*1 Furlong, Respondent, ex rel. State Coun Waukesha ty others, Appellants. Court Argued May 1970. No. June 1970. Decided (Also reported 333.) 2d 177 N. W. *5 argued Betty appellants R. For the cause attorney Brown, general, with whom on the assistant attorney general, Warren, Robert W. brief were county. Roger attorney Murphy, P. district Waukesha *6 by Lowry, respondent awas brief Hunter For the there Tikalsky argument by Scott V. & Waukesha, and oral Lowry.
Wilkie, J. Prohibition.
I. confronting pro- court is whether The first issue this proper method for hibition in circuit court was against him in the to criminal action defendant test the county court. very in a of re- have number
We considered this issue cent “. . . not whenever decisions.3 Prohibition will lie 4 remedy corpus adequate other is available.” or habeas any prosecution suppress
Defendant seeks which a warrant evidence seized result search as illegally he contends was issued. syllogism is: framework of defendant’s
The skeletal Judge by con- Dancey warrant issued search defective; a stitutionally as the defendant arrested illegal search; during an obtained result evidence therefore, defendant’s arrest is invalid. argument a variation this or record reveals by consistently defendant made been
thereof has syl- further, throughout the above action, and this reasoning Judge in logism for Voss’s provided the basis granting prohibition absolute. the writ by habeas his contentions could test defendant
But other inappropriate when corpus. this Prohibition was 3 432, 2d 45 173 Ceci Wis. ex Cullen v. rel. See State (1969), 176; Wis. ex v. 2d State rel. N. W. Roraff Jefferson (1969), 42 691; v. Stoltz ex rel. Dore N. 2d State 2d 170 W. therein. 214, and cited 2d cases N. 2d 167 W. Wis. page supra, at Ceci, footnote ex rel. Cullen State adequate remedy, corpus, habeas was available test for ing alleged illegal this search.5 proper jurisdiction
II. Assumed to test sea/rch. prohibition proper remedy and, While was not the any event, prose- circuit court should have barred Furlong alleged cution of crimes, for his it within power Furlong’s illegal circuit to declare arrest court’s based as it was on evidence seized a result of a search illegal made under cover of an warrant. Since Furlong corpus, regard could reach this habeas we will Furlong’s petition being petition to the circuit court as a *7 corpus. for habeas
III. Search.
illegal?
So the issue now is:
theWas
search
Furlong premises
accomplished
The
of the
was
by
by Judge
a
Dancey.
virtue of
search warrant
issued
may
It
a
is well established that
search warrant
issue
only upon
finding
probable
by
a
of
a
cause
neutral and
magistrate.6
probable
necessary
detached
cause
to
be shown for the
of a
issuance
search warrant
less
is
justify
than
evidence which
the
would
condemnation or
competent
preliminary
be
in a
per-
examination.
It is
a
missible in this state for
search warrant
to be issued
hearsay
magistrate
However,
based on
information.7
the
provided by
must be informed in the manner
963.02,
sec.
Stats.,
underlying
supporting
of the
circumstances
the
complainant’s
informant,
averment that the
whose identi-
5
573,
196;
v. Kanieski
State
30
2dWis.
141 N. W. 2d
Fleming (1964),
606,
841;
Wolke v.
24
2dWis.
129 N.
2d W.
denied,
Sup.
897,
certiorari
380 U. S.
85
Ct.
showing reliability those of an informant were Aguilar Texas.9 in State v. Mr. Justice of Heffernan, Aguilar 2, 1970, quoted fol- Williams, decided June as lows: “ hearsay ‘Although may an be in affidavit personal ob need reflect the direct
formation and States, affiant, v. United U. S. Jones the servations magistrate 257, underlying the the informed of some of must be con from which informant circumstances the they claimed cluded that narcotics were where he the were, underlying from circumstances some the informant, whose which the officer concluded identity the Rugendorf disclosed, not be v. United need see States, “credible” or information 376 U. S. his from Otherwise, “the facts “reliable.” which inferences “by a complaint” lead to the will drawn not be magistrate,” and detached as the Constitution neutral “engaged by requires, often instead, police officer in the but a ferreting crime,” enterprise competitive out States, supra, 486; Johnson v. Giordenello v. United at or, supra, an States, case, in this United at Aguilar, supra, 114, 115.” unidentified informant.’ at Johnson, at the time he testified to obtain
Detective warrant, informant reliable asserted dealings past him in had with and that and that he *8 by testimony proven Subsequent had reliable. informant flatly At contradicted assertions. Detective Johnson these hearing July it that Detective the 9th was established dealings previous no with the infor- had Johnson had 8 citing Aguilar 108, 114, 84 Id., v. Texas 378 U. S. Sup. 1509, 12 Ed. Ct. L. 2d 723. Aguilar expanded Supra, Requirements of were footnote supra, by Spinelli States, after the decided v. United footnote inapplicable. case and therefore was issued in this search warrant 01 Williams, p. 242, 177 ante, 2d 611. N. W. State v. mant; therefore, impossible per- would for him to it be sonally reliability. to the attest informant’s appears may
It it be conceded that the sec- that while prong Aguilar by ond can the in the test be met facts record, prong The the has not been this first satisfied. argument Johnson, answer- that Detective when state’s ing reliability informant, questions to of the the as thought “you” questions col- the in the that used was referring Department, lective to the Waukesha Sheriff’s specifically detective was asked wheth- is untenable. The acquainted informant, personally to er he with the was replied affirmatively. which he Thus, probable it there sufficient is submitted Judge acting magistrate, to cause for issue Dancey, Judge Dancey may the search warrant. It well be that appeared had than record information other what in the probable fact, ap- would In which establish cause. it is brought parent everything from record the itself that not judge’s reported attention on The the the record. Judge Dancey illustration this is himself was the to refer to the defendant name. It is im- first possible on review to know what other information this elementary passing . . It that in was: “. on validi- is reviewing ty warrant, may only aof court consider brought magistrate’s information to the attention.” Arrest.
