2001 WI 97
SUPREME COURT OF WISCONSIN
Case No.:
99-2296-CR
Complete Title of Case:
State of Wisconsin, Plaintiff-Respondent, v. Eric A. Henderson, Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS July 9, 2001 October 3, 2000
Opinion Filed: Submitted on Briefs: Oral Argument:
Source of APPEAL COURT: COUNTY: JUDGE:
Circuit Portage John V. Finn
JUSTICES: Concurred: Dissented: Not Participating:
ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins dissent.
ATTORNEYS:
For the defendant-appellant there were briefs and
oral argument by Eileen A. Hirsch, assistant state public defender.
For the plaintiff-respondent the cause was argued by Diane M. Welsh, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
2001 WI 97
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
No.
99-2296-CR : IN SUPREME COURT
STATE OF WISCONSIN State of Wisconsin, Plaintiff-Respondent, v. Eric A. Henderson, Defendant-Appellant.
FILED
JUL 9, 2001
Cornelia G. Clark Clerk of Supreme Court Madison, WI
APPEAL
from
an
order
of
the
Circuit
Court
for
Portage
County, John V. Finn, Judge.
Affirmed.
¶1
DIANE S. SYKES, J.
This is a challenge to a "noThe
knock" entry during the execution of a search warrant.
court of appeals certified the case to us to decide whether a reviewing court may consider information known to the police but not included in the warrant application in evaluating the
constitutionality of the unannounced entry. ¶2 Stevens Point police obtained a warrant to search
defendant Eric Henderson's home for evidence of drug dealing. They requested no-knock authorization, but for unexplained The police warrant.
reasons, the warrant neither granted nor denied it. did not knock and announce when executing the
No.
99-2296-CR
Henderson moved to suppress the evidence recovered in the search of his home, and during the suppression hearing the narcotics officers who sought and executed the warrant testified to facts regarding Henderson and his associates known to the police but not included in the warrant application. The circuit court
denied the motion.
Henderson pled guilty and appealed, and the
court of appeals certified the case to us. ¶3 The rule of announcement derives from the
reasonableness clause of the Fourth Amendment rather than the warrant clause. The Wilson v. Arkansas, 514 U.S. 927, 930 (1995). reasonableness of a no-knock entry is
constitutional
determined by reference to the circumstances existing at the time of the entry rather than at the time the warrant was
issued. v.
Richards v. Wisconsin, 520 U.S. 385, 395 (1997); State 216 Wis. 2d 729, 753, 576 N.W.2d 260 (1998).
Meyer,
Accordingly, we conclude that a reviewing court may consider evidence beyond in that which the was included in of the a warrant no-knock
application
evaluating
reasonableness
execution of a search warrant. evidence introduced at facts known to the the
We further conclude that the hearing——including in the the
suppression but to not
police
included the
warrant entry in
application——was
sufficient
support
no-knock
this case, and therefore affirm the circuit court's denial of the defendant's suppression motion. I ¶4 In late 1997 and early 1998, the Stevens Point Police
Department targeted Eric Henderson in an ongoing cocaine and 2
No.
99-2296-CR
marijuana
investigation. police
As
part
of
that
investigation, "buy
a
confidential
informant,
using
marked
money,"
purchased approximately two grams of cocaine from Henderson at Henderson's apartment and turned it over to the police. ¶5 Retzki, a The following day, February 27, 1998, Detective Mike Stevens Point Police Department drug investigator,
applied to the Portage County Circuit Court for a warrant to search Henderson's apartment. The warrant application alleged
probable cause that controlled substances would be found in the apartment based upon information obtained from confidential The warrant
informants and the controlled buy the previous day.
application also requested authorization for no-knock execution of the warrant. In support of no-knock execution, the
application stated: Your affiant knows through his training and experience in drug enforcement that dealers/traffickers in large quantities of cocaine and marijuana have access to weapons used in the defense of their persons, currency and contraband, and are likely to threaten law enforcement officers with the same. And further, your affiant knows through his training and experience that dealers/traffickers in large quantities of cocaine and marijuana are likely to engage in the immediate destruction of evidence upon notification that law enforcement authorities are in the process of executing a search warrant, and thus hinder law enforcement's capacity to gain evidence of criminal activity. The Circuit Court for Portage County, Judge John V. Finn, issued the search warrant. The warrant neither expressly granted nor
denied authorization for a no-knock entry.
