Opinion
No. State 192.
Argued May 7, 1974. —
Decided June 4, 1974.
ERROR to review a judgment of the circuit court for Milwaukee county: MAX RASKIN, Circuit Judge. Affirmed.
For the plaintiff in error there were briefs by Howard B. Eisenberg, state public defender, and Richard M. Sals, assistant state public defender, and oral argument by Mr. Sals.
For the defendant in error the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
Glen Mitchel Rinehart, the plaintiff in error (hereinafter defendant), was found guilty of robbery and attempted rape after a trial to the court without a jury. He was sentenced to two concurrent seven year terms in the state reformatory.
On August 28, 1971, at about 3 a.m., Mrs. Alice Reinhardt, a seventy-six-year-old widow living alone in a four-room flat at North 20th Street, Milwaukee, was awakened by an intruder. He came to her bedroom and told her he wanted money. She told him where her wallet was. He found the wallet, took the $17 it contained and came back to the bedroom and demanded more money. She told him there was more money under the bread box in the kitchen. He took the $20 that was under the bread box and again returned to the bedroom. He pulled the bed sheet over her head and turned on the lights to examine her dresser. He then came to her bed and told her, "Now I am going to rape you." He took the pillow cases off two pillows and tied Mrs. Reinhardt's hands with one and the other was tied around her head and face. The defendant then pulled up her nightgown, partially undressed himself, got in bed on top of her and attempted to have sexual intercourse. He was unable to accomplish his purpose because she resisted to her utmost by thrashing her legs and moving her body as best she could. The defendant struck her with his fist on one occasion and forced himself upon her so severely that one of her ribs was broken. She was able to get the pillow case from her face and screamed. The defendant ceased his attempts and left the premises.
Mrs. Reinhardt called the police and was taken to the hospital. She was examined and treated for her injury. She related the events set forth above and described the defendant as a black man about six feet tall, eighteen to twenty years old, weighing approximately 200 pounds. Subsequently she was shown some photographs but was unable to identify any of them as the defendant.
At about 4 a.m., on the day of these occurrences, one of the investigating police officers dusted the bread box for latent fingerprints. He lifted three prints from the bread box and turned them over to the police bureau of identification.
About eleven months later, on July 30, 1972, an officer of the Bureau of Identification identified two of the three prints as being those of Glen Mitchel Rinehart, the defendant. Rinehart was known to the police department because of difficulties with the law in the interval between August 28, 1971, and July 30, 1972. From the department files the police knew where he lived, had photographs of him and a physical description.
Officer James Koleas arrived at the police station a few minutes before he was to report for squad patrol duty at 10:30 p.m. He examined the police bulletin board as he was required to do and found there a teletype bulletin dated July 31, 1972, 12:45 a.m., to all districts and bureaus, rape occurring Saturday, August 28, 1971, at 2357 North 20th, wanted is Glen Mitchel Rinehart, black male, twenty years of age, date of birth March 24, 1952, six feet two inches, 172 pounds, medium complected, medium build, black hair, brown eyes, resides at 2528 North 15th Street, bureau authority Leo Weoffel, Inspector Captain Gilbert. He then obtained two photographs of the defendant from the bureau of identification.
Koleas, his partner, and another squad of two officers, went to the address given in the bulletin and arrived there about 11:30 p.m. They knocked at the door which was answered by the defendant's mother. They identified themselves and inquired as to whether the defendant was there. She told them he was not and did not know when he would return. The same officers returned to this address at 5 a. m. Again the knock on the door was answered by the defendant's mother. She informed them that the defendant was there and admitted them into the house. The officers identified themselves and, after satisfying themselves that the defendant matched the description of the man wanted, told him they were taking him in for questioning.
The defendant was informed of his Miranda rights. At first he denied any participation in the events related above but at about 8 a.m., he made a statement admitting the robbery and about twelve noon, in a second statement, admitted the attempted rape.
A written complaint was filed in county court. An attorney was appointed, preliminary examination waived and the defendant was bound over for trial. An information was filed and defendant entered a plea of not guilty.
The defendant moved to suppress all evidence upon the ground the arrest was without probable cause.
