223 N.W.2d 879 (Wis. 1974)
In the early morning hours of September 21, 1972, Officers Fred Schwartz and Joseph Galewski of the Oak Creek police department were in their squad car patrolling an area of highway and bridge construction between the 100 block and 1300 block of West Ryan Road in Oak Creek.1
It was raining and the mud and gravel road was closed to through traffic.2 At approximately 2:57 a.m., the officers observed a 1964 Ford parked in the 500 block of West Ryan Road, facing east.3 As the officers approached the car in their squad from the east, the car's headlights went on and it started moving towards them.4 Officer Schwartz turned the squad around and followed the car.5 He observed defendant Anderson switch seats with the other occupant, codefendant Robert Wallich, so that when the car came to a stop, Wallich was in the driver's seat and Anderson was in the front passenger's seat.6
The officers got out of the squad and approached the car.7 While inspecting Wallich's driver's license, Officer Schwartz shined his flashlight through a window into the back seat of the car and observed three heavy duty impact wrenches and a long tubular device lying on the rear floor.8 Anderson said the tools were his.9 The officers then called for an assist squad, which arrived about five minutes later.10 Officer Galewski left with one of the newly arrived officers to inspect other parts of the construction area.11 A few minutes later he radioed back to Officer Schwartz that one of the trailers used on the construction site, about three blocks away, had been broken into.12 Officer Schwartz then placed the defendants under arrest for burglary.13 The tools, which were subsequently removed from the car, were stamped with the initials "W. B. & I."14
Mr. Floyd King, general foreman for the Wisconsin Bridge and Iron Company, which was involved in the Ryan Road construction project, testified that when he left the construction site at about 4:20 p.m. on September 20th, he locked his office trailer with a padlock.15 Inside the trailer were a torque wrench with a five-foot handle, used to measure the pounds of tension on bolts, and several impact wrenches, used to fasten bolts on the bridgework.16 These tools were kept in locked tool boxes inside the trailer.17 When Mr. King returned to the jobsite the next morning, September 21st, he observed that the trailer door was open and the locks were missing on the trailer door and on the tool boxes inside.18 The torque wrench and two impact wrenches were missing.19 Mr. King was in exclusive control of the trailer, and no one else had keys to it except personnel at the company's main office.20 He had not given consent to anyone to enter the trailer between 4:20 p.m. on September 20th and 7:30 a.m. on September 21st.21
The jury found both defendants, who were tried jointly, guilty of burglary in violation of sec. 943.10 (1) (d), Stats.22 Defendant Anderson was sentenced to an indeterminate term of not more than ten years.23 Anderson appealed, contending that the complaint was insufficient, that the tools were seized pursuant to an illegal search, that photographic and illustrative evidence was improperly admitted, that his statement was inadmissible, that the jury instructions were erroneous, that the evidence was insufficient, and that his sentence was improper.24 Codefendant Wallich is not a party to this appeal.
Whether the complaint was sufficient to establish probable cause?25
A complaint based on hearsay must satisfy the two-pronged Aguilar test.26 The test requires showing (1) the underlying circumstances from which the complainant concludes that the informant is reliable and (2) the underlying circumstances or manner in which the informant obtained his information is reliable. For a named citizen-informer who is an eyewitness, reliability is established by the fact of direct personal observation rather than hunch and by verification such as matching tool markings.27
Yes. The complaint establishes both prongs of the Aguilar test.28 Floyd King's statements rest on his personal observations of locking the trailer at 4:20 p.m. on September 20 and discovering the break-in and missing tools at 7:30 a.m. on September 21.29 Officer Schwartz verified the tools by observing the "W.
