*1 Wisconsin, Plaintiff-Respondent, State
v. Moss, Defendant-Appellant-Petitioner. Rickey M.
Supreme Court 15, argument September 1992. Decided Oral No. 91-1416-CR. 11, December 627.) (Also reported in 492 N.W.2d *2 Ill *3 there was a defendant-appellant-petitioner For the Rose, Terry & Kenosha and brief W. Rose and Rose Terry W. Rose. oral argument argued plaintiff-respondent the cause was For the Kleinmaier, attorney general, by Stephen W. assistant Doyle, attorney E. on the was James with whom brief general. WILCOX, P. This is a review under sec.
JON J. (Rule) decision, 809.62, Stats., a State appeals of court of (Ct. Moss, 733, App. v. 166 Wis. 2d N.W.2d party 1992), convicting as judgment a affirming deliver, possession of intent the crime of cocaine with 939.05, 161.16(2)(b), 161.41(lm)(c)l, repeater, a secs. as 939.62, Stats. Moss contends that his motion granted been because the suppress evidence should have executing officers a search warrant used a ruse to gain entry dwelling to his of violation the Fourth Amendment the United States We Constitution.1 gain dwelling conclude of that the use a ruse to to a in the execution of a search warrant does not violate the Therefore, Fourth Amendment. affirm. we single issue review is use whether the of a by police officers the execution of a search war- rant violates the Fourth Amendment. dispute. approxi-
The relevant facts are not in At mately p.m. 5, 1990, 6:45 on December Detective Paul along County Falduto with four members of the Kenosha Department Sheriffs and two or three members of the Department Kenosha Police executed a search warrant in Kenosha. The warrant authorized a search of a lower apartment two-apartment building. in a The warrant did not a authorize no-knock accompanied by
Falduto, the other who ini- tially sight, out remained knocked on the of wearing jeans sweater, lower flat. Falduto was a corduroy jacket. holding pizza wrapper He was in his "pizza" through stated, hand. Falduto when Moss looked being window the door. Falduto heard the door opened unlocked. Moss the door one-half to two-thirds way. stated, As as soon the door Falduto "police, opened, search warrant." As the door was two stepped Sergeant other officers next Falduto. Harden wearing jacket badges was a black raid with on the left
1The Fourth Amendment to the United States Constitution states: right people persons, houses, papers, The of the to be secure in their effects, seizures, against and unreasonable searches and shall not be
violated, iBsue, cause, upon probable sup- and no Warrants shall but ported by affirmation, particularly describing place or Oath searched, persons things to be and the or to be seized. in Keno- The other officer was dressed lapel and hat. attempted to then department uniform. Moss sha doorway put leg his shut the door. Falduto pushed the door from Falduto prevent closing. the door apartment. open and entered he sure he was able Falduto testified that was not before Moss complete saying, "police, search warrant" door; completed expression began to close the but he doorway. put leg he his before after a confiden- search warrant was obtained from the resi- purchased drugs informant Moss at tial that the door con- The informant told officials dence. or locking would slow down tained devices that extra also prevent attempted police The informant any kept apartment of the occupant that the told officers destroy the substances close and would the controlled attempted if to enter the residence. evidence suppress evi- trial court the motion denied Bastianelli, County Circuit David Kenosha Judge dence. Court, the rule of that the officers did not violate held Cleveland, 118 set in State v. as forth announcement (1984), 615, 622, requires which Wis. 2d N.W.2d 512 presence purpose officers to announce their entering a door to be before allow time trial dwelling to search warrant. The court execute a information possessed the officers reliable found that apartment with extra to the was reinforced any or locking prevent slow down devices would apartment police entry occupant of the and that if destroy the evidence quickly intended to attempted pled guilty Moss then enter the possession with intent to the crime of of cocaine 161.16(2)(b), pursuant to secs. repeater deliver as 939.62, 161.41(lm)(c)l, appealed 939.05 and Stats. The court appeals his conviction. The court affirmed. *5 appeals complied concluded that officers with the rule of announcement and their forcible was reasonable in view of Moss's effort to close the door.
The constitutional reasonableness of a search and question seizure is a of law which this court de decides Williams, novo. State v. 970, 980-81, 168 2dWis. 485 (1992). 42 N.W.2d proscription against
The Fourth Amendment unrea- requires sonable searches and seizures there be probable cause to undertake the search or make the seizure and search or seizure be conducted Williams, reasonable manner. In Wis. 2d at 981. this challenge validity case, the defendant does not of the question police pos- warrant; search there is no that the probable sessed cause to search only question is whether the search was conducted in a reasonable manner.
