*1 662 keeping
record, extent of the circulation in mind the 1 defamatory statements and the unsuccessful attempt prove truth,2 we conclude defense damages compensatory reasonable for the award sus- $12,000. tained is arguments concerning
While there are made other regard having issues, we do them merit war- ranting discussion. By Judgment reversed and trial a new Court.—
granted plaintiff twenty days unless within from the of remittitur date of this case remittitur in the files damages trial court of the excessive to take elects judgment damages together compensatory $12,000 damages punitive with awarded. error, Plaintiff in Defendant in error.
Molina, State, v. [Case 51.] No. State error, Plaintiff Defendant in error.
Lopez, State, v. [Case 108.] No. State 51, 108. Argued 5, 1971.
Nos. State November Decided February 3, 1972. (Also reported 874.) in 193 N. W. 2d S., Slander, p. 382, See 53 C. Libel and 264; J. sec. Yavis (1950), 99; 137 Conn. Atl. 2d Sullivan Norman v. Van Star, App. Journal Inc. Peoria 31 Ill. E.N. 2d 805. 2 Restatement, Torts, p. 315, sec. Comment c. *5 plaintiffs For the in by error there David were briefs Saiehek, attorney, A. counsel, & Gaines Saichek of argument all Milwaukee, by and oral David A. Saichek. in argued defendant by For the error the cause was Balistreri, attorney Thomas J. general, assistant with Warren, attorney gen- whom on the brief was Robert W. eral. pick up W. J. Can officers Hansen,
Robert powder they heroin use as evidence have seen public on a speeding scattered from street automobile fleeing occupants police arrest? The commonsense they argue so, would answer seem be can. Not picking up the defendants, powder from the street a search and incident to an constitutes seizure validity such, depends upon arrest. As search legality here, argument con- illegal tinues, (1) arrest because lacked officers arrest; (2) they prob- for the if required procure cause, able were war- placing custody. rant before Each argumentative chain will link be examined its turn.
A A seizure? search? powder picked up police the heroin
When the officers at all? public street, on a was this a search scattered agree. This it not. The trial court found that was We a an examination of has defined search as one’s court exploratory premises person implies “. . inves or . 1 tigation also, quest,” implies prying or and “. . a into 2 places pick up concealed.” To hidden which is away high public onto what thrown or been street has. goes way is not to conduct a search. case before us beyond plain “in view” situation where narcotics standing squad officers, opened door, at an observe syringe lying hypodermic on a There needle bed.3 question police conduct whether under the 4 reasonable,” “. . balance circumstances was . on right effect, had the to be whether officers they they made the observation.5 where were when upon public street, powders sprinkled are there Where right question can be no officers to only they heroin not see what The scattered was saw. view, public where the plain “in view.” It also any pursuing officers, patrolman on the or beat passerby it. could observe here, only there no also no
Not
was there
search
taking. To
from. The
seizure or
seize means
take
taking
something
implies
term
or removal of
“seizure”
1
786,
McCarthy (1970),
781,
W. 2d
State v.
47 Wis. 2d
177 N.
citing
(5th
1957),
819,
Haerr v. United
Cir.
240 Fed. 2d
States
533, 535.
2
332,
citing
(1968),
page 786,
State
Wis. 2d
Id. at
Edwards v.
38
397,
(1969),
338,
2d
v. Dombrowski
44
2d
156
State
Wis.
N. W.
2d 349.
171 N. W.
3
491, 505, 506,
Browne v.
2d
See:
State
Wis.
175, 131
2d 169.
N. W.
N. W.
page
509.
Id.
pages
Id. at
509.
See:
from the possession,
constructive,
actual or
another
person
persons.
Here
have the
observed
situation,
we
occupants
automobile,
the officers, of the
travel-
of an
ing
high speed, emptying
envelopes
the contents
upon
traveling.
the road
were
We do not
here
have
lying
top
an article
davenport,
of a
or secreted under
pillows.
its
We do
have here
article hidden be-
hind a fence or billboard where
intent
to return
some
might
repossess
be claimed.
have an affirmative
We
divesting control,
act of
possession
ownership by
emptying powdery
abandoning emptied
contents and
en-
velopes
public
Literally
onto a
enough,
street.
ais
scattering to the four winds.
Defendants
their brief
*7
“purely
claim that
say
it is
fictional” to
the evi-
dence—the
fact,
heroin —was abandoned.
It is
fic-
tion,
that,
powders
sprinkled
conclude
when the
were
highway,
any
control,
over the
abandonment of
claim to
possession
ownership
complete,
final and irrev-
Supreme
ocable.
the United
As
States
Court held
a
gallon
fleeing bootlegger
away
case where a
a
tossed
jug
picked up
and
bottle
the broken
revenue officers
(with
quart
contents),
a
of its
“. . .
was no seizure
there
law when the
examined
sense
officers
jar
[jug,
been
each
and
it had
contents
after
bottle]
abandoned.
