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Kluck v. State

Supreme Court of Wisconsin
Dec 22, 1967
37 Wis. 2d 378 (Wis. 1967)


December 1, 1967. —

December 22, 1967.

ERROR to review a judgment and an order of the county court of Pepin county: ALBERT L. TWESME, County Judge of Trempealeau county, Presiding. Judgment and order affirmed.

For the plaintiff in error there were briefs and oral argument by Dane F. Morey of Durand.

For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Platz, assistant attorney general.

David Kluck, plaintiff in error (hereinafter "the defendant"), was convicted of burglary in violation of sec. 943.10(1) (a), Stats., after a trial to the court and jury. On March 1, 1967, defendant was sentenced to Wisconsin state prison for a term of not to exceed four years.

On May 12, 1966, between 12:30 a.m. and 8 a.m., a pane of glass was removed from the locked door of Hougen's pharmacy, located in Durand, Wisconsin. At 8 a.m., on that date, the owner of the pharmacy came to work and observed the missing pane of glass, noticed that drawers in the drug section were ajar and that some garbage and a couple of prescription bottles were on the floor. Some bottles of codeine, insulin needles, cough syrup, pain capsules, injectable narcotics, barbiturates, and a yellow wastebasket were missing.

One Theodore Cosgrove testified that at about 4:30 a.m., on May 12, 1966, the defendant, David Kluck, came into the Cosgrove apartment in Minneapolis, Minnesota, accompanied by one James Tilseth, with a yellow basket full of bottles of narcotics from Hougen's pharmacy. The bottles were identified as being from Hougen's because they bore cost coding on them which is peculiar to that pharmacy. Tilseth and Kluck had been at the apartment together on the night of May 11th. They had left the apartment at 11:30 p.m. that evening. After coming in at 4:30 a.m., they sat at a table and divided the bottles. They appeared to Cosgrove to be "high" on narcotics. Cosgrove testified that he overheard their conversation to the effect they had made a burglary and had about $1,000 worth and went only a few miles.

On May 23, 1966, a police informant, Melvin Francisco, received a telephone call in which he was asked whether he was interested in buying narcotics. He was given the name of the defendant and a telephone number. He called the number and asked for "Dave." The man he talked with identified himself as "Dave." During the ensuing conversation the informant was told that "a minnow bucket full of narcotics" was for sale. The two men were unable to make immediate arrangements to view the narcotics and, therefore, the informant stated he would call back.

After this conversation, the informant told Deputy Sheriff Fred Weegroan of Hennepin county, Minnesota, about the situation. Officer George Bendt of the narcotics division of the Minneapolis police department was also contacted. On May 25th, the informant met with the deputy sheriff and the officer. In the meantime, defendant had been arrested for some reason and was in the workhouse. The informant visited the defendant at the workhouse on the morning of the 25th, giving him an explanation of how he got in to see him. The informant told defendant he was still interested in the narcotics, whereupon he was informed that they consisted of approximately 2,500 tablets, syringes, needles, liquid narcotics, powdered narcotics, and cough syrup. The informant asked where he could see these and the defendant gave him a telephone number to call, saying that arrangements to see the narcotics could be made through the person called. During this conversation the defendant indicated that the narcotics had been secured from out of state. He stated the drugs were his and also mentioned the name "Toody."

The informant subsequently called the telephone number which had been given him by the defendant. A man who identified himself as Theodore Cosgrove answered the telephone; and a brief conversation occurred concerning arrangements to see the narcotics. A second call was later made at which time it was arranged that the informant would come to Cosgrove's apartment at 5:30 p. to., on May 25th.

At 5:30 p.m., on May 25th, the informant, Officer Bendt, Deputy Weegman, a federal narcotics agent and one or two Minneapolis police officers went to the address given by Cosgrove, that of his apartment. While the informant knocked on the door, the officers stood in the fire doorway. Cosgrove told the informant to enter. After the informant identified himself, Cosgrove went to a small room on the side of the efficiency apartment and returned with a yellow wastebasket. The informant examined the contents, said that everything was all right and was worth the $200 price. He said that he would have to go to his car to get the money and left the apartment. The informant then reported back to the officers and told them that the narcotics were in a basket in the apartment. While the informant was gone, Cosgrove took the narcotics out of the yellow basket and put them in a shopping bag for easier carrying, leaving the yellow wastebasket next to the shopping bag. The officers instructed the informant to return and resumed their positions in the fire door. As Cosgrove was in the process of closing the door after readmitting the informant, the officers rushed to the door from their position, pushed the informant through the entry, announced that they were police officers, placed Cosgrove under arrest, and made a search of the informant. On the floor in the kitchen part of the efficiency apartment was located the yellow wastebasket, a brown bag, and the bottles of narcotics identified by the owner of Hougen's pharmacy as coming from there.

