*1 acknowledgement, August 1972, a handwritten bears original. receipt name, in Flowers’ August 7, pre- appear at the Flowers did hearing. in Paul liminary arrested St. He was Although evening. that his whereabouts he now contends can Department, there were known Minnesota Department informed of suggestion no this evi- to and in Canada. On subsequent travels appellant that the has sustained dence, it cannot be said Cady, v. ex rel. Johnson in State the burden described finding upheld properly supra. The circuit court had absconded. Flowers affirmed. By Court. —Order Starke, Defendant in error. error, State, Plaintiff Argued December 1, 1977. No. 76-727-CR. January 3, 1978. Decided 739.) (Also reported in 260 N.W.2d *3 plaintiff For the argued by error the cause was Marion, Edward S. attorney general, assistant with whom on the briefs was Bronson C. La Follette, attorney general.
For the defendant error there awas brief Willis B. III, Gary Swartwout L. Heiber and Swartwout & Heiber, argument Berlin, of New and oral Willis B. Swartwout III. *4 defendant, HANSEN, T. The Chief of
CONNOE J. village Pewaukee, Au- Police of the was arrested on gust Chase, 6, 1976, in office Lieutenant James his detectives, Detective John and two other all Willert county department. The arrest the Waukesha sheriff’s pursuant complaint dated was made to a and warrant day, charged same which the defendant error with following contrary Theft, to (1) sec. 943.- four offenses: causing Stats.; pre- 20(1) (a), (2) procuring to and contrary claim, sented a false and fraudulent insurance obstructing 939.05; justice, (3) secs. 943.395 and con- trary 946.12(3); public (4) to sec. misconduct contrary office, (3). to sec. 946.12 a Decem- The fourth count concerned warrant issued niece, Linda for the arrest of one ber Starke’s charge alleges Edwards, complaint speeding. aon although speeding told two officers that Starke settled, paid had been and the matter had fine been records check of the court indicated the warrant served, fine active and had not and that was been According paid. complaint, Linda not had been had been home on Edwards seen at several Starke’s by law, required but had not been arrested occasions as police department of the Pewaukee did and officers they apprehend feel that could Linda Edwards in relationship to view of her the defendant. arrest, the defendant read or
In the course charges against him, including the fourth read alleged charge, failure execute the Linda Edwards point At that the defendant removed arrest warrant. from his desk exhibited the officers warrant Linda Edwards. The defendant testi- for the arrest officers, that he offered the warrant fied they it; they denied that the refused warrant was offered to them.
404 any event,
In then returned the warrant Starke right desk, drawer on the hand closed side being drawer and locked it before taken to the sheriff’s department.
Approximately later, p.m., three at about 7 hours Lieutenant James warrant au- Chase obtained a search thorizing police department the search of offices “[t]he village Village located at the hall. . . in the of Pewaukee “ papers, property . . .” for fficial other warrants and [o] belonging Village Pewaukee,” as evidence of public office, contrary 946.12, misconduct to sec. Stats. judge This was search warrant issued a circuit on the basis of an affidavit executed Lieutenant Chase. investigation This affidavit stated that an of the defend- police conduct ant’s as chief of had indicated that laws violated; might had been that evidence of such violations files; be found in the desk and defendant’s when the arrested, produced defendant was he had a certified copy subject pending of a warrant which was the of a charge against him, criminal and had locked the warrant desk; in his and that the defendant had refused village village of the Pewaukee demands trustees and police keys. committee that he surrender his approximately search warrant was executed at p.m. Upon opening drawer, the desk the officers recovered the Linda Edwards warrant and an arrest They proceeded warrant for Kenneth E. Hanson. then inventory desk, office, other items in the files and thirty-six seized desk, including some from the items containing envelope money. an August 13, 1976, a On second warrant authorizing issued, County a search of the Waukesha Bank,1 Branch, checking Marine Pewaukee for “. . . [a] having deposits pay-outs account records of properly Village were monies which funds of Pewaukee from the account of Murill Starke. . .” *6 by supported This warrant was the affidavit of Waukesha county Detective sheriff’s John Willert. R. (1) participated
