*1 Shirley Abra- I am authorized to state Justice S. hamson concurs this dissent. error, Defendant Plaintiff in error.
Laasch, Argued May June No. 1978. Decided 1978. 76-374-CR. 278.) (Also reported in 267 N.W.2d *2 argued by plaintiff For the in error the cause was Paul, public defender, Robert J. assistant state with Eisenberg, whom on the were Howard B. briefs state public defender, and James R. & Glover Shellow Shellow, counsel, of Milwaukee. argued by
For the defendant error cause was attorney Petersen, general, H. James assistant with whom attorney general. Follette, on the brief Bronson C. La was HANSEN, review, Karyn CONNOR T. J. On this D. (hereinafter defendant), Laaseh raises several issues. However, the resolution of the issue of whether the de- unlawfully arrested, causing fendant was the trial court personal jurisdiction, dispositive to lack of this review. February Village 5,1975, On the afternoon of Brown police Deer detective John Bendtschneider observed the police informer, defendant she $50, as sold to ap- proximately gram purported one of what she to be cocaine. Chemical tests later confirmed that the sub- approximately stance was a form of At p.m. cocaine. evening, that the defendant apart- was arrested in her ment, warrant, without a on basis of the sale which day. had been observed earlier that police believed the defendant to be intoxicated at arrest; overnight time of her she was held and the gave day incriminating next police. to the statements telephonic Bail was set communication with a cir- judge. cuit do not bail, We know amount of the posted the defendant never custody bail. remained in She February 7, 1975, evening. morning, she that The next at- of an assistant district at the direction released cooperate torney, understanding that would on she attempting the arrest police in to secure with the drug apparently These efforts involved sales. others proved unsuccessful. custody, days taken into
Thirteen after she was first midnight shortly February the de- before on rearrested, warrant, her without a inside fendant was dispute, testified, apartment. and the state did She neighboring find apartment returned from a she waiting apartment, inside her officers five-year they admitted her old son. had been charged delivery subsequently The defendant contrary 161.41(1) cocaine, 161.16(4) to secs. timely (b), By moved to motions the defendant Stats. *3 legality challenging prosecution, the of her the dismiss had arrest and the of the statements she voluntariness argued given police. trial the motions were the These prior preliminary and were to the examination court for trial. denied. The defendant was bound over hearing evidentiary At T. before CHRIST SERA- again argued Judge, PHIM, the defendant Circuit illegal lacked and that the trial court the arrest was personal jurisdiction The found that over her. trial court proper and that the defendant’s state- the arrest was Commencing voluntarily her made. ments had been continuing throughout appearance in initial court court, proceeding in defendant has entire the trial the the unlawful and that the maintained that her arrest was jurisdiction. personal lacked trial court therefore grounds. challenged The arrest on three First is the thirteen-day delay acquired police the the between time probable cause to believe the defendant had committed arrest. the fact that crime and the time of her Second is home, of her the arrest involved warrantless nighttime. at fact that the effected third is the arrest was circumstances, asserts, Under these the defendant unlawful, without a warrant was clear absent some exigency justifying warrantless arrest. juris-
The state trial asserts court obtained diction over defendant at the time of her initial ar- rest, by undisputedly supported which was cause arrest, jurisdiction and that this not lost when was released, bail, the defendant was without at the direction attorney. of an assistant district The circumstances of subsequent irrelevant, re-arrest are therefore state contends. argument persuasive. jurisdiction not
This
The
of a
person
court
depends upon
over the
of an accused
physical presence
judge.
of the accused
Pills
before
bury
State,
(1966);
N.W.2d 187
quoted
Lampkins
564, 570,
51 Wis.2d
erg
N.W.2d
See also:
