641: “We the prac- stated at commend page for arrested persons officers informing of law-enforcement tice accused crime of such constitutional before right ques- them.” tioning We reiterate that but suggestion opine failure to do so will render the product of the interroga- tion inadmissible it unless that the defendant appears education, reason of his or other circumstances intelligence, has been imposed upon.
3. Sufficiency Evidence. The defendant contends that there was insufficient evi- dence to convict her in that the delicti corpus was not proved *11 by evidence her of confession and independent that there was insufficient that the proof infant was at alive time the. it was in furnace. There the is no placed merit to these contentions. delicti,
With reference to corpus the we recognize that number of states have the rule adopted the urged by de Wisconsin, however, fendant. The rule in has been set down in 234, Potman v. State 259 (1951), Wis. N. W. where this Stated: (2d) court “It is contended on behalf of defendant that the judg- ment convicting of the crimes in the charged informa- because, tion cannot be sustained contend, her attorneys —as n —the state failed to establish the corpus delicti in- extrajudicial of her dependent That confessions or admissions. be in would true under the law that in some respect American jurisdictions, but that is not the rule in this state.”
All the elements of the crime do not be have to proved confession; of an independently however, accused’s there must be some corroboration of confession in the order to a conviction. Such support corroboration is in required order to a confidence in truth the of produce the confession. corroboration, however, The can be far less than is necessary establish crime of independently the confession. If fact, there is of corroboration any significant that is suffi- cient under Wisconsin test. a chárred human torso at bar the finding
In the case fur- in the an eight-to-nine-month gestational period with in- sufficient of the residence constituted nace defendant’s corroboration. dependent in at the time it was the child was alive placed
Whether an for The judge’s furnace was issue fact the jury. on issue this responsibility instructions made jury’s clear: crystal if have reasonable doubt as to
“Obviously, you any alive or if have rea- whether such child was born you any at that such child was alive the time sonable doubt defendant, or that at act of charged killing against alive, knew such child was then you such time the defendant find of the defendant and must resolve such doubt favor the defendant not guilty.”
The which the jury’s finding testimony supports wit- child was alive came from numerous shows Richard Adams nesses. Officer testified: it born “I asked her if the when was crying baby cried ‘Yes.’ And she told me it and she said then also it into the furnace.” when she threw further Officer Gaurke testified that he questioned Robert fur- Holt he was the ashes from the removing while *12 nace. He said: I I Frances if she am that asked Mrs. Holt doing
“While alive, I and said And knew if this was born she ‘Yes.’ baby said, said, know born alive?’ And she ‘How do it was you asked, ‘Well, was And then I did ‘It cried when it it born.’ it in she ‘Yes.’ when the furnace?’ And said put cry you more, said, ‘Did—do mean to you I her once I And say asked in she it when it furnace?’ And you cried the put ” ‘Yes.’ said he overheard that Marino testified that Officer Albert with Holt: conversation Yes,
“Q. recall of the conversation? A. any Do you parts baby the was born if the cried when baby he had asked her ‘Yes,’ and she and he also says asked did she hear the as cry she was baby into the furnace putting baby and she said ‘Yes.’
“Q. You heard A. Yes.” that? Officer Hobus also confirmed the conversation de- Joan scribed by Robert Gaurke. Officer Hobus testified: He
“A. had asked Mrs. Holt she how knew the was baby cried, alive she said she said it had he said cried?’ ‘It And ‘Yes, when in it cried it was and it bedspread and,’ said, cried on the she ‘it hamper cried in the furnace.’ And he said ‘You mean the cried in the furnace?’ baby And she said ‘The cried I while fire.’ baby was lighting
“Q. Did he make any comment to at you this time? A. Yes. “Q. What was He the comment? A. told me to put in
statement my notebook. “Q. Did Yes, you have notebook with A. I you? did. “Q. And did put the statement you the notebook? Yes, I A. did. “Q. Do you remember what words were? A. Yes. “Q. What were the words? A. I ‘Baby cried while was ” the fire.’ lighting
Mrs. Holt at testified the trial that the child was not born but there were other declarations Holt which by Mrs. alive^ tended to the statements support aforementioned wit nesses. Mrs. Holt described her the: into taking baby bathroom after birth. its She was asked:
“Q. Was the was A. It baby crying? just laying there. And I was all I again so excited think could towas try him, it from keep it where try get my wouldn’t husband hear it.” (Emphasis added.)