...”
Sup.
(1924),
Hester v.
States
Ct.
United
265 U. S.
Doyle
See also: State v.
Incident to arrest? pursuant to a lawful
A search reasonable seizure However, for arrest a warrant.7 is valid without search legal arrest itself a incidental to be arrest search legal probable legal, to be must and for arrest us, In the case cause for the arrest must exist.8 before But, if we neither a nor seizure. there search dealing stopping of the were with a automobile of the automobile search based believing in- heroin, it contained this be a would search right dependent upon cident to arrest? Supreme con- United Court has held States trary. highest court had before it Recently, nation’s police, warrant, the situation where without based attendant, supplied on information a service station stopped automobile, occupants arrested four its automobile, stop- first at the searched scene Upholding ping, later station.9 such search- es, Supreme rejected the United States Court contention that of the automobile were an searches holding: incident of pass quickly the claim that the “We of the auto- search mobile was courts fruit an unlawful arrest. Both the thought arresting below officers agree. cause to make the arrest. We . . light ample stop compact cause to
had wagon carrying blue station occupants four men and to arrest its *8 proceeds “. . the of an auto on . search cause theory wholly justifying on a search incident different from that to an arrest: 7 supra, Phillips Doyle, page 466, citing v. State State v. Kroening (1952), 303, 384; (1956), Wis. W. 2d v. 262 55 N. State 266, 810, N. W. N. W. Wis. 2d 2d 816. 274 79 80 8 Id., citing (1965), 365, 373, State v. Camara 28 2dWis. 137 2d 1. N. W. 9 Maroney Sup. (1970), 42, 1975, Chambers v. 399 U. S. Ct. 90 rehearing denied, Sup. 23, U. Ct. L. 2d 91 27 26 Ed. 400 S. L. 2d Ed. 94.
ta T—l t- “ right validity ‘The to search and the seizure They dependent right are de not on the to are arrest. pendent seizing on the reasonable has cause officer that the contents the automobile belief offend against at the law.’ United U. v. S. [Carroll States] 158, 159.” (Emphasis supplied.) picking up
So we conclude here that officers’ search; (1) heroin strewn about street not a was (2) seizure; (3) dependent upon was not right their to However, arrest defendants. since appeal challenges legality as well as the validity pickup, question heroin remains as police place whether were officers entitled occupants three of the automobile under arrest.
Probable cause?
At the police placed time the officers the defendants under did have or reasonable grounds probably believe committed crime? Probable cause if the exists facts police circumstances known to the warrant officer police believing a reasonable officer in an offense has been committed.11 Here such facts circumstances police known to the officers included: tip. police The The had received information from a police informer, previously who had furnished them re- information, Lopez liable the defendant “. . . went Chicago for a load heroin.” knowledge. police Prior knew that defendant Lo- pez a heroin user and dealer.12 1 0 pages 46, Id. at 49. 378, 389, v. State Kluck 37 Wis. 2dW.N. holding: quantum “. . Probable cause to arrest refers to that would lead reasonable evidence which officer to believe Quoted probably ap the defendant committed a crime.” with Doyle, page proval supra, in State 466. Lopez A officer testified that defendant was known police department a heroin user and dealer. See:
672
Chechwp. police the two residences The had checked Lopez that he was at neither of defendant and determined of them. Lopez at appearance of defendant The Verification. ap- place
the time said he would the informer had driving Chicago, cor- from pear, back to Milwaukee by the informer. roboration of the information furnished Lopez, The chase. conduct defendant when The away signaled racing stop pull curb, over to the in high speed inference created the for a reasonable basis guilty getaway attempt response that of was the person to the of imminence arrest. The route. Since a court is “bound notice take 13
public geographical positions,” facts general give weight here were entitled to aware- large heroin traffic been in ness has centered 573, 582, 583, Sup. (1971), Harris United States v. 403 91 U. S. 2075, citing approval Brinegar 723, Ct. 29 L. Ed. with (1949), 160, Sup. 1302, United States 338 Ct. Ed. U. S. 93 L. sustaining 1879, Court, finding case “. . . which the as a proper for a held as- warrantless searching previously officer sertion of that he had arrested defendant offense and that the defendant had a for similar hauling liquor. reputation rarely Such evidence would be ad- trial, pains emphasize very the Court missible at but took preliminary trials different functions criminal determina- only . the trial tions cause. . . we deal with [B]efore probabilities technical; ‘are not are factual and everyday practical life considerations on which reasonable and legal technicians, prudent men, act.’ . . . policeman’s knowledge suspect’s cannot that a of a “We conclude everyday reputation ‘practical is not a consideration life’ ... upon (or magistrate) may properly rely an officer which reliability tip. assessing of an informant’s . . .” 1 3 132, 159, U. Carroll v. United States S. 543, citing Apollon, Sup. Ed. 9 Wheat. L. Ct. “ very justly bar, stating, been observed at the ‘It has public geographical to take notice of facts and Court is bound positions; .’”. *10 metropolitan Chicago largest city areas. both in is entry port plane ship midwest and a for and freight passenger and traffic. For a to known addict go Chicago parchase to likely was, to heroin as it is days, bootlegger in Prohibition a for known to cross consignment illegal pick up liquor.14 Detroit River to guilt beyond Where the issue reasonable doubt is probable believing but cause for the occurrence crime, we find than here far more is needed establish probable cause for basis without arrest warrant. fact, development In tip checkup each veri —from strengthened fication to chase to probable arrest — cause for basis a warrantless arrest. was said in As case, justifying another “rapidly gained the events arrest cumulative nearly force.” We not hold do all present all required of the factors here were to establish probable cause; probable do plac we hold that cause for ing clearly under defendants at existed time of the arrests. page 160; stating: at way Id. “We know this that Grand Rapids is about miles from Detroit and that Detroit and its
neighborhood along River, the Detroit which the International is Boundary, introducing is one of the most active centers for il country legally spirituous liquors into this for distribution into the They coming interior. . . . were [the defendants] the direc from great supply Rapids tion of the source of for their stock to Grand they plied they where their trade. That the officers when saw they carrying liquor defendants believed that were canwe have no doubt, equally they think it we clear that had reasonable thinking for cause so. . . .” 15Brinegar supra, page States, United at Mr. Justice concurring opinion: present case, “In the Bueton, from the agents petitioner heavily driving moment that this saw his Oklahoma, evidently Missouri, en laden car justifying route to the events calling interrogation gained rapidly for an of him Nothing cumulative force. occurred that even tended to lessen original suspicion agents of the basis for reasonableness that a crime particular duty being their within line com presence. in their . .” mitted . required?
Warrcmt gears reverse point, At shift this n probable cause existed that, if direction contend and, earlier, place time existed required to secure stage, were such earlier if puts “Even it: an arrest their brief warrant. As existed, obtain officers must first cause ‘grave demonstrate an arrest unless warrant contention emergency.’ Principal .” reliance this . involving case, placed upon search a federal court finding room and no arrest.16 motel *11 us, nor case before neither search seizure There is “necessary were, but, been termed the if what there has a an automobile and difference” between searches of ignored.17 As home or office or motel room cannot be moving given searching stopping automobile, a to illegal probable contraband to believe it or cause contains requirement an contents, there no constitutional “exigent emergency or are called circumstances” what present a be to warrant arrest.18 Whether warrantless 16 (D. 1966), v. D. 251 Fed. United States W. Wis. C. Hoffman Supp. 569. 17 States, supra, page referring at Carroll v. United necessary dwelling store, . . a a search of a “. difference between boat, ship, a a house other . . search of motor or structure . wagon (the holding . . . .” case that under or automobile moving public amendment, a of a fourth search a vehicle on valid may warrant, probable highway a if for the cause without exists). search 18 Hampshire Coolidge 443, 524, 91 New U. S. 564, holding Sup. of L. search Ct. Ed. warrantless parked at invalid auto had been automobile where station driveway at of arrest in his house. defendant’s home time dissenting), summarizing (concurring and Mr. Justice White majority stating page majority decision, at “The 524: effect approves searches of vehicles motion when now warrantless probable-cause hand, warrantless, other searches On the seized. parked in some situations would be but movable vehicles valid justifying only proof exigent upon circumstances the search. purpose moving stopping automobile is, occupants here, case its or to search contents, dif- contraband is “a there constitutional right ference between cars.” to the houses and As involving person, arrest and search cases premises greater searches without warrant have no applicability. fact, procedure In the exact followed was, in our warrant, case as to arrest without upheld by Supreme United States Court.20 Whether moving . .” Of parked the distinction made between auto- (in situations), page mobiles some Mr. Justice comments White “For purposes, Amendment 527: Fourth a difference between moving However, and movable vehicle is tenuous at ma- best.” jority opinion page police may, states at “. . . If the 480: without