alb
v. State,
W
73 Wis.
2d
591 person crime, arrested a Rinehart v. has committed However, 760, 768, con- 323. she N.W.2d regardless statute, tends that of this her warrant- second seizure of her less arrest constituted unreasonable person prohibited the fourth amendment to the United I, 11, Constitution, States and art. of Wisconsin sec. Constitution. rejected argument
This court that whenever has so, there is time do a obtained to warrant must be before making felony State, supra, In Rinehart v. at adopted this court the rationale of States United (E.D. 751, 1972), Supp. 747, 750, v. Millen Wis. 338 Fed. that: “ long probable exists, ‘. . . as as cause for an arrest unnecessary,
arrest warrants to obtain them. 223, 13 even where there time Ohio, Beck v. (1964)....'" 85 Ct. See S. L. Ed.2d 142 Watson, (1976),
In United States Supreme felony approved Court a warrantless arrest public days made in a after the ar- restaurant six some resting probable officers had cause to believe obtained possession had mail in accused stolen violation of emphasized U.S.C., There, Supreme 1708. sec. Court necessary inquiry not whether the officers only had time to obtain a there warrant, but whether cause for the arrest. The Court held that power public place to make such in a exigent dependent upon proof any was not circum- impracticable made it stances which to obtain a warrant. declined court prosecutions “. . to encumber criminal . with endless litigation respect to the existence of circum- get stances, practicable warrant, whether it was suspect flee, whether was about and the like.” Watson, supra, United 424. States Pre-Arraignment Similarly, the Model Code Proce- proposed the American Law dure Institute in 1975 *5 a reason- approves there is arrests whenever had com- person that arrested able cause to believe require to an officer felony “. not mitted a and . . does opportunity if even a reasonable arrest under a warrant Pre-Arraign- exists.” Model Code to obtain warrant Commentary (1975), and ment Procedure 120.1 sec. thereto, p.at 303. delay argument in the second
No advanced that the defendant, any way prejudicial and to was in appear it that the defendant from the record does delay. any way by prejudiced prob- undisputed There evidence of was sufficient and thirteen-day arrest, able instant and the cause for the and the arrest interval the date of the offense between not, by itself, does invalidate the by tainted However, we conclude that the arrest was entry the warrantless of the home. The state defendant’s necessitating war- identifies no circumstances entry, any evidence rantless and record is barren exigency. pursuit”; The arrest not made in “hot safety persons; there there was no threat to the of other destroyed, was no risk that since the evidence would be delivered had been seized at the time substance previous suggestion arrest; any dispelled feared the defendant would flee is fact approximately that she had been released for two weeks. given entry. Nor was valid consent for the The de- fendant testified that the officers were admitted to her apartment by five-year her old son. Consent to an lightly inferred, is not to be but must be clear shown convincing Kelly State, evidence. 75 Wis.2d 316, 249 N.W.2d burden is on the state free, intelligent, unequivocal specific show Gautreaux v. waiver. 190 N.W.2d showing Here there no has been five-year possessed defendant’s old son capacity, constitutionally give intelligence, authority *6 the midnight entry, and, under effective to the consent entry can case, an facts of this a valid consent such App. People Jennings, not v. 142 Cal. be inferred. See: Linder 160, (1956) ; v. 56 United States 2d 298 Pac.2d 123; v. (E.D.N.Y. 1940), Supp. State man, 32 Fed. (Del. Super. 1964), Atl.2d 270. Malcolm 203 presents the fundamental The case at bar therefore any whether, question in the absence of of constitutional exigent may sus- circumstances, police officer enter a a pect’s in order to make a warrant- home without consent involving previous In arrests most cases less entry home, propriety of warrantless the defendant’s the validity brought question, of into has been simply has as- in-house arrest been warrantless sumed.2 specifically con-
In cases where this court has those validity arrests, in-house sidered the warrantless grounds upheld that valid con- on the have been arrests exigent given circum- or that sent was impracticable a John- it to obtain warrant. made stances 352, 344, 351, State, 249 593 75 N.W.2d son v. Wis.2d 390, v. 675 (1976); State, 246 N.W.2d West 74 Wis.2d 2 in which Fourth Amendment “The most common situation police been have arisen has that which enter issues carry suspect’s premises, him, and then out a arrest warrantless police . act and seizure of evidence . . Where without search may argue warrant, suspect that arrest warrant an arrest necessary, arrest, there or that was no cause beyond valid, the search seizure went even if the Perhaps permissible each these lines attack limits. because litigable issues, question plethora the more fundamental offers arrest a man in his house without war of when the has been little considered in the federal courts. This Court rant validity on a number of occasions to assume the of an has chosen scope decide the ease it on issue arrest and before E.g., supra. permissible California, v. warrantless search. Chimel Coolidge Hampshire, 403 . v. New 476 . .” e.g.: also, State, 378, 385-390, Kluck v. Wis.2d See 37 155 N.W.2d 26
594 supra. present
(1976); State, Rinehart However, v. con- case nor neither valid involves circumstances entry. sent to the involving prop personal
Cases searches for articles of erty amendment, that, make one’s clear under the fourth dignity sanctity. v. special home is entitled to State McGovern, (1977); 203, 214, 252 365 77 Wis.2d N.W.2d 477, Holt 468, 117 N.W.2d Wis.2d (1962), cert. denied 844. It is a fundamental 374 U.S. rule inside searches and seizures dwelling place per unreasonable, rule is se and this subject only specifically to “a and well- few established exceptions.” States, delineated Katz United 614, (1967); Elam, State v. 229 N.W. (1975); Pires, 2d 664 State v. 201 N.W.2d *7 police may probable The fact that the have subject cause to believe that to are within articles seizure dwelling standing cannot, alone, justify a a warrantless entry Coolidge supra, 389; Kluck v. at search. v. Hampshire, supra, 450; States, New at Jones United (1958). Rather, exigencies of the situation entry Coolidge must make imperative. warrantless Hampshire, New supra, at 455. regard to searches, Supreme
With such Court has said: right “The of to officers thrust into a themselves home grave only concern, is ... to a and freedom from a not to the individual but society security which to in chooses dwell reasonable right pri- surveillance. When vacy reasonably yield right must to is, as search rule, by judicial a officer, by Johnson v. to be a decided police- a government agent.”