3
No.
99-2296-CR
¶6
Later that day, Retzki and the SWAT team executed the In the subsequent search of
warrant with a no-knock entry.
Henderson's apartment, officers seized approximately 220 grams of marijuana, $959 (including $120 of marked "buy money" that the confidential informant used to purchase cocaine from
Henderson the day before), and a digital scale.
Henderson was
charged with possession with intent to deliver marijuana within 1000 feet of to a Wis. city park or school as a repeat and offender, 961.48(1)
contrary
Stat.
§§ 961.41(1m),
961.49,
(1995-96).1
Henderson moved to suppress the evidence recovered
during the search, contending that the search was unreasonable under the Fourth Amendment because officers did not comply with the rule of announcement when executing the warrant.2 also argued that the information contained in the Henderson warrant
application in support of no-knock authorization was defective because it did not allege particularized circumstances
justifying a no-knock warrant in this case.3 ¶7 At the suppression hearing, the State presented two
witnesses, Detective Mike Retzki and Gary Koehmstedt, a Portage
All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated. Henderson did not dispute that the warrant application demonstrated sufficient probable cause. Henderson's motion appears to concede that the warrant issued in this case authorized a no-knock entry, and only disputes whether or not the underlying facts were sufficient to justify no-knock execution. The warrant itself, however, does not contain explicit authorization for a no-knock entry.
3 2
1
4
No.
99-2296-CR
County
Sheriff's
deputy
who
had
participated
in
the
search.
Both Retzki and Koehmstedt were veteran drug investigators who had participated in training programs for drug investigation and enforcement. Retzki had executed between 15 and 20 search Both
warrants and Koehmstedt had executed over 30 warrants.
testified to two concerns that prompted them to execute a noknock entry. ¶8 First, the officers said they were concerned that
Henderson may attempt to destroy evidence if given the standard search warrant warning by the police. Both Retzki and
Koehmstedt testified that they had personally executed search warrants on drug dealers who destroyed drug evidence by flushing it down a toilet. Koehmstedt stated that on one occasion he had
attempted to retrieve marijuana that a suspect had flushed down a toilet. ¶9 officers Furthermore, were aware and that specifically Henderson as to been Henderson, charged the with
had
possession of marijuana in 1994 and that he had been present in a residence upon which narcotics officers, including Koehmstedt, had executed a drug warrant in 1996. At that time, Henderson
had been found in possession of large quantities of marijuana and currency. Retzki believed that Henderson's prior arrests
gave him a strong incentive to avoid being caught again and charged as a repeater. ¶10 Additionally, the layout of Henderson's apartment made of drug evidence easier in this case. The
destruction
confidential informant had provided police with a diagram of the 5
No.
99-2296-CR
apartment indicating that the bedroom where Henderson stored his drugs was located directly across from the bathroom. testified that given that proximity, it would be Retzki easy for
Henderson to dispose of any controlled substances during the time it took officers to knock and announce themselves.
Finally, Retzki stated that he knew Henderson and his associates to be "very in tune with drug trafficking practices," "very
careful," and "very difficult to catch," all factors leading Retzki to believe that Henderson would destroy evidence if given the opportunity. ¶11 Second, the officers testified that they were
concerned about the possibility of violence.
The officers were
aware that one of Henderson's associates, Larry Moore, sold guns to his friends, and shortly before the warrant was executed, had sold a pistol to the Moore another a "big confidential carried of a informant. weapon Police were
uncertain testified
whether that was the
himself. associates,
Retzki Kevin been day
Henderson's to the the
Rutherford, present in
concern" during
police
and buy
had the
apartment
controlled
before the search.
The confidential informant had also told
Retzki that Henderson had threatened him, telling the informant that he would retaliate if the informant ever betrayed Henderson and his associates. ¶12 Furthermore, Retzki testified that while working as a
patrol officer he had dealt with both Henderson and Rutherford "in a very combative atmosphere" on more than one occasion.
Retzki indicated that police concerns were heightened because 6
No.