Willert’s had affidavit stated that he investigation defendant; (2) in a criminal of the that using defendant, police it had been that learned the department stationery, had ordered five revolvers for village; (3) use of the that the revolvers were sold police department prices, defendant at with a exemption; (4) federal tax that the defendant had sold private of the one to a and revolvers citizen had received $155, a for price check than the some more $53.60 revolver; (5) payable the check had been by the defendant and had been and cashed endorsed him; (6) possession copy the affiant of a was check; (7) of this that several identified checks executed by County the Waukesha Technical Institute to the order police of the chief of had been endorsed defendant personally village clerk-treasurer, and rightful recipient funds; police depart- of the (8) that being audited, banking (9) ment books were that the complete records were needed the audit the in- vestigation possible misappropriation of funds. The return second warrant stated examination of the defendant’s bank records indicated that two de- posits possible constituted evidence. September 1976, 2, complaint
On an amended was charging the defendant with filed nine counts of mis- complaint conduct office. A second amended was filed charged 24, complaint on November 1976. This thirteen in office. counts misconduct January, special 1977, prosecutor appointed,
In was request judge granted, substitution examination, preliminary defendant waived in- formation was filed. suppress
Defendant then moved to the evidence ob- “products” in the tained two searches and the hearing April 7, motion, on searches. At the on the regarding testimony 1977, the issu- the trial court heard withholding warrant, ance and execution of the first argument im- that it would he decision on the state’s go proper supplement had or behind record which magistrate. testimony examining been before No regard trial was taken with to the second warrant. The reviewing subsequently must court ruled that a court magistrate inquiry restrict its to the record before thereby warrant, at the time of issuance of a search given indicating disregarded testimony that it had such hearing.1 at granted suppres- April the trial court
On *7 that the first search court found sion motion. The by supported probable because cause not warrant was supporting the affiant not that affidavit did state the it nor did state warrant the Linda Edwards had seen charges relationship pending their the or the nature of sought.' refer- a The trial court considered the items to a warrant observed affidavit to second ence the indicated court also to irrelevant. The the affiant allegations regarding refusal the defendant’s that adequately keys not substantiated. his were surrender Further, warrant was overbroad court held that the the permit- description property be seized and in in its ting the defendant. the entire office of a search of regard warrant, the court considered to the second With inadequate supporting did not because it affidavit the copy of the the had obtained affiant the how state pay revolver, additional how for the used check sig- why activity, represented it was criminal checks that he had testimony the defendant’s statement included This warrants and other arrest warrant Edwards Linda removed the Chase; that them to Lieutenant had offered and his desk from them to returned them; the defendant that and take not did Chase addition, Detective Willert Chase and In it. locked desk Linda Edwards war exhibited defendant that testified to them. not offer did rant but nificant the checks had been endorsed village clerk, accounts which of the defendant’s bank significant. searched, why was to be or were the checks ruling suppression The trial court ex- stated its only searches, tended not to the in the two evidence seized “everything but also to which obtained” after August recess, warrant. After a appeal state moved a continuance to allow it to from suppression In order. motion was denied. view This rulings, prosecutor of these could not stated he present prima proceed. facie and was case unable point At this counsel moved to dismiss defendant’s granted. prosecution, and the motion was dismissing rulings, On basis of an order these prosecution discharging the defendant was entered April 22, May 6, A 1977. second order was entered 1977, suppressing pursuant evidence obtained two search all evidence obtained warrants subse- quent order, to execution of the warrant. A third first May 6, 1977, also entered denied the motion for state’s continuance. error issued to review these Writs orders.
