State v. Richards

SHIRLEY S. ABRAHAMSON, J.

{concurring ). On the basis of the facts found by the circuit court I conclude, as does the majority, that the entry executed against the defendant was reasonable under the Fourth Amendment. I write separately because I conclude that the majority's reaffirmation of the blanket exception to the knock-and-announce rule first decreed *867in State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994), cert. denied, 115 S. Ct. 2245 (1995),1 fails to satisfy the Fourth Amendment's reasonableness requirement delineated by the United States Supreme Court in Wilson v. Arkansas, 115 S. Ct. 1914, 1918 (1995).

Wilson made clear that there is a "presumption in favor of announcement," 115 S. Ct. at 1918, but that the "Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." 115 S. Ct. at 1918. Law enforcement interests — including the threat of physical harm to law enforcement officers or the existence of reason to believe that evidence would likely be destroyed if advance notice were given — may establish the reasonableness of an unannounced entry. Id. at 1919.2 The burden is on the prosecution to show exigent circumstances excusing the no-knock entry. Id.

By reaffirming Stevens and declaring that neither findings of fact nor a determination of reasonableness *868are necessary in any case involving a search warrant of the premises of a drug dealer, today's majority opinion ignores the Court's instructions in Wilson. The majority also ignores the Court's "long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application" because "each case is to be decided on its own facts and circumstances." Ornelas v. United States, No. 95-5257, WL 276414 1996 at *5 (U.S. May 28, 1996) (quoting Ker v. California, 374 U.S. 23, 33 (1963)). Moreover, and also in contradiction to what Wilson teaches, the majority opinion's reasoning logically leads to the complete abandonment of the knock- and-announce rule in every case involving the execution of a search warrant.

I.

The blanket exception embraced by the majority today cannot be squared with the Wilson decision. Under Wilson, the courts rather than law enforcement officers are charged with determining whether the facts and circumstances of a particular search comply with the Fourth Amendment's command that such a search be reasonable. Wilson, 115 S. Ct. at 1919.

The action taken by the Arkansas high court after the Wilson case was remanded from the United States Supreme Court provides an illustrative contrast with the action taken by the majority today. The Arkansas Supreme Court summarily remanded to the trial court even though the facts in Wilson provided significantly stronger grounds than are present in this case for recognizing an exigent circumstances exception to the knock-and-announce rule. In Wilson, evidence that the accused was a drug dealer included an actual purchase of drugs made by a police informant. Further, the *869accused had brandished a semi-automatic weapon while threatening to kill an informant if she worked for the police, while the accused's housemate had previously been convicted of arson and firebombing.

The Arkansas Supreme Court's reluctance to draw legal conclusions prior to the trial court's initial determination of whether a no-knock entry at issue was reasonable — despite strong evidence indicating that it was — contrasts sharply with this court's sweeping conclusion that all no-knock entries in cases involving drug dealers are, ipso facto, reasonable. Instead of "mak[ing] any necessary findings of fact and . . . makfing] the determination of reasonableness" which Wilson requires,3 the majority instead concludes that *870under current social conditions exigent circumstances are always present in the execution of search warrants involving felonious drug delivery.4

Had either the United States Supreme Court in Wilson or the Arkansas Supreme Court upon remand subscribed to a version of the blanket exception announced by the majority today, they need not have remanded for findings of fact and a determination of reasonableness, because there was no question but that the accused in Wilson was dealing drugs, owned a gun, and had threatened to use it. Both courts, how*871ever, declined the opportunity to announce a blanket rule such as the rule embraced today by the majority.5

Hence it is not surprising that federal and state courts (in addition to the Arkansas Supreme Court) which have had occasion to interpret and apply Wilson have also conducted fact-specific, case-by-case analyses in determining whether no-knock entries made in executing drug-related warrants had met the Fourth Amendment's requirement of reasonableness.6 The *872majority opinion cites no cases — and I have found none — supporting its interpretation of Wilson.

Finally, the majority cites no United States Supreme Court case eliminating the requirement that *873officers be able to point to specific, articulable and individualized facts justifying their actions in each case. None of the cases cited by the majority relieves the state in Fourth Amendment cases from the requirement that officers' actions in a particular case be subject to meaningful judicial review to determine whether their actions are "objectively reasonable." See, e.g., Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Michigan v. Summers, 452 U.S. 692, 702-03 (1981); Graham v. Connor, 490 U.S. 386, 396-97 (1989). While I recognize that "[t]he calculus of reasonableness must embody allowances for the fact that police officers are often forced to make split-second judgments," Graham , 490 U.S. at 397, it nevertheless is crucial that those judgments be assessed according to an "objective standard" by a detached and neutral judge. Terry, 392 U.S. at 21-22.

