September 10, 1965 —
October 5, 1965.
APPEAL from a judgment and orders of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the appellant there was a brief by Robert L. Habush, attorney, and James M. Shellow and Shellow Shellow of counsel, all of Milwaukee, and oral argument by Mr. Habush.
For the respondent the cause was argued by David E. Leichtfuss, first assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Hugh R. O'Connell, district attorney.
Defendant was charged with violating sec. 161.02 (1), Stats., possession of narcotic drugs, on July 26, 1962. He was found guilty by a jury and sentenced to a term of not less than two nor more than nine years in the state prison.
At approximately 3 a.m. on July 26, 1962, Sergeant Jerome Jagmin of the Milwaukee police department observed a suspicious parked car in the 1100 block of North Jackson street in the city of Milwaukee. Jagmin approached the car, questioned its three occupants, and determined that the ages of the two girls were fifteen and seventeen and that the age of the man was eighteen. The Milwaukee curfew is 11 p.m. Upon further questioning the trio said that they had just returned from a trip to Chicago with two other men, one named Pablo Perez. They told Jagmin that these two men were in a rooming house across the street. During this questioning Jagmin noticed a bottle of whiskey on the rear floor of the car.
Jagmin called in another squad, and when the two officers arrived he went across the street and entered the rooming house. As Jagmin ascended the stairs he met a man descending and asked him if his name was Pablo. The man said his name was Pablo and that he was the owner of the car parked outside. When asked where the other man was, Perez told Jagmin that he was in an attic apartment. Perez further stated that this other man, named Carlos Camara, the defendant, had hired Perez to drive him to Chicago and that Camara had returned with dope which he was cutting up to sell immediately in order to pay Perez for the trip. Jagmin called for Officer Enk and arrested Perez for contributing to the delinquency of a minor.
Perez led Jagmin, Officer Enk, and one of the minor girls to Camara's apartment. The door of the apartment had a crack in it which varied from 1/8 inch to 1 1/2 inches in width and was several feet in length. Through this crack the officers could see into the lighted apartment.
Jagmin told Perez to knock on the door. Perez did so, but he also spoke a warning, in Spanish, that he had come with the police. Camara who was dressed in shorts and T-shirt, began scurrying about the room with his hand clenched beneath his T-shirt. Jagmin, and the others to a lesser extent, observed these movements from the hallway by looking through the crack in the door. Camara went to his bed, picked up the mattress, put it down, went to the closet, and then went to the window. He leaned out of the window and appeared to throw something out. He then put on his trousers and came to the door. He opened the door sometime between three and ten minutes after Perez knocked.
Jagmin immediately arrested Camara for contributing to the delinquency of a minor and for suspicion of possession of narcotics, and asked Camara if he had any drugs in his room. The defendant denied possession of any drugs and invited the officers to look around. Camara even lifted the mattress and opened some drawers, as if to help out.
The police entered and began a search. Eventually they found a small package containing heroin on a small roof or ledge just below the window in Camara's room. Camara denied ownership and knowledge of the heroin.
On the same day defendant appeared before Judge DUFFY, a county judge of Milwaukee county, acting as a magistrate. Bail was set, and the case was continued to August 9, 1962. On that day the defendant appeared without counsel before Judge DUFFY and presented a handwritten affidavit of prejudice in proper form against the judge. The court accepted the affidavit and assigned the case to Judge SERAPHIM for preliminary examination. The defendant appeared before Judge SERAPHIM and waived preliminary examination. He was then bound over to circuit court for trial. In circuit court counsel was appointed, and defendant moved to remand for preliminary examination under sec. 955.18 (2) (a), Stats. The state orally opposed the motion on the grounds that there was probable cause to hold the defendant for trial, and that the defendant made an intelligent waiver. The district attorney stated that ". . . the defendant has had considerable experience with the processes of law in this court, in the other criminal courts of Milwaukee County, and the Federal Court, up to the Supreme Court . . . ." The motion was denied on the ground of intelligent waiver on September 25, 1962.
Defendant renewed his motion and counsel stated, ". . . I am advising the court that I firmly believe that to be adequately prepared for trial I must have the advantages of a preliminary hearing." The motion was denied.
Defendant then moved to suppress evidence on the ground of illegal search. Testimony was taken on October 2, 1962, and the motion was denied. Defendant went to trial before a jury and was convicted.
