State v. Lance R. Ward
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2000 WI 3 SUPREME COURT OF WISCONSIN Case No.: 97-2008-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Lance R. Ward, Defendant-Appellant. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 222 Wis. 2d 311, 588 N.W.2d 645 (Ct. App. 1998-Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: January 19, 2000 September 10, 1999 Circuit Rock James Welker ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins; PROSSER, J., joins part 1. PROSSER, J., dissents (opinion filed). ABRAHAMSON, C.J., and BRADLEY, J., join. Not Participating: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. For the defendant-appellant there was a brief by Daniel P. Dunn and Dunn Law Offices, Madison and oral argument by Daniel P. Dunn. Amicus Curiae brief and oral argument by Howard B. Eisenberg, Milwaukee for The Wisconsin Association of Criminal Defense Lawyers. 2000 WI 3 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-2008-CR STATE OF WISCONSIN : IN SUPREME COURT FILED State of Wisconsin, Plaintiff-Respondent-Petitioner, JAN 19, 2000 v. Cornelia G. Clark Acting Clerk of Supreme Court Madison, WI Lance R. Ward, Defendant-Appellant. REVIEW of a decision of the Court of Appeals. Reversed. ¶1 of (State) reversed WILLIAM seeks a A. BABLITCH, review of a judgment of J. court the The of circuit State Wisconsin appeals decision that court convicting the defendant, Lance R. Ward (Ward), on his no-contest plea to two counts of possession of a controlled substance with intent to deliver. The court of appeals held that evidence seized during the search of Ward s home should have been suppressed because the affidavit submitted to the warrant-issuing judge in support of the search warrant failed to provide a substantial basis for finding probable cause that evidence of criminal activity was likely be found at that site. State v. Ward, 222 Wis. 2d 311, 333, 588 N.W.2d 645 (Ct. App. 1998). 1 No. ¶2 Two issues are raised on review. whether the supported warrant by to probable search cause. for We drugs 97-2008-CR The first issue is at conclude Ward s that home the was warrant- issuing magistrate had a substantial basis for finding probable cause to issue the warrant to search Ward s home, and accordingly we reverse on that issue. ¶3 The second issue, not reached by the court of appeals, is whether the evidence should be suppressed because officers executed an unlawful no-knock entry into the Ward residence in violation of the rule of announcement. At the time of entry, the police action was in conformance with then-existing law, subsequently changed by the United States Supreme Court. We conclude that the evidence should be admitted because the police officers acted in good faith reliance on law that was controlling at the time of the search. ¶4 December The facts underlying 4, 1996, Detective this Douglas action are Anderson of these. On the of City Beloit Police Department applied for a search warrant for the home of Lance R. Ward at 1663 Royce in Beloit. Detective Anderson presented an affidavit to Rock County Circuit Court Judge James E. Welker in support of the search warrant. The following facts were set forth in Anderson s affidavit. ¶5 First, the affidavit stated that on November 27, 1996, Beloit police received a tip from a Crime Stopper that a second individual, Darrell Vance, sells pounds of marijuana. The Crime Stopper told police that Vance would order marijuana and within a day or two distribute one to two pounds to each of his 2 No. dealers. warrant On at November the 29, Vance Beloit police and recovered home 97-2008-CR executed a 3,311 search grams of marijuana, over $11,000 in cash, .3 grams of crack cocaine and other items including tetrahydrocannabinol (THC) roaches and several scales. ¶6 On November 30, 1996, a Vance family member contacted Detective Anderson to report that Vance identified an individual named Lance as his marijuana supplier. On December 2, Vance, in the custody of the Beloit police, contacted the police to make a deal. Vance identified Lance who lives on Royce as his supplier. The Beloit tax rolls listed property at 1663 Royce as owned by Lance R. Ward. ¶7 the maintained files Second, by Operations Bureau affidavit the stated Beloit contained that Police four the confidential Department pieces of Special information indicating that Lance Ward is a drug dealer. ¶8 Third, the affidavit stated that based upon Detective Anderson s criminal training activity, themselves with and experience, including firearms evidence if given time. and individuals drug-related attempt to crimes, destroy engaged in often arm or conceal For these reasons, Detective Anderson requested the issuance of a no-knock search warrant. ¶9 based Finally, the affidavit stated that Detective Anderson, upon his training and experience, believed that when illegal drugs are bought and sold the parties commonly carry illegal drugs on their body. 3 No. ¶10 Judge Welker issued the search warrant. 97-2008-CR The warrant authorized a no-knock entry. ¶11 Officers executed the warrant on the evening of its issuance. Although Ward was in his home watching television, the house appeared dark. The police did not knock. Officers used a battering ram to break down the door of Ward s home. The officer using the battering ram began swinging it as soon as a second officer yelled Police. Search Warrant. Officers seized 180.9 grams of cocaine, 2,578.6 grams of marijuana, two THC pipes, rolling papers, several scales, and other items. Although ammunition was seized, no weapons were found. ¶12 Ward subsequently offered two motions to suppress the evidence seized at his home. Judge Welker, who had authorized the search warrant, presided at the suppression hearing. ¶13 did First, Ward argued that the affidavit for the warrant not allege sufficient sworn facts to establish probable cause to believe that evidence of criminal activity would be found at Ward s home. Judge Welker determined that the petition for a warrant contained sufficient facts to draw a reasonable inference that there was evidence of a crime at Ward s Royce Street home. ¶14 At the motion hearing, Ward s defense counsel argued that the police did not present any facts in their affidavit from which it could be inferred that illegal drugs were kept at the Ward residence: 4 No. 97-2008-CR THE COURT: What about my experience has (sic) been that in the last eight years, I have had numerous cases that deal with this kind of thing, and I can t remember a time when somebody was dealing drugs when they weren t being dealt out of the person s house? Now, maybe there are different customs everywhere, but here in Beloit, that s been every case that I have ever had. Defense Counsel: But are you allow - you can make inferences based on reasonableness. That s what the Court says. But don t you think you need a factual basis to make the inference? I mean, if Lance Ward lived on Royce Street THE COURT: Well, you seem to agree that there was sufficient information here to issue a warrant to arrest Mr. Ward. Defense Counsel: I think that there is information indicating he was the dealer. I think that you probably could have issued a warrant for his arrest. THE COURT: All right. Well, if that s the case, if there is enough evidence- if there is enough information to arrest his person, and if my experience is that drug dealers ordinarily deal drugs out of their houses, why isn t there enough evidence then to search his house? Defense Counsel: Because nobody told you . . . drug dealers deal out of their houses. that THE COURT: You don t think I can rely on my own experience? Defense Counsel: No. . . . I think you can rely on your own experience in making inferences from facts, but I don t believe that you can make inferences in a search warrant based upon information that you know which is not supportive, at least by a factual allegation, within the four corners of a warrant. . . . 5 No. 97-2008-CR THE COURT: I have had numerous, numerous experiences with respect to drug dealers in the Beloit community, and I do believe that I m entitled to draw the inference that, when the police have established that there is a drug dealer who is dealing large amounts of drugs, I believe I am able to draw the inference that the high probability is that those drugs are being dealt out of his place of residence, and that s based upon my experience, and I think that I can t- I don t think that a magistrate is required to shut his eyes to that fact. Judge Welker subsequently denied this motion. ¶15 Ward s second motion was to suppress the physical evidence seized by police based upon of the violation of the rule of announcement.1 Judge Welker denied this motion. Thereafter, Ward pled no contest to two counts of possession of a controlled substance with intent to deliver. ¶16 A sentencing hearing was scheduled for May 14, 1997. Prior to the hearing, the United States Supreme Court decided Richards v. Wisconsin, 520 U.S. 385 (1997). In Richards, the Court disagreed with our rule permitting an exception to the rule of announcement when officers execute a search warrant in felony drug investigations. Ward requested the reconsideration of his motions to suppress the seized evidence. were denied. In considering the impact of Both motions Richards, Judge Welker stated that the purpose of the exclusionary rule is to 1 The rule of announcement requires police to do three things before forcibly entering a home to execute a search warrant: 1) announce their identity; 2) announce their purpose; and 3) wait for either the occupants to refuse their admittance or, in the absence of an express refusal, allow the occupants time to open the door. State v. Stevens, 181 Wis. 2d 410, 423, 511 N.W.2d 591 (1994); State v. Meyer, 216 Wis. 2d 729, 734-35, 576 N.W.2d 260 (1998). 6 No. deter misconduct. 