Frihart v. State

VrajE, C. J. It was held in State v. Baltes, 183 Wis. 545, 198 N. W. 282, that sworn testimony to sustain a search warrant need not be positive or of such a character as to sustain a conviction. It was there said: “It is not necessary that there should be positive proof of the existence of the facts upon which the issuance of a [624] search warrant is based. It is sufficient that the sworn proof is of such a character as to induce in the mind of the magistrate an honest belief that they exist.” The reasons for so holding were fully discussed in that case and need not be repeated. In State v. Blumenstein, 186 Wis. 428, 202 N. W. 684, the evidence upon which the search warrant issued was in substance this: Springer,. the officer applying for the search warrant, “had good reason to believe that the car in question was being used in unlawfully transporting liquors; that he had reliable information that the defendant, without having a permit therefor, was bringing- a load of intoxicating liquor into and through Edgerton,” etc. This does not appear in the report of the case but it does in the record, and the sufficiency of the evidence to support the issuance of the search warrant was not questioned. See, also, Bergman v. State, ante, p. 615, 208 N. W. 470. In Davis v. State, 187 Wis. 115, 203 N. W. 760, no evidence was taken before the search warrant was issued; only a complaint sworn to on information and belief, and the search warrant was held to be illegally issued. In this case we hold the evidence sufficient to justify the issuance of the search warrant. It is claimed that the justice failed to find that probable cause existed in his mind, and therefore the search warrant was invalid. It was said in the Baltes Case that probable cause must exist in the mind of the magistrate in order to justify the issuance of a warrant. His recital that it existed in the mind of the sworn witness is not sufficient, because it is the magistrate and not the witness that must be induced to believe in the existence of probable cause. But neither a written nor an oral declaration that probable cause exists in the mind of the magistrate need be made. The law says to him: If you are satisfied that probable cause exists it is your duty to issue the search warrant; if you are not so [625] satisfied you should not issue it. The presumption, in the absence of any evidence to the contrary, is that the law has been followed. Hence when a magistrate issues a search warrant he thereby declares that he is satisfied that probable cause exists. Rindskopf v. State, 34 Wis. 217; State v. Blumenstein, 186 Wis. 428, 202 N. W. 684. His finding that probable cause existed in the mind of the witness did not negative its existence in his own mind. It rather tended to show that it did; for in the absence of any proof to the contrary it must be presumed that the witness was a man of ordinary caution and prudence, and if the facts and circumstances induced in him a reasonable belief in the existence of facts testified to, it is fair to presume they did so in the mind of the magistrate. At any rate the issuance of the search warrant carries with it a declaration that probable cause existed in the mind of the magistrate. By the Court. — Judgment affirmed.