The trial court heard the motion, considered it thoroughly in a written memorandum opinion, found the arrest was based upon probable cause, concluded that the warrantless arrest was not in violation of the fourth amendment of the United States Constitution, that the confession was voluntary and denied the motion.
A few days later the defendant was tried and convicted and sentenced as set forth above.
The defendant obtained a writ of error to review the judgment.
The defendant does not challenge the sufficiency of the evidence nor the sentence imposed. He does present several issues that blend into two contentions: (1) The officer did not have probable cause to believe the defendant committed the crimes, and (2) that an arrest without a warrant was illegal.
"Probable cause" has been defined in many cases in this court and elsewhere. A recent definition appears in State v. Paszek (1971), 50 Wis.2d 619, 624, 625, 184 N.W.2d 836, as follows:
"Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. Henry v. United States (1959), 361 U.S. 98, 102, 80 Sup. Ct. 168, 4 L.Ed.2d 134. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility, Browne v. State, supra, and it is well established that the belief may be predicated in part upon hearsay information. Draper v. United States (1959), 358 U.S. 307, 79 Sup.Ct. 329, 3 L.Ed.2d 327. The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. Wong Sun v. United States (1963), 371 U.S. 471, 83 Sup.Ct. 407, 9 L.Ed.2d 441. . . ."
The entire quantum of evidence necessary to establish probable cause need not be within the personal knowledge of the individual arresting officer. In United States v. Stratton (8th Cir. 1972), 453 F.2d 36, 37, certiorari denied, 405 U.S. 1069, 92 Sup.Ct. 1515, 31 L.Ed.2d 800, the court stated:
". . . probable cause is to be determined upon the objective facts available for consideration by the agencies or officers participating in the arrest; otherwise each individual officer would have to be fully briefed or informed of all of the essential factors in each case before proceeding to make an arrest upon probable cause. . . .
"The defendant does not dispute the sufficiency of the collective information available to the Secret Service agents [the Milwaukee Police Department in this case] to establish probable cause to believe that defendant had committed a felony . . . but claims that the arresting agents were not personally possessed of this knowledge.
"We think the knowledge of one officer is the knowledge of all and that in the operation of an investigative or police agency the collective knowledge and the available objective facts are the criteria to be used in assessing probable cause. The arresting officer himself need not possess all of the available information. As stated in Stassi v. United States, 410 F.2d 946 (5th Cir. 1969), `The officers involved were working in close concert with each other, and the knowledge of one of them was the knowledge of all. United States v. Romero, 2d Cir., 249 F.2d 371, 374 Id. at 952, n. 7."
In State v. Paszek, supra, at page 624, we further stated:
". . . `Probable cause' to arrest is a requirement of the fourth amendment of the United States Constitution, binding upon the individual states through the fourteenth amendment. Giordenello v. United States (1958), 357 U.S. 480, 485, 78 Sup.Ct. 1245, 2 L.Ed.2d 1503. This court has recognized that art. I, sec. 11 of the Wisconsin Constitution is substantially like the fourth amendment of the United States Constitution, and that the standards and principles surrounding the fourth amendment are generally applicable to the construction of art. I, sec. 11. Therefore a finding of probable cause under federal standards will normally result in a finding of probable cause under state standards. Browne v. State (1964), 24 Wis.2d 491, 503, 129 N.W.2d 175, 131 N.W.2d 169. . . ."
The state contends that the defendant waived his right to object to challenge the arrest when he failed to object prior to his appearance in court at his arraignment, citing Hanson v. State (1971), 52 Wis.2d 396, 402, 190 N.W.2d 129, and Lampkins v. State (1971), 51 Wis.2d 564, 570, 571, 187 N.W.2d 164. This would be correct if the defendant was seeking to challenge the personal jurisdiction of the trial court. However, in his reply brief the defendant made clear that he is not asking that the action be dismissed but rather that the statements of the defendant obtained subsequent to and as the result of an allegedly improper arrest be suppressed.
Sec. 971.31 (5) (b), Stats., provides:
"In felony actions, motions to suppress evidence or motions under ss. 971.23 to 971.25 or objections to the admissibility of statements of a defendant shall not be made at a preliminary examination and not until an information has been filed."
