*1 Plaintiff-Respondent, Wisconsin, State
v. Steiney Defendant-Appellant-Petitioner. Richards, J.
Suрreme Court 3, 1996. argument No. 93-0391-CR. April Oral Decided 12, 1996. June (Also 218.) reported in 549 N.W.2d *2 defendant-appellant-petitioner For the there were argument by Karpe, briefs and oral David R. Madison. plaintiff-respondent argued For the the cause was by Stephen attorney general, Kleinmaier, W. assistant Doyle, attorney whom on the brief was James E. general. *3 Steiney BABLITCH,
WILLIAM A. J. J. Richards (Richards) seeks review of a decision of the court of appeals affirming possession his conviction for of argues cocaine base with the intent to deliver. Richards police that because the failed to "knock and announce" prior entering to his motel room to execute a search any suppressed. warrant, evidence seized must be The simply issue stated: whether the Fourth Amendment exception general requirement allows a blanket to the (the announcement) of "knock and announce" rule of premises pursuant for entries into to a search warrant drug delivery. for evidence of felonious We conclude exigent always present circumstances are in the involving drug execution of search warrants felonious delivery: extremely high deadly an risk of serious if not injury potential to the as well as the for the disposal drugs by occupants prior entry by of the to the in circum inherent these interests The public
police.1 interests of minimal privacy the outweigh far stances war which a search dwelling the for of occupants the we re-affirm Accordingly, issued. already has been rant Stevens, 410, 511 N.W.2d v. Wis. 2d State (1995), and con denied, cert. (1994), 115 S. Ct. to the rule to adhere required are not clude that warrant a search executing when of announcement drug delivery.2 involving felonious to examine note, took this case we prefatory As a of the of Stevens light continuing validity the v. Court case of Wilson Supreme decided U.S. recently (1995). We conclude Arkansas, 115 S. Ct. 1914 , In Stevens this court adopted Stevens remains valid. in cases rule of announcement to the exception blanket drug delivery. felonious a search warrant involving , Stevens held the Wilson, subsequently decided Amend- of the Fourth part forms rule of announcement Court in Wilson left inquiry. ment reasonableness instances, would, many position 1The concurrence's great personal risk. It makеs place situations overwhelming good Despite the good law nor sense. neither dangerousness country the inherent evidence across deny police the situations, would the concurrence these police had announce" unless the right forego "knock and dangerousness house specific information about dangerous specific information about searched and Thus, in which such in those cases posed occupants. its ness unavailable, would force the concurrence specific information is *4 subjecting position of themselves police into the untenable to opinion. in this We decline extremely high risks detailed invitation. the concurrence's follow delivery" felo to mean phrase "felonious We use drugs possession with intent delivery or felonious nious 161.41, IV, Subchapter Wis. Stat. §§ deliver violation 161.42 and 161.43.
it to lower courts to determine the circumstances under which an unannounced is reasonable proceed under the Fourth Amendment. We to do so now. dispositive purposes appeal facts for of this succinctly: 31, 1991,
can be stated on December еxecuted a search warrant for motel room of the seeking defendant evidence of the felonious crime of Possession with Intent to Deliver a Controlled Sub- 161.41(lm)(1991- § stance violation of Wis. Stat. 92).3 They prior did not knock and announce to their entry. Drugs were seized. sup-
The circuit court denied Richards' motion to press. subsequently pleas Richards entered of no felony possession contest to the of cocaine base with 161.41(lm), § deliver, the intent to Wis. Stat. and a tax 139.95(2).4 stamp § violation, Wis. Stat. The court guilty years impris- found him him and sentenced to 13 possession onment on the with intent count and three years imprisonment stamp concurrent on the tax appealed. appeals upheld count. Richards The court of ruling, relying the circuit court's on Stevens. Richards petition granted. filed a for review which we statutory All future references will be to the 1991-92 vol 161.41(lm) ume unless otherwise indicated. Wis. Stat. § provides part: in relevant
(lm) ny Except chapter, it is unlawful for as authorized this deliver, person possess, with intent to manufacture or
a controlled substance. 139.95(2) states, part: in relevant Wisconsin Stat. § (2) possesses A a sсhedule I controlled substance or dealer who II controlled that does not bear evidence schedule substance paid may fined not that the tax under s. 139.88 has been $10,000 years imprisoned for more than 5 more than or not or both. *5 whether this court is
The sole issue before
United
Constitution5
Fourth Amendment to the
States
requirement
exception
general
to the
allows a blanket
premises pur-
"knock and
for entries into
of
announce"
for evidence offelonious
suant to search warrant
delivery.
question
law
This is
that we review with-
Betterley,
courts. State v.
out deference
the lower
(1995).
