State v. Eric A. Henderson
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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 Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: July 9, 2001 October 3, 2000 Circuit Portage John V. Finn ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins dissent. Not Participating: 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 STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUL 9, 2001 v. Cornelia G. Clark Clerk of Supreme Court Madison, WI Eric A. Henderson, Defendant-Appellant. APPEAL from an order of County, John V. Finn, Judge. ¶1 the Circuit Court for Portage Affirmed. DIANE S. SYKES, J. This is a challenge to a "no- knock" entry during the execution of a search warrant. The 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 reasons, the warrant neither granted nor denied it. did not knock and announce when executing the The police warrant. 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 denied the motion. application. The circuit court 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). constitutional reasonableness of a no-knock entry is determined by reference to the circumstances existing at the time of issued. v. the entry rather than at the time the warrant was Richards v. Wisconsin, 520 U.S. 385, 395 (1997); State Meyer, 216 Wis. 2d 729, 753, 576 N.W.2d 260 (1998). Accordingly, we conclude that a reviewing court may consider evidence beyond application in that which evaluating was the facts known to application was the the police sufficient in reasonableness execution of a search warrant. evidence introduced at included of the warrant a no-knock We further conclude that the suppression but hearing including included support to not the in the no-knock the warrant entry in 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. marijuana investigation. confidential police As part informant, of using that 99-2296-CR investigation, marked "buy a money," purchased approximately two grams of cocaine from Henderson at Henderson's apartment and turned it over to the police. ¶5 Retzki, The following day, February 27, 1998, Detective Mike a 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 informants and the controlled buy the previous day. confidential The warrant 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. ¶6 99-2296-CR Later that day, Retzki and the SWAT team executed the warrant with a no-knock entry. In the subsequent search of Henderson's apartment, officers seized approximately 220 grams of marijuana, $959 (including $120 of marked "buy money" that the confidential informant used to purchase Henderson the day before), and a digital scale. cocaine from Henderson was charged with possession with intent to deliver marijuana within 1000 feet contrary of to (1995-96).1 a Wis. city park Stat. or school §§ 961.41(1m), as a repeat 961.49, and offender, 961.48(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 1 All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated. 2 Henderson did not dispute that the warrant application demonstrated sufficient probable cause. 3 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. 4 No. County Sheriff's deputy who had participated in 99-2296-CR 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 warrants and Koehmstedt had executed over 30 warrants. Both 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, and were that aware specifically Henderson as had to Henderson, the been charged with 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 destruction of drug evidence easier in this case. The 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 concerned about the possibility of violence. that they were 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 uncertain to whether testified that the confidential Moore carried another Rutherford, was a present the apartment in before the search. "big of a informant. weapon Henderson's concern" during to the the Police himself. Retzki associates, police controlled and buy were Kevin had the been day 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. Henderson's activity. know how associates were known to be 99-2296-CR 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, introducing the information hearing on circuit court distinction the no-knock denied between a State after-the-fact entry. the the In a suppression probable at barred the written motion, cause was suppression decision, relying inquiry, from in on which the the a 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. ¶15 99-2296-CR Following denial of his motion, Henderson pleaded no contest to one count of possession of marijuana with intent to deliver as a repeat offender, §§ 961.41(1m)(h)1 and 961.48(1). of appeals certified the contrary to Wis. He then appealed. case, asking us to Stat. 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 that we review under a two-part standard. State v. Hughes, 2000 WI 24, ¶15, 233 Wis. 2d 280, 607 N.W.2d 621. circuit unless court's findings of clearly erroneous. circuit court's ¶17 Id. application those evidentiary facts. Henderson historical of We or We uphold the evidentiary independently constitutional fact review the principles to decision to Id. argues that the officers' dispense with the rule of announcement in the execution of the search warrant at his home violated his Fourth Amendment rights. The Fourth seizures and Amendment sets forth prohibits the unreasonable manner issue: 8 in which searches warrants and shall 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. The reference case, to Ker the v. determination particular California, of reasonableness circumstances 374 U.S. 23, of 33 is made by each individual (1963) (plurality 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 States v. Place, 462 U.S. 696, 703 (1983)). 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. Amendment's warrant clause provides more 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. from a neutral, disinterested magistrate. States, 441 U.S. 238, 255 (1979). seeking a warrant to Dalia 99-2296-CR v. United It also requires the officer demonstrate upon oath or affirmation probable cause to believe that "'the evidence sought will aid in a particular offense. Id. (1967)). apprehension (quoting or conviction'" Warden v. for Hayden, a 387 particular U.S. 294, 307 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 requirements of unconstitutional. the Welsh warrant v. clause Wisconsin, are presumed 466 U.S. case is the manner in to 740, which be 748-49 (1984). ¶20 The announcement, specific which focus relates warrants are executed. of to this the rule of search 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 safety of police officers and others, prevents the physical destruction of property, and takes into consideration occupants of Williams, 168 the the limited premises to Wis. 2d 970, privacy interests be searched. 