The rule of announcement addresses manner legitimate government place. which a intrusion is take requires pólice Id. The rule of announcement seeking dwelling to enter a execution of a search war- rant to announce their and allow time for the opened voluntarily. Id.; Cleveland, be 118 Wis. heritage, 2d at 624-25. In addition to its common law generally the rule of announcement viewed as one of Cleveland, federal constitutional dimension. 2d Wis. important at 623. The announcement rule serves three (1) purposes: protecting privacy the individual's in the (2) decreasing potential home; violence alert- ing legitimately the resident that the officer is on premises; (3) preventing physical destruction property by giving opportunity the resident the to admit voluntarily. Williams, 981-82; 2d 168 Wis.
the officer *6 Cleveland, 2d 118 Wis. at 623. is not rule of announcement adherence to the
Strict required circumstances encountered when the justify a executed at time the warrant is officers departure 625; Cleveland, 118 Wis. 2d at from the rule. Suits, 352, 356, N.W.2d 206 State v. 2d 73 Wis. (1976). include a reasonable belief Such circumstances police presence endanger would that announcement safety others, belief or or reasonable prevent departure required rule from the is that Williams, 982; 168 Wis. 2d at destruction of evidence. Cleveland, 118 2d at 624. Wis. Cleveland,
In
this court held that
no-knock
constitutionally
in
of a search warrant was
execution
officers lacked
where the law enforcement
unreasonable
particular grounds
give
reasonable cause to
them
illegal
evidence, which consisted of
believe that
drugs,
destroyed. Cleveland, 118
Wis. 2d
would be
suspected
in
was no
Cleveland that the
There
indication
security
drug
were armed or had taken other
dealers
danger
they
place
precautions
if
would
presence
entering.
before
announced their
distinguishable
from Cleveland because it
char-
case is
suspected drug
by police knowledge
acterized
destroy
prem-
that the
intended to
evidence and
dealer
protected
Furthermore,
ises
a reinforced door.
were
entry. Detective
did not use a no-knock
the officers
identity
purpose before
announced his
and
Falduto
apartment.
entering the Moss
upheld
This
as reasonable a search where
court
the door was
officers knocked on the door and when
way
announcing
partially opened
their
in before
forced
identity
purpose.
Meier,
State v.
60 Wis. 2d
their
(1973).
452, 458,
The of the rule of announcement were not pizza (1) delivery offended the ruse: there was no privacy occupants expect- invasion of because the were ing somebody (2) premises; to enter their there was not unexpected entry an violence; which could result in and (3) damage property. Wayne there was no See 2 R. 4.8(b) (2d 1987). LaFave, Seizure, Search and sec. ed. Supreme recognized gen- The United States Court "it is erally executing left to the discretion of the officers to proceed determine the details of how best to with the performance subject of a search authorized warrant — general protection of course to the Fourth Amendment 'against unreasonable searches and seizures.'" Dalia v. (1979). States, 238, United 441 U.S. 257 The use of a entry ruse to effect an in the execution of a search war- rant does not violate the Fourth Amendment. jurisdictions recognize
Other
that the use of a ruse
does not violate the Fourth Amendment.2 In Common-
Goggin,
See Commonwealth o.
(Mass.
wealth on the a search warrant knocked trooper executing state a came to the of the residence. When woman front door there, trooper replied, who front door and asked was door, trooper "Jimmy." As the woman warrant," proceeded past said, police, search "state of Other officers were portion her the rear the home. in full uniform. court present outside violate the rule of holding the ruse did not announcement, stated:
Violence, personal injury property damage be can pri- by employing right of eliminated ruse. One's vacy voluntarily opens he his is surrendered when possibility that one will suc- door to outsiders. evidence, destroy might attempting as ceed police presence forewarning is occur when there door, opening greatly is On prior curtailed. balance, deception not the use does threaten underlying the "knock and rules. announce" adopt or the rule that a ruse We would therefore allegedly misrepresentation, as occurred case, permissible in the execution of instant if, voluntarily opens person search once warrant door, authority police then announce their purpose prior not use where and do force require exigent not it. circumstances do Duncan, A.2d *8 State,
Myers,
(Wash. 1984);
Palmer v.
426
118
Goggin,
v.
The circumstances Commonwealth
(Mass. 1992),
strikingly
N.E.2d 785
are
similar to those
Goggin,police
in the
case. In
obtained
search warrant for the defendant's
war-
rant did not
authorize
no-knock
One officer
apartment
knocked
the
A
on
door.
female voice inside
apartment
replied,
asked,
the
"Who is it?" The officer
Pop
"Sommerville Warner."
ofOne
the
then
defendants
seeing
police
the door. On
the
officers outside
badges
immediately
chains,
with
on neck
the defendant
attempted to close the door. An officer held his hand out
doorway
prevented
of
across the threshold
the
the
being
apart-
stepping
door from
closed. Before
into the
purpose.
ment, the
announced their
Goggin
by
court held
the
of
use
a ruse
open
to entice the
defendant
the door in the
of a
execution
search warrant did not violate the rule of
Goggin,
holding,
In
announcement.
