Opinion
February 2, 1968. —
February 27, 1968.
ERROR to review a judgment and order of the circuit court for Milwaukee county: MAX RASKIN, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief by David J. Hase, attorney, and Grootemaat, Cook Franke of counsel, all of Milwaukee, and oral argument by Mr. Hase.
For the defendant in error the cause was argued by E. Michael McCann, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.
This case arises out of the same facts which were before this court in Jackson v. State.
(1965), 29 Wis.2d 225, 138 N.W.2d 260.
Shortly after midnight on December 15, 1964, two officers entered the one-room apartment of the plaintiff in error, William Edwards ("defendant" hereinafter), and, without a warrant, arrested him for encouraging the violation of Janet Jackson's parole. After some further observations, a search of the premises and questioning, Edwards and Jackson were arrested for the illegal use of narcotics. Later that day formal complaints were filed and warrants issued charging Edwards and Jackson with violation of the Uniform Narcotics Act, sec. 161.02 (3), Stats. A preliminary examination was held on this latter charge against Edwards, probable cause was found, and the defendant was bound over for trial. Janet Jackson was also bound over on the identical charge growing out of the same incident and the two cases were joined for further proceedings in circuit court. A motion was made before trial to suppress physical evidence and admissions secured by the arresting officers. A hearing on the motion was held before Circuit Judge HERBERT J. STEFFES. At the conclusion of the hearing, Judge STEFFES denied the motion and stated his reasons for so doing in the record. An affidavit of prejudice was filed against Judge STEFFES and the cases were assigned to Circuit Judge MAX RASKIN. Defendant pleaded not guilty and waived a jury trial. Following a trial to the court, a judgment of conviction was entered and the defendant was sentenced to a five-year term in prison. The sentence, however, was stayed and the defendant was placed on probation for a term of three years. Edwards sought a writ of error to review the judgment of conviction.
Janet Jackson was likewise convicted and following her sentence for a period of not less than fourteen months at the women's reformatory at Taycheedah on writ of error her conviction was affirmed in Jackson v. State, supra, footnote 1.
The circumstances leading up to the arrest in the instant case are essentially the same as in Jackson. Therefore, for convenience we restate those facts here.
Defendant's one-room apartment is located in a two-story frame building at 2228 North First street in Milwaukee, and is No. 1A in the first story of the building. The apartment has but one door which is the first one on the right as one enters the central hallway from the outside entrance. The building sits back about 15 feet from the public sidewalk, steps lead up to a porch, and the front entrance is gained from this porch.
Earlier in the evening, Detectives Randa and Thelen of the vice squad of the Milwaukee police department read an entry in the department's logbook. This entry stated:
"`Information from Charles Gumm. Billie Edwards, living at 2228 North 1st. Edwards' room is first to the right when you enter front door. A stairway to the left going upstairs has a room under there. This is all a community deal. Edwards gets his fix, etc. in the little room. He has to lay on his stomach to get it. Edwards is supposed to have a gun that Charlie wants real bad. Owner of home will cooperate for a plant or any other way. P. J. Hohlwick. Flagstone 5-6664 or Concord 4-2551.'"
Shortly before one o'clock these two officers went to 2228 North First street. The front window of defendant's apartment had an outside storm window. The inside window was raised as was the window shade, and the curtains were parted. By standing on the second step of the stairway leading onto the porch one could look into the room either through a 12 by 21/2 or 3-inch vent at the bottom of the storm window or through the parted shades not quite covering the window glass above. One officer made his observations through both the vent and the glass while the other looked only through the window glass.
The officers observed the defendant, clad only in his shorts, lying on the bed reading a book. With the defendant was Janet Jackson, who was wearing a "shorty" nightgown and was observed first sitting on a couch at the foot of the bed smoking a cigarette and then walking around the room.
The officers recognized both the defendant and Mrs. Jackson. The officers knew that Mrs. Jackson was on parole as a result of being convicted as a narcotics user, and that Edwards had a criminal record. On December 4, 1964, the officers had seen the defendant and Mrs. Jackson together at the Old Rail tavern on Sixth and North avenue. At that time the officers warned Mrs. Jackson to part company with Edwards because associating with him might be a violation of her parole.
