338 N.W.2d 500 | Wis. Ct. App. | 1983
Michael Cleveland appeals from a judgment convicting him of possessing with intent to deliver a controlled substance (phencyclidine), and from an order denying his post-conviction motions. He claims that his trial counsel was ineffective because he did not move to suppress evidence obtained in a search of Cleveland’s residence pursuant to a no-knock search warrant. This was the only evidence against Cleveland. Based on our conclusion that the evidence was suppressible, we agree that Cleveland's counsel was ineffective. We therefore reverse the judgment and remand this matter to the circuit court for a new trial.
A Burnett County court commissioner authorized the no-knock search of Cleveland’s residence based solely on the representation of an investigator with the Burnett
These facts do not justify the officers’ unannounced entry into Cleveland’s residence. If law enforcement officers want to search a residence, they must first knock and identify themselves and their purpose and allow time for someone to open the door. See Morales v. State, 44 Wis. 2d 96, 106, 170 N.W.2d 684, 689 (1969). The knock and announce requirement is not just a technicality. Its purpose is to protect the public from unreasonable invasions of their security and privacy and to protect the officers and innocent persons on the premises from violence and injury. 2 W. LaFave, Search and Seizure, sec. 4.8 (1978). These are important protections that may be suspended only in special circumstances. Morales, 44 Wis. 2d at 106, 170 N.W.2d at 689.
The mere fact that the object of the search is drugs that someone may possibly dispose of or conceal is not a sufficient special circumstance to justify an unannounced entry into a residence.
The facts also do not permit this court to conclude that an exception to the suppression requirement should be made in this case. Although the officers may have acted in good faith in relying on the no-knock authorization in the warrant, they could not in good faith seek the authorization based on the information they had. Unlike the situation in State v. Noll, 111 Wis. 2d 587, 591-92, 331 N.W.2d 599, 602 (Ct. App. 1983),
By the Court. — Judgment and order reversed and cause remanded with directions.
Accord Reynolds v. State, 238 So. 2d 557, 560 (Ala. Crim. App. 1970); State v. Mendoza, 454 P.2d 140, 144-45 (Ariz. 1969) ; People v. Gastelo, 432 P.2d 706, 708 (Cal. 1967) ; State v. Anonymous, 308 A.2d 251, 252 (Conn. Super. Ct. 1973); Berryman v. State, 368 So. 2d 893, 895 (Fla. Dist. Ct. App. 1979); State v. Rauch, 586 P.2d 671, 675 (Idaho 1978); People v. Ouellette, 401 N.E.2d 507, 510-11 (Ill. 1979); State v. Dusch,
The Wisconsin Supreme Court is reviewing this decision.
Because we conclude that Cleveland’s conviction must be reversed, we need not decide the remaining issues raised. We also need not decide whether a magistrate is authorized to grant a no-knock warrant upon presentation of facts that demonstrate a likelihood that evidence will be destroyed, Compare Lien, 265 N.W.2d 833 (prior authorization required), with Parsley v.