State v. O'NEILL

¶1(concurring). I agree with the court that the decision of the court of appeals and judgment of conviction should be reversed. I write to state my disagreement with the conclusion of the majority opinion and concurring opinion that a charge of misconduct in office pursuant to secs. 968.10 and 946.12(2), Stats.,1 is a permissible charge for a police officer enter*324ing a premise to conduct a search without a search warrant, consent or exigent circumstances. This conclusion assumes the officer had no other purpose for the entry than to conduct a search. The majority writes that an over-zealous entry and search of a premise are grounds for a charge of misconduct in public office.

¶21 am of the opinion that a determination of whether an officer did not have consent pursuant to sec. 968.10, Stats., or consent or exigent circumstances pursuant to the fourth amendment of the United States Constitution2 or Article I, sec. 11 of the Wisconsin Constitution3*325is either a constitutional fact or conclusion determinable by a judge, not a jury.

¶3For a charge of misconduct in office due to an officer’s entry knowingly without legal authority, the judge would have to make a threshold legal determination that the officer’s entry into the premises was without lawful authority either by finding there was no valid search warrant, consent or exigent circumstances. The judge would then have to inform the jury that it must accept that the entry was without lawful authority and that it must then decide whether the officer knew at the time of his entry he did not have lawful authority. This would be an anomaly in Wisconsin criminal practice. We do not allow the judge to comment in criminal cases to the jury on the proof of a fact necessary for the jury to make a decision. The judge would already have determined it was an unreasonable entry and would inform the jury of that conclusion and then the jury would decide whether the unreasonable act was done knowingly. In other criminal prosecutions the jury is instructed as to what the unlawful act is in law and then the jury must apply the facts of the case to that law to determine guilt or innocence. However, the judge does not tell the jury the defendant did an unlawful act as decided by the judge and it must only determine intent. The prejudice to the defendant in the charge of misconduct in office would be overwhelming since the jury would be told by the judge the officer’s acts were as a matter of law contrary to the property owner’s rights.

¶4I would find an unlawful search by an officer does not serve as the foundation for a charge of misconduct *326in office. There are sufficient sanctions imposed on officers for unlawful searches as described in the majority’s opinion. I would not further stifle police officers’ investigative duties by subjecting them to criminal sanctions under the crime misconduct in public office for a search, even if the proof could be accepted by the jury as showing the officer at the time of the entry had reason to believe he did not have a search warrant, exigent circumstances or consent.

¶5With the law of search and seizure changing periodically due to the makeup of the United States Supreme Court membership, what is known by specialist attorneys and judges today in the criminal law as unlawful or unreasonable may not remain unlawful or unreasonable in the future. Many “experts” were surprised and upset by that Court’s decision in 1984 in United States v. Leon, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), that good faith by an officer in executing an invalid search warrant makes the search a lawful one. What is a lawful entry and search has been a changing subject in the law and officers should not be criminally liable in a charge of misconduct in office for what is subsequently determined by a judge to be an unlawful entry, even though the officers may have had reason to believe at the time of the entry that it was unlawful or unreasonable.

¶6I would find that a police officer’s entry into premises, even if later found to have been unlawful or unreasonable pursuant to constitutional law, does not serve as a foundation for a charge of misconduct in office. If the officer enters for a different purpose than a search, such as to commit a theft or other felony, then he could be prosecuted for the appropriate law violation as any other person.

¶11(concurring). I fully agree with the majority’s reasoning and holding that the burglary *327charge against O’Neill was improper. I write separately, however, for two reasons.

¶12First, I believe that the district attorney’s office improperly refused to request the search warrant asked for by O’Neill. The probable cause standard used by Enright, the assistant district attorney, in deciding whether to request a judge to issue a search warrant should not be misconstrued as being the law in Wisconsin. O’Neill requested a search warrant on two different occasions. The district attorney refused to request a search warrant the first time because Sanders would not allow his name to be disclosed. An informant’s name is not necessarily required to be disclosed before a search warrant is issued. The mere fact that an informant wishes to remain anonymous does not mean per se that his information is unreliable.