Other forth in facts are set consideration the issues which are: suppressing
1. Did the trial court err in the evidence pursuant August 6,1976? seized to the search warrant of suppressing 2. Did the trial court err in the evidence *8 August 13, pursuant seized to the search warrant of 1976? suppressing Did trial
3. the court err all evidence subsequent the state obtained execution the first search warrant? denying
4. trial Did the court abuse its discretion request the for a continuance? dismissing court
5. Did the trial err in the action? considering issues, Before the we first that observe that it is our conclusion this case must be remanded for hearing. evidentiary an
408 6, OF AUGUST 1976.
SEARCH WARRANT directed to the office the This search warrant was outset, defendant, the state Police. At the Chief of argues that of the facts and circumstances because defendant, no such warrant was re- the arrest quired However, because to search desk files. his issue, disposition the do not of our ultimate we address argument judgment express no on its merits. this actually issued, A and the critical search warrant was question probable whether cause was established is reviewing sufficiency In the the its evidence issuance. warrant, support court issuance of a search is magistrate confined record established before State, v. Scott at the time warrant was issued. 73 Aguilar 504, 508, v. (1976); 215 Wis.2d 243 N.W.2d Texas, 1, 1509, 84 Sup. 12 L. 378 U.S. Ct. fn. (1964). Ed.2d 723 magistrate appear
On review
must
was
apprised of
an honest belief
sufficient
facts
excite
objects sought
in a
are
reasonable mind
linked
crime,
objects
with the commission of a
and that
sought
to be searched. See:
place
will
in the
be found
State,
v.
96,
Morales
44 Wis.2d
The record in case not establish the instant does knowledge magistrate had of the contents of the complaint criminal at the time the was warrant issued. signed in record that the warrant indicates was Chase, magistrate’s home, presence in the Lieutenant officers; attorney; arresting district one of village of Pewaukee trustee. testified that Chase upon substance” which warrant was issued “sole supporting affidavit. Therefore this court’s inquiry limited to the affidavit. is
409 sought in order to obtain The search warrant public office. The affidavit evidence of misconduct among things, stated, other that: charges pending . “. . At time of his arrest on now copy of Murill which was the did one certified of a warrant Starke show charges subject of the criminal one in the police which was then police department in. in the chief’s locked desk Village in the Hall here- described . . .” allegation trial for court considered this defective personal failure to state that it was based affiant’s showing observation. This conclusion misconceives the necessary probable of a issuance establish cause search warrant. deny
The fourth law amendment does not enforcement support rea- inferences which officers usual although requires evidence, men from sonable draw by detached be drawn a neutral and such inferences 102, Ventresea, v. magistrate. United States 380 U.S. Johnson Sup. 741, (1965); 106, 13 L. 684 85 Ct. Ed.2d 367, 14, States, Sup. v. United 68 Ct. 333 U.S. 613, Beal, v. (1948) ; State 436 40 92 L. Ed. Wis.2d State, supra, at v. See: Scott (1968). 640 162 N.W.2d magistrate’s upon “the (approving reliance logical only to be drawn from statement” inference [a] complaint). Only from affiant’s can be drawn one inference time of arrest defendant that at the statement is that defend- That inference displayed warrant. one the arrest- at least actions were observed ant’s ing officers, affiant if himself. Ventresea, supra, Supreme States
In United an Appeals decision that a Court reversed Court probable cause establish was insufficient affidavit Although the affidavit of a search warrant. for issuance allegations were based whether to indicate failed *10 knowledge hearsay, Supreme on the affiant’s or on necessary Court drew what considered inference that the affidavit was on the of the based observations affiant or his fellow Internal Revenue in- Service vestigators. allegations These were sufficient show probable cause, held, the court because: “. . . of fellow officers of Govern- [observations engaged investigation plainly ment in a common are a applied by reliable basis for a warrant for one of their Ventresca, supra, number.” United v. States at 111.