97-2008-CR The judge concluded that this purpose would not be served in this situation, in which the officers relied upon a warrant that was issued in compliance with what was then the controlling law. ¶17 Ward appealed his conviction. The court of appeals reversed. The court of appeals held that the affidavit presented to Judge Welker in support of a warrant to search the Ward residence did not provide a substantial basis for finding probable cause that evidence of drug dealing would likely be found at the Royce Street address. Ward, 222 Wis. 2d at 333. The court of appeals stated: Although we will defer to a magistrate s conclusion whenever possible, and we will permit reasonable inferences to sustain the reliability and timeliness of information in a warrant application, neither the Fourth Amendment nor Article I, § 11 of the Wisconsin Constitution permits a magistrate to infer a link between evidence of drug dealing and the dealer s residence when the application is devoid of any facts or information from which to infer such a link. Id. ¶18 Having concluded that the warrant to search Ward s home lacked probable cause, the court of appeals did not reach Ward s motion announcement. ¶19 The to suppress for violation of the rule of which we Id. at 335. State filed a petition granted. I 7 for review, No. ¶20 97-2008-CR The first issue we consider is whether the affidavit upon which the search warrant was based contained sufficient facts to support a finding of probable cause to believe that evidence of a crime would be found at Ward s residence. We conclude that the warrant-issuing judge had a substantial basis for finding that there was probable cause to issue the warrant to search the Ward residence. ¶21 Search warrants may issue only upon a finding probable cause by a neutral and detached magistrate. of State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991) (citing State v. DeSmidt, 155 Wis. 2d 119, 131, 454 N.W.2d 780 (1990)). In reviewing whether there was probable cause for the issuance of a search warrant, we to the determination made by the warrant-issuing magistrate. Id. The magistrate s defendant determination accord will great stand deference unless the establishes that the facts are clearly insufficient to support a probable cause finding. Id. It is the duty of the reviewing court to ensure that the magistrate had a substantial basis to conclude that the probable cause existed. ¶22 Our deference to the Id. magistrate s probable cause determination supports the well-established preference under the Fourth warrant. Amendment ¶23 that searches be conducted pursuant to Id. at 990 (quoting DeSmidt, 155 Wis. 2d at 133). A finding of probable cause is a common sense test. The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 8 a No. 97-2008-CR including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). ¶24 When a warrant-issuing judge s determination of probable cause is doubtful or marginal, we examine it in light of this strong preference that law enforcement officers conduct searches pursuant to a warrant. Higginbotham, 162 Wis. 2d at 990. ¶25 In this case, Ward asserts that Judge Welker did not confine his probable cause determination to the circumstances set forth in the affidavit. Ward argues that Judge Welker supplied facts to the affidavit based upon his own experience and then made inferences from the facts he provided to establish probable cause. ¶26 evidence Whether is there located in is a probable cause to particular place is believe that determined by examining the totality of the circumstances. DeSmidt, 155 Wis. 2d at 131 (quoting Gates, 462 U.S. at 238). We agree with Ward that a probable cause determination must be based upon what a reasonable magistrate can infer from the information presented by the police. The issuing magistrate ordinarily considers only the facts set forth in supporting affidavits accompanying the warrant application. United States v. Khounsavanh, 113 F.3d 279, 283 n.1 (1st Cir. 1997) (quoting United States v. Zayas-Diaz, consider 95 F.3d 105, only the facts 111 (1st presented 9 Cir. to 1996)). the We therefore magistrate. A No. 97-2008-CR magistrate issuing a warrant must be neutral and independent and must act in a neutral and a detached manner. State ex rel. Pflanz v. County Court, 36 Wis. 2d 550, 560, 153 N.W.2d 559 (1967) (citations omitted). The subjective experiences of the magistrate are not part of the probable cause determination. ¶27 viewed, Therefore, the record we must before consider the whether warrant-issuing objectively judge provided sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be State v. Kerr, 181 Wis. 2d 372, 378, 511 N.W.2d 586 searched. (1994) (quoting State v. Starke, 81 Wis. 2d 399, 408, 260 N.W.2d 739 (1978)). Ward contends that without Judge Welker s reliance on his experience to infer that evidence of criminal activity would be affidavit found is at Ward s insufficient residence, because it Detective contains Anderson s no statement creating a nexus between the items sought and Ward s residence on Royce Street. However, our examination of the facts leads to the conclusion that the information presented to the warrantissuing judge was sufficient for a reasonable person to logically infer that evidence would be found at Ward s home. DeSmidt, 155 Wis. 2d at 131-32, 135. ¶28 obtaining The purpose behind the constitutional requirement of a search warrant is not to deny law enforcement officers the support of the usual inferences that reasonable individuals may draw from evidence. 81 Wis. 2d at 409). Id. at 135 (quoting Starke, The Fourth Amendment simply requires that a 10 No. 97-2008-CR neutral and detached magistrate draw inferences instead of a law enforcement officer who is engaged in the often competitive enterprise of ferreting out crime. 607, 613, 162 States, 333 finding N.W.2d U.S. cannot conclusions, 10, be the 640 (1968)(quoting 13-14 based State v. Beal, 40 Wis. 2d (1948)). on magistrate the may Johnson v. United Thus, [a]lthough the affiant s suspicions and make the usual inferences reasonable persons would draw from the facts presented. Bast v. State, 87 Wis. 2d 689, 693, 275 N.W.2d 682 (1979). ¶29 The facts supporting a finding of probable cause to search are as follows. The affidavit states that Derrell Vance sells pounds of marijuana. Vance distributes marijuana to his dealers. A search of the Vance home turned up 3,311 grams of marijuana and over $11,000 in cash. It can be reasonably inferred from these facts that Vance is himself a substantial dealer. ¶30 Royce. Vance identifies his supplier as Lance who lives on Vance supplies no other address or location. We agree with the State that it can be inferred from this information that Vance obtained the marijuana from Lance where Lance lived, on Royce. of a Given the large quantity of drugs involved, the link supplier inference that of drugs Vance and deals an in address, a high plus the volume of reasonable drugs and therefore Lance is an even bigger fish, leads us to conclude that the affidavit presents a substantial basis to find probable cause to believe that illegal items will be found at the home of Lance Ward on Royce. The obvious and reasonable inference is 11 No. that Lance dealt drugs from his home. It is 97-2008-CR not the only inference that can be drawn, but it is certainly a reasonable one. The test is not whether the inference drawn is the only reasonable inference. The test is whether the inference drawn is a reasonable one. ¶31 Although Ward argues that this type of inference cannot be made without an explicit statement in the affidavit linking the illegal drugs to the Ward residence, we disagree. ¶32 We have rejected taking an overly technical and formalistic approach to the contents of an affidavit. [A]ffidavits for search warrants, . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner . . . . Higginbotham, 162 Wis. 2d at 991-92 (quoting Starke, 81 Wis. 2d at 410). 12 No. ¶33 97-2008-CR Ward contends that had Detective Anderson inserted a sentence in his affidavit to the effect that Ward is a drug dealer and, based upon the detective s experience, drug dealers keep drugs in satisfactory. their homes, the affidavit would have been Ward makes a similar argument in distinguishing this case from State v. Bernth, 246 N.W.2d 600 (Neb. 1976). In Bernth, the Nebraska Supreme Court considered whether a search warrant was supported by sufficient grounds to believe marijuana was kept at the defendant s residence. that Id. at 601. The affidavit offered by police stated that the defendant had told a police informant that he had pounds of grass for sale, and that the informant had identified the defendant s place of residence. Id. The affiant also stated that he believed the controlled substance was situated at the residence. Id. Ward contends that this statement in Bernth by the affiant created a nexus between the items sought and the location. We believe this level of formalism is not in keeping with the totality of the circumstances test. As the Bernth court noted, [s]eldom can an affiant seeking a search warrant state positively that a certain residence contains contraband. Such a conclusion can only be arrived at by a magistrate on consideration of known facts and common-sense probabilities. ¶34 Id. at 602. Our reasoning in State v. Tompkins, 144 Wis. 2d 116, 423 N.W.2d 823 (1988), applies here. Where there is evidence that to would lead a reasonable person conclude that the evidence sought is likely to be in a particular location, there is probable cause for a search of that location, even if it may 13 No. 97-2008-CR also be reasonable to conclude that the evidence may be in a second or third location as well. Id. at 125. We conclude that the warrant-issuing judge could reasonably infer that because Darrel Vance, himself a high volume dealer, identified Lance on Royce as his supplier, and that Lance Ward owned a home on Royce, there was probable cause to search the Ward residence. ¶35 Finally, Ward contends that Vance, the informant, was inherently unreliable because Vance had no past record of reliability and was attempting to bargain his way out of jail. When considering this issue Judge Welker stated that Vance was making an inculpatory statement under circumstances where, if his statements were found to be untruthful, Vance would be in deeper trouble. Under Vance to be reliable. these circumstances, the judge found We find Judge Welker s conclusion to be reasonable. ¶36 facts In from search, we finding which to that the draw an affidavit inference are not suggesting that supplied of when probable there is sufficient cause to sufficient evidence to identify an individual as a drug dealer, as all the parties conclude there was, that there is sufficient evidence to search the suspect s home. In this case, the affidavit identifies one address in Beloit and two individuals who both deal drugs in volume. Accordingly, we find sufficient facts in the affidavit to connect illegal drugs to the Ward residence and 14 No. 97-2008-CR therefore find a basis for finding probable cause to issue a search warrant.2 II ¶37 We turn then to Ward s second basis for arguing that evidence seized by the Beloit police should be suppressed. argues that the evidence seized at his home is Ward inadmissible because it was obtained as the result of an unconstitutional violation of the rule of announcement. Whether searches and seizures pass constitutional muster is a question of law, which this court reviews without deference to the lower courts. State v. Meyer, 216 Wis. 2d 729, 746, 576 N.W.2d 260 (1998) (quoting State v. Guy, 172 Wis. 2d 86, 93, 492 N.W.2d 311 (1992)). ¶38 For Fourth Amendment purposes, an entry that does not comply with the rule of announcement is justified if police have a reasonable suspicion [under the particular circumstances] that knocking and announcing would be dangerous, futile, or destructive to the purposes of the investigation. Meyer, 216 Wis. 2d at 749-50 (quoting United States v. Ramirez, 523 U.S. 65, 67-68 (1998)). by the Supreme Court, we Following the principles set forth have held that when there is no compliance with the rule there must exist particular facts to 2 Because we find the search warrant was supported by probable cause, we do not reach the State s argument suggesting that the evidence seized at the Ward home is admissible under a good faith exception to the exclusionary rule. 15 No. support an officer s circumstances exist. ¶39 The reasonable suspicion 97-2008-CR that exigent Id. at 751. nature and structure of our federal system of government shape our analysis of the no-knock issue presented in this case. In general, state courts exercise concurrent jurisdiction with the federal courts in cases arising under the Constitution of the United States. The two together form one system of jurisprudence, which constitutes the law of the land for the State . . . . 