State Ex Rel. La Follette v. Moser

Currie, C. J.

(concurring). The rule adopted in the court’s opinion, which holds that any objection to the sufficiency of the warrant must be made before entering a plea on arraignment in order to be timely, does not rest upon waiver by defendant of a known right. Once the court has jurisdiction of the defendant by entry of his plea any invalidity of the arrest is immaterial. The arrest only serves the purpose of getting the defendant before the court for arraignment, and when the latter point has been reached the arrest drops out of the picture.

Thus once the proceeding gets past the arraignment step it is purely a policy and not a constitutional decision as to whether or not to permit the validity of the arrest to be thereafter questioned. This court has determined there will be sufficient discouragement of use of constitutionally tainted warrants by law enforcement officers if the defendant is permitted to raise the issue up to time of pleading on the arraignment. Furthermore, if the objection is timely made and the trial court erroneously rules against defendant on the warrant issue, this policy is sufficiently effectuated by permitting review thereof at any time up to the time judgment of conviction is finalized by expiration of the time for appeal or issuance of a writ of error, but not by collateral attack thereafter.

I am authorized to state that Mr. Justice Fairchild joins in this concurring opinion.