man or enforcement States, United suggests The state govern that a different rule should dwelling warrantless of one’s entry entries when is arrest, to effect an made rather than to effect a search. exigent particular While circumstances sufficient entry support to effect a warrantless justify entry differ for a war- from those which would entry search, rantless we believe that the warrantless dwelling governed by prin- is the same constitutional ciples, entry whether the made to effect a is search an arrest. Coolidge Hampshire, supra,
In v. New at Supreme Court observed that: entry “. . . the notion a man’s per house in se order arrest him on cause is
legitimate prin- inis fundamental conflict the basic ciple of Fourth Amendment law that searches per seizures inside a se house without warrant man’s unreasonable absence of some one of a number ‘exigent of well defined circumstances.’ . . .” The fourth amendment United Constitu- States I, tion and art. sec. 11 of the Wisconsin Constitution guarantee right people of the to be secure “[t]he persons, houses, against papers effects, their unrea- (Emphasis added.) sonable searches and . seizures. . .” arrest, taking quintessen- An person, hold of one’s tially seizure, disruption and the invasion and of a privacy man’s life and which from stem arrest are his ordinarily greater attending far than the intrusions premises. search of his In the absence cir- cumstances, therefore, we believe the of one’s dwelling subject to effect an arrest to a re- warrant exacting quirement applicable than that no less where *8 entry the made is to effect a search for papers one’s and effects. of this
This conclusion
in accord with decisions
is
which,
Supreme
in
court and of the United
Court
States
upholding
dwellings, have
warrantless
within
arrests
exigent
predicated upon
presence
circum-
been
entry.
justifying
State,
stances
warrantless
West v.
State, supra;
supra;
supra;
v.
Rinehart v.
Johnson
Santana,
(1976);
v.
States
38
United
Warden
these
Hayden,
v.
The fact
exigency attending
rely upon
arrests
decisions
underlying rule that a warrant
reflects adherence to the
exigent
required
in the
of such
circumstances.
absence
Coolidge
supra,
Hampshire,
See:
v. New
at 479-481.
by
Appeals
This rule
for
was followed
Court
(D.C.
District
in Dorman v. United States
Columbia
1970),
Cir.
435 Fed.2d
There the court said:
385.
principle,
“. . .
basic
constitutional
safe-
[T]he
guard that,
exceptions,
with room
citizens the
for
assures
privacy
security
judicial
of their homes unless a
applica-
overridden,
officer determines that it must be
only
entry
property,
ble not
to search for
but
case
entry
suspect
also in
. . .
case of
order to arrest a
Subject
exceptions
circumstances,
that constitu-
principle prohibits
privacy
tional
home
invasion of the
unconsented
unless need therefor has been
determined
a warrant.
í(
‘exigent
‘urgent
“Terms like
circumstances’ or
need’
underscoring
heavy
useful in
burden on the
to show that there was a need that
could not brook
delay
obtaining
only
incident to
a warrant and that
it is
light
in the
of those circumstances and that need that the
avoiding
warrantless
search meets the ultimate test of
condemnation under the Fourth Amendment as ‘unrea-
supra,
Dorman,
sonable.’
at 390-392.”
Accord:
Reed,
United
(2d
States
572 Fed.2d 413
Cir.
1978); People
Ramey,
Rptr.