130, 137 (1876). Claflin v. Houseman, Assignee, 93 U.S. On federal questions, the determinations of the United States Supreme Court are binding upon state courts. State v. Mechtel, 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993). However, [u]ntil the Supreme Court of the United States has spoken, state courts are not precluded from exercising their own judgment upon questions of federal law. Id. (quoting United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970)). This court has been designated by the constitution and the legislature as a law-declaring court. State ex rel. La Crosse Tribune v. Circuit Ct., 115 Wis. 2d 220, 230, 340 N.W.2d 460 (1983). Our decisions interpreting the United States Constitution are binding law in Wisconsin until this court or the United States Supreme Court declares a different opinion or rule. ¶40 In Stevens, 181 Wis. 2d at 424-25, this court initially adopted a rule providing that when the police have a search warrant, supported by probable cause, to search a residence for evidence of felony drug delivery or dealing, the 16 No. officers are justified in making a no-knock entry. 97-2008-CR Subsequent to our decision in Stevens, the Supreme Court held that the rule of announcement reasonableness (1995). forms of Wilson inquiry. part the v. Fourth Arkansas, 514 Amendment U.S. 927 In light of Wilson, we considered whether the Fourth Amendment allows a blanket exception to the general requirement of knock and announce for entries into premises pursuant to a search warrant for evidence of felonious drug delivery. State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (June 12, 1996). In Richards we reaffirmed our rule that exigent circumstances are always present in the execution of search warrants involving felonious drug delivery: an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of police. Id. at 847-48. ¶41 drugs by the occupants prior to entry by the Thus on December 4, 1996, when Judge Welker signed the search warrant and authorized a no-knock entry into the Ward residence, the law in Wisconsin for over two years, and as twice affirmed by this court, authorized police executing a search warrant for evidence of felonious drug activity to make a noknock entry. home, the However, three months after the search of Ward s Supreme disagreement with Court our issued conclusion an that opinion the in apparent Fourth Amendment permits a per se exception to the rule of announcement when officers execute investigation. a search warrant in a felony Richards v. Wisconsin, 520 U.S. at 388. 17 drug No. ¶42 97-2008-CR We review this chronology of events to emphasize that although the officers in this case did not comply with the rule of announcement, this was not due to negligence, a mistake of law, or willful or malicious misconduct by the officers. All the parties relied upon a rule set forth as a matter of judicial discretion by this court in Stevens and State v. Richards. We thus to begin our analysis as one that requires this court consider what is the appropriate remedy when evidence is seized in conformance with controlling law as articulated by this court which is subsequently reversed. ¶43 To begin, we first consider whether the violation of the rule of announcement comes before us as a question to be considered under Constitution3, Wisconsin 3 an the Fourth issue Constitution4, Amendment arising or under both. to the art. I, We find United § that 11 States of the both the Amendment IV of the United States Constitution states: 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. 4 Article I, § 11 of the Wisconsin Constitution states: 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. 18 No. Wisconsin Constitution and the Fourth Amendment 97-2008-CR are properly before this court. ¶44 The State asserts Ward s motion to suppress evidence seized due to a violation of the rule of announcement arises only under contends the that Fourth this Amendment. court As should a result, therefore the State limit its consideration of the issue to Fourth Amendment jurisprudence. As a matter of Fourth Amendment jurisprudence, the State argues that the evidence should be admitted exception to the exclusionary rule.5 340 (1987). Ward contends that under the good faith Illinois v. Krull, 480 U.S. his motion to suppress the physical evidence seized because of the violation of the rule of announcement was preserved on state and federal grounds. agree that both the Fourth Amendment and art. I, § We 11 of the Wisconsin Constitution are at issue here. ¶45 Although it is the general rule that issues not raised or considered in the circuit court will not be considered for the first time on appeal, this rule is not absolute. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998); Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). When an issue involves a question of law rather than of fact, when the question of law has been briefed by both parties and when the question of law is of sufficient public interest to merit a decision, 5 this court may exercise its For the purposes of this case we assume without deciding that the exclusionary rule is the proper remedy for a violation of the rule of announcement. 19 No. discretion to address the issue. Wis. 2d at 384. Apex Electronics Corp., 217 Application of art. I, § Constitution is a question of law. issue of an exception to the 97-2008-CR 11 of the Wisconsin The parties briefed the exclusionary rule in their arguments regarding the first issue in this case, the validity of the search warrant. discussing the exclusionary constitutional law, response. addition, In Amici curiae also submitted a brief to rule which at as the oral a State matter filed argument, specifically discussed this issue. of an counsel state in-depth for Ward In addition, although our decision in this case will affect only a narrow band of cases arising between our holding in State v. Richards and Richards, we consider the question of the application of the Wisconsin Constitution to this matter to be of sufficient public interest to merit today our address. invokes Constitutions. ___ N.W.2d ___.6 both Finally, the a consolidated Wisconsin and case decided United States State v. Orta, 2000 WI 4, ____ Wis. 2d _____, Therefore, to the extent that there are any doubts on this point, we exercise our discretion and address the 6 In State v. Orta, 2000 WI 4, ___ Wis. 2d ___, ___ N.W.2d ___, a consolidated case, officers executing a search warrant made a no-knock entry that was valid under our rule from State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994) and State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996). As in this case, the defendants moved to suppress the evidence seized by the police after the United States Supreme Court decided Richards v. Wisconsin, 520 U.S. 385 (1996). For the reasons set forth in this opinion, we held in Orta that the evidence seized in that case is admissible. Orta, 2000 WI 4, ¶2. 20 No. 97-2008-CR Wisconsin constitutional issue as well as the Fourth Amendment issue presented in this case. ¶46 The exclusionary rule bars evidence obtained in an illegal search and seizure from a criminal proceeding against the victim of the constitutional violation.7 Krull, 480 U.S. at 347. The Supreme Court has stated that the [exclusionary] rule is judicially a created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. United States v. Calendra, 414 U.S. 338, 348 (1974) (footnote omitted). areas Application of the rule has been restricted to those where its remedial efficaciously served. objectives are thought most Id. at 348. ¶47 The [exclusionary] rule is calculated to prevent, not repair. Elkins v. United States, 364 U.S. 206, 217 (1960). Although this remedial principle appears to be the sole pillar supporting the application of Supreme the Court s exclusionary contemporary rule a rationale second for principle, judicial integrity, has been cited in the Court s exclusionary rule jurisprudence: 7 The State argues that the exclusionary rule does not generally apply to evidence seized in the execution of a search warrant after a violation of the rule of announcement. According to the State, when a violation of the Fourth Amendment occurs, the court must find sufficient causal relationship between the violation and the discovery of evidence to support application of the exclusionary rule. United States v. Ramirez, 523 U.S. 65, 72 n.3 (1998). Because we deny the motion to suppress on other grounds, we need not address this issue. 