B. & I. " initials at the station in King's presence. The complaint further alleges that no consent was given, that defendants were stopped near the site in the early morning with the missing tools, and that the trailer was under King's exclusive control.30
All of these allegations reasonably support probable cause for burglary.31
The complaint was sufficient to establish probable cause.32
Whether the tools discovered on the rear floor of the automobile were seized pursuant to an illegal search?33
A police officer may stop a person for temporary questioning upon reasonable suspicion of criminal activity under sec. 968.24, Stats. The officer may use a flashlight to observe items in plain view inside a vehicle without constituting a search.34 Once probable cause develops from suspicious conduct, area theft reports, observed construction tools, and confirmation of a break-in, the officer may seize the items without a warrant.35
No. The officers possessed reasonable suspicion to stop the vehicle based on the late hour, closed construction road, recent theft reports, Anderson's known burglar status, the seat switch, and the initial observation of construction tools in plain view with a flashlight.36 After Galewski confirmed the trailer break-in, probable cause existed to arrest and seize the tools already observed, rendering the seizure lawful.37
The tools were not seized pursuant to an illegal search.38
Whether the photograph of the impact wrench was properly admitted into evidence?39
Photographs are admissible if relevant under sec. 904.01. They must aid the jury in understanding material facts without undue prejudice.40 The trial court exercises discretion, and the best-evidence rule does not require production of the original object when only its generic characteristics are at issue.41
Yes. The photograph was relevant because Schwartz testified it fairly depicted a wrench taken from the car bearing "W. B. & I." initials.42 King identified the stolen tools at the station.43 The image helped the jury understand the type of construction equipment involved.44 No prejudice arose, and the trial court properly exercised its discretion.45
The photograph of the impact wrench was properly admitted into evidence.46
Whether the torque wrench was properly used as demonstrative evidence?47
Yes. The torque wrench served only to illustrate King's testimony about the missing five-foot tool and its function in measuring bolt tension on the bridgework.51 No witness claimed it was the identical item taken from the trailer.52 The jury was not misled in that regard. The court properly allowed its use for explanatory purposes without formal admission into evidence.53
The torque wrench was properly used as demonstrative evidence.54
Whether the defendant's statement that the tools belonged to him was admissible without prior Miranda warnings?55
Yes. Anderson's statement occurred during an on-the-scene investigative stop before arrest.58 Schwartz had not drawn his weapon.59 The defendants were not restrained.60 The question about tool ownership was brief fact-finding rather than coercive interrogation.61 No warnings were needed under these circumstances.62 The stop was justified by the time, location, and suspicious conduct observed by the officers.
The defendant's statement that the tools belonged to him was admissible without prior Miranda warnings.63
Whether the jury instructions on recently stolen property and circumstantial evidence were proper?64
Yes. The recently-stolen-property instruction included the required qualification that the determination rests on all facts and circumstances shown by the evidence.68 The standard circumstantial-evidence instruction was accurate and appropriate for the case.69 No error occurred in the instructions given to the jury. The qualification prevented any improper presumption from arising in the jury's mind.
The jury instructions on recently stolen property and circumstantial evidence were proper.70
Whether the evidence was sufficient to sustain the conviction?71
Yes. King's testimony established the locked trailer, lack of consent, and missing tools.74 The officers' observations placed Anderson near the site at 2:57 a.m. with the matching tools in his car.75 The seat switch and Anderson's claim of ownership supplied consciousness of guilt.76 These facts allowed the jury to find all three elements beyond a reasonable doubt.77
The evidence was sufficient to sustain the conviction.78
Whether the sentence of ten years constituted an abuse of discretion?79
No. The trial court based the ten-year maximum sentence on Anderson's extensive prior criminal record of misdemeanors and felonies and his failure to change his ways.83 This distinguished it from the codefendant's shorter sentence.84 The sentence complied with McCleary standards and was not unreasonable.85 The court properly weighed the defendant's long history of antisocial behavior.
The sentence of ten years did not constitute an abuse of discretion.86
Whether the defendant was entitled to a new trial in the interest of justice?87
A new trial in the interest of justice is warranted only when the record reveals error prejudicial to the defendant that prevented a fair trial.88
The defendant was not entitled to a new trial in the interest of justice.91