Affidavits search warrants need not be drafted State, supra, v. specificity. with elaborate at 510. Scott “ policeman’s judged Nor should a affidavit ‘be as an ” entry Harris, essay contest.’ United v. in an States 573, 579, Sup. 403 91 U.S. Ct. 29 L. Ed.2d (1971) 723 : warrants, “. . . for search . . . [Affidavits must be interpreted magistrates tested and in a courts They normally commonsense and realistic fashion. are by nonlawyers drafted in the a midst haste of crim- investigation. inal requirements Technical of elaborate specificity once pleadings exacted under common law proper place have no grudging nega- in area. A this or by reviewing tive attitude tend to courts toward will warrants discourage police submitting officers from their judicial acting. evidence to a officer before “. . . . underlying Recital of some of the circum magistrate stances the affidavit is essential if the is perform merely his detached function and not serve stamp a police. as circumstances are rubber for the However, where these detailed, crediting where reason for given, the istrate has found mag source information is and when a probable cause, the courts should
not invalidate the warrant interpreting the affidavit hypertechnical, in a commonsense, rather than a man ner. . . .” United States v. Ventresea, supra, at 108, 109; United States v. De Cesaro (7th 1974), Cir. 502 Fed.2d 604. necessary support probable issuance cause required in than the search warrant less evidence is Furlong v. rel. Wau State ex preliminary examination. County Court, 522, kesha 177 N.W.2d 47 Wis.2d 614; United Beal, supra, at v. (1970); State supra, informed Ventresca, at Because States 107. magistrate of a neutral and deliberate determinations arrest- preferred the hurried decisions are to be over marginal ing officers, or “the of doubtful resolution by the largely determined area cases should be *11 . . .” United warrants. preference to be accorded to Ventresca, supra, at 109. States light considerations, that it cannot said In of these support to insufficient the affidavit under review was the defendant’s desk of a to the issuance warrant search that The affidavit said warrant. for the Linda Edwards alleged in sought regard misconduct in evidence was 946.12, Stats.; office, contrary referred to sec. charges pending,” and said now on “arrest Starke’s desk had locked in his of arrest he that at the time subject copy which was of a warrant “one certified charges. . . .” criminal of one of the against charges allegation pending that were The clearly gave had been arrested and that he defendant implication a crime had been that rise to sufficient allegation a war- that he had exhibited committed. The charges subject one of the rant which was alleged crime, and link the warrant sufficient in the allegation had locked that the warrant been would be ample to believe the warrant desk was basis there. found did what the constitution in case
The officers judicial officer They from a a warrant prefers. secured which, inart- affidavit however of a the basis sworn the desk fully probable cause to search drawn, showed for the Linda Edwards suppressing warrant. The order this warrant must therefore be modified.
A second arrest warrant was seized in the search of the desk drawer which contained the Linda Edwards warrant. The return on the search warrant shows that this warrant was Hanson, for the arrest Kenneth E. containing that the desk envelope also contained an Hanson, cash and partial Payment.” marked “Ken $55 The support in- affidavit warrant may cluded statement warrant which “[a]nother constitute evidence of misconduct was known and seen only in the chief’s desk.” reasonable inference from arresting these is that statements officers both saw Edwards warrant the warrant mentioned above in the desk of the defendant at the time his arrest. The affidavit of Lieutenant Chase the docu- states sought might ments constitute evidence of the crime public contrary 946.12, misconduct in office to sec. Stats. issuing magistrate The affidavit informed the that an investigation of the defendant’s conduct had con- been ducted; the defendant had been arrested on the pending charges; and that a warrant “which was the subject charges” one the criminal was shown and then locked in the desk. no defendant’s We have diffi- *12 culty arriving at the conclusion that the search properly warrant was issued and constituted valid au- thority to the desk search and seize the two warrants the which officers had at the seen time of the arrest the defendant. warrant was The trial court also found the search fatally and therefore defective. overbroad Both amendment of federal constitution the fourth require I, and art. sec. 11 of Wisconsin Constitution place particularly to that a warrant describe the search things be seized. v. be and the to searched Stanford
413 Texas, 476, 481, Sup. 13 L. Ed.2d 85 379 U.S. Ct. ; Myers State, 248, 260, v. (1965) 431 60 Wis.2d requirement aimed at (1973). This is 208 311 N.W.2d “general is colonists warrant” abhorrent to rummaging exploratory prevent general, intended to Pires, through and effects. State person’s papers (1972). Wis.2d 201 N.W.2d argues terms of the instant defendant requirement. authorized The warrant warrant violate this at department located police a search offices of “[t]he village Village . .” . hall ... in the Pewaukee “[ojfficial property papers, and other for warrants belonging Village Under certain of Pewaukee.” might language to be said circumstances broad be such constitutionally overbroad. why,
However,
there
two
facts
are
reasons
case,
language
invalidate the
this
this
does not
search.
