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Supreme Court Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

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.