unoccupied a warrant, seize and search an parked vehicle private property, being any illegal purpose, owner’s used for why they then is hard to a see need warrant to seize and search suitcase, trunk, bag, any a shopping portable a other container garage, yard.” house, in a or back Maroney, supra, page holding: Chambers v. For “. . . purposes, constitutional we see no difference one between on the seizing holding presenting hand a car before cause magistrate carrying issue and on the other hand out im search, mediate search without warrant. Given either course under reasonable Amendment. Fourth purposes “. . . [F]or Fourth Amendment there is *12 constitutional between houses and difference cars.” 20 Draper Sup. v. United States 358 U. Ct. S. summarizing: experienced 3 L. headnote Ed. a “An agent by informer, federal an narcotics told was whose informa always agent reliable, tion the had found to be accurate and petitioner, agent by the whom did know but who was described informer, peddling gone Chicago narcotics, the ob had to to supply, day tain a return a certain train on and would on a certain agent train, easily recognized day pe the or the after. The met description, and, warrant, titioner from the informer’s without a him, hypodermic him and seized narcotics arrested searched syringe possession. in These found his were later admitted objection petitioner’s at the at evidence over trial which he was violating federal narcotics law. Held: The convicted proper- and the articles seized search and seizure were were lawful they horseback, or, foot, on on the were moving no constitution- there was were, automobile, in a arrest warrant procure an requirement police al that the investigation and verifica- proceeding with their before leading to even- them, the tion furnished of information defendants, warrant but based without tual arrest crime had been that a on committed. Right verify ? challenge involved, the
With no constitutional mandate police procedure the relates here followed chal- course taken. What is reasonableness verify the lenged police right of to check or is the accuracy an When telephoned tip from informer. of a telephone rang police station, the line was on previously provided in- had reliable an informer who the con- law violations. When formation on narcotics that, ended, a certain had been told versation person highway, a certain a certain would be time containing driving into an heroin this state automobile city police phoned where and, subsequently, into hung jurisdiction. telephone up, When go magistrate defendants would have warrant, solely telephone on the an seek based investigate Instead out to conversation. set reliability given of the information them. agree procedure “.
We warrant . . im- is machinery government. working portant part of our merely . . . .” and not . an inconvenience to be some- ‘weighed’ against police efficiency. how claims of police efficiency .”. But more than involved in . telephoned tip. check or effort to validate Where predicted no more than that certain automobile will ly petitioner’s (Portions in evidence at trial. admitted . .” ital- procedure preceding parallel icized show arrest without warrant us.) to that used case before 21 Coolidge Hampshire, supra, page v. New 481. *13 highway pass point certain a certain on a more public prudent time, in the certain less we view the automobile interest the election to on check whether city verify at the had left the the fact its return reliability predicted place. time and More than accuracy involved; informer also involved tip of the information then Even if the furnished. reliability justified tipster prior occasions prudence warrant, an the issuance of seeking we see passed tip corroboration or verification of the right verify police here, on. Under the had a facts seeking tip before a warrant. police procedure here followed identical to that by police taken in a recent before case this court.22 tip police case, In that the defendant appear place marijuana would aat certain time and with possession informer, in his came from a citizen rather police than from a “traditional informer.” In that police, upon receiving case, court this found that the procured tip, could have a warrant for the defendant’s doing, arrest.24 Instead of so out set to in- officers vestigate verify They information furnished. drugstore went to the where the citizen informant clerked, and her to interviewed determine the basis tip. (In police her us, the case before checked visiting the two residences of defendant to determine home.) police parked if Paszek, he was at In then squad drugstore keep their car in front of the it un- (In der us, surveillance. the case before sta- State Paszek 50 Wis. 2d 2d 836. N. W. page 631, stating: Id. at this court “. . . It would be unrea showing prior reliability sonable demand the same oí in the case such informer as in [citizen informant] case a ‘tra ditional informer.’ . . .” page finding: 24 Id. at court “. . . this On the basis of the impelled act, information which him to could Officer Danowski have procured a warrant arrest? he defendant’s We believe could.”