In allowing law enforcement officers rather than the courts to make the ultimate determination of whether a particular search has been conducted reasonably, the majority has ignored the United States Supreme Court's admonition that "[t]he scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances." Terry v. Ohio, 392 U.S. 1, 21 (1968) (emphasis added).

HH HH

The majority opinion characterizes its blanket exception as "a narrow exception to the general rule" requiring a knock-and-announce entry. Majority op. at 848. The majority's reasoning, however, leads inexora*874bly to the conclusion that the police need never knock and announce and that their decision is not reviewable. As a result, the exception the majority opinion sets forth swallows the rule of announcement.

According to the majority, "[p]olice officers face an unquantifiable risk of violence every time they go into a house to execute a search warrant." Majority op. at 850.1 agree with this assessment. Forty-two percent of America's 96.4 million households have some kind of firearms. Twenty-four percent of the households have pistols, 27% have shotguns and 23% have rifles.7 The federal Bureau of Alcohol, Tobacco and Firearms estimates that there are approximately 200 million firearms in the nation, about one per person.8 As the majority opinion points out, firearms claimed the lives of 92% of the law enforcement officers killed in the line of duty between 1977 and 1986.

According to the reasoning of the majority, then, the large number of firearms in this country and the large percentage of deaths of officers caused by firearms would create a compelling need to eliminate the knock-and-announce rule in all search warrant entries; the probability that one or more of the occupants of any premises has access to a gun would, ipso facto, establish exigent circumstances making a no-knock entry reasonable.

Perhaps aware that its evidence pertaining to firearms proves far too much, the majority attempts to distinguish the dangers associated with executing search warrants related to drugs from the dangers *875accompanying the execution of any search warrant by claiming that the "risks are only heightened when drugs are involved." Majority op. at 853. However, the crime statistics cited by the majority do not support the contention that "drug related violence is a growing contributor to police mortality." Majority op. at 853 n.8.

As I set forth in my concurrence to Stevens , 181 Wis. 2d at 448 n.18, the total number of officers killed on duty declined from 1978 to 1991, as did the number of officers killed in arrest situations involving drug-related matters. Fewer officers (9 officers/4.3 percent) were murdered as a consequence of drug-related violence from 1992-94 than in the periods from 1978-81, 1982-86, or 1987-91.9 From 1978-94 about twice as many officers were killed in traffic pursuits or stops as were killed in arrest situations involving drug-related matters.10 During the same years, more officers were killed while answering disturbance calls for family quarrels than were killed in arrest situations involving drug-related matters.11 The one officer killed in Wis*876consin in 1995 was answering a domestic disturbance call.

What I stated in my concurrence to Stevens remains true today: while the death or injury of even one law enforcement officer is one too many, the empirical evidence cited does not support the majority's rationale that executing search warrants in drug cases is more dangerous to officers than other activities. Stevens , 181 Wis. 2d at 449 (Abrahamson, J., concurring). If anything, those statistics argue that if law enforcement officers may dispense with the knock-and-announce rule in drug-related cases, they should be able to dispense with it altogether. Conversely, what Wilson teaches is that law enforcement officers may not dispense with the rule of announcement unless they can establish, on a case-by-case basis, that exigent circumstances justify an exception to the rule of announcement and render a no-knock entry reasonable under the Fourth Amendment.

The majority opinion rests on the premise that a knock-and-announce rule increases the likelihood of violence against law enforcement officers. In those cases, a rule of reasonableness would enable the officers to enter without announcement. In many other instances, however, law enforcement officers may expose themselves and other individuals to unnecessary violence when they do not announce their presence.12

*877Rather than affirming the sweeping blanket exception to the knock-and-announce rule first *878advanced in Stevens, I would heed the instructions of the Wilson Court and assess the reasonableness of the no-knock entry in this case on the basis of the facts presented. The court's decision today ignores Wilson, dispenses with longstanding Fourth Amendment jurisprudence requiring the assessment of reasonableness in each particular case, and may place the very law enforcement officers it purports to protect in greater peril. We should have availed ourselves today of the opportunity to correct our mistake in Stevens. Instead we have compounded it.

For the reasons set forth, I concur in the judgment.

In Stevens , the court examined the facts of the case and concluded that they provided a reasonable basis for the law enforcement officers' unannounced entry. The Stevens court then proceeded to create a blanket rule that law enforcement officers need never comply with the knock-and-announce rule when the police have probable cause through a search warrant for evidence of delivery of drugs or evidence of possession of drugs with intent to deliver. Stevens, 181 Wis. 2d at 435. The holding in Stevens jettisoned longstanding Wisconsin case law interpreting and applying the knock-and-announce rule.

