Appeal from the United States District Court for the Eastern District of Wisconsin No. 73 C 507 MYRON L. GORDON, Judge.
Stevens, Circuit Justice,*fn* Tone, Circuit Judge, and Hoffman, Senior District Judge.*fn**
The appellant, Kurt Stevenson (Petitioner), is appealing from the denial, without an evidentiary hearing, of his petition for habeas corpus.
In the early hours of March 8, 1970, Detective Donald Schnuck of the Milwaukee Police Department obtained a search warrant for the home and premises of Kurt Stevenson. The warrant was issued on the basis of Schnuck's testimony that an unidentified, but reliable,*fn1 informant had purchased narcotics from Stevenson at his home in the early evening hours of March 7. The transaction had been a "controlled buy"; that is, Detective Schnuck had searched the informant before and after he entered Stevenson's premises. When the informant entered, he had $13 and no heroin; when he came out he had $3 and a tin foil packet containing a white powder which a field test indicated to be heroin.
The search warrant issued, and was executed the same morning. Stevenson was found in the possession of heroin and was arrested on that charge. While he was imprisoned on the possession charge, an information was filed against him for a sale of heroin which occurred on February 12, 1970.
The petitioner was tried on the sale charge, before a jury on November 4 and 5, 1970. He was found guilty and sentenced to seven years' imprisonment. Among the other evidence which was presented to the jury was the in-court identification of the petitioner by the undercover agent who had made the buy on February 12.
After the petitioner had been sentenced on the sale charge, he withdrew his plea of not guilty on the possession charge which stemmed from the search of March 8. He substituted a plea of guilty and on the recommendation of the prosecutor received a sentence of five years to run concurrently with the seven year sentence on the sale charge.
Petitioner is attacking both his convictions. He contends that the March 8 search warrant was obtained on the basis of false testimony in that the so-called "reliable informant" was in fact one Robert Weber, who had been known to Detective Schnuck for only one week and had never previously supplied the detective with any information, reliable or otherwise.*fn2 Because the warrant was invalid, he contends, the search was illegal and all evidence stemming from the search should have been suppressed. Thus, his jury conviction on the sale charge would have been invalid because his physical person was obtained by the police as a result of the search, and his physical person was used as evidence on the sale charge since the undercover agent pointed him out as the person from whom he had purchased the heroin. The possession charge (disregarding for the moment petitioner's guilty plea) of course rested entirely on the search, since it was based on petitioner's having been found in possession of heroin when the warrant was executed. Petitioner therefore contends that he is entitled to an evidentiary hearing on the question whether the testimony given by Detective Schnuck was in fact false, thus invalidating the warrant, the search, and the resulting convictions.
We agree with the District Court that the petitioner's physical presence was not suppressible at his trial on the sale charge so as to invalidate the conviction. It is well settled that the illegality of an arrest does not in itself void later proceedings. Frisbie v. Collins, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509 (1952); Guzman-Flores v. United States Immigration and Naturalization Service, 496 F.2d 1245 (7th Cir. 1974). And even if we were to accept petitioner's argument that there is a distinction where petitioner's person is not only required to give the trying court jurisdiction, but is also actual physical evidence because the accused is identified by his appearance,*fn3 there is not a sufficiently direct connection here between the illegal arrest of petitioner (if it was illegal) and petitioner's appearance in court on an entirely separate charge. A complaint was filed against petitioner on the charge of sale of heroin. Thus, petitioner was subject to arrest. It makes no difference that the petitioner was found in jail rather than somewhere else. It would be useless to require the police, if they find they have improperly arrested someone whom they have proper cause to arrest on another charge, to release the person and then rearrest him.
The situation is quite different from that in Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969), where fingerprints taken from a suspect who was detained without probable cause were held to be inadmissible. There, the police were investigating the crime for which the suspect was convicted, and thus the deterrent purposes of the exclusionary rule applied. Here, it was mere happenstance that when the police wanted petitioner on the sale charge, he was found in the jail. Cf. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
We also agree with the District Court that plaintiff may not attack his possession conviction on the grounds that his motion to suppress was wrongfully denied, because his conviction was based on his plea of guilty. Tollett v. Henderson, 411 U.S. 258, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973). Petitioner contends that he is not so barred, because Wisconsin law allows an appeal from the denial of a motion to suppress even over an intervening guilty plea, W.S.A. 971.31(10) and thus he is entitled to federal habeas corpus review under Lefkowitz v. Newsome, 420 U.S. 283, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1975). However, as respondent pointed out at oral argument,*fn4 the Wisconsin statute did not apply to cases pending on its effective date of July 1, 1970, W.S.A. 967.01. Petitioner's ...