678 alongside expressway squad the the car
tioned their driving.) Lopez defendant informer had said would.be drug- appeared the Paszek, in defendant In when predicted would, he he clerk had at the store time placed warrant, under arrest searched. was, without appeared (In at us, defendant before when the case place would, the had he informer said time and city police sought limits, and, crossed when followed had he sign stop place stop him at a under him arrest.) police, of Paszek, “verification of In some reported” termed information was the details of the “safeguard,” was, “need- indeed in but case as degree required ting] [to] be to the in same ap- evaluating ‘tips’ police of a informer.” The drugstore pearance the (page of the defendant Paszek at 682) be corroboration” held to “sufficient probable cause the arrest without warrant. establish seeking here, Paszek, that court held in hold as this We proper, prudent “corroboration” such verification or to-be-preferred procedure. indeed right On the officers seek verification of by furnished them an informant, information decision Supreme recently Court,26 United States cited approval,27 day case, to be noted. In that on the with 631, 632, holding: pages this court “The Id. nature Mrs. scope Darling’s ‘tip’ of citizen falls within informer. .. prior reliability Therefore, the element should not be adhered to. safeguard, However, be can there must some this be satis fied verification of some of the details of the information re degree ported, required but it need not be to same as' evaluating ‘tips’ of a informer.” 26 Husty Sup. v. United 282 U. S. Ct. States L. Ed. 629. 27 Coolidge Hampshire, supra, pages 458, 459, v. New the court cases, [Husty stating: States, supra; In later v. “. . . two United Brinegar States, supra], involving occupied v. United each auto open highway stopped on the and searched for mobile contraband liquor, and reaffirmed Carroll. the Court followed . . .” after not “ States, supra, ing that Carroll United holds ‘contraband petitioner’s warrant, officer law arrest without telephone information had received over illegal liquor defendant had two loads automobiles particular description. person of a (The make and same given before, information found similar re- liable.) acting officer, tip, such found one cars, stopped two when defendant it up, started finding it, eighteen whiskey. car and searched cases of high *15 required,28 court no found that warrant was that cause existed for search of automo- stressing bile,29 “discovery of at the automobile 30 point indicated, Husty,” rejecting the control of suggestion that have a the officers should secured setting verify warrant instead of out to the information telephoned them.31 goods illegally transported concealed and in an or other automobile may warrant,’ vehicle provided he for searched without that ‘the seizing officer shall have reasonable or cause for believ- ing stops that which he automobile and seizes has contraband liquor transported.’ being illegally therein which is . . .” 28 Husty States, supra, page 700, stating: v. United at the court “The Fourth prohibit Amendment does not search, without warrant, automobile, liquor transported illegally pos of or sessed, upon probable if cause; the search is and for the transportation possession precede or need not the search. . . .” pages 700, stating: prob Id. the court “. . To show enough apparent able cause ... [i]t if facts which have sufficient, come circumstances, to his attention are in the to lead reasonably prudent liquor man discreet and to believe that is il legally possessed in the automobile to be searched. . . .” page 701, stating: information, Id. at the court “Here reasonably by reliable, Husty, believed the officer to be that known engaged traffic, illegal possessed liquor to him to have in the been particular description location; in an of automobile the subse quent discovery point indicated, the automobile at in the of Husty; prompt attempt companions control and the his two to escape by officers, grounds when hailed were reasonable for his liquor illegally possessed
belief that would be found in the car. (Emphasis supplied.) . . .” page 701, holding: court “. Id. . . The search was not because, petitioners argue, elapsed unreasonable sufficient time securable?
Warrant seeking veri- to holding police conduct in that the Our constitutionally them both was fy information furnished appear may “on reasonable” permissible and balance alternative two between police election to sustain may be that procedure. In cases some courses grave the offi- that have situation, here doubts but we tip in- from the cers, proceeding on the basis of the given them, obtained could have former as here agree appear Both state warrant. they only have disputing should could, whether that na- exact required But what was the or were so to do. Lopez given? went tip It that: “Jose was ture of Chicago time of heroin.” It true for a load he would then and the route return to this state his telephone given. However, at the travel was time (1) Lopez conversation, appears evident Chicago, way probably not then state his pick up Wisconsin; (2) a load heroin that he went very yet probably made the Chicago, but purchase; (3) purchase pickup possession suspect of heroin made and initial *16 place in the take state Illinois. was to provide that an arrest warrant is Wisconsin statutes appears complaint, “If it from the or from issued be complaint or an affidavit or affidavits filed with the receipt by the officer of the information and the between the procure of the car to have enabled him to a search war- search Husty He could not know when would come to the car or rant. it In such soon would be removed. circumstances we do not how required speculate upon think the officers should chances successfully carrying delay