21 No. 97-2008-CR It was of this [judicial integrity] that Mr. Justice Holmes and Mr. Justice Brandeis so eloquently spoke in Olmstead v. United States. . . . For those who agree with me, said Mr. Justice Holmes, no distinction can be taken between the Government as prosecutor and the Government as judge. . . . In a government of laws, said Mr. Justice Brandeis, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means to declare that the Government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. Elkins, 364 U.S. at 222-23 (quoting Olmstead v. United States, 277 U.S. 438, 470, 485 (1928)). ¶48 Whether the purpose of the exclusionary rule is solely remedial or also a matter of judicial integrity, the Supreme Court has made clear that for Fourth Amendment purposes the policies behind the exclusionary rule are not absolute. they must be evaluated in light of competing policies. v. Powell, 428 U.S. 465, 488 (1976). Rather, Stone In Powell the Supreme Court said: Although our decisions often have alluded to the imperative of judicial integrity, they demonstrate the limited role of this justification in the determination whether to apply the rule in a particular context. . . . While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence. 22 No. 97-2008-CR Id. at 485 (internal citation and footnotes omitted). ¶49 In this case, we do not believe that excluding the evidence seized by the police will serve any remedial objective, or that judicial integrity is sullied by admission of the evidence. On December 4, 1996, the officers actions were in conformance with the law in Wisconsin, as articulated by this court, allowing for no-knock entries. The greenest law student, the savviest defense counsel, and a roomful of law professors would have reached the same conclusion. We find it impossible to say that under such facts and in consideration of binding federal precedent, the exclusionary rule should be applied to this violation of the rule of announcement. ¶50 Our conclusion is supported by the rule articulated by the Supreme Court in Krull. In Krull, police officers conducted a search pursuant to an Illinois statute authorizing warrantless administrative state. searches of certain Krull, 480 U.S. at 342-44. subsequently found that the premises licensed by the The Illinois Supreme Court statute violated the Fourth Amendment, and the evidence seized pursuant to the statute was suppressed. Id. at 346. The United States Supreme Court concluded that the evidence should be admitted under a goodfaith exception to the Fourth Amendment exclusionary rule. at 346, 360. The Court stated: 23 Id. No. 97-2008-CR The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer s actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written. Krull at 349-50. ¶51 The court in Krull indicated it was concerned solely with whether the detective acted in good faith reliance upon an apparently valid statute. that he did. Id. at 360. Id. at 357 n.13. The Court found In this case we are concerned solely with whether the officers acted in good faith reliance upon the pronouncements of this court. ¶52 Execution of a no-knock entry in this case was founded upon a rule articulated by this court. Having been obtained pursuant to the search and seizure principles we expounded, we cannot say now that the subsequent change in Fourth Amendment jurisprudence has somehow transformed the character of the evidence seized at the Ward home into something so tainted that it mars judicial integrity. Nor will any remedial purpose be achieved through exclusion of the evidence when the officers and 24 No. magistrate followed, rather than defied, the 97-2008-CR rule of law. Accordingly, we conclude that the evidence is admissible under the Fourth Amendment. ¶53 We turn Constitution. then to We conclude art. I, that in § 11 the Wisconsin case, this of the Wisconsin Constitution does not require exclusion of the evidence seized at the Ward residence. ¶54 Issues of federalism and sovereignty again shape our discussion. The holdings of the United States Supreme Court do not affect the State s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. (1967). Cooper v. California, 386 U.S. 58, 62 We have also stated: This court . . . will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin and the laws of this state require that greater protection of citizens liberties ought to be afforded. State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977). ¶55 The text of art. I, § 11 of the Wisconsin Constitution and the text of the Fourth Amendment of the United States Constitution are essentially identical. Wis. 2d at 131. seizure Tompkins, 144 Our interpretation of the Wisconsin search and provision has normally been consistent with the requirements of the United States Constitution as interpreted by the Supreme Court. Id. at 133. Therefore as an initial matter, 25 No. the rule of announcement inquiry under art. I, § conformity with the is one part of the 97-2008-CR reasonableness 11 of the Wisconsin Constitution, in Supreme Court s decision in Wilson v. Arkansas, 514 U.S. at 930. ¶56 the Thus, we next consider whether the evidence seized at Ward residence should be suppressed pursuant to the Wisconsin exclusionary rule adopted in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). ¶57 adopted We in first Hoyer is consider merely whether a the judge-made exclusionary rule, as the rule State contends, or whether, as the defendant argues, it is a personal right under the Wisconsin Constitution. We have decided this question and there is no need to revisit it. When discussing the exclusionary rule in Tompkins, we stated: The protection of rights and the preservation of judicial integrity depend in reality on the deterrent effect of the exclusionary rule. Unlawful police conduct is deterred when evidence recovered in unreasonable searches is not admissible in courts. The Wisconsin cases discussed in Hoyer and statements of that court all concerned judicial protection against police oppression. That is, the exclusionary rule developed as a judicial remedy to deter unreasonable searches and seizures. The fourth amendment was and is a limit on the powers of government. Tompkins, 144 Wis. 2d at 133-34. ¶58 the We do not reexamine our conclusions in Tompkins that exclusionary However, we rule concur with in Wisconsin the views 26 is a expressed judicial by the remedy. Vermont No. 97-2008-CR Supreme Court which stated that [e]ven if our exclusionary rule were no more than a judicially created remedy, this Court would maintain the obligation to ensure that the remedy effectuates [state constitutional] rights. 121 (Vt. 1991). State v. Oakes, 598 A.2d 119, The Vermont Supreme Court further stated: By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court s decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates [the state constitutional] rights, and would disserve those rights. Id. 598 A.2d at 122. ¶59 Although we generally conform art. 1, § 11 to Fourth Amendment jurisprudence, it would be a sad irony for this court to exhort magistrates to act as something more than rubber stamps when issuing warrants, and to then act as mere rubber stamps ourselves when interpreting our Wisconsin Constitution. It is our responsibility independently. to examine the State Constitution This duty exists even though our conclusions in a given case may not differ from those reached by the Supreme 27 No. Court when it interprets the Fourth Amendment. 97-2008-CR State v. Guzman, 842 P.2d 660, 667 (Idaho 1992). ¶60 upon In this case, because the police and magistrate relied our rule Wisconsin from State Constitution v. does Richards, not we require conclude that the of the should be suppression evidence. ¶61 In determining whether this evidence excluded under the Wisconsin Constitution, we find persuasive the rational used in United States v. Peltier, 422 U.S. 531 (1975). In Peltier, Border Patrol agents stopped a vehicle 70 air miles from the Mexican border. Peltier, 422 U.S. at 533. The Border Patrol searched the vehicle and seized 270 pounds of marijuana from the trunk of the car. Id. at 532. Four months after this stop occurred, the United States Supreme Court held that a warrantless automobile search, conducted approximately 25 air miles from the Mexican border by Border Patrol agents, acting without probable cause, was unconstitutional under the Fourth Amendment. Id. at 532-33 (citing Almeida-Sanchez v. United U.S. States, Peltier was 413 266 unconstitutional (1973)). under Although the rule the from stop of Almeida- Sanchez, the Supreme Court decided that the evidence should not be excluded. stop was federal The Supreme Court stated that the basis for the founded statute, upon the Border administrative 28 Patrol s regulations reliance upon implementing a the No. 97-2008-CR statute, and continuous judicial approval of the regulation. Id. at 540-41. The Supreme Court stated: [u]nless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm. If the purpose of the exclusionary rule is to deter unlawful police conduct then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. Id. at 542 (internal citations and footnote omitted). ¶62 Similarly, we believe and magistrates must be that allowed to pronouncements of this court. law enforcement reasonably rely officers upon the Therefore, we hold that under the Wisconsin Constitution the evidence seized at the Ward residence is admissible. The officers pronouncements of this court. acted in reliance upon That is the only issue before us and is the only issue we decide. ¶63 In summary, we conclude that the warrant was issued with probable cause to search Ward s residence. In addition, the officers failure to comply with the rule of announcement violated the Fourth Amendment and art. I, § Constitution. However, because the 11 of the Wisconsin officers relied, in objective good faith, upon the pronouncements of this court we hold that exclusion of the evidence 29 would serve no remedial No. objective and, therefore, the residence should be admitted. evidence seized at 97-2008-CR the Ward Finally, we hold that as a matter of state constitutional law the evidence is properly admissible.8 By the Court. The decision of the court of appeals is reversed and the cause is remanded. 8 Having concluded that the evidence is admissible under the Wisconsin Constitution because the officers relied upon a rule established by this court, we need not consider the State s alternative argument that the officers reasonably relied upon the no-knock search warrant. 30 No. 97-2008.ssa ¶64 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). I disagree with the majority opinion on two grounds: ¶65 suppress First, the evidence majority seized defendant s home. by opinion law errs enforcement in refusing officers in to the I conclude there is no nexus in the warrant application in this case between the defendant s home and the defendant s drug-dealing activities to establish probable cause to search the home.9 ¶66 Second, the majority opinion errs in refusing to suppress evidence seized by law enforcement officers who failed to comply with the constitutionally based rule of announcement. I would not adopt the majority opinion s exception to the exclusionary rule. I ¶67 I approach the question of probable cause to issue a search warrant for a drug dealer s home with the following basic principles in mind. ¶68 Amendment A moving to the force U.S. behind the Constitution 9 enactment was to of the Fourth prohibit the A number of courts confronted with facts similar to those presented in this case have concluded no nexus was established between the drug dealing and the defendant s home. These cases are discussed in the court of appeals thorough opinion. See also State v. Thien, 977 P.2d 582, 588 (Wa. 1999) (en banc) (warrant authorizing the search of a drug dealer s apartment must present specific evidence tying the residence to the illegal activity). 