99-2296-CR
Henderson's activity. know how
associates
were
known
to
be
involved
in
gang
The officers were also concerned that they could not many of Henderson's associates would be inside the
apartment at the time the search warrant was executed. ¶13 On cross-examination, Retzki testified that he was
aware of the foregoing facts when he applied for the search warrant, but had not included them in his request for no-knock authorization. Retzki said he was not aware of any changes in
circumstances or additional facts that came to light between the time of the warrant application and the time police executed the warrant. ¶14 Henderson argued that because the police were aware of
the information now proffered as justification for the no-knock entry at the time they sought the warrant, but had not included it in the warrant application, the State at was the barred from
introducing the information hearing circuit on the no-knock denied a the
after-the-fact In a
suppression the the a
entry.
written
decision, on which
court
suppression cause
motion,
relying in
distinction
between
probable
inquiry,
reviewing court is confined to the evidence presented to the magistrate who issued the warrant, and a no-knock inquiry, in which a reviewing court examines the facts as of the time the search warrant was executed. The circuit court found the
totality of the evidence sufficient to justify the officers' concerns about the destruction of evidence and the possibility of violence, and upheld the no-knock entry.
7
No.
99-2296-CR
¶15
Following denial of his motion, Henderson pleaded no
contest to one count of possession of marijuana with intent to deliver as a repeat offender, contrary to Wis. Stat.
§§ 961.41(1m)(h)1 and 961.48(1). of appeals certified the case,
He then appealed. asking us to
The court decide two
questions: 1) may the State use information known to the police but not included in a warrant application to later justify an unannounced entry in the execution of the warrant, and 2) was the evidence introduced at the suppression hearing——either
including or excluding the facts known to the police but not included in the warrant application——sufficient to justify the unannounced entry in this case? II ¶16 This case presents a question of constitutional fact State v. Hughes, 2000 We uphold the fact the to
that we review under a two-part standard.
WI 24, ¶15, 233 Wis. 2d 280, 607 N.W.2d 621. circuit unless circuit court's findings of historical We or
evidentiary review
clearly erroneous. court's application Id.
Id. of
independently
constitutional
principles
those evidentiary facts. ¶17 Henderson
argues
that
the
officers'
decision
to
dispense with the rule of announcement in the execution of the search warrant at his home violated his Fourth Amendment rights. The Fourth and Amendment sets forth prohibits the unreasonable in which searches warrants and shall
seizures issue:
manner
8
No.
99-2296-CR
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 Warrants 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. U.S. Const. amend. IV.4 ¶18 The reasonableness clause of the Fourth Amendment is a
statement of broad protection against unreasonable searches and seizures. reference case, Ker to v. The the determination particular of reasonableness of is made by
circumstances U.S. 23, 33
each
individual (plurality
California,
374
(1963)
opinion), and balances "'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.'" United Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quoting v. Place, 462 U.S. 696, 703 (1983)).
States
Constitutional reasonableness relates not only to the grounds for a search or seizure but to the circumstances surrounding the search or seizure's execution. ¶19 The Fourth Id. warrant clause provides more
Amendment's
particularized protections governing the manner in which search and arrest warrants are issued. The warrant clause requires
that officers obtain prior judicial authorization for a search
4
Wisconsin's search and seizure provision, Article I, Section 11 of the state constitution, is substantively identical to the Fourth Amendment. Our interpretation of the state constitutional provision has been consistent with the United States Supreme Court's interpretation of the Fourth Amendment. State v. Ward, 2000 WI 3, ¶55, 231 Wis. 2d 723, 604 N.W.2d 517.
9
No.
99-2296-CR
from
a
neutral,
disinterested
magistrate.
Dalia
v.
United
States, 441 U.S. 238, 255 (1979). seeking a warrant to demonstrate
It also requires the officer upon oath or affirmation
probable cause to believe that "'the evidence sought will aid in a particular Id. apprehension (quoting or conviction'" v. Hayden, for 387 a U.S. particular 294, 307
offense. (1967)).
Warden
Finally, it requires that warrants must particularly
describe the place to be searched, as well as the items to be seized. the Id. Searches made without warrants issued pursuant to of the warrant v. clause are 466 presumed U.S. 740, to be
requirements
unconstitutional. (1984). ¶20 The
Welsh
Wisconsin,
748-49
specific which
focus
of to
this the
case
is in
the which
rule
of
announcement,
relates
manner
search
warrants are executed.