Defendant moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. These motions were denied, and defendant appeals.
Appellant raises only two issues on this appeal: (1) Invalid denial of the preliminary examination, and (2) illegal search.
It is well established under Wisconsin law that the right to a preliminary examination is not a constitutional right, but a statutory right. State v. Strickland (1965), 27 Wis.2d 623, 633, 135 N.W.2d 295; State ex rel. Offerdahl v. State (1962), 17 Wis.2d 334, 336, 116 N.W.2d 809; Thies v. State (1922), 178 Wis. 98, 103, 189 N.W. 539.
Appellant contends, however, that he has met the requirements under the statute, and that denial of the preliminary examination was error. The statute is couched in language conveying discretion to the trial judge. Thus, the trial court is not obliged to remand upon defendant's unsubstantiated allegations alone. But the appellant argues that permissive language is in fact mandatory when the statutes ". . . provide for the doing of acts or the exercise of power or authority by public officers, and private rights or the public interest require the doing of such acts or the exercise of such power or authority, . . ." 3 Sutherland, Statutory Construction (3d ed.), p. 86, sec. 5808. Appellant cites Wauwatosa v. Milwaukee County (1963), 22 Wis.2d 184, 191, 125 N.W.2d 386, in support of this rule.
"955.18 PRELIMINARY EXAMINATION; WHEN A PREREQUISITE TO INFORMATION. . . .
"(2) (a) Upon good cause shown the trial court may in its discretion remand the cause to the magistrate for a preliminary examination, upon motion made pursuant to s. 955.09. Good cause means:
"1. Preliminary examination was waived; and
"2. Defendant had not had advice of counsel prior to such waiver; and
"3. Defendant denies that probable cause exists to hold him trial; and
"4. Defendant intends to plead not guilty."
A close reading of the rule and the cases indicates that the rule is designed for application when the statute reads "may," or contains some other permissive term. This statute reads ". . . the trial court may in its discretion . . . ." That the rule does not apply to a statute made expressly permissive by plain language appears in the Wauwatosa Case (p. 191): "Generally in construing statutes, `may' is construed as permissive and `shall' is construed as mandatory unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature." Furthermore, the Wauwatosa Case must be distinguished upon the ground that it deals with administrative duties of municipal officers and not judicial discretion of a court. One can scarcely imagine language which more clearly spells out the intent of the legislature that the judge have discretion on the remand.
Since the remand is discretionary, we must determine whether or not that discretion was abused. While the exercise of discretion by the trial court must be grounded on some rational basis, the general rule is that an appellate court will not reverse the trial court unless an abuse of discretion is found. Estate of Korleski (1964), 22 Wis.2d 617, 622, 126 N.W.2d 492. The supreme court cannot substitute its discretion for that of the trial court. Estate of Korleski, supra; In re Johnson (1960), 9 Wis.2d 65, 75, 100 N.W.2d 383.
The trial court had before it the uncontradicted statement of the district attorney that the defendant had had considerable experience before his court, and other courts, which was unsupported by affidavits, the statement of defendant's counsel that he needed the preliminary examination to adequately prepare for trial, and defendant's handwritten affidavit of prejudice. Upon these facts the trial court concluded that defendant's waiver of the preliminary examination was made intelligently. This decision, while not elaborately explained in the record, was not an abuse of discretion.
While a court may not take judicial notice of its records of convictions or appearances by the particular defendant before it for purposes of creating a "bad man" inference in determining guilt or innocence, the court may take judicial notice of its own records for purposes of creating an inference that the defendant is familiar with the procedure of that particular court. This inference bears on the issue of intelligent waiver. The trial court did not indicate in the record that it was taking judicial notice, but we conclude that that was the basis of the trial court's ruling.
In Thies v. State, supra, at page 103, this court stated the historical purposes for a preliminary examination:
"The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based."
Nowhere in any decided case of which we are aware is discovery by the defendant given as a reason for the existence of the preliminary examination. Discovery, however, may be one of the valuable by-products of a preliminary examination from the defendant's point of view. Thus, the trial court could have inferred that defendant sought the preliminary examination not to avail himself of one of its traditional purposes, but to obtain discovery from the state, and that the statement by counsel was a concession by defendant that probable cause to hold him for trial did exist. Defendant's desire to prepare for trial indicates his belief that he would be bound over upon a finding of probable cause.