Thus defendant's motion to suppress was timely.
The defendant also contends that his arrest without a warrant was a violation of his fourth and fourteenth amendment rights under the United States Constitution. The fourth amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The same issue was presented in a case before the United States District Court for the Eastern District of Wisconsin in United States v. Millen (E. D. Wis. 1972), 338 F. Supp. 747, 750, 751. We approve and adopt the rationale and the rule of that decision as follows:
"The defendant challenges the validity of the arrest because no warrant was obtained even though allegedly it would have been practicable to do so. Therefore, under the theory of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), defendant continues any statements he made and any evidence seized subsequent to his arrest are fruits of an unlawful arrest and must be suppressed. I find this argument to be without merit.
"It has long been held that as long as probable cause for an arrest exists, arrest warrants are unnecessary, even when there is time to obtain them. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). As stated in the dissenting opinion by Mr. Justice WHITE in Chimel v. California, 395 U.S. 752, 778-779, 89 S.Ct. 2034, 2048, 23 L.Ed.2d 685 (1969):
"`The judgment of Congress is that federal law enforcement officers may reasonably make warrantless arrests upon probable cause, and no judicial experience suggests that this judgment is infirm. . . . And this Court has regularly affirmed the validity of warrantless arrests without any indication whatever that there was no time to get a warrant, and indeed where all the circumstances pointed to the opposite conclusion. E.g., Ker v. California, 374 U.S. 23 [ 83 S.Ct. 1623, 10 L.Ed.2d 726] (1963); Draper v. United States, 358 U.S. 307 [ 79 S. Ct. 329, 3 L.Ed.2d 327] (1959). . . .'
"In trying to impose search protections on the law of arrest, defendant alludes to a decision by another branch of this court in United States v. Case, No. 69-CR-95 (E. D. Wis. 1969), affirmed 435 F.2d 766 (7th Cir. 1970). In Case, Secret Service agents made a forced entry into a building leased by the defendant Case and used as a printing establishment. The occupants were arrested on a charge of manufacturing counterfeit currency. The forced entry and arrests were effected without warrants even though it would have been practicable to obtain them. The Court said:
"`. . . I believe the case can and should turn primarily on the erroneous decision of the Secret Service Agents to enter these premises without first obtaining an appropriate warrant from a judicial officer. . . .' (Emphasis supplied.)
"Clearly, Case was aimed at the warrantless entry by law enforcement officers into the private occupied premises of Case. On that important ground the facts here are distinguishable, for the arrest occurred on a public street.
"The defendant does not dispute that there was probable cause for arrest. Accordingly, defendant's motion to suppress the arrest must be denied. . . ."
The Wisconsin legislature has also seen fit to authorize law enforcement officers to make arrests without warrants when they have reasonable grounds to believe that the person has committed a crime. See sec. 968.07 (1) (d), Stats. Under the rationale set forth above, this statute is not unconstitutional as applied to the facts of this case.
"968.07. . . (1) A law enforcement officer may arrest a person when: . . . (d) There are reasonable grounds to believe that the person is committing or has committed a crime." (Emphasis supplied.)
Further, as in the Millen Case, supra, under the circumstances here it would not have been practicable to procure a warrant. Even though the crime had taken place almost a year prior to the arrest, the identification of defendant's fingerprints did not occur until the day that the officers sought to arrest the defendant. The officers' shift started at 10:30 p. m., on Saturday, July 30, 1972. They read the bulletin and proceeded to defendant's home at about midnight but he was not home. (It is judicially recognizable that it would indeed be difficult to procure a warrant at that hour or even the next day.) The defendant's mother could reasonably have been expected to inform the defendant that the police had been at his home to see him. This, in our opinion, was an exigency that made the return trip at 5 a.m., permissible if not necessary. When they arrived the second time the defendant's mother told them that the defendant was home and let them in. Thus there was no forced entry. They then met the defendant, identified him, and arrested him.
We are of the opinion the arrest was based upon probable cause and that the arrest without a warrant under the circumstances of this case was not a violation of the fourth amendment of the United States Constitution. The trial court correctly denied the motion to suppress and the judgment should be affirmed.
By the Court. — Judgment affirmed.