State ex rel. Warrender v. Kenosha County Court

227 N.W.2d 450, 67 Wis. 2d 333, 1975 Wisc. LEXIS 1462
CourtWisconsin Supreme Court
DecidedMarch 28, 1975
DocketNo. 482
StatusPublished
Cited by5 cases

This text of 227 N.W.2d 450 (State ex rel. Warrender v. Kenosha County Court) 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
State ex rel. Warrender v. Kenosha County Court, 227 N.W.2d 450, 67 Wis. 2d 333, 1975 Wisc. LEXIS 1462 (Wis. 1975).

Opinions

Hanley, J.

The following issues are presented upon this appeal:

1. Is a writ of habeas corpus an appropriate remedy to review whether either a criminal complaint or an arrest is legally sufficient to grant the trial court personal jurisdiction over a criminal defendant, or whether evidence seized pursuant to a search incident to the arrest should be suppressed?

2. Did the defendant waive his objection to the personal jurisdiction of the county court over him?

3. Was the municipal court presented with sufficient facts to determine that there was probable cause to believe that the defendant violated sec. 7.01 of the Ke-nosha ordinances so as to justify the issuance of the arrest warrant?

Habeas corpus.

The defendant argues that a writ of habeas corpus is the proper remedy for challenging the jurisdiction of a trial court over a criminal defendant. Respondents do not argue to the contrary.

In State ex rel. Hussong v. Froelich (1974), 62 Wis. 2d 577, 215 N. W. 2d 390, this court ruled on the validity of a bindover challenged by the use of habeas corpus on the basis that there was insufficient evidence produced at the preliminary hearing to establish probable cause. Also, in State ex rel. Dore v. Stoltz (1969), 42 Wis. 2d 534, 167 N. W. 2d 214, this court held that habeas corpus [339]*339was an appropriate remedy to challenge the validity of complaints and bindovers.

In State ex rel. Kanieski v. Gagnon (1972), 54 Wis. 2d 108, 112, 194 N. W. 2d 808, this court said:

“An action for habeas corpus is a collateral proceeding which normally can be used to raise questions concerning the jurisdiction of the convicting court, the validity of the conviction as against a charge that the law under which the defendant was convicted is void, and constitutional defects in the conviction process; it is normally not used to raise such questions as the sufficiency of the evidence.”

Under the above authority, habeas corpus is available to challenge the jurisdiction of the county court over the person of the defendant. It also is available to challenge the ruling on the motion to suppress evidence in this case because of the constitutional issues involved in that ruling. On this point defense counsel shows that there may be no other adequate remedy at law available to the defendant. This contention is based on this court’s decision in State v. Ryback (1974), 64 Wis. 2d 574, 219 N. W. 2d 263. In that case this court held a defendant, in a possession of marijuana case, who consents to the preferential treatment available under sec. 161.47 (1), Stats., cannot appeal while the judgment of conviction is deferred and the defendant is placed on one year’s probation. If a defendant consents to such treatment he cannot appeal. This procedure is available only once and, therefore, if the treatment is elected after conviction in a case where the evidence should have been suppressed, the defendant loses the opportunity to make use of sec. 161.47 (1) in the future, even though he should not have been convicted in the first instance. Habeas corpus is an appropriate remedy to review in this case.

Waiver.

The respondents argue that the defendant submitted to the jurisdiction of the county court over his person [340]*340and waived objection to its lack of such jurisdiction. The prosecution of the defendant for possession of a controlled substance was commenced by the issuance of a complaint. Based on that, a summons was issued by the district attorney. In response to that complaint and summons, the defendant appeared before the trial court on February 27,1973.

On March 6, 1973, defendant appeared with counsel and an objection was made to the court’s jurisdiction over the defendant’s person. The petition for the writ of habeas corpus states that this objection was on the grounds that “the criminal complaint proffered to said Court failed to state sufficient facts for said Court to assume jurisdiction pursuant to the Fourth Amendment of the United States Constitution.” A formal motion was filed along with a motion to suppress. The written motion to dismiss for lack of jurisdiction is based on the test for marijuana not being sufficient. The motion to suppress was based on the allegedly invalid arrest resulting in the search being unlawful.

On May 1, 1973, a hearing was held on the motions. Evidence was presented on the issue of whether there was probable cause for the issuance of the warrant on the traffic violation. Following the testimony on this issue, the trial court denied the motion to suppress the evidence. The court indicated it would hear arguments on the motion to dismiss after the lunch hour, but defendant’s counsel stated that his arguments would be basically the same and the court then denied the motion to dismiss following the suggestion of defense counsel to save time.

The principle argument of respondents is that the defendant waived any objection he may have had to the jurisdiction of the trial court by making a motion to suppress. The motion contains no indication that the defendant was appearing specially in making the motion. Nor does it contain any statement that such motion was made subject to an objection to the court’s jurisdiction.

[341]*341This court has indicated that “. . . a defendant submits to the personal jurisdiction of the court if the defendant himself invokes that jurisdiction by asking for affirmative assistance of that court.” Belcher v. State (1969), 42 Wis. 2d 299, 309, 166 N. W. 2d 211.

In State ex rel. La Follette v. Raskin (1966), 30 Wis. 2d 39, 139 N. W. 2d 667, this court also noted that a defendant submits to the personal jurisdiction of the court if the defendant himself invokes that jurisdiction by asking for affirmative assistance of the court.

A party cannot submit to the jurisdiction of the court and later challenge the court’s jurisdiction. State ex rel. Dore v. Stoltz, supra.

We hold that the defendant waived his right to challenge the jurisdiction of the trial court in his habeas corpus action when he made his motion to suppress and thereby requested affirmative relief from that court.

However, because we have held above, with reasons stated, that habeas corpus is an appropriate remedy to review the motion to suppress evidence in this case, it makes no difference if the defendant waived his objection to the trial court’s jurisdiction over him.

Initial warrant.

The defendant’s position on this appeal rests upon the theory that the warrant issued by Justice Molinaro of the municipal court was invalid and, therefore, the subsequent arrest and search of the defendant were illegal. The basis of this argument is that the uniform traffic citation and complaint did not provide the municipal court with sufficient facts to make a determination that probable cause existed to believe the defendant violated sec. 7.01 of the Kenosha ordinances.

The existence of probable cause must be shown in the complaint. State v. Williams (1970), 47 Wis. 2d 242, 177 N. W. 2d 611. If the complaint does not establish probable cause for the issuance of the warrant, the arrest is invalid, as is the subsequent search, and the trial [342]*342court has no personal jurisdiction over the defendant. State ex rel. Furlong v. Waukesha County Court

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Cite This Page — Counsel Stack

Bluebook (online)
227 N.W.2d 450, 67 Wis. 2d 333, 1975 Wisc. LEXIS 1462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-warrender-v-kenosha-county-court-wis-1975.