Search warrant permits arrest also

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Police may arrest a suspect at his home, without an arrest warrant, if they are on the premises pursuant to a valid search warrant, the Wisconsin Court of Appeals held on Feb. 25.

The court also held that a plea agreement that allows a judgment to be reopened and amended to recite a lesser offense prior to sentencing is permissible.

On April 9, 2000, Quad/Tech was burglarized by the use of an employee pass card belonging to Peter R. Cash, a former employee, and computer equipment was taken. Robert Grall, a detective in the Waukesha County Sheriff’s Department, found items for sale on eBay that matched items taken in the burglary.

The seller of the items was listed as Cash’s brother, Jonathan. In addition, tires for sale at the same eBay site looked like tires that Grall had seen in Cash’s apartment when he initially interviewed him about the burglary.

Based on this information, the sheriff’s department obtained a search warrant for Cash’s residence, which was located in Milwaukee County. Waukesha County authorities executed the warrant, with Milwaukee County authorities in attendance. Upon arrival, before executing the search, they first arrested Cash. The next day, they arrested Jonathan.

Cash was charged with burglary, as a repeater. Cash filed a variety of motions, some of which were denied, and some of which were granted. Before trial began, the parties entered a plea agreement under which Cash would plead no contest to burglary, and the repeater allegation would be dismissed.

The plea agreement also included the following provision: if Cash returned a substantial portion of the stolen property in good working order prior to the sentencing, the State would ask the court to ‘reopen the judgment of conviction,’ request that the charge be reduced to felony theft, a lesser offense, and recommend a sentence of one year in the county jail.

Cash did not return the property, nor did he appear at the next court hearing. After being rearrested, Cash was sentenced to four years of initial confinement followed by four years of extended supervision.

Cash then moved for postconviction relief, claiming that his trial attorneys were ineffective for failing to challenge Cash’s arrest for lack of probable cause and an arrest warrant, and failing to contest the authority of the Waukesha County Sheriff’s Department to arrest him in Milwaukee County.

Cash also argued that the plea agreement was invalid under State v. Hayes, 167 Wis.2d 423, 481 N.W.2d 699 (Ct.App.1992), because it called for the legal impossibility of reopening a judgment after conviction.

Waukesha County Circuit Court Judge Patrick C. Haughney held hearings on the motions, but denied them. Cash appealed, but the court of appeals affirmed in a decision by Judge Neal P. Nettesheim.

Plea Withdrawal

The court first held that the plea agreement was valid, notwithstanding Hayes, and Cash’s motion to withdraw his plea was, therefore, properly denied.

In Hayes, the plea agreement provided that, if Hayes successfully completed probation, the case would be reopened and his felony would be reduced to a misdemeanor.

Focusing on sec. 973.09(1)(a), the Hayes court held that the only reward for successful prob
ation is discharge, and as a result, the judgment of conviction could not be amended. Thus, the trial court lacked the power to impose probation with the reopening provision in the plea agreement.

Distinguishing Hayes, the court noted that here, Cash has the opportunity to return the stolen items prior to sentencing. The court reasoned, “Unlike the defendant in Hayes, Cash would not have served any portion of a sentence (probation or otherwise) prior to any potential amendment of charge and the imposition of sentence.

Thus, the concerns of the Hayes court regarding the limitations of the probation statute and the trial court’s lack of authority to amend a judgment after completion of a sentence are not implicated here.”

Warrantless Arrest

The court next concluded that Cash’s counsel was not ineffective, although he failed to seek suppression of Cash’s statements on the ground that his arrest was unlawful.

Cash argued that, because the police arrested him at his home, without an arrest warrant, before executing the search warrant, the arrest was unlawful.

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Adopting the reasoning of a First Circuit case, U.S. v. Winchenbach, 197 F.3d 548 (1st Cir. 1999), the court concluded that, where police are lawfully on the suspect’s premises by virtue of a valid search warrant, they may make a warrantless arrest of the suspect prior to the search, if the arrest is supported by probable cause. Thus, the absence of an arrest warrant was not fatal to the arrest.

The court quoted, “A search warrant represents a judicial determination that there is probable cause to invade the privacy of the suspect’s home. The impartial determination that supports the issuance of a search warrant justifies a greater intrusion than that supporting the issuance of an arrest warrant. Thus, once an officer has procured a search warrant, the privacy interests that led to the imposition of an arrest warrant requirement in [Payton v. New York, 445 U.S. 573 (1980)] have been protected.” Winchenbach, 197 F.3d at 553, (quoting from Jones v. City of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988)).

Because the officers were lawfully on the premises, and Cash did not dispute that probable cause for his arrest were present, the court affirmed that Cash’s counsel was not ineffective for failing to seek suppression of his statements after arrest.

After summarily rejecting Cash’s other arguments, the court affirmed his convictions.

Click here for Case Analysis.

David Ziemer can be reached by email.