This original action concerns the effect of White on criminal actions which have not been finalized but have proceeded at least to the point of arraignment. The precise issue is whether the circuit court erred in granting an alleged criminal defendant's motion to dismiss the proceedings against him for the reason that the arrest warrant was constitutionally defective under White when the motion was made for the first time only after the defendant had been arraigned, entered a plea, and had a jury trial which resulted in a mistrial.
In White an expectant mother signed a complaint declaring that "she is pregnant with a child, which, when born is likely to be born out of wedlock" and "that the defendant . . . is the father of said child." A warrant for the defendant's arrest was then executed by the deputy clerk of the county court on the basis of an "Authorization for Paternity Action" issued by an assistant corporation counsel. The defendant was brought before the court and a guardian ad litem was appointed to act in his behalf. The guardian ad litem then made a special appearance and objected to the jurisdiction of the court on the grounds that the complaint stated insufficient
On appeal this court, in regard to the first prong of the attack, held that the recitation by the unwed mother of facts within her personal knowledge provided a sufficient basis for a finding of probable cause. As a caveat, the court added:
"This would not be true, however, if the complaint were made upon information and belief or if the complaint purported to assert a crime which required a specific intent.
"As noted above . . . [citing Giordenello v. United States (1958), 357 U.S. 480, 486, 78 Sup. Ct. 1245, 2 L. Ed. (2d) 1503], the court observed that a magistrate should not accept the `mere conclusion' of a complainant that a crime has been committed by the person whose arrest is sought."
On the second point this court determined that a district attorney (or a corporation counsel) is not "the equivalent of a neutral and detached magistrate who may constitutionally be empowered to authorize the issuance of the warrant."
The respondent judge contends that the entertainment of Pipito's motion for dismissal was proper under the discretion conferred by sec. 955.09 (3), Stats.
In order to try a person for the commission of a crime, the trial court must have jurisdiction of both the subject matter and the person of the defendant.
"Defendant entered a plea of not guilty, demanded a jury trial, and the trial proceeded without any challenge as to the sufficiency of the complaint. If it was insufficient for any reason it should have been challenged before proceeding with the trial. . . [Citing the forerunner of sec. 955.09, Stats.]"
Similarly, in State ex rel. Wojtycski v. Hanley
"At the time the wrist was filed in the instant case, relator had appeared in the municipal court and entered a plea of abatement, and upon the overruling thereof, a plea of not guilty. Jurisdiction to try an offender for a crime of which the court has jurisdiction is obtained by his appearance in court, and by pleading guilty or not guilty, jurisdiction of his person is conferred on the court."
Where a person has been forcibly abducted and taken from one state to another to be tried for a crime the jurisdiction of the court to try that person is not impaired.
White guarantees that no citizen shall be subject to an arrest by warrant except where the warrant is issued on probable cause and is authorized by a neutral and detached magistrate. Consequently, under the rule of Kushman and Hanley, and also because White is satisfied when
Although what has been said so far in this opinion necessarily pertains only to the facts before us, we feel obliged
First, a motion to the circuit court on White grounds after the bindover but before the arraignment would appear to be timely if made before or contemporaneously with a motion to dismiss on the ground that the evidence adduced at the preliminary is insufficient to support a bindover.
By the time the preliminary examination has been completed (or waived) and there has been a bindover, probable cause has been found by an independent and neutral magistrate that the defendant has committed a crime. The reason a defendant should be permitted to raise the invalidity of his arrest under White when he appears in the trial court and prior to actual arraignment and entry of a plea, is to enforce the purpose of the White rule which is to assure that arrest warrants will be issued only on probable cause as determined by neutral magistrate. If the state, at the first appearance (as distinguished from arraignment) following the bindover, could gain the dismissal of the motion attacking the validity of the arrest (on the grounds of White) by pointing to the results of the preliminary, the beneficial effect of the White ruling on prosecution practices would be almost completely negated. On the other hand it is perfectly consistent with our reason for holding that it comes too late
Second, cases that have been finalized, i.e., there has been a judgment of conviction, sentence and exhaustion of rights of appeal. Included in this category are cases where the defendant has either pleaded guilty or not guilty and has been convicted without raising and preserving an objection to the validity of the arrest on the grounds decided in White.
In Hawkins v. State
"It appears to be the general rule, that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea."
In the more recent case of Carter v. State
"While we are not convinced that the arrest was invalid, any invalidity of the original arrest has been rendered entirely immaterial by defendant's pleading guilty to the information without raising any issue with respect to the validity of the arrest. [Citing Bartozek v. State (1925), 186 Wis. 644, 203 N. W. 374, and Hawkins v. State (1965), 26 Wis.2d 443, 132 N.W.2d 545.]"
Similarly, as to any conviction that has been finalized following a plea of not guilty without preserving an objection to the validity of the arrest, no question may be raised as to the invalidity of the arrest on that ground in collateral proceedings.