Finally, defendant's affidavit of prejudice in proper form indicates that the defendant was quite familiar with criminal law and procedure. From this combination of factors the trial court could infer that defendant intelligently waived his preliminary examination, and that he did not seriously contend that there was a lack of probable cause.
Appellant contends that the search of his premises was illegal because not incidental to a valid arrest. For a search incidental to an arrest to be legal the arrest itself must be legal, and for the arrest to be legal probable cause for the arrest must exist. Ker v. California (1963), 374 U.S. 23, 34, 35, 83 Sup. Ct. 1623, 10 L.Ed.2d 726; Carroll v. United States (1925), 267 U.S. 132, 155, 156, 45 Sup. Ct. 280, 69 L.Ed. 543.
"Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." Henry v. United States (1959), 361 U.S. 98, 102, 80 Sup. Ct. 168, 4 L.Ed.2d 134.
"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." Browne v. State (1964), 24 Wis.2d 491, 503, 129 N.W.2d 175, 131 N.W.2d 169.
The quantum of evidence required to establish probable cause is less than that which would justify conviction. United States v. Ventresca (1965), 380 U.S. 102, 107, 85 Sup. Ct. 1371, 14 L.Ed.2d 353; Draper v. United States (1959), 358 U.S. 307, 79 Sup. Ct. 329, 3 L.Ed.2d 327.
When Jagmin entered the rooming house, he possessed information that two men, one named Pablo Perez, were in the building and that they had some connection with the presence of the minors at the time and place in question. He also had information that the men had been to Chicago. When he met Perez his information was verified and increased. Perez acknowledged ownership of the car and told him that the other man, Camara, was upstairs cutting up dope. Armed with this information Jagmin went to Camara's room. Perez's warning in Spanish, which the officer partially understood, added a significant factor. Then the officer observed through the crack in the door activity which was consistent with the informant's statements. When Camara finally opened the door Jagmin identified himself and arrested the defendant.
Draper v. United States, supra; Ker v. California, supra; and Wong Sun v. United States (1963), 371 U.S. 471, 480, 83 Sup. Ct. 407, 9 L.Ed.2d 441, all hold that hearsay information may be used to establish probable cause. However, these cases also require that the hearsay be corroborated or substantiated in some way. In Ker and Draper the information from a reliable informant was corroborated by police observations. In Wong Sun the information was not from a reliable informant and was too vague to establish probable cause. Here the hearsay evidence was not from a known reliable informant; however, certain facets of the information possessed by the police officer at the time of arrest had been substantiated and corroborated by three other persons, and the remainder had been corroborated by the officer's own observations. Thus, where the police possess information which is corroborated by third persons and the observations of the police themselves, and the nature of that information is such that any reasonable police officer could believe that a felony is taking place, probable cause for arrest exists. This conclusion is bolstered by the fact that there was a probable risk that Camara would leave the premises and sell, or otherwise dispose of, the contraband if the police should leave to obtain a warrant. This additional factor may be considered in determining whether or not probable cause exists. Ker v. California, supra, page 40. This is not a case of mere suspicion, which is condemned, but one where the record reveals a totality of circumstances upon which a finding of probable cause may be grounded. The arrest being legal, there is nothing else on this record to taint the search incident to the arrest with unreasonableness.
Apart from justifying the search on the validity of the arrest to which it was incident, the search is clearly justified by defendant's consent. In Barnes v. State (1964), 25 Wis.2d 116, 121, 130 N.W.2d 264, we said:
"A search and seizure are not in violation of constitutional rights if the person freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied; the state has the burden of proving by clear and positive evidence that such consent was given. [Cases cited.]" See Holt v. State (1962), 17 Wis.2d 468, 117 N.W.2d 626.
This case is similar to Barnes in the statements made to the police, but there is no hint of coercion as was there present. Jagmin testified that he asked the defendant "if he had any drugs in his room and he answered, `No, look around,' and lifted the mattress and pulled things out of his pockets." Similarly, Perez testified that the defendant denied possession of any narcotics and said, "`If you think I got some narcotics in here come in and look for it.'" The defendant himself was the only witness who testified to no consent. This record clearly demonstrates actual consent and an absence of coercion.
There being both probable cause for the arrest and consent to the search, the search is not unreasonable.
By the Court. — Judgment and orders affirmed.