Mrs. Holt also that she felt life she testified while with This pregnant the child. tends corroborate the ex- life, istence itself it although by would not prove child was alive when born or when in the furnace. placed
4. Testimony. Receipt Degrading of has set forth instances of allegedly The defendant are convinced that evidence. We improper degrading in connection no committed with there was error prejudicial In of instances asserted the defendant. view the by the it was inevitable that charged, sordid nature the offense Little like from the record could read scarcely something state should that the entirely proper Women. It offer minutiae surrounding charged evidence of the unsavory Holt’s of sexual crime. The details of Mrs. comprehension menstruation, intercourse, and the of child- aspects physical in this trial. birth were unavoidably necessary she In of the defendant’s claim that disposed view her husband to know of its because she did want body birth, of the child. to explore illegitimacy it was proper life, to her schooling, The evidence relating family all matters to touched upon germane marriages previous can no relevancé court and We see jury. the issues before the aid as her for been to having interrogated receipt to children, satisfied that this error was but arewe dependent her. not prejudicial
5. Charge Jury. in the claims that the language The defendant employed invaded the province instructions to jury jury’s court’s court that the considered unintentionally suggesting alive in the furnace. fact when We placed the child was that the claim instructions conclude examined the have of merit. devoid is completely affirmed. Judgment
By Court.— I direct would not any (concurring). Fairchild, J. for failure to obtain officers war- at criticism police Mrs. Holt. The information talk with rant before going *14 484 a a of states was a report by neighbor them
which aroused The could be over- Holt had made. report ment Mrs. to obtain Holt’s looked, judgment seemed but it good action on other the initiating any before side of the story alone. the basis of report Mrs. Holt that she officers said to had that the
Proof would made to search have refuse permission the right consent, I in the that join suggestion a clearer case of for officers to such give practice be an excellent it would here, the circumstances described under But information. reason, officers were satisfied that once the see no I would search, leave her home in or- the Mrs. Holt consented warrant. to obtain search der I with the ma- disagree (dissenting). Dieterich, J. the conclusion in this case that support that the facts jority a search of her home. consented to freely defendant methods used deplores police The majority opinion not erase the murder case. This does fact instant in the constitutional. those practices holds the opinion officers had first saw police they the defendant When entered with hus- That they her room. living entered immaterial, is is the' fact that defendant band’s permission en- a hostile situation immediately upon was confronted I Under these conditions do own room. living tering consent to a search can said defendant’s it be not think and “uncontam- free, unequivocal, specific, intelligent, coercion, actual or Chan- implied.” duress or inated by any 1960), 285 Fed. Cir. (2d) States (9th nel v. United 219. as are consistent with the acts the defendant
The submitted to lawful in authority that defendant proposition as are and seizure to the they proposi- the search permitting to such search consented freely that defendant tion seizure.
485 constitution The Fourth amendment to the United States I of the constitution protect and sec. art. Wisconsin houses, secure in their to be persons, rights people effects, unreasonable searches and sei- against papers, all This is a basic without people excep- zures. right of Mr. I with the dissenting opinion tion. agree Justice Douglas States where he made this Abel v. United in the of the contained guaranties comment on eroding *15 criminals—like amendment: “Cases notorious Fourth small, make bad law. miserable ones—are. cases of apt record, re- sometimes judges even permeates When guilt sanctioned con- lax take shortcuts not by and let police . . . The harm case given stitutional procedures. But seem excusable. the practices generated by may harmful that are consequences have precedent far-reaching measurement.” and injurious beyond be con- constitutional should An individual’s guaranties not in favor of the individual and the government. strued case, fails Therefore, facts of this the prosecution under the doubt, a reasonable beyond lack of evidence to prove, for search consented to the home. that defendant freely 1 States constitution. “The Fourth amendment to the United houses, persons, papers, and people in their right of to be-secure seizures, effects, shall be searches and against unreasonable issue, cause, violated, probable sup no shall but warrants affirmation, particularly describing the by or ported oath searched, persons things or to be seized.” and the place to be provision relating constitution The of the Wisconsin Note: seizure, I, language as uses the same sec. art. searches above, punctuation. slightly but with different 217, 241, Sup. (1960), v. States 362 U. S. Ct. Abel United by 668. A five-to-four decision with a dissent 4 L. Ed. (2d) Douglas concurred, Black with whom Mr. Mr. Justice Justice Brennan with which Messrs. Chief and a dissent Mr. Justice Douglas Warren, joined. Black and Justice Justices