At the time of the search and seizure, the officers did not know of the burglary in Durand. They teletyped the information to Durand the next day, whereupon the Pepin county sheriff informed them by telephone of the burglary at Hougen's pharmacy. On the basis of this information a complaint was signed and a warrant issued for the arrest of David Kluck for the burglary at Hougen's pharmacy. Kluck was arrested about two weeks later.

Further facts will appear in the opinion.

Defendant Kluck raises two issues on this review: (1) Was the evidence secured at the apartment obtained as the result of an illegal search and seizure in violation of plaintiff in error's (defendant's) constitutional rights and therefore inadmissible; (2) was there sufficient credible evidence to sustain defendant's conviction?

Legality of Search and Seizure.

The trial court held that defendant did not have standing to raise the issue of search and seizure with respect to Cosgrove's apartment and that the search and seizure were proper. Defendant contends that he has standing and that the search and seizure were illegal.

The apartment at which the narcotics were found by the authorities was rented by Cosgrove. Kluck, a friend of Cosgrove's at the time of these happenings, had a key to the apartment and to the basement locker that went with the apartment, both of which were given to him by Cosgrove. He thus had access to the apartment and could come and go as he liked. Occasionally he entertained friends there. He stayed there three or four nights a week and generally ate one meal a day there when he stayed at the apartment, but never bought food for the apartment. He kept some of his belongings there. At one point, in March of 1965, he moved into his own apartment, but that arrangement lasted only a month. Cosgrove testified that Kluck had no permanent home and that he did not consider that Kluck's home was his apartment. Kluck paid no rent but did give Cosgrove money from time to time which Cosgrove testified was as repayment for arrest bonds Cosgrove had arranged for him or was to pay for getting clothes cleaned at the laundromat. Kluck was also in jail much of the time preceding the events here and also stayed at his girl friend's apartment when he was not at Cosgrove's.

Whether the search and seizure are valid is a question of federal constitutional law. If evidence obtained by an illegal search is admitted into evidence and has a prejudicial effect on the defendant's case, then the fourteenth amendment due process clause requires that a subsequent conviction be reversed. Mapp v. Ohio (1961), 367 U.S. 643, 81 Sup. Ct. 1684, 6 L.Ed.2d 1081; Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169, certiorari denied, 379 U.S. 1004, 85 Sup. Ct. 730, 13 L.Ed.2d 706.

In Jones v. United States (1960), 362 U.S. 257, 80 Sup. Ct. 725, 4 L.Ed.2d 697, the United States Supreme Court stated that in order to qualify as a person aggrieved by an unlawful search and seizure, one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. The purpose of exclusion of evidence in violation of the strictures placed upon searches and seizures has for its purpose the protection of privacy. The Jones Case proceeded to hold that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.

In United States v. Jeffers (1951), 342 U.S. 48, 72 Sup. Ct. 93, 96 L.Ed. 59, one Roberts sought out the house detective of a hotel in Washington, D.C., and offered him $500 to let him into a room in the hotel occupied by respondent's two aunts, the Misses Jeffries. The house detective told Roberts to call back later in the evening and immediately reported the incident to a Lieutenant Karper, in charge of the narcotics squad of the metropolitan police, who came to the hotel and went with the house detective to the room occupied by the Misses Jeffries. When there was no answer to their knock on the door, the two officers then went to the assistant manager to obtain a key to the room. Although neither officer had a search or arrest warrant, they entered the room. On the top shelf of a closet they discovered a pasteboard box containing 19 bottles of cocaine, of which only two had United States stamps attached, and one bottle of codeine, also without stamps. Respondent was arrested the following day for a violation of certain of the federal narcotics laws, 26 U.S.C. § 2553 (a) and 21 U.S.C. § 174. It appeared from the evidence at the pretrial hearing that his aunts had given respondent a key to their room, that he had permission to use the room at will, and that he often entered the room for various purposes. The hotel records reflected that the room was assigned to and paid for by them alone. The United States Supreme Court held that respondent had standing to object to the search and seizure. We think this case compels a finding by this court that the defendant has standing to raise the issue of the validity of the search and seizure of Cosgrove's apartment.

