(concurring). The instant case does make apparent a rather disturbing anomaly in the criminal law of this state. Sec. 11, art. I of the Wisconsin constitution, is couched in almost the identical language of the Fourth amendment to the United States constitution, and reads as follows:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
This court has held that such constitutional provision invalidates a search warrant which is issued upon a statement under oath, or an affidavit, grounded upon information and belief. Glodowski v. State (1928), 196 Wis. 265, 220 N. W. 227, and State v. Ripley (1928), 196 Wis. 288, 220 N. W. 235. However, sec. 954.02 (1), Stats., authorizes the complaint, upon which a warrant for arrest may be issued, to be made upon information and belief.
If, in the instant case, a valid search warrant could not have been obtained to secure the necessary evidence to convict the accused, sec. 11, art. I, Wis. Const., should not be circumvented by securing the issuance of a warrant for the arrest of the accused on a showing of mere information and belief, not substantiated by grounds of probable cause, and then making the search. The provision against unlawful searches of sec. 11, art. I of our constitution, has long been considered to be one of the bulwarks of the liberty of free men, and it is imperative that it ever be preserved as such. We find it unnecessary to formulate the rule of law which should be adopted to accomplish this in such a fact situation. This is because of the waiver which here occurred.
*205The accused m the instant prosecution before trial did make and file a timely notice of motion to suppress the evidence obtained by the search of her purse. As pointed out in the majority opinion, the trial court afforded counsel for the accused the opportunity to try the issue raised by such motion to suppress before proceeding to try the general issue. For some reason counsel for the accused declined such opportunity, and later during the course of the trial attempted to raise the issue of the want of probable cause in the issuance of the warrant. It was then too late for counsel to make such move. Sec. 955.09, Stats. Therefore, the accused must be deemed to have waived her right to object to the alleged illegally obtained evidence.
The brief of the accused cites the case of Giordenello v. United States (1958), 357 U. S. 480, 78 Sup. Ct. 1245, 2 L. Ed. (2d) 1503, in which the facts closely parallel those of the instant case. However, that case is distinguishable because there the motion to suppress was both made and denied before trial.
I am authorized to state that Mr. Justice Hallows and Mr. Justice Dieterich concur in this opinion.