Holt v. State

117 N.W.2d 626, 17 Wis. 2d 468
CourtWisconsin Supreme Court
DecidedOctober 30, 1962
StatusPublished
Cited by74 cases

This text of 117 N.W.2d 626 (Holt v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holt v. State, 117 N.W.2d 626, 17 Wis. 2d 468 (Wis. 1962).

Opinions

Gordon, J.

The defendant’s contentions can be grouped into five separate categories:

1. Unlawful Search and Seizure.

The defendant urges that her constitutional rights were infringed upon when the officers gained admittance to the home at the invitation of her husband and also when they searched the premises without a search warrant.

The husband’s act of admitting the officers was consistent with his status. He had at least equal prerogatives on the premises and had authority to admit others to his home. We do not have to go as far as the court did in United States v. Sferas (7th Cir. 1954), 210 Fed. (2d) 69, 74, when it said:

. . the rule seems to be well established that where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.”

In the instant case, no search was conducted by the officers upon the sole strength of the husband’s having admitted [474]*474them; the officers did nothing until they met with and spoke to the defendant.

The defendant relies upon People v. Dent (1939), 371 Ill. 33, 19 N. E. (2d) 1020, but we deem that case distinguishable on its facts. In that case the search and seizure was by the officers upon their entrance to the premises; not having a search warrant, the officers rang the doorbell and entered when a voice called out, “Come in.” It was not the defendant’s voice, but rather was that of a companion. The Illinois court did not consider this an invitation by the defendant or by anyone else who was authorized to admit the officers. The search and seizure, which was made immediately after the improper entry, was conducted without any authorization from the defendant.

A close question is presented to this court: Was the trial court’s finding that Mrs. Holt consented to the search reasonable under all the circumstances of this case?

At the outset it should be noted that the prohibition of the Fourth amendment is now applicable to evidence submitted in state courts. This was not true at the time of Judge Steffes’ decision. He properly relied upon Wolf v. Colorado (1949), 338 U. S. 25, 69 Sup. Ct. 1359, 93 L. Ed. 1782; however, the latter case has since been upset by Mapp v. Ohio, 367 U. S. 643, 81 Sup. Ct. 1684, 6 L. Ed. (2d) 1081, decided on June 19, 1961. In reversing Wolf v. Colorado, the Mapp Case held that evidence obtained by searches and seizures in violation of the federal constitution is inadmissible in a criminal trial in a state court.

Accordingly, those cases in the federal court which have examined the question of consent to a search and seizure are germane to our decision. In Channel v. United States (9th Cir. 1960.), 285 Fed. (2d) 217, 219, the court said:

“A search and seizure may be made without a search warrant if the individual freely and intelligently gives his [475]*475unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied. The government has the burden of proving by clear and positive evidence that such consent was given.”

A similar standard is expressed in Judd v. United. States (D. C. Cir. 1951), 190 Fed. (2d) 649, 651, wherein it is said that “consent must be proved by clear and positive testimony.”

Another expression demonstrating the reluctance to find consent where there has been a search and seizure without a warrant is United States v. Arrington (7th Cir. 1954), 215 Fed. (2d) 630, 637, where the court said:

“It is high time that courts place their stamp of disapproval upon this increasing practice of federal officers searching a home without a warrant on the theory of consent, particularly where no reason is shown why a search warrant was not obtained. The protection afforded by the Fourth amendment should not be made dependent upon the probity of an officer attempting to justify a search on consent. Otherwise, the rights guaranteed to the citizen by the amendment will be impaired so as to become little more than ¿n empty gesture.”

There can be little doubt that upon an adequate showing of consent to the search of one’s premises a defendant may not claim an invasion of his constitutional rights. Milyonico v. United States (7th Cir. 1931), 53 Fed. (2d) 937; United States v. Ziemer (7th Cir. 1961), 291 Fed. (2d) 100; State v. Zuehlke (1941), 239 Wis. 111, 116, 300 N. W. 746. Cf. Agnello v. United States (1925), 269 U. S. 20, 32, 46 Sup. Ct. 4, 70 L. Ed. 145.

The defendant maintains that the circumstances of the instant search and seizure demonstrate the existence of an unfair pressure upon Mrs. Holt by reason of the fact that she was confronted by police officers who showed their badge of authority; it is urged that compliance with such authority should be held to be compulsive and not con[476]*476sensual. The defendant points out that in State v. Warfield (1924), 184 Wis. 56, 61, 198 N. W. 854, this court quoted the following:

“ ‘It must be first premised that where an officer, politely and decently and without physical threat, has assumed to act in his official capacity, he is acting de facto, if not de jure, and a peaceful citizen should not forcibly resent the action, even though he knows the officer is, as to the act, greatly exceeding his authority, resting confidently upon the belief that this submission will not impair any of his constitutional rights; for, as the courts have repeatedly held, such action will not be taken to be a consent to an unlawful search or arrest, but merely a peaceful submission to officers of the law.’ ”

Another case which tends to support the defendant’s position is United States v. Slusser (S. Dist. Ohio, 1921), 270 Fed. 818, where the court said, at page 819:

“The search so permitted by Slusser, after declaration by the prohibition officer, with a display of his badge, that they were there to search the premises, was not by such consent as will amount to a waiver of constitutional rights, but, on the contrary, is to be attributed to a peaceful submission to officers of the law.”

This court is deeply concerned about the technique employed in the instant case by which the incriminating evidence was obtained. The practice employed by the police in the present case constitutes an invitation to breaches of peace and threatens the citizen’s right to be secure in his home. It has the additional flaw, as suggested in the Arrington Case, supra, of encouraging police officers to circumvent the search-warrant technique and to buttress their searches with a claim of consent for purposes of convenience or the overzealous desire to obtain a conviction. Trial judges are enjoined to scrutinize claims of consensual searches and seizures made in a dwelling place to satisfy [477]*477themselves that the consent was, in the words of the Channel Case, “uncontaminated by any duress or coercion, actual or implied.”

The proper way to search a dwelling place is to obtain a search warrant.

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Bluebook (online)
117 N.W.2d 626, 17 Wis. 2d 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holt-v-state-wis-1962.