search, out the after and with- scene of one more drawal from the officers have which would was, necessary procure therefore, been warrant. search unreasonable; cause, probable and not . . .” State, supra, page holding 507, police Browne v. “. . . of permitted investigation to conduct ficers should be reasonable suspicion reasonably their aroused. when has been . . .” complainant after an under . . examination oath of the that . there an of- probable . cause to believe that been com- has that the has fense committed and accused supplied.) (Emphasis mitted it . . is the Where against offense of Wis- that been committed law has consin, until defendant with state line crosses possession? heroin in is the within his Wheré offense city jurisdiction police he of these until officers comes, possession, city with heroin in across his the crime that limits? Where is has been committed Chicago all purchase until he ? makes the the heroin Could an arrest issued on warrant be no more cause than time belief future a named at some person purchase illegal would narcotics in another state and, thereafter, probably purchase would with his return to this state? an Can arrest warrant be before issued showing has been without a offense committed person to be named warrant has commit- point ted such offense? is not, appeal, Since on this raised, argued, briefed or content we ourselves with holding appears probable that, it police if the offi- sought had Lopez cers an arrest for warrant defendant given tip them, request on the basis for warrant would have been denied there reason no believe that an offense against been committed laws this state or that by person it had been committed named would, course, informant.34 This pro- make the cedure here followed—which per- we have found to be 968.04 Sec. Stats. Runyon (1926), 647, See: State v. 648, 100 W. Va. 131 S. E. stating: great weight authority country “The sup in this that, ports statute, the rule in the absence of an indictment is fa tally charges subsequent defective if the commission of an offense found, upon to the date which the indictment [cases cited]” (D. 1952), also: See Fowler v. Ross C. Cir. 196 Fed. 2d *17 stating: charged crime cannot “A he futuro.” only course prudent perhaps
missible, proper and — pursued.35 that could have been proper ? Bindover only when the not here be found
Probable cause must also when placed but under defendants for magistrate presiding the defendants over bound hearing. following ar- preliminary trial Defendants gue not for the bindover exist cause did minority A court trial. this of the for agrees proved and “Probable cause was states: power- preliminary examination, and the court was to hold the defendants for trial.” less hearing preliminary in this case was conducted The Judge acting county judge. Circuit J. Foley, Leander hearing, by police preliminary testimony theAt officer Lee, participated in David who defend- arrest following ants, established the facts: tip: approximately . . 9:30 on the 10th of September, information from a in- we received reliable suggested minority opinion that, It is a if warrant for possession following could not tele be secured narcotics Lopez Chicago tip pur phoned going that defendant heroin, Lopez an chase and his wife warrant could have (sec. 939,31, conspiracy been secured for violation of the statute eventually Stats.). require claiming proving This would and Lopez agreed crime, his and commit and wife had combined to together driving Chicago with “. . an act back to effect object. par Conspiracy is establish, . . .” often difficult its ticularly alleged where husband wife who are conspiracy. Something parties to the than fact more along with her needed to wife went husband would be establish knowledge purpose trip her advance of the either or con accomplishing participation planned consequence spiratorial joint undertaking. sought upon If the had here Chicago learning Lopez going to secured arrest warrant for alleged conspiracy, Lopez and wife of an his basis a more perhaps successful, upon spirited, more attack route entirely predictable. have then taken would seems *18 going Lopez former wife to Chi- that Joe and were his cago large quantity pick up of heroin.” County “At the Line 1-94. . . on . Racine Verification: approximately com- 11:30. we observed them [at] ... ing driving city back the in a ’62 Corvette into . . . Lopez’s convertible, occupants . three Mr. auto .. .... city.” We them back followed into the got city, chase: them into the The “We followed ramp Clybourn on we off at time the 22nd and which attempted pull them and Mr. who was Lopez, over driving squad, auto, the, spotted the when he the —observed high up speed.” he took off of 22nd Street rate away: him, The pursuing throw were the “While we occupants punching other two of the were auto holes plastic bags powder shaking of white and on them the disperse powder outside of car to the air.” the the into squad stopped arrest: . other auto. [T]he stopped picked (Q. up We and evidence. ... State you any whether or not the white administered field tests you powder picked up.) A. did. . which I . . (Q. your tests?) And A. what was the result field you They (Q. positive showed for heroin. ... Did ar- possession rest the three defendant of heroin or the defendants?) IA. did.” Laboratory tests: “The vice heroin was taken to the squad, given tests, put police department field in the two inventory registered envelope, in a lock tab sent Laboratory Federal mail Bureau of Narcotics Chicago.” (By stipulation report federal bu- stating preliminary, reau was received in evidence at the three, five, personally picked up by items four and Lee, hydrochloride.) Officer contained heroin telephoned