1 No. 97-2008.ssa government from conducting indiscriminate searches.10 general Accordingly, a crucial element in evaluating a search warrant under the Fourth Amendment is whether it is reasonable to believe that the item to be seized will be found in the place to be searched, here a home.11 Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. 12 ¶69 Before issuing a warrant a magistrate must be "apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place 978, Wis. 2d to 980, omitted). be searched." 471 N.W.2d State 24 (1991) v. Higginbotham, (internal 162 quotations Our duty as a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed, giving deference to the magistrate s conclusion and accepting reasonable inferences to sustain the issuance of a warrant. believe Id. that "'[T]he fact that there is probable cause to a person has committed a crime does not 10 Payton v. New York, 445 U.S. 573, 583-84 and n.21 (1980) (describing historical circumstances leading to the enactment of the Fourth Amendment). 11 Zurcher v. Stanford Daily, 436 U.S. 547, 556 n.6 (1978). 12 State v. Phillips, 218 Wis. 2d 180, 195-96, 577 N.W.2d 794 (1998). 2 No. 97-2008.ssa automatically give the police probable cause to search his house for evidence of that crime'"13 ¶70 Applying these principles to the majority opinion, I conclude that, for big drug dealers, the majority has abandoned the rule that a magistrate must be apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought would be found in the place to be searched. The majority opinion has, instead, adopted a blanket general rule, a per se rule, that if a magistrate determines probable cause to believe that a person is a dealer in significant quantities of drugs14 then it automatically follows there is probable cause to issue a warrant to search that person s home. Majority op. at ¶36.15 ¶71 The State does not claim that the affidavit in support of the application for a search warrant in this case contained 13 State v. Higginbotham, 162 Wis. 2d 978, 995, 471 N.W.2d 24 (1991), (quoting United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982)). 14 The majority does not describe how to distinguish between significant and insignificant quantities of drugs. 15 The majority appears to deny this holding. It states at paragraph 36 that it is not suggesting that when there is sufficient evidence to identify an individual as a drug dealer . . . that there is sufficient evidence to search the suspect s house. It goes on to state: In this case, the affidavit identifies one address in Beloit and two individuals who both deal drugs in volume. I do not understand how this cryptic sentence provides law enforcement officers, magistrates, circuit courts or the court of appeals with any guidance in deciding when an application to search the home of a drug dealer of significant quantities of drugs sufficiently connects the illegal activities to the home to be searched when the only information is that the person is a big drug dealer and lives on a specified street. 3 No. 97-2008.ssa any direct evidence that the defendant had sold drugs out of his home or that any illegal items had been spotted there. majority s decision upholding the issuance apparently rests on two pieces of evidence. of the The warrant The first piece of evidence is that the defendant supplied drugs to other dealers. From this fact, the majority opinion states that the magistrate could conclude that the defendant was probably a big drug dealer. ¶72 The second piece of evidence is that an informant drug dealer referred to the defendant as Lance on Royce. The city tax records, examined by a law enforcement officer, confirmed that Lance Ward owned a house at 1663 Royce Street. Neither the informant s reference to the street where the defendant lived or the city tax records giving the defendant s exact home address suggest that drugs were sold from the defendant s home. ¶73 Thus the majority s holding that there was probable cause to believe the drugs were in the defendant s home does not rest on any specific evidence in the record tying the drugs to the home. Rather the majority s holding rests on the supposition that a magistrate may reasonably conclude, unless there is evidence to the contrary, that every drug dealer suspected of dealing in significant quantities of drugs keeps the drugs at home. ¶74 I conclude that the majority s holding is once again creating a drug exception to the Fourth Amendment "based on the 'culture' surrounding a general category of criminal behavior," contrary to Richards v. Wisconsin, 520 U.S. 385, 392 (1997). 4 No. 97-2008.ssa The U.S. Supreme Court in Richards overturned this court s blanket per se rule that all drug dealers may be presumed armed and that therefore no-knock entries to the home are justified in felony drug searches. ¶75 The general per se drug exception the majority creates today, allowing searches of the homes of "big" drug dealers, is subject to the same two criticisms that the U.S. Supreme Court leveled against the generalization about drug dealers that this court adopted in Richards. rule First, the majority opinion s new that "big" drug dealers keep drugs in their homes contains considerable overgeneralization. The Richards case, 520 U.S. at 393, condemned a similar generalization about drug dealers and arms. While "big" drug dealers may frequently keep drugs (or arms) in their homes, not every "big" drug dealer does so. ¶76 Second, the majority opinion s categorical rule that "big" drug dealers keep drugs in their homes "can, relatively easily, be applied to others." In Richards, 520 U.S. 394, the Supreme Court condemned this court s categorical rule on drug dealers and arms on the grounds that the generalization could be applied to many crimes and thus undercut the Fourth Amendment requirement that individualized grounds to search a place be demonstrated. ¶77 If we follow the majority opinion s reasoning to its "common sense" conclusion, one can assume that, unless there is evidence to the contrary, every drug dealer (big, medium or small) and further everyone engaged in criminal activity (drugs or otherwise), keeps evidence of the criminal activity at home. 5 No. 97-2008.ssa This "common requirement sense" that reasoning applications swallows for the warrants Fourth must Amendment demonstrate reasonable grounds to believe that the item to be seized will be found in the place specified to be searched. "If a per se exception were allowed for each category," the Fourth Amendment requirement that a warrant application must demonstrate reasonable grounds to believe that the item to be seized will be found in the place to be searched "would be meaningless." Richards, 520 U.S. at 394. ¶78 I substitutes do not a generalization, constitutional join requirement the majority that a per a opinion se nexus because rule, must for appear in it the the warrant application between the place to be searched and the drug-dealing activities to establish probable cause to search the place specified. In sum, the majority opinion does not give adequate consideration to the Fourth Amendment s protection of the home against indiscriminate general searches. II ¶79 The majority opinion errs in adopting an exception to the exclusionary rule to refuse to suppress evidence seized by law enforcement officers who failed to comply with the constitutionally based rule of announcement. ¶80 The exclusionary rule prevents evidence that has been seized in violation of an accused's statutory or constitutional rights from being admitted into evidence. Illinois v. Krull, 480 U.S. 340, 347 (1987). The U.S. Supreme Court has adopted a 6 No. 97-2008.ssa "good faith" exception to the exclusionary rule. United States v. Leon, 468 U.S. 897 (1984). The Leon case held that the exclusionary rule does not apply to evidence obtained by law enforcement officers acting on objectively reasonable reliance upon a search warrant issued by a neutral magistrate when the warrant cause. was ultimately found to be unsupported by probable 468 U.S. at 926. ¶81 The majority opinion does not adopt the Leon good The Leon good faith faith exception to the exclusionary rule. exception has commentators.16 been strongly criticized by state courts and Indeed the majority opinion studiously avoids 16 In the fifteen years since the Leon case was decided, at least twelve states have rejected the good faith exception to the exclusionary rule as incompatible with their state constitutions. See, e.g., State v. Marsala, 579 A.2d 58 (Conn. 1990); State v. Guzman, 842 P.2d 660 (Idaho 1992); People v. Sellars, 394 N.W.2d 133 (Mich. App. 1986), appeal denied, 426 Mich. 879 (1986); State v. Canelo, 653 A.2d 1097 (N.H. 1995); State v. Novembrino, 519 A.2d 820 (N.J. 1987); State v. Gutierrez, 863 P.2d 1052 (N.M. 1993); People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985); State v. Carter, 370 S.E.2d 553 (N.C. 1988); Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991); State v. Taylor, 1987 WL 25417 (Tenn. Crim. App. 1987); State v. Oakes, 598 A.2d 119 (Vt. 1991); State v. Crawley, 808 P.2d 773 (Wash. App. 1991). The majority opinion discusses and relies on State v. Oakes and State v. Guzman (majority op. ¶58), but does not acknowledge that both these cases reject the good faith exception to the exclusionary rule. Another two states have rejected the good faith exception as impermissible under state statutory grounds. Gary v. State, 422 S.E.2d 426 (Ga. 1992); Imo v. State, 826 S.W.2d 714 (Tex. Ct. App. 1992). 7 No. 97-2008.ssa citing Leon, 468 U.S. 897 (1984), the leading good faith case, and even steers clear of using the words good faith. The majority opinion uses the words good faith only nine times, in six instances referring to other writers use of the words, (twice referring to the State s argument, twice referring to a U.S. Supreme Court holding,17 and twice quoting from a case from the Vermont Supreme Court).18 ¶82 Instead of relying on Leon, the majority opinion relies on Illinois v. Krull, 480 U.S. 340 (1987), a Leon-based decision. 19 In Krull, the U.S. Supreme Court held that the exclusionary rule would not apply to evidence seized by officers acting in authorizing objectively warrantless reasonable reliance administrative upon searches; a statute after the Several states have expressed reservations about the good faith exception, although their highest courts have not specifically rejected it. See, e.g., State v. Rothman, 779 P.2d 1, 8 (Haw. 1989) (Hawaii has not yet adopted good faith exception); State v. Martinez, 411 N.W.2d 209, 149 (Ct. App. Minn. 1998) (Minnesota has not yet adopted good faith exception). Several state courts have adopted the to the exclusionary rule under their own See, e.g., Morgan v. State, 641 So.2d 840 v. State, 722 S.W.2d 831 (Ark. 1987); S.W.2d 140 (Mo. 1986) (en banc). 