First,
in-
authorized
the extent
the warrant
police
spection of the
and documents of
records
department
control, the warrant
the defendant’s
unnecessary.
public
have
was
These
records would
been
investigating
a war-
accessible to the
officers without
expectation
have had an
rant. Nor could the defendant
regard
privacy
with
such records.
appears that, despite
important,
the terms of
More
generalized
warrant,
police
no
station
However,
extended to
the search was
conducted.
was
appears
It
no
file
locked
cabinet.
the defendant’s
for
search of these files had been
probable cause
any
reason,
seized from
For this
evidence
established.
subject
properly
suppression.
files would
thirty-six
taken
However, none of the
items seized was
files;
in the
On the facts
all were found
desk.
from
language
therefore,
case,
the otherwise overbroad
of this
consequence
practical
no
the warrant
reason, overbreadth was not a
For
defendant.
ground
suppression
of the evidence seized.
proper
*13
Thirty-six items
in the search of defend-
were seized
ant’s
suppressed
desk
all
were
the trial court.
may
A
objects
not
identi-
be continued after the
fied in the search warrant
and seized.
have been located
(7th
1974),
United States v. Odland
Cir.
502 Fed.2d
148,
appeal,
certiorari denied
On the state first no search war- required rant was to examine the accounts of de- argument fendant at the Pewaukee branch bank. This upon holding Supreme based is the United States Miller, 435, Court Sup. United States v. 425 U.S. (1976). Miller, Ct. 48 L. banks, Ed.2d 71 In two pursuant subpoenas tecum, provided govern- duces had investigators relating depositor’s ment with records to a depositor suppress accounts. The moved to these records they against when were as offered evidence him in a subsequent prosecution. Supreme Court held that production compulsion bank’s records under legal process any upon protected did not intrude zone privacy depositor, under the fourth amendment of the United States Constitution. emphasizes
The defendant the Miller Case was decided under the fourth amendment of the United States Constitution and does not control this court’s construc- I, tion of art. 11 of the sec. Wisconsin Constitution. The urges I, defendant court construe art. sec. as prohibiting inspection depositor’s aof bank records at his bank without a valid search warrant. do We *14 argument. presented, we conclude reach this On the facts pursuant to that the search under review was conducted unnecessary to determine a valid warrant. It is therefore objec- whether a would have been warrantless tionable. supported an affidavit of
The warrant second alleged that Detective The affiant John Willert. stationery defendant, Starke, police department had used they village guns, stating for of to order that were five depart- use, police Pewaukee and that he had received exemption. prices The affidavit ment and a federal tax guns profit, at a later of that one these stated sold Starke private citizen; and cashed to a that he endorsed price; purchase and that citizen’s check for the payable affidavit stated check was made to The Starke. copy the affiant. hands of that of this check was for evi- a warrant This affidavit was offered secure office, felony public theft and dence misconduct contrary 946.12, 943.20(1) (b) and to secs. Stats. from then
The affidavit refers to a series checks County made Institute out Technical Waukesha Starke,” order “Pewaukee Chief Police” of “Chief Police, Pewaukee,” had en- which been and “Chief of village than the rather clerk-treasurer. dorsed Starke be that the clerk-treasurer “should The affidavit states checks,” recipient paid all funds under above complete were needed to that bank records Starke’s department police books to determine audit an misappropriated. The had been affidavit funds whether allege unlawful specifically that was for not does by Starke, that were endorsed funds be checks account, or that the funds were not deposited in his village. by the received allegations in a search warrant an affidavit great specificity, prove with need not not drawn
need be they crime, competent need not be of a the elements examination. Scott preliminary in a evidence admissible State, supra, 510; at Furlong State ex rel. v. Waukesha County Court, supra, at 522.