The cases cited by the state, United States v. Beigel (2d Cir. 1967), 370 F.2d 751; United States v. Liguori (2d Cir. 1967), 373 F.2d 304; and Robinson v. State (Fla. 1967), 194 So.2d 29, are inapplicable, for nowhere does it appear in the facts of those cases that the party challenging the legality of the search had any connection at all with the premises searched.

In Ruiz v. State (Fla. 1967), 199 So.2d 478, 479 also cited by the state, the court stated:

". . . The evidence was to the effect that he had a key to Rodriguez apartment, had spent a night there on occasion and that some articles belonging to him (glasses, water container, towels) were in Rodriguez apartment. That showing did not meet the requirement that to enjoy standing to challenge the search of the Rodriguez apartment, it was incumbent upon Ruiz to show he was the owner, lessee, or lawful occupant of the premises searched, as held in Mixon v. State, Fla. 1951, 54 So.2d 190, 192; State v. Smith, Fla. App. 1960, 118 So.2d 792; McCain v. State, Fla. App 1963, 151 So.2d 841; Robinson v. State, Fla. App. 1967, 194 So.2d 29. Cf. State v. Leveson, Fla. 1963, 151 So.2d 283."

We would hesitate to follow the Florida holding in light of the following language in the Jones Case, at pages 265 and 266:

"While this Court has never passed upon the interest in the searched premises necessary to maintain a motion to suppress, the Government's argument closely follows the prevailing view in the lower courts. They have denied standing to `guests' and `invitees' ( e.g., Gaskins v. United States, 95 U.S. App. D.C. 34, 35, 218 F.2d 47, 48; Gibson v. United States, 80 U.S. App. D.C. 81, 84, 149 F.2d 381, 384; In re Nassetta, 125 F.2d 924; Jones v. United States, 104 U.S. App. D.C. 345, 262 F.2d 234), and employees, who though in `control' or `occupancy' lacked `possession' ( e.g., Connolly v. Medalie, 58 F.2d 629, 630; United States v. Conoscente, 63 F.2d 811). The necessary quantum of interest has been distinguished as being, variously, `ownership in or right to possession of the premises' ( e.g., Jeffers v. United States, 88 U.S. App. D.C. 58, 61, 187 F.2d 498, 501, affirmed, Jeffers v. United States, 342 U.S. 48), the interest of a `lessee or licensee' ( United States v. De Bousi, 32 F.2d 902), or of one with `dominion' ( McMillan v. United States, 26 F.2d 58, 60; Steeber v. United States, 198 F.2d 615, 617). We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between `lessee,' `licensee,' `invitee' and `guest,' often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards."

We now consider the legality of the "search" of Cosgrove's apartment.

Defendant contends that the search and seizure were in no way incidental to a lawful arrest, for the officers did not have a warrant for either Cosgrove's or his arrest nor was anyone under arrest at the time the officers pushed their informant through the door and gained entry forcibly.

It is true that the mere fact that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a search warrant. Jones v. United States (1958), 357 U.S. 493, 78 Sup. Ct. 1253, 2 L.Ed.2d 1514; Agnello v. United States (1925), 269 U.S. 20, 46 Sup. Ct. 4, 70 L.Ed. 145. But a search and seizure of limited extent can be made incident to a valid arrest. Henry v. United States (1959), 361 U.S. 98, 80 Sup. Ct. 168, 4 L.Ed.2d 134; Johnson v. United States (1948), 333 U.S. 10, 68 Sup. Ct. 367, 92 L.Ed. 436; Ker v. California (1963), 374 U.S. 23, 83 Sup. Ct. 1623, 10 L.Ed.2d 726.

Probable cause exists if the facts and circumstances known to the police officer warrant a prudent man in believing an offense has been committed. Henry v. United States, supra. 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. State v. Camara (1965), 28 Wis.2d 365, 137 N.W.2d 1; Browne v. State, supra.