So the record here an initial established tip, by reliable, believed to be verification tip by Lopez appearing automobile cer- getaway attempt time, tain certain route at a when sought to curb at 22nd defendants’ car emptying Clybourn, powder on the white public occupants automobile, street field laboratory estab- subsequent spot tests on the
test her- the car to be lishing thrown out the substance acting Judge magistrate, found oin.36 Foley, felony com- that a has been probable cause “. . . there is contrary to Sec- a narcotic mitted, possession of wit, further (1) Statutes tion 161.02 Wisconsin *19 that defendant believe probable cause to is there them and of may guilty each and that be must find may “. . court so guilty,” and that be parties these to await probable and commit there cause is 36 hearing, sequence of preliminary this entire At the of time magistrate. preceding Cases before was events evaluating necessary support showing probable of cause inquiry into involve a more limited issuance of a search warrant issuing v. Harris States a warrant. See: United the basis for 2075, 723, stating 573, Sup. 2d (1971), Ct. 29 L. Ed. U. S. 91 403 are to support of a warrant of issuance search affidavits by magistrates com interpreted and in a courts and . . tested ” 577) Aguilar (page v. Texas fashion. . . realistic monsense and 723, Sup. 1509, cited 12 Ed. 2d is (1964), Ct. L. U. S. nothing re requiring than an affidavit . . more “. in Harris as citing: from a credible reliable information received ‘Affiants have being kept marijuana heroin, . are . . person and do believe purpose and premises of sale use for the the above described Supreme 577, 578) Court (pages United The States affidavit, Aguilar held to establish sufficient found the Harris underlying circum probable cause, none of the ‘facts or “contained ” (page 578) affirmation of “. . . ‘mere sus and stances’ determining (page 578) In picion whether and . . .” belief.’ “ through in issue, other sources of ‘Corroboration warrant is ” citing (page 581, proper admissible Jones is and formation . . .’ Sup. Ed. Ct. L. 362 U. States S. United Harris, Supreme Court, emphasizes The United States 697. prelimi very of criminal trials and different functions “. . . probable . . . the trial we nary cause. [B]efore determinations probabilities technical; that ‘are not are only with deal everyday life on rea practical considerations which factual and technicians, (pages men, legal prudent act.’ . . .” not and sonable hearings preliminary applies quote to the conduct of 582, 583) The pretrial “prelimi applications for Both are warrants. as to as well probable nary” cause. determinations trial. probable . . .” On we record, this concur that clearly cause was that a crime had established been com- by mitted and had in fact been defend- committed these challenges ants. As to all raised, fail and issues required. affirmance is
By Judgment order affirmed. Court. — majority (dissenting). opinion J. The Heffernan, completely fails consider record over- facts posture appeal. majori- looks of the case on this The ty opinion apparently upon hypothesis, is based only that, facts now considered this appeal magistrate court on were before the time preliminary of the examination
found on the basis evidence adduced at that hear- ing. clearly contrary. facts record are to the majority None upon which facts relies to show subsequent cause for the conduct and the magistrate bindover preliminary before the at the were question examination. The whether the verdict *20 was on the sustainable basis of the evidence adduced at trial probable or that such evidence showed cause. question posed probable record the whether is cause preliminary for the arrest was at the shown examination probable and whether there was cause to the bind de- majority opinion fendants over for apparently trial. The proceeds on the assumption unwarranted that it is suf- probable ficient to at show trial that cause could have been preliminary shown at the examination but was not. The record that attempt is clear the state did not to prove probable preliminary cause at the examination. proceeding At that merely state’s witnesses asserted that an unnamed “reliable,” informant was but no evi- put dence was in to show basis such conclusional testimony. Such information not was even offered until the time of trial. preliminary testimony
There no whatsoever was circumstances from what from what to show facts re- information was informant that his concluded never liable. Such evidence was submitted —even trial. proof attempted from elicit
Defense counsel to such objections kept prosecutor’s witnesses, but state’s might very have out tended information which magistrate prove apparent that the probable cause. It is Spinelli erroneously thought Spinelli test, that v. Sup. 584, (1969), 398 United States S. Ct. U. controlling in L. Wisconsin case. Ed. was Spinelli there must be that is dual test that teaches tip met if court an informant’s conclude offense sufficient show an has Furlong ex committed. State rel. Waukesha been See County Court N. 2d 333. Wis. 2d 177 W. giving person There must be evidence that in- proved reliability formation and there must be showing underlying revealing of the circumstances how information, the informer received his so that re- liability appraised. tip can be informant’s Because objections put of the state’s and its refusal af- testimony, probable firmative cause for con- is, attempted sign— duct —that stop arrest at the was not shown. All that was was that the shown defend- during ants, attempted an course of threw a substance later street shown to be heroin. showing at the preliminary, The facts shown without a cause for conduct, no did more prove attempted illegal than being arrest. That the case, thereby the evidence obtained was excludable poisonous Wong “fruit of the tree.” Sun v. United *21 (1963), 471, Sup. States 83 407, U. S. Ct. Ed. L. 2d 441.