After observing the conduct of the parties for a few minutes the two officers entered the building through the front entrance and saw the door leading to Edwards' apartment. Randa went back to his observation post on the porch step and Thelen knocked on the apartment door. From his observation post Randa saw the defendant take off his shorts and climb into bed. Randa testified he then saw Mrs. Jackson turn off the light and also go to bed. Officer Randa then entered the building, conferred with Thelen about no one answering Thelen's knock on the door, returned to the outside, and knocked on the window. He then saw Edwards turn on the light, put on pants, galoshes, a suit coat and overcoat, possibly a hat, and go to the apartment door. When Edwards opened the door he was told he was under arrest for encouraging violation of Mrs. Jackson's parole.
When the officers entered the room, Thelen searched the defendant and Randa arrested Mrs. Jackson for violation of her parole (this is not made a criminal offense by the Wisconsin statutes). Randa observed needle marks on Mrs. Jackson's forearms and began questioning her relative to their origin. Mrs. Jackson admitted using narcotics the previous afternoon along with the defendant and one Colden Hanks. Upon questioning, defendant admitted his involvement and upon the admissions of defendant and Mrs. Jackson, Officer Randa arrested both of them for illegal use of narcotics. Subsequent to the arrests on the narcotics charge, Officer Thelen searched the premises. The search revealed a loaded 32-caliber revolver, two eyedroppers, two hypodermic needle tips attached to the rubber bulbs of the eyedroppers, and a burned bottle cap with a wad of cotton in the center. All of these items were seized.
Both Edwards and Mrs. Jackson were convicted on the basis of the physical evidence seized and on the admissions and statements made on the premises by both defendants to these officers.
Officers' Activity at Residence, and Validity of Arrest.
In urging his principal contention on this writ of error, defendant's arguments may be aptly characterized as seeking a rehearing of Jackson. In Jackson we concluded:
"Upon these facts we determine that there was no violation of defendant's constitutional rights in either the observations made by the two officers preceding the arrest for illegal use of heroin or in the arrest itself without a warrant."
Jackson, supra, footnote 1, at page 229.
Defendant argues that the officers had to use considerable effort to look into his room because the better observations could only be made by looking through the vent at the bottom of the storm window. These observations, it is argued, constituted a "search." Because of the "effort" required, the argument runs, the officer did not have the constitutionally antiseptic "open view" of the premises, therefore the search was "unreasonable." The defendant argues that if he is successful on this claim his arrest on the misdemeanor charge and the subsequent observations, narcotics arrest, admissions and search and seizure would be invalid because a misdemeanor arrest without a warrant in this situation would be unlawful.
In Jackson this court examined the conduct of the policemen on first reaching the premises as against the principal test that their activities must be reasonable.
Id.; Browne v. State (1964), 24 Wis.2d 491, 507, 129 N.W.2d 175, 131 N.W.2d 169.
This court held that the two officers were apprised by the log entry of the location of Edwards' one-room apartment in the building so "that they knew that the window through which they looked from the step of the porch was that of his apartment. In making their observations through the window they did not invade any portion of the premises leased to Edwards. What they saw at once disclosed conduct on the part of Edwards which was a breach of the criminal laws of the state, viz., encouraging defendant to violate her parole." (Emphasis ours.)
Jackson, supra, footnote 1, at page 229.
In Jackson the court did not label the police activities on arriving at the rooming house a "search," but it determined that "there was no violation of defendant's constitutional rights" in the observations made by the two officers through the window.
Id.
A search can be conducted by one's eyes alone. However, "A search implies a prying into hidden places for that which is concealed." It is not a search to observe what is in plain view. Even though visual surveillance of things within plain view may be regarded as a search the real issue to be settled is whether or not such activities' are regarded as an unreasonable search as circumscribed by either the Fourth amendment of the United States constitution or art. I, sec. 11 of the Wisconsin constitution.
People v. Marvin (1934), 358 Ill. 426, 428, 193 N.E. 202.
State v. Brown (1964), 25 Wis.2d 413, 418, 130 N.W.2d 760.
Browne v. State, supra, footnote 4, at page 507.
Defendant cites Brock v. United States, People v. Kramer, People v. Terrell, Hurst v. California and Smith v. State, as cases closely paralleling the situation present in the instant case.
