State v. Guy

*87Robert W. Hansen, J.

While the challenged search of the person of defendant was conducted while she was in custody at the police station, the trial court did not hold it to be reasonable as a routine in-custody search. Instead it held that “under these circumstances” the search was reasonable. The presence of probable cause to believe that the defendant was concealing heroin in her person made the search, particularly the manner of search, constitutionally reasonable. We agree that probable cause was here required for the search as here conducted, and agree that probable cause was here present.

Following the hearing before trial on the motion to suppress evidence secured by search, the trial court held that: “. . . this woman had this criminal reputation, this paraphernalia was on the table, and the Court would rule that as a matter of law that they [the narcotics division officers] had a right to make a reasonable search from that point on.” Probable cause here existed if facts and circumstances known to the arresting officers warranted a reasonable police officer to believe that the defendant was in possession of heroin, concealed in or on her person. (See: Molina, v. State (1972), 53 Wis. 2d 662, 671, 198 N. W. 2d 874.) On this record, such probable cause arose, as the trial court found, from the following facts and circumstances.

Heroin 'paraphernalia.

In finding probable cause, the trial court noted “this paraphernalia was on the table.” The reference is to testimony at the hearing on the motion to suppress that the arresting officers, prior to the search here challenged and at the home of the defendant, observed certain items on the night table in defendant’s bedroom. The officer in charge at the time of arrest, John Randa, testified that he observed:

“A couple of hypodermic needles, an eyedropper, a disposable type eyedropper or disposable type hypodermic *88needle, glass of water and some small pieces of copper wire. . . . There was also a, what we call a cooker, a burned bottle cap with a wad of cotton in the middle and residue, white residue around the inside of the cooker. .. . It is used to cook up the heroin before administering it to the drug, administering the drug into the arm.”

The law officer giving this conclusion had been a member of the vice squad of the Milwaukee police department for nineteen and one-half years, and had years of experience with the narcotics division and a broad background of knowledge and experience with procedures and paraphernalia for administering narcotics, and particularly heroin.

In a very analogous case where the police officer saw a waxed paper bag containing a dark substance next to a corncob pipe, in the light of the officer’s knowledge of the common use of waxed paper bags as containers for marijuana and of corncob pipes by marijuana smokers, a California court held that the officer had reasonable cause or probable cause to believe that the defendant in that case was in possession of marijuana. (People v. Ouellette (1969), 271 Cal. App. 2d 33, 38, 76 Cal. Rptr. 346.) In another California case, the police officer observed the defendant lying on a bed and saw a balloon and a spoon, which the officer recognized as narcotics paraphernalia. While holding that the articles, in plain sight, were not the object of search, the California court termed them “objects which are customarily used in the administering of narcotics.” (People v. Lawson (1969), 1 Cal. App. 3d 729, 731, 81 Cal. Rptr. 883.) In both California cases, as in the case before us, the issue was determined in light of the officer’s knowledge, including his experience and expertise as to the manner in which heroin or marijuana is administered.

Prior heroin conviction.

In finding probable cause for the search of the person of defendant, the trial court noted the prior “criminal *89reputation” oí the defendant. This was, in part, a reference to the conviction of the defendant in 1968 on the charge of possession of heroin. The officer in charge at the time of arrest, John Randa, testified that he was personally involved in the 1968 case, and was aware that the defendant in 1968 was a user of heroin and that she had been arrested, convicted and sentenced to prison for possession of heroin. The fact, known to the police, that defendant was a user of heroin and had been convicted in 1968 for possession of heroin clearly was a surrounding circumstance supporting the reasonableness of believing that she had heroin in her possession at the time of her arrest.

Prior heroin concealment.

Additionally, what the trial court termed the “criminal reputation” of the defendant went beyond police knowledge of her earlier conviction on a heroin charge. The officer in charge of the arrest, John Randa, testified that, prior to the time of arrest and search here, he had been informed that this defendant on occasion carried or concealed heroin in her vagina. At the hearing on motion to suppress, he testified he had been informed of this practice and place of concealment “four or five years prior to this” by “a reliable informer.” He testified that he had had transactions with this informer before. This information from a reliable informer, known to the police at the time of the search here, is a material surrounding circumstance on the question of whether probable cause existed for the belief that the defendant had heroin concealed on her person. In the consideration of circumstances involved under the reasonable person test as to probable cause, facts and circumstances that alone might not support a conviction beyond reasonable doubt are properly considered in determining whether a reasonable police officer, under such circumstances, would reasonably believe a certain fact or situation *90existed. (Kluck v. State (1967), 37 Wis. 2d 378, 389, 155 N. W. 2d 26.)

Fresh needle marks.

At the time of trial, one of the arresting officers, Thomas McKale, testified that, when the defendant was placed under arrest on the charge of selling cocaine, he observed “. . . scar tissue on her left forearm, observed needle marks, one very fresh, others very recent.” Asked what he associated such needle marks with, the officer answered, “Use of a narcotic drug through intravenous injection.” Asked how he determined that the needle marks on defendant’s arm were fresh ones, the officer answered, “Well, there was one injection depot that was fresh, the blood was still fresh around the injection depot.”

At the time of trial the defendant denied having needle marks on her arm. However, the trial judge thereupon examined her arms, and observed both marks and a collapsing of the veins. Prior to trial the prosecutor had moved to reopen the hearing on the motion to suppress in order to make the testimony as to fresh needle marks a part of the record of the hearing, as well as of the trial. The motion was denied, the trial court commenting, “. . . I don’t think it has any effect on the total picture in this matter.” If no more was being said than that, sufficient evidence to establish probable cause having been introduced at the hearing, no more was needed, the ruling and comment are correct enough. However, if there is any implication that the proof of fresh needle marks was not a highly relevant and probative circumstance on the issue of probable cause, then it is to be negatived. Clearly, the observing of fresh or recent needle marks on the arm of defendant, in fact, the observing of needle marks at all, would be a circumstance leading a reasonable police officer to believe that the person needle-marked was using or in possession of *91narcotics. Here it was not needed, so no error was involved in its exclusion.

Length of sentence.

The defendant also requests that “. . . this court modify the trial court’s judgment of sentencing as to her conviction of sale of cocaine, or vacate same and remand to the trial court for sentencing. . . .” While apparently based on the hope of reversal of the conviction for possession of heroin, the request merits a comment on the sentence or sentences imposed.

The defendant was sentenced to four years in the Wisconsin Home for Women on the conviction for possession of heroin. (The maximum statutory penalty is ten years.) On the same day, the defendant was sentenced to four years in the Wisconsin Home for Women on the conviction for sale of cocaine. (The maximum statutory penalty is five years.) Both sentences were to run concurrently. Additionally, both sentences were to run concurrently with a sentence the defendant was then serving.

Taking into consideration that her incarceration on the 1968 heroin conviction prevented recidivism for the period of incarceration, the defendant had a rather extensive criminal record: Child neglect — 1965; Lewd and lascivious behavior — 1967; Forgery — 1967; Possession of heroin — 1968. Under the penalty provisions of the Narcotics Act (sec. 161.28 (1), Stats.), she could have been charged as a repeater on the heroin charge, and could have received a sentence of not less than five years nor more than ten years as such repeater. The trial court set forth its reasons for the sentences imposed, including the need for rehabilitation of the defendant. Neither sentence viewed separately, or both viewed together, come anywhere near the limits of judicial discretion. If they err, it certainly is not on the side of excessiveness.

By the Court. — Judgment and order affirmed.