17 See majority op. Krull, 480 U.S. at 346). ¶¶ 50-51 good faith exception state constitutions. (Ala. 1994); Jackson State v. Brown, 708 (referring to Illinois v. 18 See majority op. ¶58, quoting State v. Oakes, 598 A.2d 119, 122, (Vt. 1991). 19 1 Wayne R. LaFave, Search and Seizure § 1.3(h) at 97 (3rd ed. 1996). 8 No. 97-2008.ssa search and seizure in that case the statute was held unconstitutional as violating the Fourth Amendment. ¶83 Krull sweeps broadly and authorizes the use of evidence seized in a whole class of unconstitutional searches, that is, those conducted pursuant to a statutory enactment which is later declared unconstitutional. The Krull rule means that an appellate court need not review each case falling within the class. In contrast, the Leon case deals with a single unconstitutional judicial authorization of a particular search under particular circumstances; an appellate court reviews each warrant to determine whether that case falls within the Leon good faith exception to the exclusionary rule. Because of the sweeping reach of Krull, commentators and courts have found the Krull rule more problematic than the Leon rule. ¶84 Professor LaFave, for example, views the Krull case as even more objectionable than Leon.20 ¶85 Justice Sandra Day O Connor, who agreed with Leon, dissented along with three of her colleagues in Krull (a 5-4 decision). The Illinois Supreme Court also rejected the Krull rule. That court reasoned that the Krull rule provides a grace period in which constitutional rights may be violated with impunity; the grace period can last for several years and can affect large numbers of people. 20 The Illinois Supreme Court 1 Wayne R. LaFave, Search and Seizure § 1.3(h) at 98 (3d ed. 1996). 9 No. 97-2008.ssa concluded that this is simply too high a price for our citizens to pay. 21 ¶86 Neither Krull nor Leon confronts the fact situation presented in this case: an officer seizes evidence; unconstitutional decision of a court authorizes the search. an The majority opinion thus extends an exception to the exclusionary rule beyond Krull and Leon. ¶87 This court I would not do so. should be more cautious in adopting exceptions to the exclusionary rule in light of the history of the exclusionary rule Court was one of exclusionary rule.22 in the this state. The in nation first the Wisconsin to Supreme adopt the State v. Hoyer, 180 Wis. 407, 193 N.W. 89 (1923), was decided almost 40 years before Mapp v. Ohio, 367 U.S. 643 (1961), obliged this court to adopt the exclusionary rule. this This early adoption of the exclusionary rule demonstrates state s commitment to protecting the privacy of its citizens which this court should not rush to diminish.23 21 People v. Wright, 697 N.E.2d 693, 697 (Ill. quoting People v. Krueger 675 N.E.2d 604 (Ill. 1996). 1998), 22 See State v. Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973)(noting the court s early adoption of the exclusionary rule). 23 For a more developed discussion of State v. Hoyer and its implication for this court s adoption of the good faith exception to the exclusionary rule, see Justice Prosser s concurring opinion in State v. Orta, 2000 WI 4, ___ Wis. 2d ___, ___ N.W.2d ___, of even date. I join that part of Justice Prosser s concurrence in Orta relating to Hoyer and the good faith exception to the exclusionary rule. 10 No. 97-2008.ssa ¶88 Although decision will the affect majority only a opinion narrow asserts band of that cases its arising between State v. Richards and Richards [v. Wisconsin], majority op. at ¶45, I implications. fear that the majority opinion has broader The majority opinion applies to any published decision of the court of appeals or this court authorizing a search when the decision is later declared unconstitutional. The majority opinion rendered today also removes much of the incentive for an accused to challenge a search or seizure that is authorized by a published decision of this court or the court of appeals. the very The accused would not get an effective remedy in case in which he or she successfully challenged a decision, because the evidence seized would be admissible under the exception adopted by the majority opinion today. ¶89 What does this majority opinion mean for the future of the exclusionary rule in Wisconsin? What is the status of the good faith exception in Wisconsin? Who knows? The majority isn t telling.24 ¶90 For the reasons stated, I do not join the majority opinion s extension of the Krull cases to the present case. The majority opinion errs in refusing to suppress evidence seized by law enforcement officers who failed to comply with the constitutionally based rule of announcement. 24 I raise the issue of what constitutes reliance in objective good faith on a pronouncement of this court in my dissent in State v. Orta, 2000 WI 4, ___ Wis. 2d ___, ___ N.W.2d ___, of even date. 11 No. 97-2008.ssa ¶91 I am authorized to state that JUSTICE ANN WALSH BRADLEY joins this dissent and JUSTICE DAVID T. PROSSER joins Part I of this dissent. 12 97-2008-CR.dtp ¶92 secured DAVID T. PROSSER, J. (dissenting). The liberties by must the United States Constitution not be compromised in society's struggle to combat illegal drugs. The "horrors but of drug trafficking" are real and substantial, "under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure this evil."25 ¶93 Search government warrants are overreaching. an They essential protect safeguard privacy in against persons, houses, papers, and effects by requiring a neutral magistrate to make an independent determination authorizing a government search. of probable cause before Thus, the integrity of search warrants is vital, and it must not be impaired by government zeal to suppress drugs. Because this decision seriously undermines the foundation for search warrants in drug cases, I respectfully dissent. I ¶94 The State of Wisconsin petitioned the court to take this case to review several issues. as follows: The first issue was stated "In reviewing a search warrant affidavit, may the judge infer that evidence of drug dealing will be found at the suspect's residence when the affidavit provides facts identifying the suspect's residence and provides probable cause 25 Illinois v. Gates, 462 U.S. 213, 290 (1983) (Brennan, J., dissenting, quoted with approval in the majority opinion of Justice Rehnquist at 241). 1 97-2008-CR.dtp that the suspect is a drug dealer?"26 The State's brief sets forth an affirmative answer to this question with two arguments. First, the State contends that a judge may rely on the judge's personal experience to infer that evidence of drug dealing will be found at a suspected drug dealer's residence. Second, it argues that for drug dealers, evidence is likely to be found where dealers live. drug dealer Hence, probable cause that a person is a provides probable cause to search the person's residence. ¶95 Lance In justifying the issuance of the search warrant for Ward's residence, Circuit Judge James Welker relied heavily on his own extensive experience in dealing with drug cases. The majority opinion dismisses his analysis by stating that: "The subjective experiences of the magistrate are not part of the probable cause determination." Majority op. This conclusion is consistent with prior decisions. at ¶26. In State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991), the court said: "In reviewing whether there was probable cause for the issuance of a search warrant, we are confined to the record that was personal before the experience warrant-issuing of the judge."27 magistrate to Allowing factor into the the determination of whether probable cause exists to issue a search 26 Petition for Review and Appendix at 1. 27 The court cited State v. DeSmidt, 155 Wis. 2d 119, 132, 454 N.W.2d 780 (1990), and Bast v. State, 87 Wis. 2d 689, 692, 275 N.W.2d 682 (1979). See also State v. Benoit, 83 Wis. 2d 389, 395, 265 N.W.2d 298 (1978). 2 97-2008-CR.dtp warrant would mean that probable cause was subjective, varying from magistrate to magistrate. A magistrate's personal experience would be difficult for an appellate court to review, and subjective determinations of probable cause would destroy uniformity in the law. ¶96 On the other hand, by dismissing the State's first argument, the majority is forced to embrace allegedly grounded in universal experience: a proposition that suspected drug dealers are so likely to keep drugs in their homes that the government will always have probable cause to search their residences, absent evidence that a specific dealer keeps drugs elsewhere. This is precisely the position advocated by the State,28 and, for all practical purposes, it is the position adopted by this court. 28 The following colloquy occurred during the oral argument of this case: Chief Justice: Is your position, counsel . . . is the State's position that every time you have a drug dealer, that is, a charge of a drug dealer in the affidavit, that the inference can be made that there will be drugs in the home, in the residence, and therefore the search warrant can apply to the home? Assistant Attorney General: . . . [I]f justified by experience, yes. Chief Justice: that's Well, whose experience? Assistant Attorney General: I think it could be the judge as well as the . . . it could be the judge or the police officer. If it's the police officer, he puts it in there and it's for the judge to review. If it's the judge it's going to have to bethe State's position is that's a legitimate consideration for the 3 97-2008-CR.dtp ¶97 In Section I of her dissenting opinion, Chief Justice Abrahamson admirably outlines her objection to the majority's ruling. I join in Section I of her dissent and commend as well the scholarly analysis of the court of appeals.29 II ¶98 Our law strongly favors searches conducted pursuant to a warrant. State v. Kerr, 181 Wis. 2d 372, 379, 511 N.W.2d 586 judge to use when drawing the inference based on the information that's in there. Chief Justice: Well, suppose we have a brand new judge on the bench in Rock County and [he or she] comes from the civil practice and you got this kind of a warrant. . . . [A]nd the police searched the home. [I]s it the State's position then that that search had no probable cause? Assistant Attorney General: No, I think it would have to bein Fourth Amendment cases there's an objective standard applied. Chief Justice: Well, that goes back to my question. . . . [I]s it your position that as an objective standard in all cases in which the affidavit says it's a drug dealer, you can search the home? It doesn't matter what the cop says in the affidavit or what the judge's past experience is because it's objective. Assistant Attorney General: Well, yes, and that is the position that's been taken in several cases. Chief Justice: That is . . . as a matter there's probable cause to search the home. your position? Assistant Attorney General: 29 of law, Is that Yes. State v. Ward, 222 Wis. 2d 311, 319-333, 588 N.W.2d 645 (1998). 