406, 416-17,
2d
Richards summarizes issue one sentence: exception 'drug 'knock house' to the and "The blanket rule the Fourth Amendment's rea- announce' violates requirement." Richards contends sonableness Supreme forbids Court decision Wilson blanket U.S. regarding and seizure the reason- rules search because case-by- each must be examined on a search ableness (State) argues The of Wisconsin case basis. State and, not Wilson Wilson does forbid blanket rules under is still , blanket rule announced Stevens valid. agree with We the State.
The Fourth tо the United States Con- Amendment §I, art. and Wisconsin Constitution stitution security people persons, protect houses, "in their papers, against searches and and effects unreasonable Const, may interpret Wis. seizures." While this court strictly §I, than the United States art. Supreme more interprets Amendment, Court the Fourth it consistently routinely the law and conformed has United states: Amendment IV of the States Constitution houses, right persons, people of the to be secure in their seizures, effects, papers, against unreasonable searches violated, issue, upon proba- not and no Warrants shall but shall cause, affirmation, supported by particularly Oath or ble searched, things describing place persons and the or to be to be seized.
search and seizure under the Wisconsin Constitution
*6
developed
Supreme
the law
the United States
Court under the Fourth Amendment. State v. Wil
(1992);
liams,
970, 981,
168 Wis. 2d
N.W. 2d
see
Guzman,
577, 586-87,
State v.
166 Wis. 2d
480 N.W.2d
(1992).
proscription against
The Fourth Amendment
only requires
unreasonable searches and seizures not
probable
that there be
cause to undertake the search or
make the seizure but also that the search or seizure be
conducted in a reasonable manner. Tennessee v. Gar
(1985).
ner,
announcement,
471 U.S.
7-8
The rule of
requires police
seeking
which
officers
to enter a dwell
ing in the execution of a search warrant
to announce
identity
opened
their
and allow time for the door to be
voluntarily,
legiti
addresses the
manner
which a
governmental
place.
mate
intrusion
is to take
Williams,
These held , In Stevens we in State v. Stevens. our decision supported warrant, have a search when the by probable for evidence of cause, to search a residence possession delivery intent or evidence they necessarily drugs, have reasonable to deliver exigent , Stevens exist. circumstances cause believe that the rationale 2d at 424-25. We reasoned 181 Wis. *7 longer valid in was no the rule of announcement behind today's drug announcing pres- by their fact, "In culture. actually may police increase the likelihood ence, police the execute a search Id. at 428. When violence." drug delivery, there is reasona- of warrant for evidence destroyed drugs will be cause to believe both ble occupants of the resi- lost, and that the and evidence Therefore, a no-knock armed. Id. at 432. dencе will be any police a war- time the have is reasonable search supported by probable a cause, to search rant, dealing." drug Id. The limited residence for "evidence privacy individual were balanced interests of the public's against governmental interests: the two other curtailing stopping or at least interest substantial police drug crimes, and the its related the trade and protecting and others themselves interest officers' court concluded: harm. Id. This from for evi- execute a search warrant police the When drugs possession or evidence of delivery dence deliver, is reasonable cause to there with intent destroyed drugs will be and believe both occupants lost and that the resi- evidence will armed . . . Even when the dence announcement, and dispense with the entire knock trade, drug in stopping the societal interest interest, safety with the officers' combined outweigh occupants' privacy limited interests.
Stevens,
Richards contends that the effect of Ste- given which cannot be valid the level vens is a flat rule the fact that too much discretion is of intrusion and аrgues officers. Richards allowed exception the knock and announce rule is blanket Supreme Court's decision in inconsistent with the U.S. Wilson. challenged police entry Wilson, the defendant pursuant authoriz- her home to a search warrant
into ing a search for evidence of suppression paraphernalia. motion The defendant's police princi- alleged law that the violated the common ple requiring knock and announce their them to authority entering. presence The U.S. before Supreme whether the officers knock Court held that presence authority and announce their before entering dwelling required law as the common part Amendment reasonable- "forms a of the Fourth inquiry." Court, however, noted Id. at 1916. The ness are unreasonable. that not all unannounced entries may "[L]aw interests also establish *8 enforcement entry." Id. at 1919. of an unannounced reasonableness The Court stated: course, every entry say, of
This is not to The Fourth preceded by must be an announcement. of reasonable- requirement
Amendment's flexible rigid mandate a rule of should not be reаd to ness countervailing announcement law ignores concedes, petitioner interests. As even enforcement was principle of announcement the common-law requiring an inflexible rule never stated as announcement under all circumstances. recognized The Court that under certain
Id. at 1918. presumption in of announce- circumstances, the favor contrary necessarily gives way to considerations. ment contrary include the threat of These physical considerations recently police, pursuit of a
harm to the likely escaped arrestee, or the that evidence will belief destroyed. Id. The Court stated: comprehensive catalog a attempt We need not now, countervailing of the relevant factors here. For determining lower courts the task of we leave to the the circumstances under which an unannounced the Fourth Amendment. entry is reasonable under Id. at 1919. "drug argues house"
Richards the blanket exception adopted to the knock and announce rule longer light of Wil- this court in Stevens is no viable requires further contends that Wilson son . Richards analysis performed every for reasonableness to be disagree. and seizure. We unannounced search Stevens, this court did not announce a blanket doing away with the common law rule of rule adopted excep- Instead, we a narrow announcement. general police have a search tion to the rule: when premises for evidence of felonious warrant to search delivery, they announce. do not have knock and probable support a search When have cause drug delivery, warrant potential for evidence of felonious dangerousness poten- to the and the *9 for the so destructibility great tial of evidence is as to overcome the rule. The facts general very supporting cause to believe that dealers probable drugs drug dwelling are a also lead to the reasonable present sum, exigent belief that circumstances exist. we con- clude exigent always that circumstances present when a search warrant for evidence of felonious drug is delivery executed.6
Wilson does not forbid blanket
rules;
rather,
it
requires
by
such rulеs to be
the standard of
supported
"reasonableness." The Court left it to the lower courts
to determine "the circumstances under which an unan-
entry
nounced
is reasonable
under
the Fourth
Wilson,
Amendment."
