Testolin v. State

Eschweiler, J. About 9 p. m. of January 27, 1925, a police officer of Fond du Lac saw the defendant standing behind the Public Service building; another man approached the defendant, to whom defendant handed two bottles which [276] were handed back. Both men were unknown to the officer. The officer followed the other man up one of the streets and then came back and near to the Public Service building, and as he then approached defendant the latter placed two bottles on the ground and walked towards the officer. Defendant was asked by the officer what he was doing back of the building and answered “Nothing.” He was asked, “What is in those bottles?” and said “I don’t know, they don’t belong to me.” A truck then drove up, from which the other man above mentioned jumped out and went down the alley. The officer then picked up the bottles, placed defendant under arrest, and took him into the Public Service building to await the patrol wagon. While in there the ticket agent said in a joking manner, “What is in there, moonshine?” The defendant said, “No, good liquor.” The defendant on being taken to the station was charged and booked as being in possession of illicit liquor. The bottles were of dark color so that nothing could be learned of their contents from inspection. They were then opened and founcl to contain privately distilled alcoholic liquor. The officer testified that he knew nothing of the contents of the bottles when he made the arrest and that it was made on suspicion. No search warrant was issued. We consider that the arrest, the seizure, and subsequent examination of the bottles were all one transaction. The arrest was illegal (Stittgen v. Rundle, 99 Wis. 78, 80, 74 N. W. 536), and the evidence obtained by the seizure was not properly received over the objections interposed by defendant. This case is controlled in defendant’s favor by the very recent rulings of this court in Allen v. State, 183 Wis. 323, 197 N. W. 808; Jokosh v. State, 181 Wis. 160, 193 N. W. 976; and State v. Warfield, 184 Wis. 56, 198 N. W. 854, and we shall not go over the same ground again here. The recent decisions by the United States supreme court on March 2, 1925, of Carroll v. U. S. 267 U. S. 132, 45 [277] Sup. Ct. 280, and of Steele v. U. S. 267 U. S. 498, 45 Sup. Ct. 414, 417, decided April 13th, do not militate against this holding. By the Court. — Judgment reversed, and cause remanded with directions to discharge the.defendant. Vinje, C. J., and Rosenberry, J., dissent.