Although argues the defendant that is affidavit inadequate allege for failure to the funds were deposited personal account, in Starke’s the state could expected allegation make such an until bank had records been examined. In view of the fact alleged the affidavit had at one least other act of misappropriation public property alleged and had *15 proper recipient Starke not a funds, was and that necessary the records were to determine whether funds misappropriated, magistrate had been could reason- ably have drawn the inference that had funds been misappropriated and that Starke’s bank records could provide evidence of the crime. presented magistrate
We believe the evidence to the was more than sufficient to excite an honest belief in magistrate the mind of the that a crime had been com- mitted and that evidence of that could crime be found by examining deposit the defendant’s records. There probable was therefore cause for issuance of the second search warrant. argues
The defendant also the warrant should have been specific limited to identified transactions. approach an unreasonably Such would restrict the state’s investigation might purpose. well frustrate its To determine whether misappropriated, funds had been necessary only for the state not attempt identify improper deposits, but any also to determine whether deposits subsequently such repaid were village. reasonably The expected state could not identify particularity. such transactions with The warrant was therefore not overbroad. OF
SUPPRESSION EVIDENCE. Applying poisonous the “fruit of the tree” doctrine, the trial court ruled that all evidence obtained after
417 August 6, 1976, execution of the first warrant accordingly suppressed all such evidence. was tainted and Although poisonous tree” doctrine of the “fruit requires any by exploita- exclusion of obtained evidence illegal search, prevent the use of tion an it does not distinguishable sufficiently evidence obtained means Muetze v. illegality. State, primary to remove the taint of (1976). Here there Wis.2d 243 N.W.2d was no determination whether additional evidence through inde- of the had obtained hands state been argues pendent defendant and untainted channels. The subsequent police other that a of the records and audit investigations presumed to be an independent can “be outgrowth” pre- of the search of desk. This Starke’s sumption support in has no the record. that all the further
The defendant further contends investigations can be traced undertaken state which, says, desk, raised the defendant the search handling questions of finances. certain as to argues August 13, 1976, specifically defendant outgrowth of the observed search was an items bank *16 The does not contest or seized from the desk. state thirty-six any of of the items seized suppression the warrants. Edwards and Hanson arrest other than the remaining thirty-four items were the We conclude suppressed. properly the and of all- present the record because
From judge, it encompassing suppression order of the trial significance the possible the nature or to determine not is subsequent seized, the or their relation to the of items investigation. record indicate items the what Nor does may but seized. been observed have
However, probable have held that cause was we since the defendant for the a of the desk of search shown for Hanson), for (Edwards and and arrest warrants two necessary the search, it to remand becomes the bank any, for extent, case consideration of the if to which the Therefore, remand, state’s other evidence is tainted. any, extent, determination will made he if improper which the continuation the of desk search thirty-four the items, seizure of the after of seizure the subsequent warrants, two arrest the in- contaminated including vestigations, August the bank search. We have determined that the search warrants were by supported probable suppression cause and that the order should be modified the cause remanded. It follows that the issue directed to order the the trial denying court motion state a continuance becomesmoot. Finally, argues the state that the trial erred court
granting prosecu- the defendant’s motion to dismiss the suppressed tion after the evidence had been ruling continuance denied. trial The court’s followed special prosecutor’s suppression statement stripped ability present order had state its prima recognized facie case. trial court that the position proceed state was not in a suppression of its because ruling when it entered order of its dismissal. holding The result our trial court erred in entering suppression its all inclusive order is it that was prosecution. error order a dismissal The order of dismissal is therefore reversed. suppression Our is that the conclusion order entered