981-82, 485 Id.; N.W.2d 42 of the State v. (1992), overruled on other grounds by Stevens, 181 Wis. 2d at 430. 10 No. ¶21 The modern rule of announcement 99-2296-CR 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 Eng. Rep. 194, 195-96 (K.B. 1603)). recognized as a tradition "embedded This common law rule was in Anglo-American law." 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 therefore vitiate the legality of an accompanying search." 374 U.S. at 38. Ker, 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 reasonableness, requirement. the Id. components rule of of announcement constitutional is not an absolute 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 countervailing law enforcement interests." 934. Wilson reasonable indicated in that or The "where evidence notice were given." ¶25 an would entry "presenting police likely officers be ignores Wilson, 514 U.S. at unannounced circumstances of . . . violence," believe that that might a have destroyed be threat reason if to advance Id. at 936. Court later clarified the circumstances that constitute exceptions to the rule of announcement in Richards, 520 U.S. at 394. constitutionality The a of issue blanket announcement in felony drug cases. in Richards exception focused to Id. at 387-88. the on the rule of The judicial officer who issued the warrant in Richards had declined no-knock authorization, but the police 12 dispensed with the rule of No. announcement anyway. Id. at 388. 99-2296-CR 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 evidence." ¶27 by, for example, allowing the destruction of Id. at 394; accord Meyer, 216 Wis. 2d at 734-35. The reasonableness Supreme of an Court in Richards officer's decision also to held that enter the 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 evaluated as of of the the officers' time they Richards, 520 U.S. at 395. 13 decision, [executed which the must be warrant]." No. ¶28 99-2296-CR 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. Dalia, 441 U.S. sought at 257. In Dalia, the Justice Department 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. ¶29 1) the 99-2296-CR 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 reasonableness, which is judicial review determined by for constitutional reference to the 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 otherwise inhibit the effective investigation of the crime. ¶31 This conclusion is not, as Henderson suggests, 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. affidavit See Whiteley v. Warden, Wyo. State 560, 565 cannot be n.8 (1971) ("an rehabilitated by otherwise testimony concerning information possessed by the affiant when he sought 15 No. the warrant Aguilar v. but not Texas, disclosed 378 U.S. to 108, the 109 issuing n.1 99-2296-CR magistrate"); (1964) ("[i]t is 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 U.S. at 565 n.8 (citing Aguilar, 378 U.S. at 109 n.1). also recognized that allowing defective warrants They to be "rehabilitated" in this way would remove the initial probable cause determination constitution from explicitly the neutral places it. magistrate Id. at where 565-66. the These 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 16 Fourth Amendment's warrant No. clause but its reasonableness clause and therefore 99-2296-CR is not subject to prior judicial authorization. ¶33 of Moreover, jurisdictions are divided over the question whether magistrates warrant at all. may authorize no-knock entries in a See 2 Wayne R. LaFave, Search and Seizure § 4.8(g) (3d ed. 1996). Some courts have concluded that such 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, issue no-knock warrants. judicial officers are authorized to 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. of Williams, 168 Wis. 2d at 986. ¶35 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 sufficient to meet the Richards test. warrant application was That is, was the evidence sufficient to establish a "reasonable suspicion that knocking and announcing . . . under the particular circumstances, would be dangerous investigation or futile, of the crime destruction of evidence"? Wis. 2d at 734-35. or . . . would by, for inhibit example, the effective allowing the Richards, 520 U.S. at 394; Meyer, 216 This showing is not high. U.S. at 394. 18 Richards, 520 No. ¶37 99-2296-CR 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. blanket rules or generalizations. We do not resort to Id. at 748-51. As we have seen, two considerations typically justify dispensing with the rule of announcementofficer evidence. safety and preservation of Both are present under the specific circumstances of this case. ¶38 The reasonably evidence officers suspected if they who that knocked executed Henderson and this might announced. search destroy warrant the Henderson's drug prior 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 See Furthermore, the officers knew that the Henderson's apartment and, more specifically, the location of the room in which he stored his drugs across from the bathroom made particularly easy. their previous quick destruction of the evidence The officers were also aware, based upon experiences, that drugs like marijuana and 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 entry in this case might endanger their safety. The police knew Henderson to be combative during previous encounters and also knew that he had threatened violence against the confidential 19 No. informant. Furthermore, they were aware that 99-2296-CR 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 inquiry. or The gang affiliation no-knock entry was is highly relevant reasonable under to the all the 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 State v. Richards, 520 U.S. 385, 394 (1997). 6 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. Thus, the majority concludes, to caught.8 If Henderson had added incentive avoid getting What criminal lacks incentive to avoid getting caught? anything, conclusion Henderson's that Henderson own criminal history was unlikely to supports destroy the 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" with the defendant 7 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 safety, were officers to knock and announce their presence. The 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 For the reasons set forth, I dissent. ¶52 I am authorized to state BRADLEY joins this opinion. 3 that Justice ANN WALSH No. 99-2296-CR.ssa 1
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