search warrant for evidence of The State proper justification is a level of no-knock endanger suspicion that an announcement would reasonable safety occupants, suspi or a of the officers and/or reasonable destruction of cion that an announcement would result evidence. necessary justification is
We need not address what level of Here, dealing particular circum- this case. we are with the drug of a search warrant for evidence of felonious stances assumption drug delivery. holding Our is based on the officers, pose danger weapons dealers will have destroy attempt dealers will evidence or at least Therefore, policе. destroy evidence after announcement always present, not exigent circumstances are we do because justification concerning what level of address the issue entry. must left to a case in needed for a no-knock This issue which are not involved. *10 generally
The reasonableness of a search
turns on
pursuant
it
whether was conducted
to a valid warrant.
Court,
297, 309-10,
U.S. v. U.S.
314-
District
407 U.S.
(1972).
deciding
particular police prac-
In
whether a
repeatedly
reasonable,
tice is
the Court has
said that
importance
public
weighed
of the
interests must be
against
upon
the nature of the intrusion
Fourth
Maryland
rights.
Buie,
Amendment
v.
494 U.S.
(1990).
balancing
The Court stated that
"
competing
key principle
these
interests is
'the
of the
(citation
Gardner,
Fourth Amendment.'"
omitted).
(1989) Allegro]. [hereinafter unquantifiable
Police officers face an risk of vio- every they go lence time into a house to execute a recognized unique search warrant.7 The Court has danger police suspects' officers face houses because coming the officers are onto their adversaries' "turf following represents only newspa some of the recent per documenting escalating articles violence face each day: configuration the officers. unknown to
which has a
(1990),
Maryland
the Court
Buie,
wounded year Raids. in Near East Side that officershave been wounded Slain, Medick, Wounded Shoot- Man Swat Erin Marie Officer Raid, Dispatch, The Columbus ings Came in Near East Side 15,1996. Mar. houses, the Designed оn crack to serve search warrants investigative and tactical unit is Police Division's Columbus gunfire where the risk of retaliation
trained to enter homes - required shooting high_The announced as occurred after - house, coming they said Lt. William would into the law that McKendry squad. of the division's narcotics *11 Police, The Thomas, Becoming For Drug Raids Riskier Alice 19,1996. Dispatch, Jan. Columbus study police will officers and a Interviews with ballistics police police officer when determine who shot an Omaha used to Tuesday night, police said. make an arrest
burst into a home to Sought, Brunkow, The Angie Origin Shot That Hit Officer World-Herald, Mar. 1996. Omaha early family-run drug they house said was a Police raided what Saturday morning for a few into the business and then went $2,600, bags ofheroin worth about hours.... Police confiscated 105 $5,000 guns. of crack cocaine and six worth Henderson, Drug House Leads to Raid-Sting at Karen 12,1996. Arrests, Dealer, Plain Feb. The $50,000, illegal drugs four kinds of worth about At least seven they by $36,500 raided a guns were seized when in cash morning, according Wednesday to offi- Spring Township house finding, thing to this and a the kind of we're used cials. ... "This is 12-gauge more," said, gesturing illegal shot- sawed-off he tо an lot pistol with a 30-bullet gun 9mm semiautomatic and a TEC-DC9 clip. House, Reinbrecht, Spring Twp. Police Raid Steven Confiscate Times, Reading Feb. Cash, Reading Eagle, Drugs, Guns 1996. danger
The context an in the risk of arrest than, great as, greater home if not it is in an is as investigatory on-the-street or road-side encoun- puts [A]n ter. . . in-home arrest the officer at the adversary's An disadvantage being on his "turf." unknown setting configura- in a confined ambush tion than more open, is more be feared it is familiar surroundings.
