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Supreme Court Digest
by Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
Criminal Procedure
Search and Seizure - Search Warrants - Probable Cause - No-knock
Entries - Police Good Faith Reliance on Wisconsin Supreme Court
Ruling Later Rejected by U.S. Supreme Court
State v. Ward, 2000
WI 3 (filed 19 Jan. 2000)
In 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), the Wisconsin Supreme
Court authorized police executing a search warrant for evidence
of felonious drug activity to make a no-knock entry. Relying
on this rule, the police executed a drug warrant at the defendant's
residence and seized evidence of controlled substance violations.
Three months after the search of the defendant's home, the U.S.
Supreme Court issued an opinion rejecting the conclusion of the
Wisconsin Supreme Court that the Fourth Amendment permits a per
se exception to the "knock and announce" rule when
officers execute a search warrant in a felony drug investigation.
See Richards
v. Wisconsin, 520 U.S. 385 (1997).
On these facts the Wisconsin Supreme Court framed the issue
as being whether the evidence should be suppressed because officers
executed an unlawful no-knock entry into the defendant's residence
in violation of the knock and announce rule. For purposes of
this case, the court assumed without deciding that the exclusionary
rule is the proper remedy for a violation of the rule of announcement.
It then concluded, in a majority opinion authored by Justice
Bablitch, 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. The court emphasized that although
the officers did not comply with the rule of announcement, this
was not due to negligence, a mistake of law, or willful or malicious
conduct by the officers. Rather, they relied upon a rule set
forth as a matter of judicial discretion by the Wisconsin Supreme
Court in the Stevens and Richards decisions. Under
these circumstances the majority concluded that it would be inappropriate
to apply the exclusionary rule under either the Fourth Amendment
to the United States Constitution or Article I, section 11 of
the Wisconsin Constitution.
The court also considered whether the warrant to search was
supported by probable cause. The novel issue presented by this
case was whether the judge who issues a warrant can supply facts
based upon the judge's own experience to supplement the affidavit
that is submitted to obtain the warrant, and then make inferences
from the facts supplied by the judge to establish probable cause.
Police sought a search warrant for the defendant's home and,
in addition to other evidence tending to show that drugs were
in the home, the judge added that in his experience, when the
police have established that there is a drug dealer who is dealing
large amounts of drugs, there is a high probability that those
drugs are being dealt out of the defendant's place of residence.
The supreme court concluded that whether there is probable
cause to believe that evidence is located within a particular
place is to be determined by examining the "totality of
the circumstances." The court agreed with the defendant
that the 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. A magistrate issuing a warrant must be neutral
and independent and must act in a neutral and detached manner.
The subjective experiences of the magistrate are not part of
the probable cause determination. The supreme court went on to
consider only the facts presented to the magistrate by the police
and concluded that they demonstrated the probable cause necessary
for the search of the defendant's residence.
Chief Justice Abrahamson filed a dissenting opinion that was
joined in its entirety by Justice Bradley and in part by Justice
Prosser. Justice Prosser filed a dissenting opinion that was
joined by the Chief Justice and Justice Bradley.
Search Warrants - No-knock Entry - Police Good Faith Reliance
on Rule Adopted by Wisconsin Supreme Court that Subsequently
is Changed by U.S. Supreme Court
State v. Orta and State v. Ruiz, 2000 WI 4 (filed
19 Jan. 2000)
The issue in these consolidated cases was whether evidence
that is seized pursuant to a rule expounded by the Wisconsin
Supreme Court must be suppressed when that rule subsequently
is determined by the U.S. Supreme Court to be unreasonable under
the Fourth Amendment. The issue arose when police executed a
search warrant without first knocking and announcing their presence
at a time when decisions of the Wisconsin Supreme Court permitted
no-knock entries whenever the police were executing search warrants
to uncover evidence of felonious drug activity. That was the
type of warrant involved in these cases. Subsequent to the search,
the U.S. Supreme Court concluded that it was unreasonable under
the Fourth Amendment to allow a per se exception to the "knock
and announce" rule in drug cases.
The issue as framed is identical to that considered by the
supreme court in State v. Ward,
2000 WI 3, which is summarized above. Pursuant to the reasoning
set forth in Ward, a majority of the supreme court, in a decision
authored by Justice Bablitch, concluded that the evidence seized
in these cases was admissible.
Justice Prosser filed a concurring opinion that was joined
in part by Chief Justice Abrahamson and Justice Bradley. Chief
Justice Abrahamson filed a dissenting opinion that was joined
by Justice Bradley.
Prof. Daniel D. Blinka and Prof. Thomas
J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
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