State v. Noll

343 N.W.2d 391, 116 Wis. 2d 443, 1984 Wisc. LEXIS 2289
CourtWisconsin Supreme Court
DecidedJanuary 31, 1984
Docket82-562-CR
StatusPublished
Cited by40 cases

This text of 343 N.W.2d 391 (State v. Noll) 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 v. Noll, 343 N.W.2d 391, 116 Wis. 2d 443, 1984 Wisc. LEXIS 2289 (Wis. 1984).

Opinions

DAY, J.

This is a review of a court of appeals decision reversing a suppression order of the circuit court for Taylor county, Honorable John W. Stevens, Circuit Judge. The three issues on this review are: (1) Is a search warrant which is defective in its description of some items nevertheless valid as to other items described with sufficient particularity; (2) Is the doctrine of partial validity or “severability” applicable under the facts of this case; and (3) Does a reasonable suspicion that a television set, observed during execution of a search warrant, was stolen justify an officer in recording its serial number. We conclude that the excising of invalid parts of an otherwise valid warrant is permissible under the fourth amendment and we hereby adopt the sever-ability doctrine as first enunciated by the Supreme Court of California in Aday v. Superior Court of Alameda County, 55 Cal. 2d 789, 362 P.2d 47, 13 Cal. Rptr. 415 (1961). We also conclude that the severability doctrine should be applied in this case, and that, under the facts of this case, the defendant’s rights were not violated by the recordation of the television serial number. We conclude that a second warrant listing that television along with other items stolen in the same burglary was [446]*446proper and validated the subsequent arrest of the defendant and did not vitiate confessions to the burglary made by the defendant following his arrest. We therefore affirm the decision of the court of appeals reversing the order of the trial court.

The defendant, Kevin R. Noll, is charged with the burglary of the Reinke residence in the Town of Taft, Taylor County, Wisconsin, in violation of sec. 943.10 (1) (a), Stats. 1979.1 In a pretrial motion, the defendant sought the suppression of certain evidence seized in a search of his father’s home on November 2, 1981, as well as statements made by the defendant to police after his arrest on that date. The defendant argues that the physical evidence, his arrest and the statements he gave are tainted fruit of an earlier illegal search of the same residence on October 27, 1981, and therefore must be suppressed. The facts are as follows.

On October 27, 1981, a warrant was issued by the circuit court for Chippewa county to search the Noll residence in Taylor county for certain items taken from an auction held on October 25th in Chippewa county.2 That [447]*447warrant authorized the seizure of “a set of antique ceramic book ends in the shape of horses and advertising Rolling Rock Beer; various long-play phonograph record albums, and miscellaneous vases and glassware items, all of which were removed from an auction at the Milo M. Webb residence in Stanley, Wisconsin on October 25, 1981 without having been paid for.”

On October 27, Deputy Sheriff Bill Glass of Chippewa county and Deputy Sheriffs Dan Kraschnewski and Norman Dassow of Taylor county executed the warrant at the Noll residence which was located in Taylor county. The officers knocked on the door and were admitted by the defendant and his father into the kitchen. Deputy Sheriff Glass informed the Nolls that they were there to recover items from the auction and gave a copy of the warrant to the defendant’s father. The Nolls cooperated with the officers and turned over the antique book ends, various phonograph albums and some glassware, all of which were in the kitchen. Some additional glassware was brought to the kitchen by the defendant from his bedroom.

From where he was standing in the kitchen, Deputy Sheriff Dassow noticed a small television set. In the hearing on the motion to suppress, he testified concerning his observation of the television as follows:

“Q Now, directing your attention to what you saw in the living room from where you were standing in the kitchen, did you notice anything unusual or different?
“A The TV which — which was sitting in the kitchen matched the one described by James Reinke in his complaint to us as being stolen from him.
“Q And that was in the kitchen ?
“A Yes, it was.”

[448]*448Deputy Dassow did not check the serial number or otherwise inspect the television at that time. Rather, he and Deputy Kraschnewski proceeded to compile an inventory of 109 items located in various parts of the house and the surrounding outbuildings. The inventory included a description of the article and in many cases a serial number. The twenty-ninth item on the list was the twelve inch, black and white General Electric television seen by Deputy Dassow in the kitchen. The inventory also showed the television’s serial number. The whole search took about two hours. Just prior to the officers leaving, the defendant turned over a glass sugar bowl that had been sitting on the kitchen table that was part of the Webb property.

The Taylor county officers returned to their office and checked the inventory against reports of goods taken in burglaries. They found that a large number of items on the list had been reported stolen in Taylor county. Among the matches were five of the items taken in the Reinke burglary including a Sharp color television, a Waring blender, a Channel Master rotor, a Skil saw and the General Electric television.

With this information, the officers obtained a second warrant to search the Noll residence which was executed on November 2, 1981. At that time a large number of items (allegedly from other burglaries) were seized including three of the five items specifically mentioned in the warrant but not the General Electric television which was no longer there. The officers arrested the defendant at that time and took him to the Taylor County . Sheriff’s Department. After being apprised of and waiving his “Miranda rights,” the defendant made a statement to Deputy Dassow confessing to the Reinke burglary. The following morning, he made another statement to Deputy Sheriff Raymond Meyer. Later that day he was formally charged with burglary of the Reinke home.

[449]*449It is evident that probable cause for the November 2nd search and the defendant’s arrest depends on information obtained during the October 27th search. If the October 27th entry of the Noll house was illegal, the evidence seized on November 2nd and the defendant’s arrest and statements are tainted and must be suppressed. Wong Sun v. United States, 371 U.S. 471 (1963). However, if the October 27th entry was based on a valid search warrant and if the recordation of the serial number on the television was proper, there was probable cause to support the November 2nd warrant to search for the television and other items taken in the Reinke burglary.

On the defendant’s motion to suppress, the trial court held that the physical evidence and the statements were tainted and ordered them suppressed. The court rested its holding on two grounds: First, the court held that the October 27th warrant was defective in its failure to meet the fourth amendment’s particularity requirement in its description of the phonograph albums, vases and the glassware, and that this defect rendered the entire warrant invalid. Second, the court held that the search was illegal because it exceeded the scope of the warrant.

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Cite This Page — Counsel Stack

Bluebook (online)
343 N.W.2d 391, 116 Wis. 2d 443, 1984 Wisc. LEXIS 2289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-noll-wis-1984.