127 Cal.
545 Pac.2d
(1976);
Forde,
Commonwealth v.
367 Mass.
(1975) ;
Shye
We absent dwelling entry of without one’s consent effect a war- felony probable cause, rantless arrest on is unlawful.3 holding imply general Our does arrests in by exigent justified circumstances, must be but rather is limited home, to warrantless entries into consent, one’s without for the purpose making a warrantless *9 any showing In the instant no case there has been resulting in this The incident circumstances. prosecution days prior occurred thirteen to the arrest defendant. At the time of the incident she custody of an taken direction into and released at the attorney anticipation apparent assistant district gaining investigation cooperation defendant’s drug arresting gained of other The transactions. officers apartment, by permission to her absence, access her in her five-year Furthermore, old child. no reasons why approxi- place advanced as to the arrest at took mately midnight. By timely objections, the defendant has at all times maintained the arrest was unlawful jurisdic- personal and that the trial court did not have tion.
It is our that, determination under the facts this case, the the defendant was and the unlawful acquire personal jurisdiction trial court did not of the judgment defendant. Therefore the of conviction must be reversed. disposition
In view of our case, of the do reach we the other issues raised the defendant.
By Judgment reversed. Court.— (concurring). SHIRLEY S. ABRAHAMSON, J. principle privacy security which assures citizens the and of their homes is I, embodied in sec. 11 art. of the Wisconsin Cons titution1 as well in the as fourth amendment important to the United States Constitution.2 It is I, provides: Const., Sec. art. Wis. right people “The oí the to be persons, houses, secure in their papers, against and effects unreasonable searches and seizures violated; not be shall no warrant upon probable shall issue but n cause,supported by affirmation, oath or particularly describ- ing place persons to be searched and the things to be seized.” Amendment, Fourth Const., provides: U. S. right people “The of the secure in be persons, houses, their papers, against effects, unreasonable seizures, searches and *10 of our decision independent basis
the state constitutional has Supreme Court emphasized. The United States be supreme repeatedly courts remanded cases to state its specify whether the direction that the state court constitution, con federal on the state the decision rests 409 Krivda, stitution, e.g., v. or See both. California (1972). year, the Su 33 Just this United States preme the constitu that we articulate Court directed Terry v. rel. in State ex tional basis of our decision Percy 487, Schubert, 109 74 Wis.2d 247 N.W.2d Terry, 808, 98 Ct. 40 S. Long by the fourth it constrained to do so before was Con- to the United States and fourteenth amendments relying stitution, on the Constitu- this court Wisconsin right people the of the to be tion and enforced sustained persons, houses, papers, effects in their and secure Hoyer against In unreasonable and seizures. searches 417, (1923), Mr. 407, N.W. Wis. writing court, the Eschweiler, for described Justice I of importance art. Constitu- of sec. Wisconsin people state as follows: tion of Const., I, supra, pledge art. is a of Wis. “Sec. government state, people that the of the faith the state (with express possible no or all alike mental reservation good only), it for and innocent secure that in their unreasonable is shall be houses, against persons, and effects papers, security has search and seizure. This pledge by violated vanished and the state acting guarantees state, it of the under when officers state-given authority, and color of search seize unlaw- provision fully. pledge of this and that sec. use is made of are each violated when one such evidence by courts other of own its That its officers. guilty is, really proper a conviction one result —that violated, upon issue, not be and no Warrants shall shall but cause, supported affirmation, particularly Oath or describing place searched, persons things to be or be seized.” may be neither an excuse thus reached is offense — nor condonation of the the state of that use which is so the result of its own violation its own fundamental charter.” Yinje similarly
Mr. Chief Justice viewed the state guarantee against constitutional unreasonable search organic seizure part as a of this fundamental of the law state: “. . . It that, is also said if as this searches such made, prohibition cannot be This enforced. law cannot be may part be true in it in whole. The be true having answer that an its article of constitution origin Magna *11 spirit in the if not in letter of the Carta prevents it, duty that it court to sustain and permit entirety, enforce in its and not constitution presently what seem to mode be desirable procedure portions to annul such fundamental of our organic law as freedom from unlawful searches. importance provision may sight of such a lost of in be peace well-organized
times of
in a
and well-administered
state,
as
conceived it
but
times
stress or dissensions its value is
great
as those who
inserted it
the constitution
163,
to be.” Jokosh v.
181 Wis.
Our decision inis with this court’s standing interpretation art. I of sec. the state constitution.