The Court held "that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry." State v. Wilson, 115 S. Ct. 1914, 1919 (1995).

Prior to executing the search warrant against the defendant in this case, the police knew that the defendant had previously been arrested for the possession of 63 packets of cocaine. Furthermore, after the defendant had checked out of another hotel, the police had found clear plastic sandwich bags like the ones used in packaging cocaine. Finally, information obtained from an informant demonstrated that the defendant and his companions had engaged in conduct that matched a drug courier profile, including paying in cash, refusing room service, and making and receiving numerous phone calls from their room.

While the circuit court found that these facts were sufficient to establish probable cause for a search warrant, it found them insufficient to justify a no-knock warrant and therefore rejected the request for a no-knock warrant.

When the police proceeded to execute the warrant, additional circumstances came into play. When the police first sought entry through a ruse, with one officer posing as a maintenance man, the defendant opened the door and then rapidly shut it again. The state and the defendant dispute whether the defendant recognized that the "maintenance man" was a police officer, as well as whether he saw the fully uniformed police *870officer standing to the right of the "maintenance man." The circuit court characterized the defendant's testimony as self-serving and apparently accepted the officers' statement of what had happened.

Under these circumstances, compliance with the knock- and-announce-rule would constitute a "useless gesture." It has long been recognized "that notice is not required when it is evident from the circumstances that the authority and purpose of the police is already known to those within the premises." 2 Wayne R. LaFave, Search and Seizure § 4.8(f), at 620 (3d ed. 1996) (collecting cases); see also State v. Berry, 174 Wis. 2d 28, 32, 496 N.W.2d 746 (Ct. App. 1993) (when law enforcement officers hold a "reasonable belief that compliance with the rule" of announcement "would be a useless gesture," they need not comply with it).

The majority might more appropriately have heeded Justice Scalia's recent reminder that the purpose of the Fourth Amendment requirement of reasonableness "is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted — even if a later, less virtuous age should become accustomed to considering all sorts of intrusion 'reasonable.'" Minnesota v. Dickerson, 508 U.S. 366 (1993) (Scalia, J., concurring).

According to the accused's reply brief in Wilson filed with the United States Supreme Court by the defendant, the state and all of the amici supporting the state's position sought a blanket rule exempting drug searches from the reach of the knock-and-announce rule. Reply Brief for Petitioner, Wilson v. Arkansas, No. 94-5707, 1995 WL 120155, at *11 (U.S. Mar. 17, 1955).

See, e.g., United States v. Murphy, 69 F.3d 237, 242-43 (8th Cir. 1995), cert. denied, 116 S. Ct. 1032 (1996) (no-knock entry to execute search warrant on drug manufacturer's premises reasonable under Wilson ; no-knock entries are reasonable when "particular facts regarding the premises to be searched" and "circumstances surrounding the execution of the warrant" establish exigent circumstances; police informed that accused sometimes carried a weapon, that weapons were on premises, that accused had a violent past and that accused was on parole from a second-degree murder conviction); State v. Wilson, 899 F. Supp. 521, 529 (Kan. 1995) (no-knock entry to execute search warrant for crack cocaine upheld; determination of reasonableness required by Wilson requires that "officers had particular reasons to believe that exigent circumstances existed"; "reasonableness inquiry focuses on what particular facts regarding the premises" were known to officers at the time); State v. Moore, 535 N.W.2d 417 (Neb. Ct. App. 1995) (no-knock entry to execute search warrant on drug dealer's premises unreasonable under Wilson ; given amount of marijuana to be seized, police believed it would be difficult to destroy it quickly; no evidence that the suspect was armed or dangerous); State v. Vargas, 910 P.2d 950 *872(N.M. Ct. App. 1995) (no-knoek entry to execute arrest warrant against drug traffickers was reasonable; while fact that defendants were suspected of trafficking in drugs and of possessing weapons was not itself enough to excuse compliance with rule of announcement, review of the record revealed additional evidence of defendants' violent tendencies and thereby established reasonableness of a no-knock entry); State v. Ordonez-Villanueva, 908 P.2d 333 (Or. Ct. App. 1995) (no-knock entry to execute search warrant for controlled substances reasonable under Wilson; informant had previously seen controlled substances which might be easily destroyed if police complied with the knock-and-announce rule); State v. Mastracchio, 672 A.2d 438, 443 (R.I. 1996) (question of whether no knock entry to execute search warrant on drug dealer's premises was reasonable remanded to circuit court; although state alleged that no-knock entry was justified to preserve officers' safety and prevent destruction of evidence, circuit court had not made the requisite factual findings and determination of reasonableness); Hargrave v. Commonwealth, 464 S.E.2d 176, 179 (Va. Ct. App. 1995) (no-knock entry to execute search warrant for drugs unreasonable under Wilson; although the object of the search was drugs, police did not have particularized suspicion that evidence could or would be readily destroyed).