(5th Cir. 1955), 223 F.2d 681.
(1963), 38 Misc.2d 889, 239 N.Y. Supp. 2d 303.
(1967), 53 Misc.2d 32, 277 N.Y. Supp. 2d 926.
(D.C. Cal. 1962), 211 F. Supp. 387, 325 F.2d 891, reversed on other grounds (1965), 381 U.S. 760, 85 Sup. Ct. 1796, 14L L.Ed 2d 713.
(1926), 33 Okla. Cr. 344, 244 P. 52.
These cases were not cited to the court in its consideration of the same general issue in Jackson.
In all of these cases the searches (involving a view of seeming misconduct) were found to violate the constitutional safeguards on the fundamental rationale that they were conducted by officers who were engaged in an unlawful trespass. None involved a plain view from a recognized public part of a premises. In the instant case, Officers Randa and Thelen were not trespassers. Their observations were made from the common stairway and porch. As the court in Jackson expressly held: "In making their observations through the window they did not invade any portion of the premises leased to Edwards." Even if the officers had trespassed, that fact alone would not govern the constitutionality of a search. In Browne v. State this court considered the two conflicting values of personal privacy and the need for probative evidence in combating crime by asking the question: "Do trips through the technicalities of the law of trespass aid in the balancing task?" The court concluded that such trips are ill advised, stating:
Jackson, supra, footnote 1, at page 229.
Browne, supra, footnote 4, at page 507.
"Thus, whether or not a search or investigation is reasonable is not a matter for the application of the comparatively rigid rules of tort and property law, but is rather a matter of an inquiry as to whether the search or investigation is constitutionally reasonable under the circumstances. If police conduct is not considered unreasonable in the circumstances, it is not made unreasonable if it is deemed to have involved a civil trespass."
Id. at page 508.
In the very recent case of Katz v. United States, the United States Supreme Court delivered the coup de grace to the trespass theory as being determinative of Fourth amendment rights. Katz involved the use of evidence obtained when FBI agents attached an electronic listening and recording device to the outside of a public telephone booth from which the defendant was transmitting wagering information. The government contended that the surveillance technique it employed involved no physical penetration of the telephone booth. The court disregarded this argument, holding that the trespass doctrine is no longer controlling and the fact that no penetration had occurred was of no constitutional significance.
(1967), 389 U.S. 347, 88 Sup. Ct. 507, 19 L.Ed.2d 576.
Thus, as we stated in Browne, the test to be applied in determining whether a search is constitutional is one of reasonableness under the circumstances.
Supra, footnote 4, at page 508.
When the officers left the station after examining the logbook, they may not have had probable cause to arrest defendant or to obtain a warrant to search Edwards' room. But the officers did have a reasonable basis for conducting a reasonable investigation following up that information from the logbook entry that Edwards was likely to be in his room and that others were likely to be in a "community deal" there. This investigation was also reasonably prompted by the officers' general knowledge that Edwards and Mrs. Jackson had been associating together and that both were notorious narcotics users. What the officers "saw at once" from the porch steps, as the Jackson Case clearly points out, disclosed conduct on the part of Edwards which was in violation of sec. 946.46, Stats., viz., encouraging Janet Jackson to violate her parole. The police officers directed their eyes through the window as they ascended the staircase. This was not unreasonable conduct. Their entry into the defendant's room, his immediate arrest for the misdemeanor, and the subsequent search and resulting arrests of both defendants on the narcotics charges were valid.
Jackson, supra, footnote 1, at page 229.
Two other issues are presented on this review.
1. Was it proper to give weight as substantive evidence to the entry in the police log?
2. Should the defendant's oral admissions be excluded from evidence?
Log Entry.
We have said that the information supplied in the log justified Officers Randa and Thelen in going to the premises at 2228 North First street.
Defendant argues that the entry in the log was identified and read into the record for impeachment purposes only and cannot be given weight as substantive evidence under the rule of State v. Major. In Major one of the state's witnesses gave testimony which was inconsistent with a previous stenographically-recorded statement that the witness had given to two police officers. The state had the witness declared hostile and read portions of the statement into the record. This court reversed the conviction holding that the statement could not be considered as part of the state's affirmative proof because it was only admitted to impeach the hostile witnesses.