Wé hold that factor in entry whether execution of a search warrant is unreasonable under the Fourth Amendment should be purposes whether the tactic frustrates of rule of Myers, (Wash. 38, v. announcement. State 689 P.2d 1984). (1) pro- purposes above, As mentioned those are: (2) occupant's right privacy; tection of the reduction (3) potential prevention unnecessary violence; property damages. promoted Each of these was pizza delivery ruse. *9 privacy invasion of
There is at most minimal entry gain police exe- a ruse to officers utilize where Myers, P.2d The warrant. at 42-43. a search cute severely privacy occupant's right the of is limited where probable the Amendment's have satisfied Fourth requirements. Id. 42. The officers at cause and warrant authority upon privacy possess the the of the intrude irrespec- occupant's regardless of the wishes and home activity of intrusion. Id. at of at time tive his typical by Entry no- is less intrusive than the 42-43. ruse entry occupant where the is not forewarned knock anyone invariably entering.
is Ruse are charac- entries by occupant degree notice; is of terized expecting some advance entry. Myers, agree P.2d at 43. We with
an Myers court which stated: short, occupant deny In it seems that since an cannot warrant, entry possession in search he privacy nothing in when the officers loses terms of authority purpose, but fail to state their actual permission by to enter means of a trick rather obtain purpose protecting underlying The or ruse. privacy of the threatened ruse entries. home not Thus, mere ruse has been used does fact that a right to be free from unrea- not violate defendant's seizure. sonable search and Id. trafficking today drug with violence associated danger.
places Wil- law enforcement officers extreme pizza prevented liams, 168 Wis. 2d 984. encouraging open There the door. violence unexpected entry an which could result vio- was not lack entries such as that case lence. Ruse thereby reducing surprise, the chance of element of Myers, 689 P.2d at confrontation. encourages occupant open
A ruse *10 prevents unnecessary property damage. the door Id. In police case, the instant officers had reason to believe that the door was reinforced with extra locks which require would them to break down the door to enter. The encouraged open prevented ruse Moss to the door which property damage. justified police reasonably
The ruse was because destroyed they feared evidence would be if knocked at identity. the door and announced their An true inform- police apart- ant warned that the the Moss locking ment was reinforced with extra devices that police long enough would slow the down to allow Moss destroy time to the evidence contained his privacy The ruse was less of an invasion of than a no- entry. police pur- knock their stated pose pre- as soon as Moss the door. The ruse destroyed being accomplished vented evidence from all of the of the rule of announcement. argues adopt that this court should a rule that premises
when intend to use a ruse to enter in the warrant, execution of a search the search warrant must specifically adopt authorize the ruse. We refuse to such a require rule. The Fourth Amendment does not that the permission judge law enforcement officers obtain from a to utilize a ruse in the execution of a search warrant. The Supreme United States Court stated: however, Nothing Court, in the decisions of this indi- requesting cates that officers a warrant would be con- stitutionally required anticipated to set forth the they means for execution even those cases where entry know beforehand that unannounced or forced likely necessary. will be n.19.
Dalia, 441 at 257 U.S. present does not that case be noted It should in Williams and entry as occurred a no-knock involve Recently, this court held whenever Cleveland. time information possess sufficient dispensing justifies for a search warrant application engaging rule a no-knock announcement with the to a they judge such information entry, should no- of whether to authorize the determination Williams, judge's 2d at 168 Wis. knock the no-knock should be grant decision whether Id. on the search warrant. clearly stated face distinguisha- constitutionally hold that We *11 nothing in the entry. We find ble from a no-knock interpreting or law that amend- case Fourth Amendment police judicial require to obtain ment which would gain entry employing a ruse to to approval before executing a search warrant. dwelling when case, police In the instant their .stated entering was purpose prior fully given opportunity view the uniformed officers an attempted shut the door. The officers were before he after Moss justified using push open force to 968.14, attempted close it. See sec. Stats. The all for the of announce- satisfied of the rule Further, necessary prevent was ment. the ruse protect safety evidence and destruction of Therefore, search was occupants. and the officers the Fourth Amendment. reasonable under appeals By the Court. —The decision of court is affirmed. part. took no
Justice Donald W. Steinmetz, (dissenting). ABRAHAMSON, SHIRLEY S. J. I may conclude that law enforcement officers use a ruse to dwelling obtain to a to execute a search warrant justify under those circumstances that would a no-knock Williams, 970, 485 In State v. 168Wis. 2d N.W.2d (1992), pos we stated that "whenever application sess sufficient information at the time of the justifies dispensing for a search warrant that with the they present rule, announcement should such informa judge tion to a for the determination of whether to entry by police." authorize the no-knock 168 Wis. 2d at they apply know, 986. Police officers who at the time for justify entry by warrant, of circumstances that would judge. ruse should likewise the information to a justifying case, In this circumstances a ruse were known they applied to law enforcement officers at the time Accordingly, I the warrant. dissent.
I am authorized to state that Chief Justice NATHAN joins dissenting opinion. S. this HEFFERNAN