See also United States v. Jewell, 60 F.3d 20, 23-24 (1st Cir. 1995) (Wilson requires a determination of whether an affidavit presented in support of an application for a no-knock warrant describes circumstances establishing that a no-knock entry would be reasonable); United States v. Conley, 911 F. Supp. 169, 172 (W.D. Pa. 1995) ("based on the teachings in Wilson, the Court believes that the circumstances of each factual situation should be considered by the Court in determining whether the unannounced entry is unreasonable under the Fourth Amendment").

Brief for Petitioner, Wilson v. Arkansas, No. 94-5707,1995 WL 39036, at *42 n.49 (Ark. Jan. 24, 1995) (citing Statistical Abstract of the United States (1992), Tables 409 & 702.

See State v. Williams, 168 Wis. 2d 970, 992, 485 N.W.2d 42 (1992) (Abrahamson, J., concurring).

U.S. Dept. of Justice Hindelang Criminal Justice Research Center, 1994 Sourcebook of Criminal Justice Statistics at 357.

The total number of law enforcement officers killed in traffic stops or pursuits was 184, while 94 were killed in disturbance calls for family quarrels and 91 were killed in arrest situations involving drug-related matters. During the period 1992-1994, 10 officers were killed in 1992 and 1993, respectively, and 9 were killed in 1994 while engaged in traffic pursuits or stops; during the same years, 3 officers were killed each year in arrest situations involving drug-related matters. Id.

Id. The number and percentage of officers killed while handling or transporting prisoners in custody doubled between the period 1978-81 and 1987-91. Id.

Both the brief federal experience with no-knock entries as well as numerous recent newspaper articles indicate the often lethal risks that no-knock entries can pose to both law enforcement officers and the individuals whose homes they enter.

As I explain in my concurrence to Stevens, 181 Wis. 2d at 447-48, a 1970 federal statute authorizing no-knock warrants *877was repealed only four years later, following numerous highly publicized no-knock raids in which terrified citizens, imagining that intruders were entering their homes, discovered instead that the "intruders" were law enforcement officers entering without notice. The statute, which was described by one senator as "an invitation to official lawlessness," provoked numerous newspaper articles recounting the details of various no-knock raids; more than 100 of them were reproduced in the Congressional Record. In Virginia, a woman who had previously been burglarized shot and killed a young officer who, executing a no-knock warrant, entered her bedroom in the middle of the night; in California, a father was shot through the head in his living room as he cradled his infant son. Both the woman and the man were innocent of any wrongdoing. See 119 Cong. Rec. 15,170-76 (1973) (collecting articles); 119 Cong. Rec. 23,242-58 (same); see also Charles Patrick Garcia, The Knock and Announce Rule: A New Approach to the Destruction of Evidence Exception, 93 Colum. L. Rev. 685, 704-05 (1993) (describing unfortunate incidents resulting from no-knock raids undertaken in accordance with the 1970 federal statute).

For more recent accounts of injuries to officers and innocent victims in no-knock drug entries, see, e.g., Alan Abrahamson, Nightmare of Shots in the Dark, L.A. Times, Dec. 12,1992, at 1 (U.S. drug agents acting on bad tip failed to identify themselves before making forcible entry; occupant, who thought he was being robbed, shot and wounded agent and was himself shot in leg, arm, shoulder and lung; no drugs found); James Bovard, No-Knock Entries by Police Take Their Toll on Innocent, Christian Science Monitor, May 24,1994, at 18 (no-knock drug raids are frequently mistakes; describes, inter alia, no-knock entry in Stockton, CA, in which a 63-year-old homeowner killed a police officer and was then himself killed, although no drugs were found); Hipólito R. Corella, Police Admit SWAT Team Raided Wrong Home, Arizona Daily Star, July 29, 1993, at B1 (police crashed through window and detonated stun grenade in *878townhouse whose inhabitants included three children under five and 75-year-old woman; owner dialed 911 and was told by the dispatcher that "the masked men screaming orders at frightened members of his family were police officers"); Toni Locy, Police Admit Error, Apologize for Fatal Raid, Boston Globe, Mar. 27,1994 at 1 (in a drug raid, police made no-knock entry in wrong apartment, chasing 75-year-old minister, who suffered a fatal heart attack as a result); Sam Stanton, Cops' Deadly Mistakes in All-Out War on Drugs, San Francisco Examiner, Feb. 7, 1993 (no-knock drug raids often executed against wrong house, "and the tension involved in facing the unknown can lead to trouble"; describes three incidents involving innocent victims of no-knock entries).