State v. Cleveland, 118 Wis. 2d 615,
623, 348 N.W.2d 512 (1984), overruled on other grounds by State v. Stevens, 181 Wis. 2d 410, 430, 511 N.W.2d 591 (1994). rule of announcement requires that, when executing a The
search
warrant, officers: 1) announce their identity; 2) announce their purpose; and 3) momentarily wait for the occupants to refuse their admittance or open the door. n.4. The rule protects the Meyer, 216 Wis. 2d at 734-35 of police officers and
safety
others, prevents the physical destruction of property, and takes into consideration of 168 the the limited to be privacy interests Id.; 42 of State the v.
occupants Williams,
premises 970,
searched. 485
Wis. 2d
981-82,
N.W.2d
(1992),
overruled on other grounds by Stevens, 181 Wis. 2d at 430. 10
No.
99-2296-CR
¶21
The
modern
rule
of
announcement
derives
from
an
English common law rule that required a sheriff, when executing a search warrant, to announce his purpose before breaking down a door. Wilson, 514 U.S. at 931-32 (citing Semayne's Case, 77 This common law rule was in Anglo-American law."
Eng. Rep. 194, 195-96 (K.B. 1603)). recognized as a tradition "embedded
Miller v. United States, 357 U.S. 301, 313 (1958). ¶22 For some time it was uncertain whether the rule of
announcement was simply a common law tradition or whether it had constitutional dimensions. The Court's decision in Ker seemed
to suggest the latter: "the method of entering the home may offend federal constitutional standards of reasonableness and Ker,
therefore vitiate the legality of an accompanying search." 374 U.S. at 38.
It was not until Wilson, 514 U.S. at 930, that
the United States Supreme Court addressed the issue directly. ¶23 In Wilson, narcotics officers executing search and
arrest warrants at Sharlene Wilson's Arkansas home did not knock and announce, but, rather, entered the home through an unlocked screen door, while identifying themselves as police. 514 U.S. at 929. Wilson,
Wilson challenged the entry, arguing that the
search was invalid because of the officers' failure to comply with the rule of announcement. Id. at 930. The Court explored
the long history of the common law knock and announce principle, and concluded that the rule of announcement forms part of the Fourth Amendment's reasonableness inquiry: [W]e have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's
11
No.
99-2296-CR
entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure . . . we hold that in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment. Id. at 934. ¶24 Like other the rule components of announcement of is constitutional not an absolute
reasonableness, requirement.
Id.
Indeed, since the rule's earliest common law
origins, courts have recognized that under certain circumstances law enforcement officers may forcibly enter a premises without announcement. Ker, 374 U.S. at 38. While the Supreme Court in
Wilson firmly grounded the rule of announcement in the Fourth Amendment's reasonableness clause, the Court also recognized
that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores
countervailing law enforcement interests." 934. Wilson indicated in that an
Wilson, 514 U.S. at entry a have might be
unannounced "presenting officers be
reasonable
circumstances or "where would police likely
threat reason to
of . . . violence," believe that
evidence
destroyed
if
advance
notice were given." ¶25 The Court
Id. at 936. later clarified the circumstances that
constitute exceptions to the rule of announcement in Richards, 520 U.S. at 394. of The a issue blanket in Richards focused to the on rule the of
constitutionality
exception
announcement in felony drug cases.
Id. at 387-88.
The judicial
officer who issued the warrant in Richards had declined no-knock authorization, but the police dispensed with the rule of
12
No.
99-2296-CR
announcement anyway.
Id. at 388.
This court concluded that
police officers executing search warrants in felony drug cases are never required to comply with the rule of announcement.
State v. Richards, 201 Wis. 2d 845, 866, 549 N.W.2d 218 (1996). ¶26 The United States Supreme Court concluded that a
blanket exception to the rule of announcement for all felony drug cases is not constitutionally permissible. U.S. at 387-88. Richards, 520
However, the Court held that police officers
may dispense with the rule of announcement where there is "a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of
evidence." ¶27
Id. at 394; accord Meyer, 216 Wis. 2d at 734-35. Supreme of an Court in Richards decision also to held enter that the
The
reasonableness
officer's
without
knocking and announcing is evaluated by a reviewing court based upon information known to the officer at the time of entry. Richards, 520 U.S. at 395; accord Meyer, 216 Wis. 2d at 753. Thus, while rejecting a blanket exception for felony drug cases, the Court nevertheless upheld the unannounced entry in Richards because it was reasonable under the circumstances at the time of the entry. The Court held that a magistrate's refusal to pre-
authorize a no-knock entry in a search warrant does "not alter the reasonableness as of of the the officers' they decision, [executed which the must be
evaluated
time
warrant]."