Probable be preliminary cause must shown the be- fore defendant illegal bound over for is trial. An ar- legal act bootstrapped into a cannot be rest or search correct, post proves to been merely hoc it have because arrested, or that culpable party was that a in the sense guilt. The apparent revealed made that evidence was discovery of contra- legality or or of the arrest search prece- illegal condition by other than means is band be if the evidence is dent that must satisfied be admissible. that by apparently conceded the state clear and
It is There preliminary. proved at probable cause was reliability preliminary to show no at the evidence by required information, as informer his Sup. Aguilar Ct. v. Texas 378 U. S. supra. Spinelli, L. Ed. 2d disregards completely fail- majority opinion
The proof preliminary fact that at the and the defend- ure of have appropriate motions that resulted made should ants stage. in a at that dismissal sought tend- evidence
At trial exclude ground ing cause for the arrest on to show preliminary exam- had tried to elicit it at that by mag- erroneously ination, prohibited but been had necessary questions. posing the The from trial istrate objections judge even to consider these to evi- refused ground inappropriate for on the that would be dence judge county him, judge, circuit who had to overrule acting magistrate preliminary. at the been reliability information Even at trial showing supported not the fact that there was opportunity in- informer had secure reliable happened information formation, rather his but prove to correct. argues opinion persuasively po- majority
The up their for conduct that led lice position perhaps arguably is This arrest. correct. argument flawed, however, for it evi- considers that came first trial. It dence time *22 reasonably majority theme of that the the acted probable attempt and had that an cause prosecutor it is irrelevant therefore failed probable preliminary show cause at examination. proof point On the contrary, sufficient at this was qua holding sine non of for trial. Prob- proved preliminary not able cause was examina- tion, powerless and the court to hold the defendants for trial. preliminary
Under of the state at the facts shown examination, magistrate duty, pro- had the clear as 954.12, vided in sec. Stats. to order “defendant discharged forthwith.” Defendants were their denied right upon constitutional to be tried indictment or in- upon finding formation probable They based cause. were held for trial fatally almost months on a defi- six preliminary. cient majority’s ruling
The effect of the is to convert preliminary nullity. examination into a Henceforth, apparently sufficient is to bind a defendant over for trial without indictment probable without cause be- ing proved. majority’s thinking Under proved can now be for the first time at trial.
It not be the function should of this court to counte- when, criminal nance proce- convictions case, as this process dural due has been observed. justice in
While the instant probably case done— at least in the sense that evidence trial is over- whelming proof in its guilt of the defendants’ ma- —the jority’s opinion really proposition for stands may a citizen be arrested no where cause is prior shown to the actual trial. This smacks philosophy game that all citizens are fair in- privacy. If, guilt vasions their trial, after proved, personal liberty violations are to be excused on grounds guilty have punished. been guilt If in- illegal search, is not an revealed being rights party’s vasion innocent excused necessary to ferret out criminal conduct. facts procedures un- this show that are such case shortcut *23 necessary principles of destructive of fundamental eventually process. due Here, revealed trial facts though arguably, minimally, perhaps would have been probable preliminary sufficient to show cause By countenancing produced could have been then. this sloppy prosecutorial (not police) procedure, all citizens guilty may placed innocent as well as the —the be — being probable trial without justify an cause shown of or seizure A “hard” evidence. case involv- ing criminals who no doubt be convicted should should may that result bad law be to invade the used rights of innocent. simply
The instant case one that have should not gone complaint to trial. The been should have dismissed following preliminary. If, dismissal, after such felt state it probable had sufficient to show evidence cause for a trial, bindover for it could have commenced preliminary another provided by examination, as sec. 955.20, proceed proof Stats. and then with its probable proof cause if such were then available.1 perceives Since, undisputed as the ease, writer facts of this validity it only is the issue, the bindover for trial that is the it unnecessary to discuss the majority doubtful rationale of the opinion. say, judge preliminary Suffice who reviewed finding hearing made the fact that warrant could have been exigent secured and there were no circumstances. majority by asserting would counter this that no crime illegal possession been committed until defendants were county and, therefore, heroin in Milwaukee no warrant se- elementary contrary. curable. Basic and criminal law is 939.31, Stats., provides that, “Whoever, See. with intent agrees committed, pur- crime be with combines another for the pose committing may, crime if parties one or more object ,” charged act its . . . to effect . . does a con- with proof were tried without
Inasmuch as properly proof elicited at without cause and preliminary there was examination show judgments attempted for the having aside, should with the state of conviction be set proceed preliminary exam- election to with second ination. joins
I that Mr. Justice Wilkie am authorized state in this dissent.
State, Plaintiff, Stumpf, Defendant. February Argued January 5, 3, 1972. State 1972. Decided No. 79. reported 842.) (Also 193 N. W. *24 may subject penalties spiracy and that do not exceed the completed provided for crime. maximum clearly The received from the informer information stated that going Chicago pick Lopez up and his wife were heroin and reliably information, obtained, if it to This return Milwaukee. majority, spells conspiracy out the for a asserted basis warrant. It to law enforcement is no service make fantastic as- uncompleted charged. that inchoate or crimes cannot be sertion majority state, court, of this unlike the no time asserted that no argues merely unnecessary. It that it obtainable. warrant was