4 97-2008-CR.dtp (1994). The warrant process not only places a neutral and detached magistrate between government intrusion and the people but also obligates government officials to demonstrate to that magistrate conduct. a substantial basis for their proposed intrusive In this process, neutral oversight is pointless if the magistrate merely rubberstamps an affidavit based on generalizations instead of particulars. ¶99 In Illinois v. Gates, 462 U.S. 213, 238 (1983), the Supreme Court spelled out the role of the neutral magistrate in the warrant process: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The magistrate circumstances is entitled before the to court consider in the making totality the of probable the cause determination of whether there are "sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched." State v. Stark, 81 Wis. 2d 399, 408, 260 N.W.2d 739 (1978).30 ¶100 There is no dispute that a reviewing court will show great deference to the magistrate's decision. 30 Gates, 462 U.S. This language is quoted in State v. DeSmidt, 155 Wis. 2d 119, 131-32, 454 N.W.2d 780 (1990), and State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). 5 97-2008-CR.dtp at 236; Spinelli v. United States, 393 U.S. 410, 419 (1969). However, deference to the magistrate "is not boundless." States v. Leon, 468 U.S. 897, 914 (1984). United A reviewing court will not defer to a warrant based on an affidavit that does not provide a substantial basis for determining the existence of probable cause. Id. at 915. ¶101 A magistrate considers many factors in passing upon an application for a warrant. The warrant itself must describe with particularity the place to be searched and the things to be seized.31 Hence, the magistrate must review the particularity and find probable cause that the things sought are linked to criminal activity searched.32 totality of includes the information, and will be found in the place to These factors may raise questions of scope.33 the circumstances "veracity" the "basis in determining probable be The cause or reliability of persons supplying of knowledge" of persons supplying information,34 and the freshness or staleness of the information provided.35 31 Fourth Amendment of the United States Constitution; Article I, § 11 of the Wisconsin Constitution; Wis. Stat. § 968.12(1)(2). 32 State v. Benoit, 83 Wis. 2d 389, 394-95, 265 N.W.2d 298 (1978). 33 United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986), cert. denied, 479 U.S. 1086 (1987). 34 Illinois v. Gates, 462 U.S. 213, 238 (1983). 35 State v. Ehnert, 160 Wis. 2d 464, 469-70, 466 N.W.2d 237 (1991). 6 97-2008-CR.dtp ¶102 The "particularity and probable cause requirements" are the only protections a person has against a general search. State v. DeSmidt, 155 Wis. 2d 119, 130, 454 N.W.2d 780 (1990). Arguably, these requirements may be relaxed somewhat if the situation is truly urgent. For instance, in Franks v. Delaware, 438 U.S. 154, 169 (1978), the Supreme Court observed that the "pre-search proceeding will frequently be marked by haste, because of the understandable desire to act before the evidence disappears." In these circumstances, the magistrate may not have time to conduct an independent examination of the affiant and other witnesses. In the normal situation, however, the Court has found it reasonable to require the officer applying for a warrant to exercise reasonable professional judgment in preparing the affidavit. Malley v. Briggs, 475 U.S. 335, 345-46 (1986). ¶103 The affidavit in this case raises several issues. The full text of the affidavit is printed as an appendix to this dissent. A ¶104 The affidavit supporting a warrant should establish probable cause that the warrant describes the correct place to be searched. This affidavit provides probable cause that "'Lance' who lives on Royce" was supplying marijuana to Derrell Vance. It also shows that Lance Ward owned property at 1663 Royce. It does not clearly establish, however, that the "'Lance' who lives on Royce" and Lance Ward who owns property on Royce are one and the same person. 7 Derrell Vance did not 97-2008-CR.dtp provide the last name or the street address of his supplier. He did not indicate whether "Lance" owned property on Royce, as opposed to renting property or staying with friends. The affidavit provides no basis for a reviewing court to determine the number of houses on Royce "Lances" living on Royce. or whether there were other Conversely, it does not show whether police diligently examined tax rolls, city directories, or other documentary evidence to ensure known "Lance" on Royce. that Lance Ward was the only If there were other "Lances" living on Royce, it would be a mockery of the Fourth Amendment to suggest that all their homes could be searched, and it would be deceitful not to disclose the existence of other "Lances" to the court. The possibility of other "Lances" could have been systematically eliminated or at least reduced but was not. ¶105 As a result, the critical information suggesting that the "'Lance' who lives on Royce" was in fact Lance Ward, was the following paragraph in the affidavit: 2.) Your affiant further states he is familiar with the confidential files kept by the Beloit Police Department Special Operations Bureau and as a result knows that the Beloit Police Department has received four pieces of intelligence indicating that Lance Ward is a drug dealer. ¶106 The this majority paragraph affidavit in provides its no opinion wisely discussion evidence paragraph is worthy of belief. that avoids of the the any reliance affidavit. information on The in the The record does not indicate whether the allegations against Ward are anonymous or come from specific individuals. It does 8 not indicate the number of 97-2008-CR.dtp sources. It does not indicate that the sources are "reliable." It does not indicate their "basis of knowledge" or whether the pieces of intelligence are recent. In sum, the affidavit does not incorporate anything to demonstrate that the four pieces of intelligence represent credible evidence. This means that the affidavit did not show the magistrate that the police had the correct "Lance" and thus the correct house. B ¶107 The search not Beloit police only Lance outbuildings [a one requested Ward's car house detached a but premises also garage], warrant his and to "curtilage, any and all vehicles pertaining to 1663 Royce on or near said premises." The resulting warrant authorized a search of Ward's body as well as the premises at 1663 Royce. ¶108 This court has approved premises warrants. They are discussed extensively in State v. Andrews, 201 Wis. 2d 383, 549 N.W.2d 210 (1996). search all items In Andrews, the court held "that police can found on the premises that are plausible repositories for objects named in the search warrant, except those worn by or in the physical possession of persons whose search is not authorized by the warrant." 201 Wis. 2d at 403. In State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), we approved the search of a vehicle registered to the defendant that was located 200 feet away thereby enlarging the "premises." a search Considering of virtually the broad from of 9 defendant's home, Here, the warrant authorized everything scope the the related to warrant, 1663 the Royce. affidavit 97-2008-CR.dtp supporting the warrant must have established some direct linkage between the things to be seized and the expansive premises to be searched. Otherwise, the warrant represented little more than a license for the government to ransack Ward's property in the hope of uncovering evidence of crime. See Frank v. Maryland, 359 U.S. 360, 365 (1959). C ¶109 Ward contends that the affidavit is "insufficient because it contains no statement creating a nexus between the items sought and Ward's residence on Royce." ¶27. The majority responds with a blizzard of inferences: 1) of Majority op. at An informant alleges that Derrell Vance "sells pounds marijuana." Vance pounds of marijuana. is apprehended Royce. approximately 7.3 The court infers from the evidence that Vance is "a substantial dealer." 2) with Id. at ¶29. "Vance identifies his supplier as Lance who lives on Vance supplies no other address or location. . . . [I]t can be inferred from this information that Vance obtained the marijuana added) 3) from Lance where Lance lived, on Royce." (emphasis Id. "Given the large quantity of drugs involved" and the allegation that "Lance" supplied Derrell Vance, the court infers that Lance "is an even bigger fish" than Vance and that there is a substantial basis "that illegal items will be found at the home of Lance Ward on Royce. The obvious and reasonable inference is that Lance dealt drugs from his home." 10 Id. at ¶30. 97-2008-CR.dtp ¶110 The court should not infer that Derrell Vance "obtained the marijuana from Lance where Lance lived" because that inference is speculative. affidavit. affiant. He was paraphrased. Vance was not quoted in the He never spoke directly to the Whatever he said about Royce may have come in response to a question about where Lance could be found. ¶111 At the time the search warrant was sought, Derrell Vance was in custody and cooperating with the police. There is no explanation why authorities did not obtain answers to simple questions like: "If you don't know Lance's last name, can you describe what he looks like, his age, and where he lives? you ever been to his house? Have Did you see any drugs in his house? When you purchased drugs from Lance, did you take possession of the drugs at the house? If you didn't see drugs in the house or pick up drugs at the house, where did you take possession of the drugs? Did Lance ever indicate where he keeps his drugs? Do you know of anyone else who has bought drugs from Lance at his house or can place drugs in the house?" ¶112 If there were evidence in the affidavit that Derrell Vance had bought drugs at Lance's house, or seen drugs at Lance's house, or had good reason to believe that Lance kept drugs at his house, there would be little reason to question the sufficiency of the affidavit on this point. But the evidence is not there. ¶113 The case, a Ward Crime affidavit Stopper reveals claimed that that in Vance Derrell sold Vance's pounds of marijuana and that he or she "had seen marijuana in the house of 11 97-2008-CR.dtp Derrell Vance." Why is the same affidavit unable to assert point blank that Derrell Vance said he had seen marijuana in the house of Lance on Royce? The problem with the