Whether the arrest was valid or not must be determined by Minnesota law, since the arrest occurred there. United States v. Di Re (1948), 332 U.S. 581, 589, 68 Sup. Ct. 222, 92 L.Ed. 210; State v. Klein (1964), 25 Wis.2d 394, 130 N.W.2d 816, certiorari denied, 380 U.S. 951, 85 Sup. Ct. 1083, 13 L.Ed.2d 969.

In Minnesota, an arrest may be made without a warrant upon probable cause as known to the arresting officer. Sec. 629.34(3), Minn. Stats. State v. Harris (1963), 265 Minn. 260, 121 N.W.2d 327, certiorari denied, 375 U.S. 867, 84 Sup. Ct. 141, 11 L.Ed.2d 94, indicates probable cause and reasonable cause are synonymous. In State v. Emerson (1963), 266 Minn. 217, 123 N.W.2d 382, the court held that if an arrest was made on the basis of the advice of a trustworthy informant, it was sufficient to constitute probable cause, citing Draper v. United States (1959), 358 U.S. 307, 79 Sup. Ct. 329, 3 L.Ed.2d 327. If an arrest is lawful, an officer may make search within reasonable limits. State v. Olson (1965), 271 Minn. 50, 135 N.W.2d 181.

Here the information was given by a reliable informer who had collaborated with the police before. He led the police officers to the apartment and told them that narcotics were in the apartment after viewing the narcotics personally. This gave the officers probable cause to arrest Cosgrove on the spot for possession of narcotics. Secs. 618.02 and 618.21, Minn. Stats. They had no need to be able to see the narcotics from their position outside the door. The narcotics were not hidden from view once they were inside the door and were certainly a proper subject for seizure in a search incident to arrest.

Defendant also contends the proper way to search a dwelling place is to obtain a search warrant. In Ker v. California, supra, the United States Supreme Court held that the practicability of obtaining a warrant is not a controlling factor where the search is made incidental to the arrest.

Sufficiency of Evidence to Convict.

Defendant contends that since the stolen goods were not in his sole possession on the morning after the burglary, there is no credible evidence to support the verdict of guilty, there being no other evidence against him. This argument presupposes that the state was relying on a presumption of fact which called for an explanation of how the possessor obtained the property as was relied on in State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379. There the court stated at page 139:

"Mere possession of stolen property raises no inference of guilt, but Wisconsin from early times has followed the rule that unexplained possession of recently stolen goods raises an inference of greater or less weight, depending upon the circumstances, that the possessor is guilty of the theft and also of burglary if they were stolen in a burglary. Such inference being in the nature of a presumption of fact calls for an explanation of how the possessor obtained the property. Such presumption is not conclusive and may be rebutted. . . ."

However, albeit that defendant's possession was not exclusive, also in the case was the conversation overheard by Cosgrove to the effect that they had made a burglary and only had to go a few miles. This and the unassailable linkage of the stolen goods to Hougen's pharmacy is strong circumstantial evidence that Kluck committed the burglary, strong enough to prove the defendant's guilt beyond a reasonable doubt when believed and rationally considered by a jury. State v. Clarke (1967), 36 Wis.2d 263, 153 N.W.2d 61; Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183.

Circumstantial evidence may be and often is stronger and more satisfactory than direct evidence. State v. Johnson, supra; Kopacka v. State (1964), 22 Wis.2d 457, 126 N.W.2d 78.


We conclude that the arresting officer had probable cause to arrest Cosgrove and that the search and seizure was made incidental to the lawful arrest. Therefore the evidence obtained was admissible in the trial of the defendant for burglary.

We find there was credible evidence to support the jury's verdict that the defendant was guilty of burglary. We find no prejudicial error to the defendant; and we further find the trial court properly denied defendant's motion to set aside the verdict and for judgment of acquittal and in the alternative for a new trial.

By the Court. — Judgment and order affirmed.

Summaries of

Kluck v. State

Supreme Court of Wisconsin
Dec 22, 1967
37 Wis. 2d 378 (Wis. 1967)
Case details for

Kluck v. State

Case Details

Full title:KLUCK, Plaintiff in error, v. STATE, Defendant in error

Court:Supreme Court of Wisconsin

Date published: Dec 22, 1967


37 Wis. 2d 378 (Wis. 1967)
155 N.W.2d 26

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