IV. remaining perhaps underlying issue and issue is: Can an arrest be this entire discussion an invalid ? circuit court concluded that it could not. We
agree. apparent purpose police
It enter- in is ing Furlong premises make not to an immediate 11 Aguilar supra, page Texas, (em at footnote note 1 phasis original).
525 being committed, for a that arrest crime had been or was purpose searching premises but rather for the the and obtaining upon might information an then which arrest by be made. fact is evidenced abortive This the search Since, submitted, warrant. as been war- has the search invalid, rant if was it can be treated it did as not exist. analogous State,12 pro- Then this to Allen v. case a is stopped by case, hibition wherein era the defendant was police liquor per- two and he asked if had officers his son, affirmatively. replied to which he A fol- search pint liquor a lowed and found on the defendant. followed, upon by An the arrest evidence obtained the search. conviction was Defendant’s reversed this court, which said: legal they “Had the officers made a arrest would have justified been the officers would have finding their in of the defendant. Or had search legal they made a of the search defendant justified making upon been in an arrest violating defendant the law. But the officers They arrest; they neither. had no did warrant had no assuming So, warrant to search. that the arrest was search, illegal
made before the the arrest was and the following illegal; assuming or, search the search illegal arrest, was made before the and search the arrest based thereon a il- without warrant was 13 legal.” Allen, case, In in the instant absence probable results there was no for search cause justify the arrest. To a a as an incident of law- ful must either a for arrest officers have warrant probable or arrest cause therefor before the search However, necessary made. is it the arrest is actually prior point be made to the search. is 12 (1924), 323, 197 183 Wis. N. W. 808. 13 page 333; (1964), also: Id. at see Browne v. 24 2d State Wis. 491, 506, generally: 2d 131 N. W. N. W. 2d 169. See Annot. Search Seizure Arrest L. R. 2d A. Before *10 validity depend upon re- the the of the must arrest grounds of the of arrest must sult search but the exist independently thereof.14 only that the case,
In this Detective Johnson testified during for the arrest the recovered basis evidence Therefore, the arrest invalid. Wauke- search. This county jurisdiction and sha court had no over defendant barring any properly prosecution an order was issuable a of search on the obtained as result the evidence illegally authority under of the issued made the Furlong prosecuted But be on the warrant. can still may possess. any of other the basis evidence state may especially true as to count one of the June This be alleged 13, complaint pertaining possession to the dangerous drugs 10, 1968, of June in of on violation sec. 151.07 Stats.
Although agree we the of the trial with net result disposition except for the extent court’s of this cause prohibition writ, of its we must reverse and remand for proceedings entry proper further for of a order un- the corpus holdings der and in accordance habeas with the opinion. embodied in this
By the Court. —Order and remanded for reversed cause proceedings opinion. further consistent with this (dissenting). The W. J. writer con- Hansen, Robert reversal, curs with the but from the dissents remand. appeal prohibition from of a of is the issuance writ majority opinion “prohibi- absolute. concedes that proper remedy.” However, majority tion was not the the prohibition the writ of into a writ of refashions habeas corpus, and the returns matter to circuit the court for relabeling compelling of the action no taken. We find “regarding” prohibition reason for court a of this writ type to, absolute as a different of writ order even in part, Additionally, sustain it. we have serious doubts Supreme Platz, Court, See Wisconsin Work 1946 Wis. of 53, 54. L. Rev. garment fits to whether retailored situation. Here defendant, in June of and has been at arrested is liberty liberty deprived of and not his See: ever since. large Right bail Annot. one at on to writ habeas 1308; corpus, (D. Haas A. L. R. 2d Odell v. C. Wis.), purpose Supp. 208. and effect 280 Fed. The sole holding prevent county court from writ was hearing ruling preliminary there a all issues changed is raised. The the substance what label is but unchanged. accomplished case, In court is a recent this prohibition improper a dif- held since there was *11 adequate remedy available, and did there court ferent and rename the writ accommodate not refashion 2d petitioner. v. Ceci State ex rel. Cullen Wis. prohibition 2d 175. The writ there 173 N. W. prohibition here Period. writ was dismissed. Period. be dismissed. should Mr. Justice Leo B. Han- am authorized to state that I ley Connor T. Hansen concur in this Mr. Justice and dissenting opinion. Respondents, husband, d/b/a Durand,
Wilkins Appellant. Hayloft, Argued June June 1970. Decided No. 290. (Also 892.) reported 2d N. W.