Richards, 520 U.S. at 395. 13
No.
99-2296-CR
¶28 argument
In another context, the Supreme Court has rejected the that the manner in which a warrant is executed is
subject to the requirements of the warrant clause. U.S. at 257. In Dalia, the Justice Department
Dalia, 441 sought and
obtained a warrant to intercept telephone conversations on two phones at Lawrence Dalia's business office. Although the
warrant did not explicitly authorize agents to covertly enter Dalia's office to plant the bugging device, agents did so. at 245. Id.
Dalia challenged the evidence obtained from the bugs.
The Supreme Court upheld the entry, concluding that the Fourth Amendment does not require officers to obtain prior judicial authorization for the exact manner of execution of a warrant: Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements [of the warrant clause] discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant——subject of course to the general Fourth Amendment protection "against unreasonable searches and seizures." ... It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held——and the Government concedes——that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. Id. at 257-58 (footnote omitted).
14
No.
99-2296-CR
¶29 1) the
These cases yield a number of fundamental principles: rule of announcement is a requirement of the Fourth
Amendment's reasonableness clause, not its warrant clause; 2) the validity of a no-knock execution of a search warrant is subject to after-the-fact which is judicial review by for constitutional to the
reasonableness,
determined
reference
circumstances as they existed at the time of the entry; and 3) the manner in which a search warrant is executed is not subject to the requirements of the warrant clause and therefore does not require prior judicial authorization. ¶30 Applying these principles here, we conclude that a
court reviewing the reasonableness of a no-knock execution of a search warrant is not precluded from considering facts known to the police but not included in the search warrant application. The relevant inquiry focuses on the circumstances existing at the time of the entry and the reasonableness of dispensing with the rule of announcement because compliance with the rule would be dangerous or futile, would risk destruction of evidence or would crime. ¶31 This conclusion is not, as Henderson suggests, otherwise inhibit the effective investigation of the
contrary to the rule against "rehabilitating" a warrant afterthe-fact by information known to the police but not included in the warrant application. Penitentiary, insufficient 401 U.S. See Whiteley v. Warden, Wyo. State 560, cannot 565 be n.8 (1971) ("an by otherwise testimony
affidavit
rehabilitated
concerning information possessed by the affiant when he sought 15
No.
99-2296-CR
the
warrant v.
but
not
disclosed U.S.
to
the 109
issuing n.1
magistrate"); ("[i]t is
Aguilar
Texas,
378
108,
(1964)
elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention"). See also State v. Kerr, 181 Wis. 2d
372, 380, 511 N.W.2d 586 (1994) (a court reviewing the validity of a warrant is confined to the record presented to the issuing magistrate, whose findings are upheld unless "clearly
insufficient to support a finding of probable cause"). ¶32 The rule, stated in Aguilar and reiterated in
Whiteley, applies only to challenges to the sufficiency of a search warrant under the warrant clause, not challenges to the manner of execution of a search warrant under the reasonableness clause. The cases recognized that allowing the probable cause
basis for the issuance of a warrant to be bolstered after the fact would render the warrant clause meaningless by essentially allowing warrants to be issued upon less than probable cause, as long as the proper showing could be made later. Whiteley, 401 They to be
U.S. at 565 n.8 (citing Aguilar, 378 U.S. at 109 n.1). also recognized that allowing defective warrants
"rehabilitated" in this way would remove the initial probable cause determination from the neutral it. magistrate at where the These
constitution
explicitly
places
Id.
565-66.
concerns are not present in the post hoc evaluation of a law enforcement decision to dispense with the rule of announcement, which is not a component of the Fourth Amendment's warrant
16
No.
99-2296-CR
clause
but
its
reasonableness
clause
and
therefore
is
not
subject to prior judicial authorization. ¶33 of Moreover, jurisdictions are divided over the question magistrates may authorize no-knock entries in a
whether
warrant at all.