May suppressed 6, 1977, be modified insofar as two arrest warrants seized from the desk of the defend- ant and the evidence seized in bank search. The dismissing order the action is reversed. The cause is remanded for a determination of the extent to which August acquired state’s evidence after improper tainted defendant’s desk after the Edwards and Hanson warrants were seized and inquiry the seizure of various in that items search. This *17 should also determine whether the bank search was outgrowth improper improper as a tainted of this search. 22, 1977, By April the reversed. Court. —Order May 6, part Suppression in order of modified with this proceedings remanded for further consistent opinion. majority
ABRAHAMSON, (concurring). opin- J. that the of the ion search hank records was concludes pursuant warrant and therefore conducted a valid question of not the whether need reach constitutional I, prohibits Constitution art. sec. 11 Wisconsin inspection depositor’s of a without a the bank records valid warrant. goes majority think at
I the this issue backwards. The depositors decide is have a first issue to whether bank constitutionally protected in interest these bank records. constitutionally interest, depositors protected If have a warrant; they they validity if object can interest, constitutionally protected no bank have challenge warrant, did do and the must bank in the so instant case. Supreme in United States v.
The United Court States analyzed (1976), Miller, 425 U.S. way depositors that do in and concluded issue interest in their protected not have fourth amendment records: bank Appeals “The that the of respondent Government contends Court respects: (i) finding in
erred had him three necessary to Amendment interest entitle Fourth challenge validity subpoenas duces holding through suppress; (ii) in tecum that mining motion to defective; (iii) subpoenas in deter- were suppression obtained was evidence remedy appropriate if violation did a constitutional place. take any area no intrusion into there find that “We Amendment protected Fourth respondent had a which interest and that correctly therefore Court District suppress. we Because respondent’s denied motion Appeals Court reverse the decision *18 420
ground alone, we not the do reach latter Government’s two contentions. any event, “In above, the for reasons stated we hold respondent requisite Amendment lacks Fourth challenge validity subpoenas.9 interest of the There is no for occasion to address whether [9 us subpoenas complied requirements with the outlined in Oklahoma Press Walling, Pub. Co. v. 186 327 U.S. (1946). upon they The banks which did were served ” validity.] not contest their I properly believe state constitutional issue is us; before it has been briefed. decide the We should question now promptly and settle the issue proper justice administration state. Const, I, 11, Art. provides: sec. Wis. right people “The persons, of the to be secure in their houses, papers, against and effects unreasonable searches violated; and shall seizures not be and no warrant shall upon probable cause, issue but affirmation, supported by oath or particularly describing place to be things searched persons and the or to be seized.” Although wording pre- section 11 of article I is cisely that of the fourth amendment to the United States Constitution, our court has pro- not construed the two congruent. visions as only The court has said that art. I, “substantially sec. 11 is like” the fourth amendment and that the fourth amendment principles standards “generally applicable are I, to the construction of art. sec. 11.” Paszek, State v. 50 Wis.2d 184 N.W.2d (1971); 836 Beal, State 40 162 Wis.2d (1968). N.W.2d 640 Doe, Indeed in State v. 78 Wis.2d 161, 171, 172, (1977), clearly 254 210 N.W.2d we stated rights persons may within Wisconsin exceed safeguards the minimum persons by secured to United States Constitution: “Certainly, prerogative it is the State Wis- greater protection