affidavit is not the reliability of what Vance said; the problem is the chasm left by what Vance did not say or what Vance told police that was omitted from the affidavit. Judges are not entitled to use their imaginations to fill in these gaps. D ¶114 The majority opinion insists that the court is "not suggesting that when there is sufficient evidence to identify an individual as a drug dealer . . . that evidence to search the suspect's home." It attempts to distinguish this case there is sufficient Majority op. at ¶36. from the blanket rule advocated by the State on the basis that Lance Ward was a "high volume" drug dealer. Id. at ¶¶30, 36. The distinction is not persuasive. ¶115 There was probable cause to believe that "'Lance' who lives on Royce" was a wholesale supplier of marijuana, and that he was "a bigger fish" than Derrell Vance. However, these reasonable conclusions do not provide a substantial basis for an inference that Ward "dealt drugs from his home." ¶116 If we were to undertake a statistical sampling of drug dealerslarge and smalland drug users, we might well find that majorities in each category keep drugs in their homes. Such information would not supply probable cause to search the homes of all the suspected drug dealers and drug users in the United States. More important, there is no evidence in this record 12 97-2008-CR.dtp that supports the proposition that a "large" drug dealer is more likely to keep drugs in the home than a small drug dealer. The affiant did not make such a claim. E ¶117 Distinguishing this case from the broad rule advocated by the State relieves the majority of the burden of addressing a troublesome passage in United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982): [T]he fact that there is probable cause to believe that a person has committed a crime does not automatically give the police probable cause to search his house for evidence of that crime. This passage is important because it was quoted with approval in State v. Higginbotham, 162 Wis. 2d at 995. ¶118 The majority asserts that "our examination of the facts leads to the conclusion that the information presented to the warrant-issuing judge was sufficient for a reasonable person to logically infer that evidence would be found at Ward's home." Majority op. at ¶27. It concludes that "[t]he obvious and reasonable inference is that Lance dealt drugs from his home." Id. at ¶30. ¶119 What the majority fails to explain is how Lance Ward's situation is different from the situation of other drug dealers, so that the inference it draws is derived from the particular facts in this record. "is not certainly the a only The majority admits that the inference inference reasonable one. that The 13 can be test drawn, is not but it whether is the 97-2008-CR.dtp inference drawn is the only reasonable inference. whether the inference drawn is a reasonable one." ¶120 Reasonable inferences were The test is Id. discussed recently in Belich v. Szymaszek, 224 Wis. 2d 419, 425, 592 N.W.2d 254 (Ct. App. 1999), in which the court said: An elementary principle is that an inferred fact is a logical, factual conclusion drawn from basic facts or historical evidence. It is the probability that certain consequences can and do follow from basic events or conditions as dictated by logic and human experience. The court noted that a reasonable arrived at by a process of reasoning. rational and logical deduction inference is a conclusion The "conclusion must be a from facts admitted or established by the evidence when such facts are viewed in the light of common knowledge or common experience." Id. ¶121 In Crowley v. Winans, the Court of Appeals for the Seventh Circuit equated "permissive inference" with "permissive presumption," explaining that such an inference permits "the factfinder to infer the elemental fact from proof by the state of the basic fact, but does not require the factfinder to reach that conclusion and does not shift the burden to the defendant." 920 F.2d 454, 456 (7th Cir. 1990) (citing County Court of Ulster County v. Allen, 442 U.S. 140, 157 (1979). A presumption thus complies with due process requirements if "there is a 'rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from' the former." 442 U.S. at 165). 14 Id. (quoting Ulster County, 97-2008-CR.dtp ¶122 The key phrase for me is "more likely than not." The conclusion that Lance Ward "dealt drugs from his home" was not "more likely than not" to flow from his probable status as a dealer if one relied solely on information in the record. The majority concedes that its inference is not the only inference that could be drawn. draw that inference In fact, the shrewd circuit judge did not until he first factored in his own experience. III ¶123 The affidavit in this case was deficient. many unanswered questions. It left too It did not establish probable cause. The affidavit was not presented to the court in the throes of some desperate emergency. Darrell Vance, the informant, was in policy custody, offering to cooperate. Lance Ward, the target, had been suspected as a marijuana dealer over a period of time. When the warrant was eventually executed, Ward was at home, unarmed, watching television. There is no explanation in the record why the police could not have taken the time to prepare a proper affidavit. ¶124 The affidavit printed in the appendix should not serve as a model to law enforcement in Wisconsin. Expecting to get a warrant on the basis of this affidavit is like expecting to catch a big fish without baiting the hook. The decision of the court of appeals should be affirmed. ¶125 I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE ANN WALSH BRADLEY join this dissent. 15 97-2008-CR.dtp APPENDIX AFFIDAVIT FOR SEARCH WARRANT Douglas Anderson, being first duly sworn, on oath says that on the 4th day of December, 1996, in Rock County, in and upon certain premises in the City of Beloit, in Rock County, occupied by Lance Ward, and more particularly described as follows: 1663 Royce is dwelling. green with white trim, two story, single family 1663 Royce is the fourth house south of Summitt on the east side of Royce. 1663 Royce has a one car detached garage in the northeast side of the lot. Further to include curtilage, outbuildings and any and all vehicles pertaining to 1663 Royce on or near said premises, there are now located and concealed certain things, to-wit: Marijuana packaging and materials, other drug controlled substances, paraphernalia, drug scales, ledgers, address/phone records, indicia of occupancy, opened or unopened financial documents relating to drug proceeds, U.S. currency, and any and all other instrumentalities, substances or documents which are in violation of Possession of Controlled Substance With Intent to Deliver-THC, contrary to Section 961.41(1m)(h)(1) of Wisconsin Statutes and prayed that a search warrant be issued to search said premises for said property. The facts tending to establish the grounds for issuing a Search Warrant are as follows: 1). On 11-27-96, your Affiant received a call from a Crime Stopper who stated that Derrell Vance sells pounds of marijuana. 1 97-2008-CR.dtp The Crime Stopper had seen marijuana in the house of Derrell Vance. On 11-29-96 a search warrant was executed and the following items were recovered: 3,311 grams of marijuana $11,171.00 U.S.C. .3 grams of crack cocaine Lettermate digital scale Postal scale Rolling papers Pipe THC roaches Indicia of occupancy for Derrell and Candy Vance The Crime Stopper stated that Derrell Vance would order his marijuana and have it distributed in a day or two. Vance would re-order immediately or within a two Derrell week span. Derrell Vance would distribute one to two pounds to each of his dealers. On 11-30-96 a family member of Derrell Vance contacted your Affiant. This family member was told by Derrell Vance that "Lance" was his supplier of marijuana. Derrell Vance needed someone to make contact with "Lance" in order to get him out of jail. On 12-2-96, Derrell Vance contacted SLANT. Inspector Kreitzmann of SLANT, told your Affiant that Derrell Vance wanted to make a deal to get out of jail. Derrell Vance told SLANT that lives his admissions supplier to SLANT was "Lance" who Derrell Vance by were on Royce. prior to These Derrell Vance's court initial appearance. The City of Beloit tax rolls shows 1663 Royce as property owned (sic) Lance R. Ward. 2 97-2008-CR.dtp 2.) Your affiant further states he is familiar with the confidential files kept by the Beloit Police Department Special Operations Bureau and as a result knows that the Beloit Police Department has received four pieces of intelligence indicating that Lance Ward is a drug dealer. 3.) Your affiant has been a police officer for 14 years and has participated in approximately 185 drug raids. Affiant has been actively involved in the area of Special Weapons and Tactics since 1984. Affiant is a State of Wisconsin Certified Instructor in the area of arrest and control procedures, both receiving and providing training. Affiant is an Instructor in the area of Hostage Rescue and High Risk Warrant Service, both receiving and providing training. Based on affiant's training, experience and associations with others in those fields, he is aware that persons involved in many illegal activities, including drug related crimes often arm themselves with weapons, including firearms and sometimes use those weapons against the police and others. evidence if These persons will also destroy or conceal important time. training experience, given and factor in Affiant, based association, controlling is persons during drug raids, is surprise and speed. on aware and in the that stated a very particular, Affiant is also aware that control reduces the likelihood of injury to all involved. Affiant provides is aware that persons with a announcement residence eliminates time would require a reaction by officers. to take surprise and actions that For these reasons affiant requests that a NO KNOCK search warrant be issued. 3 Affiant, 97-2008-CR.dtp based on his training and experience with others in that field believes that where illegal drugs are sold by one person, they are purchased by others and are commonly carried on the persons of both. It is also true of locations where drug use takes place, persons commonly carry illegal drugs on their body. Dated this 4th day of December, 1996. WHEREFORE, the said Affiant prays that a Search Warrant be issued to search such premises for the said property, and to bring the property, if found, and the person(s) in whose possession the property is found, before the Circuit Court for Rock County, to be dealt with according to law. [Signature of Douglas Anderson] [Subscription/Date] 4 97-2008-CR.dtp 1
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