“In assessing the value and reliability of information provided by an anonymous informant for purposes of establishing traditional probable cause to issue a search warrant, the United States Supreme Court recently held that an anonymous informant’s tip should be analyzed under a ‘totality of the circumstances’ approach, which includes a balanced assessment of the relative weights of all indicia of reliability attending the information. [Illinois v.] Gates,-U.S. at-, 103 S. Ct. at 2330, 2332 [1983]. Prior to issuing a warrant, a magistrate must make a common-sense decision whether, given all circumstances before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that evidence of a crime will be found in a particular place. -U.S. at -, 103 S. Ct. at 2332. In determining the overall reliability of an anonymous informer’s tip, the ‘totality of circumstances’ approach permits a deficiency in indicia demonstrating an informer’s veracity to be compensated for by a strong showing concerning the informer’s basis of knowledge, or by some other indicia of a reliability.” See Id. at 2329. State v. Boggess, 115 Wis. 2d 443, 453-54, 340 N.W.2d 516 (1983) (footnotes omitted).

¶13*328The request to the assistant district attorney for a search warrant was denied a second time because Sieg could not identify any distinguishing marks or serial numbers on the stereo, even though Sieg saw what he believed to be his stereo through the window of the house. This demand by Enright was unreasonable. Sieg would have had to have been inside the house to provide that specific information. The quantum of evidence necessary to support a determination of probable cause for a search warrant is:

“. . . sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime and that they will be found in the place to be searched.” Ritacca v. Kenosha County Court, 91 Wis. 2d 72, 77-78, 280 N.W.2d 751 (1979).

¶14Enright had been supplied with more than sufficient facts that Sieg’s stolen stereo was probably being stored at 720 Chippewa Street. He knew that Sanders lived at the Chippewa Street residence and that Sanders believed that his roommate, Ward, was keeping a stolen stereo there. He was also informed of the fact that Sanders’ description of the stereo matched the description of the stolen stereo provided O’Neill by Sieg. Additionally, after Sieg looked through the window into the house, he believed that the stereo which he saw was his stereo. Based on all of this information, the district attorney should have requested a search warrant from a judge.

¶15My second reason for writing this concurrence is that I believe that the district attorney abused his prosecutorial discretion in charging O’Neill with burglary. The charging decision of a district attorney is not unlimited; it has bounds. State v. Karpinski, 92 Wis. 2d 599, 608, 285 N.W.2d 729 (1979). We have said,

“[I]t is an abuse of discretion for the prosecutor to bring charges when the evidence is clearly insufficient *329to support a conviction or to bring charges on counts of doubtful merit to coerce the defendant to plead guilty to a less serious offense. Thompson v. State, 61 Wis. 2d 325, 328-330, 212 N.W.2d 109 (1973).” Karpinski, 92 Wis. 2d at 609.

¶16The evidence against O’Neill was clearly insufficient to support a conviction of burglary. The district attorney had various contacts with O’Neill prior to his charging O’Neill with burglary. O’Neill’s persistence in trying to secure a search warrant evidences an attempt to recover the stolen stereo within the limits of the law. There was substantial evidence that O’Neill reasonably believed that his entering and searching the premises was legal. I strongly believe that law enforcement officers should not be prosecuted for making honest mistakes. In cases such as this, fear of prosecution for burglary may inhibit officers from carrying out the duties which are within the scope of their authority. Whether entry to premises may lawfully be made because adequate consent has been given or exigent circumstances exist is always a judgment call on the part of the law enforcement officer. To find that officers who exercised faulty judgment should be subjected to criminal prosecution for burglary would be an unreasonably harsh penalty which I do not think the legislature intended.

¶17The district attorney had no evidence of an intent on the part of O’Neill to commit a felony or that O’Neill knew he was acting in excess of his lawful authority, and, therefore, I believe the district attorney abused his prosecutorial discretion in charging O’Neill with burglary.