consin to afford to the liberties of Con- persons under Wisconsin boundaries within its Supreme by States mandated United stitution than is J. Amendment. See William Fourteenth Court under the Protection Jr., Brennan, State Constitutions 1977). (January Rights, 90 Harv. L. Individual Rev. . . to do . hesitated so. court has never This tt bound that will *19 has demonstrated “This court Supreme by by imposed the the mínimums which are judgment of this it the of United if is Court the States the laws and the of court that Constitution Wisconsin greater citizens’ require protection that of of state this ought to afforded.” liberties be expec- person a hold that has I would each reasonable her privacy of in or bank statement tation his the I, of protected records under art. see. which is reasoning adopt the I Wisconsin would Constitution. writing Mosk, who, a language for of Mr. Justice Court, iSupreme stated: unanimous California gainsaid aof bank “It cannot that customer checks, documents, he expects such which that as oper- to in of business transmits the bank the course his ations, private, expectation an remain and that such will much, al- prosecution is as concedes reasonable. though expectation is not constitu- it asserts that tionally cognizable. Representatives of several banks hearing information suppression that at testified regarding is possession in their a customer’s account by deemed them to be confidential. . in it re- “. . the form which That the bank alters by depositor the information to cords transmitted money receipt a to show the and disbursement of depositor’s diminish the antici- bank statement does not pation the bank. A bank customer’s reasonable privacy of which he in matters confides expectation is that, reveals to the internal a by legal process, he compulsion absent matters by only for the bank bank will be utilized banking petitioner purposes. Thus, had we hold expectation would maintain reasonable the bank confidentiality originated papers of those with which in check form into him of bank statements which a of trans- record those same checks had been pursuant practice. formed to internal bank 6( purports “. . . The mere fact the bank own not, provided the records which it detective is view, our closure determinative of the at stake. The dis- issue by depositor is to the bank made facilitating purpose limited of finan- the conduct his affairs; expectation cial it seems evident privacy is not diminished bank’s retention of . record such disclosures. right “. . It privacy is not but bank of the petitioner issue, which is at and thus it would bank, entity be untenable to conclude that the a neutral significant with matter, may validly no interest in the rights. depositors’ consent an invasion of . its . . practical “. . . purposes, For all the disclosure in- or dividuals firms their financial business affairs to entirely volitional, a bank is not impossible since it is participate contemporary the economic life of so- ciety maintaining without a bank account. In the course dealings, depositor many such aspects reveals of his *20 personal affairs, opinions, habits and In- associations. deed, totality provides of bank records virtual a biography. current pres- we are While concerned in the only logical ent statements, case with bank extension of the contention that ownership the bank’s of records permits by any free police access them officer extends beyond far checks, savings, such bonds, statements applications, loan guarantees, loan papers and all which supplied customer has to the bank to facilitate the conduct of upon his financial affairs the reasonable as- sumption that the information would remain confidential. permit police To merely officer access these records upon request, any judicial without control as to rele- vancy or other requirements legal traditional process, and to allow the any evidence to be used in subsequent prosecution against criminal a defendant, opens the door to a range vast and very unlimited real abuses police power. legion “Cases are that condemn violent and searches right of an invasions individual’s privacy of his dwelling. imposition upon privacy, although perhaps
423 devastating other dramatic, may equally when not so photocopying Development employed. methods are sophisticated machines, computers and other electronic government ability of instruments have accelerated normally person chooses to intrude into areas which prying inquisitive eyes minds. Con- exclude from sequently judicial interpretations the reach keep privacy must protection constitutional of individual pace devices.” perils new with the these created 247, 243-245, 238, Superior Court, Burrows v. 13 Cal.3d ; quoted 248, by (1974) Rptr. 590 Cal. 529 P.2d v. States Justice Brennan in his dissent United Miller, (1976). 245 U.S. depositor’s records I thus conclude that the bank would unlaw- protected by from are Constitution Wisconsin ful seizure. HEFFER- that Mr. Justice
I am authorized to state concurring joins opinion. NAN College Plaintiff-Re- Inc., Foundation, St. Norbert Defendant-Appellant spondent, McCormick, Third-Party Fa Plaintiff: Premonstratensian Defendant-Respondent. Third-Party thers, January 3, Argued September 1978. 2, 1977. Decided No. 75-657. 776.) (Also reported in 260 N.W.2d