See 2 Wayne R. LaFave, Search and Seizure Some courts have concluded that such
§ 4.8(g) (3d ed. 1996).
warrants are permissible only where they are authorized by a specific statutory enactment. See, e.g., State v. Eminowicz,
520 P.2d 330, 332 (Ariz. Ct. App. 1974); Parsley v. Superior Court, 513 P.2d 611, 614 (Cal. 1973); State v. Bamber, 630 So. 2d 1048 (Fla. 1994). But see, e.g., Cox v. State, 286 S.E.2d
482, 484-85 (Ga. Ct. App. 1981); Commonwealth v. Scalise, 439 N.E.2d 818, 822 (Mass. 1982); State v. Lien, 265 N.W.2d 833, 838 (Minn. 1978). ¶34 In Wisconsin, judicial officers are authorized to
issue no-knock warrants.
In Cleveland, 118 Wis. 2d at 626, we
considered the question of whether, in the absence of specific statutory warrants. authorization, judicial officers may issue no-knock
We concluded that they may, because "there may be
occasions in which facts justifying an unannounced entry would be known at the time the warrant is sought, and that both law enforcement officers and citizens benefit from review of the entry by a neutral magistrate." Id. (footnotes omitted).
Similarly, in Williams we stated: [W]henever the police officers possess sufficient information at the time of the application for a search warrant that justifies dispensing with the announcement rule, they should present such 17
No.
99-2296-CR
information to a judge for the determination whether to authorize the no-knock entry by police. Williams, 168 Wis. 2d at 986. ¶35
of
The court of appeals, in its certification, asked us
to address "[w]hether the directives offered in Williams and Cleveland should be elevated to a constitutional rule comparable to that for probable cause challenges." The court asks, in
effect, whether the reference to "should" in Williams actually means "must." It does not. Wilson, Richards, and Dalia
establish quite clearly that as a matter of Fourth Amendment law, a no-knock entry is subject only to an after-the-fact
judicial review for reasonableness; it does not require prior judicial authorization inasmuch as it is not a component of the Fourth Amendment's warrant clause. III ¶36 The constitutional validity of the unannounced entry
in this case therefore turns on whether the evidence introduced at the suppression hearing——including the facts known to the police but not included in the warrant application——was
sufficient to meet the Richards test.
That is, was the evidence
sufficient to establish a "reasonable suspicion that knocking and announcing . . . under the particular circumstances, would be dangerous or of futile, the or . . . would by, for inhibit example, the effective the
investigation
crime
allowing
destruction of evidence"? Wis. 2d at 734-35. U.S. at 394.
Richards, 520 U.S. at 394; Meyer, 216 Richards, 520
This showing is not high.
18
No.
99-2296-CR
¶37
The evaluation focuses on the particular facts of the
case and the reasonable inferences that can be drawn from the facts, considered in combination with the officer's training and experience. Meyer, 216 Wis. 2d at 735. We do not resort to As we have
blanket rules or generalizations.
Id. at 748-51.
seen, two considerations typically justify dispensing with the rule of announcementofficer safety and preservation of
evidence. this case. ¶38
Both are present under the specific circumstances of
The
officers
who
executed
this might
search destroy
warrant the drug prior
reasonably evidence if
suspected they
that
Henderson and
knocked
announced.
Henderson's
record of drug dealing certainly gave him an incentive to do so, given the heightened penalties for repeat drug offenders. Wis. Stat. § 961.48. layout of Henderson's See
Furthermore, the officers knew that the apartment and, more specifically, the
location of the room in which he stored his drugs——across from the bathroom——made quick destruction of the evidence
particularly easy. their previous
The officers were also aware, based upon that drugs like marijuana and
experiences,
cocaine are easily destroyed and that drug dealers often flush them down the toilet as the police are crossing the threshold with a warrant. ¶39 The officers also reasonably suspected that announcing The police knew
entry in this case might endanger their safety.
Henderson to be combative during previous encounters and also knew that he had threatened violence against the confidential 19
No.
99-2296-CR
informant.
Furthermore,
they
were
aware
that
Henderson's
associate, Larry Moore, had sold guns to his friends and to the confidential informant. They also knew Henderson and his
associates were involved in gang activity. ¶40 Henderson argues that it was unreasonable to suspect
that he would attempt to destroy evidence since he had not done so in the past, and that it was improper to consider the
activities of his associates in evaluating the risk to officer safety. These are weak arguments at best. A history of
evidence destruction is not a threshold requirement for a noknock entry, and the potential presence of associates known to have weapons or gang affiliation entry was is highly relevant under to all the the
inquiry.