(1956), 274 Wis. 110, 79 N.W.2d 75.
Defendant claims that Officers Randa and Thelen testified that they went to Edwards' room merely to determine whether the defendant and Mrs. Jackson were living together and that the sole basis for their information was the log. Defendant argues that because the log does not specifically recite that Edwards and Jackson were living together, it was introduced to cast doubt upon the officers' credibility and, therefore, the log was admitted for impeachment purposes only. Officer Randa testified that upon his arrival at work on December 14, 1964, he received the information in the log. It is also pointed out that the testimony of Officer Thelen strongly indicates that factors other than the log entry motivated the officers in making their decision to go to the First street address. Furthermore, the state argues that employment of the word "community" in the entry alerted the officers that Edwards was keeping company with someone and that their prior knowledge of Jackson's and Edwards' companionship allowed an inference that they were the "community" mentioned.
Therefore, the state argues and we conclude that the Major Case is inapplicable because counsel for the defense, by reading the contents of the log entry into the record, failed to limit its value to impeachment purposes. We think it is clear that the officers had read the entry. Armed with this knowledge the officers acted reasonably in going to the defendant's apartment house. There was no error in giving substantive weight to the entry in the log.
Defendant's Admissions.
Defendant made certain admissions to the officers shortly after they entered Edwards' room. It is admitted that defendant never requested counsel. This case was. tried between the United States Supreme Court's decisions in Escobedo v. Illinois and Miranda v. Arizona and consequently defendant contends that Escobedo applies. Specifically he argues that the oral admissions should be thrown out not only because he was not provided with counsel during his interrogation, but also because he was not advised of his right to remain silent or his right to counsel. This court has repeatedly held that Escobedo is limited to its facts. Therefore, Escobedo is not applicable here since Edwards never requested counsel.
(1964), 378 U.S. 478, 84 Sup. Ct. 1758, 12 L.Ed.2d 977.
(1966), 384 U.S. 436, 86 Sup. Ct. 1602, 16 L.Ed.2d 694.
Browne v. State, supra, footnote 4, at pages 511f, 511g; affirmed in State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 257, 133 N.W.2d 753; Neuenfeldt v. State (1965), 29 Wis.2d 20, 28, 138 N.W.2d 252; Phillips v. State (1966), 29 Wis.2d 521, 526, 139 N.W.2d 41; State v. Burnett (1966), 30 Wis.2d 375, 383, 141 N.W.2d 221; Simpson v. State (1966), 32 Wis.2d 195, 203, 145 N.W.2d 206; Holloway v. State (1966), 32 Wis.2d 559, 564, 146 N.W.2d 441; Ray v. State (1967), 33 Wis.2d 685, 688, 148 N.W.2d 31; Greenwald v. State (1967), 35 Wis.2d 146, 153, 150 N.W.2d 507; Bradley v. State (1967), 36 Wis.2d 345, 358, 153 N.W.2d 38.
At the time this case was tried, there was no hard-and-fast rule in this state requiring that an accused be informed of his constitutional right not to incriminate himself. Rather, it was the totality of the circumstances which governed the admissibility of confessions alleged to be involuntary.
Simpson v. State, supra, footnote 25, at page 203; State ex rel. Van Ermen v. Burke (1966), 30 Wis.2d 324, 331, 140 N.W.2d 737; Harris v. State (1966), 29 Wis.2d 479, 485, 138 N.W.2d 745; Neuenfeldt v. State, supra, footnote 25, at page 25; Holt v. State (1962), 17 Wis.2d 468, 479, 117 N.W.2d 626.
Greenwald v. State, supra, footnote 25, at page 150; State v. Carter (1966), 33 Wis.2d 80, 90, 91, 146 N.W.2d 466; State ex rel. Goodchild v. Burke, supra, footnote 25, at page 257.
Under the totality of the circumstances in this case, the statements and admissions of Edwards were admissible. Defendant's statements came within a few minutes after the arrest, while in the presence of a friend and while in his apartment. No force, threats, or promises were used. The statements were voluntary and the trial court's detailed findings to this effect are not contrary to the great weight and clear preponderance of the evidence. By the Court. — Judgment and order affirmed.
State v. Carter, supra, footnote 27, at pages 89-91.