Third, as to those cases that have been finalized but where objection to the validity of the arrest was timely made and preserved on the grounds decided by White, the question of the retroactivity of the rule in White, is raised. There are no doubt hundreds of convicted defendants now incarcerated in Wisconsin prisons who were arrested on warrants that did not meet the tests now set forth in White. Perhaps some of them were convicted after unsuccessfully attacking the validity of their arrests on precisely the same grounds decided in White. What of these defendants? Are they to be given the benefits of the White ruling?
It is now well established that the guaranties of the Fourth amendment of the United States constitution are binding against the states through the due-process clause of the Fourteenth amendment.
None of the series of cases in which the United States supreme court "has made it unmistakably clear that warrants for search or for arrest must meet certain minimum standards under the Fourth Amendment to the United States constitution"
The guidelines for determining whether a decision concerning rules of federal constitutional law should be given retrospective application were recently set forth by the United States supreme court in Linkletter v. Walker.
"Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation."
In reaching its conclusion that the ruling in Mapp v. Ohio
"Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf [Wolf v. Colorado (1949), 338 U.S. 25, 69 Sup. Ct. 1359, 93 L. Ed. 1782, holding that the exclusionary rule did not affect state proceedings] requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. See, e. g., Rea v. United States, supra [(1956), 350 U.S. 214, 76 Sup. Ct. 292, 100 L. Ed. 233]. We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. Nor would it add harmony to the delicate state-federal relationship of which we have spoken as part and parcel of the purpose of Mapp. Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late."
In Linkletter the court identified three areas in which rules have been applied retrospectively by the United States supreme court:
"In Griffin v. Illinois, . . . [(1956), 351 U.S. 12, 76 Sup. Ct. 585, 100 L. Ed. 891] the appeal which was denied because of lack of funds was `an integral part of the [State's] trial system for finally adjudicating the guilt or innocence of a defendant.' At 18. Precluding an appeal because of inability to pay was analogized to denying the poor a fair trial. In Gideon v. Wainwright, . . . [(1963), 372 U.S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799] we recognized a fundamental fact that a layman, no matter how intelligent, could not possibly further his claims of innocence, and violation of previously declared rights adequately. Because of this the judgment lacked reliability. In Jackson v. Demo, . . . [(1964), 378 U.S. 368, 84 Sup. Ct. 1774, 12 L. Ed. (2d) 908] the holding
The court said that in each of these three areas "the principle that we applied went to the fairness of the trial—the very integrity of the fact-finding process."
In analyzing the effect of the Mapp rule on the administration of justice the court said:
"In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.
"Finally, there are interests in the administration of justice and the integrity of the judicial process to consider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice."
"It follows that the `purpose' of the Griffin rule is to be found in the whole complex of values that the privilege against self-incrimination itself represents, values described in the Malloy case [Malloy v. Hogan (1964), 378 U.S. 1, 84 Sup. Ct. 1489, 12 L. Ed. (2d) 653] as reflecting `recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.' 378 U. S., at 7-8."
The court stated that:
". . . the basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution `shoulder the entire load.'"
In further considering the purpose of the Griffin rule the court stated:
In distinguishing the recent cases in which the court has applied constitutional decisions retroactively the court stated:
"As in Mapp, therefore, we deal here with a doctrine which rests on considerations of quite a different order from those underlying other recent constitutional decisions which have been applied retroactively. The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer's help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. See Gideon v. Wainwright, 372 U.S. 335; Doughty v. Maxwell, 376 U.S. 202; Griffin v. Illinois, 351 U.S. 12; Eskridge v. Washington Prison Board, 378 U.S. 214. The same can surely be said of the wrongful use of a coerced confession. See Jackson v. Denno, 378 U.S. 368; McNerlin v. Denno, 378 U.S. 575; Reck v. Pate, 367 U.S. 433. By contrast, the Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect."
With respect to the rule in White, the basic purpose of the rule is to improve police practices and to assure that arrests will be made on a proper showing of probable cause as determined by an independent and impartial
If defendants, who have been convicted in trials where the prosecutor has commented adversely at his trial upon defendant's failure to testify, have received a fair trial and are barred from obtaining the retroactive application of the ruling in Griffin, a fortiori, defendants, who have been convicted (and whose convictions are finalized) after they have been fairly apprized of the charges against them and after a trial conducted with adherence to all constitutional procedural safeguards, should not be able, on the basis of White, to challenge the validity of their original arrest. Neither the basic purpose of the White rule nor the sound administration of justice would be served by Bowing these defendants to attack their convictions on the basis of a retroactive application of White.
By the Court.—Issuance granted of writ of mandamus to compel Circuit Judge MAX RASKIN of Branch No. 2 of the circuit court for Milwaukee county to proceed with trial in the case of State of Wisconsin v. Anthony Pipito.