The
no-knock
reasonable
circumstances. IV ¶41 We conclude, therefore, that because the
constitutionality of a no-knock execution of a search warrant depends upon its reasonableness at the time of execution, a
reviewing court may consider all facts and circumstances known to the police at the time of the unannounced entry, including information not included in the warrant application. We further
conclude that the facts of this case support the circuit court's conclusion that compliance with the rule of announcement would have endangered officer safety and risked the destruction of evidence. Accordingly, we affirm.
By the Court.—The order of the circuit court is affirmed.
20
No. 99-2296-CR.ssa
¶42
SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting).
I
do not agree that the officers' testimony in this case satisfies the U.S. Supreme Court's test5 for a no knock entry.6 I
therefore dissent. ¶43 The majority opinion concludes that the officers in
this case had two grounds for dispensing with the constitutional rule of knocking and announcing their presence: (1) knocking and announcing their presence might have allowed the defendant to destroy evidence and (2) knocking and announcing their presence might have endangered the officers' safety. Some particularity
to support reasonable suspicion is required under Richards v. Wisconsin, 520 U.S. 385 (1997). ¶44 First, there are not sufficiently particular facts to
suggest that the officers had reasonable suspicion that knocking and announcing their presence would allow the destruction of evidence.
5 6
State v. Richards, 520 U.S. 385, 394 (1997).
The magistrate in the present case failed to authorize a no knock entry. The fact that a warrant does not authorize a no knock entry adds a layer of complexity to the good faith exception adopted in State v. Eason, 2001 WI 98, ___ Wis. 2d ___, ___ N.W.2d ___. In Eason, this court concluded that the exclusionary rule does not apply where officers rely in good faith on a warrant authorizing a no knock entry, provided that the officers conduct sufficient investigation and review before applying for the warrant. Good faith reliance may be undermined where, as here, officers do not include in the affidavit all information known at the time they apply for a warrant or where the officers subsequently learn of facts that undermine reasonable suspicion.
1
No. 99-2296-CR.ssa
¶45
The
majority
opinion
relies
on
the
fact
that
the
bedroom where the drugs were kept is near a bathroom, making destruction of evidence easy. However, in most apartments and
indeed in most houses, each room usually has easy access to a bathroom.7 ¶46 The majority opinion also relies on the fact that
Henderson had a prior drug-dealing record. concludes, caught.8 If Henderson had added incentive
Thus, the majority to avoid getting
What criminal lacks incentive to avoid getting caught? Henderson's Henderson own was criminal unlikely history to supports the
anything,
conclusion
that
destroy
evidence.
Indeed, testimony established that in two prior searches that turned up drugs, Henderson did not attempt to destroy evidence. ¶47 Second, there are not sufficiently particular facts to
suggest that the officers had reasonable suspicion that knocking and announcing their presence would endanger their safety. ¶48 The officers' testimony focused on the dangerousness
posed by a so-called associate of the defendant, Larry Moore. But the testimony gives no indication of the extent of Moore's "association"
7
with
the
defendant
or
whether
the
officers
See State v. Bamber, 630 So. 2d 1048, 1055 n.6 (Fla. 1994) (information that drugs were stored "near the bathroom" was not sufficient to establish reasonable suspicion that they may be destroyed, because "there is nothing in the affidavit to show that the proximity of drugs to the bathroom is anything but happenstance. The residence was a conventional four-bedroom, four-bath home, and virtually any room in the home would have been 'near a bathroom.'").
8
See majority op. at ¶38.
2
No. 99-2296-CR.ssa
believed that Moore or Moore's weapons would be present in the home. ¶49 Although the testimony establishes that the officers
believed that a second individual, Kevin Rutherford, might be present in the defendant's residence, the officers did not
provide any information to evaluate the reasonableness of their suspicion that Rutherford's presence might endanger their The
safety, were officers to knock and announce their presence.
officers testified only that Rutherford was "a big concern" and that they had previously interacted with Rutherford in a
combative atmosphere. ¶50 But the officers also testified that the defendant was
not known to carry a weapon, and they did not testify about any specific acts of violence by the defendant against officers. Without particular allegations of violent conduct, general
allegations regarding the defendant's "gang affiliation" do not establish a reasonable suspicion that knocking and announcing the officers' presence might endanger the officers' safety. ¶51 ¶52 For the reasons set forth, I dissent. I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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No. 99-2296-CR.ssa
1