Id. at 333. notes,
As one commentator the risk greatly must face is increased a knock and announce requirement: making high-risk
[A] officer warrant disadvantage. is at a severe When he announces authority purpose readily he makes himself house, suspect, concealed inside a identifiable. generally officer, will be able see the or know where the officer is since he is most often near the if occupants door. Even the officer can see inside the house, they he does not know if intend to resist they enough unless are naive to reveal their violent intentions. The officers are most vulnerable when If entering given house. the announсement has himself, [suspect] time to arm all he needs to do aim firearm target his at the door and wait for a appear. leading A SWAT team a force of more than 100 officers *12 Wednesday apartment building police raided an said had been by drug turned into a fortress dealers. . . . "There were armed guards building, patrols at all entrances to the armed internal day. key players hours a All the were in constant contact each drug other with hand-held . That radios." . . dealers could control building city drug thing an entire in a like Racine shows that "the place," Higgins big city all over the "It said. doesn't matter how
is. This is like a nest." Bothwell, House, Drug Ann SWAT Raids Mil- Force Racine Journal, 29,1992. waukee Jan. omitted). (footnotes
Allegro, at drugs only heightened when risks are These weapons drugs and The connection between involved.8 by appellate Michi courts. documented has been well (1981); gan Stevens, 181 692, 702 Summers, 452 U.S. v. 984-85; Williams, 2d at 168 Wis. 420, 428-29; 2dWis. at (4th Kennedy, 876, 882 Cir. 32 F.3d States v. United 1994) ("[T]he recognized uniformly that sub law has possess and that firearms in narcotics stantial dealers trafficking activity drug carries of into a situs entrance officers."); dangers law enforcement real all toо 1989). (N.C. App. 50, 53 Harris, 384 S.E. 2d State v. weapons estab The connection between guns possibility will be than a it is more lishes that subject of a search is the the location that found at study dealing. Reporting drug which on a warrant gang drug are the members dealers and concluded that guns, likely in the New an article to use criminals most York Times noted: users, who dealers, drug than drug rather
It is said, they are because Professor Decker guns, use drugs and carrying quantities valuable usually of a money protection need the large amounts ordinary users. gun more than growing drug violence is a related indicate Statistics 1986, police of the mortality. From 1977
contributor 875, were killed situa murdered, percent, or 57 of 6.5 officers percent 7.6 drug matters. involving tions related, percent 10.6 and in drug murders were Investiga Bureau of Federal matters. murders involved Reports Crime tion, States: Uniform in the United Crime 1977-1986). (statistics See reports from from annual extracted 570, n.32. Allegro at *13 Study Drug Butterfield,
Fox Discounts the Role of 8, Crime, Times, Oct. Users in Gun-Related N.Y. at 36. study among that, arrestees who revealed year, per- selling illegal drugs past
admitted reported they gun carried a all or most of the time. cеnt Monitoring Illegal Firearms Arrestees and Guns: Market, Justice, National Institute of Research Pre- study September view, 1995. The results of this show finding guns during the execution that the likelihood drug dealing search is "more than a of a warrant possibility." percent figure study The 25 in the relates only among only arrestees; and arrestees it reflects by guns. guns the admitted use of The use of all certainly higher dealers than the use reflected study. using percent Nevertheless, that figure even the 25 study, "requiring police
in the to knock and identity executing all announce their before search drug dealing would tantamount warrants for requiring the before each warrant execution to gun." play Russian roulette with a four-chamber 23). (Respondent's brief at suspects firearms,
When resist Allegro, disadvantages.9 officers face serious at 554. percent of the officers Firearms claimed the lives of duty through Seventy per from 1977 killed the line of 1986. handguns, were the use of cent of the murders committed by rifles, percent by shotguns. Department percent and 9 U.S. Justice, Investigation, Federal Bureau of Uniform Crime Reports, Enforcement Killed and Assaulted 4 Law Officers (1986).
Nationwide, average every an of 17 of 100 law enforcement percent were assaulted in an increase of 7 from officers 64,259 line-of-duty During year, assaults were 1985. by 9,755 covering reported agencies approxi- law enforcement *14 They easily by spoken identified commands and may impossible uniform, while assailants be difficult or may An for the officers to see. Id. assailant determine prepare shoot, if when and where to and he has time to only resist, it him an takes half a second to fire gun. accurate shot from a cocked Id. The officer justifies must evaluate whether the situation use of deadly typically requiring force, evaluation of a series gun factors, holstered, of and if his or her is it takes him or her one to 1.2 seconds to draw and return fire. Id. at 554-55. suspect
When an a officer confronts a who has percent suspect hand, firearm in in 40 of the cases the usually fire, first, will will fire and will often shoot with ballistically superior weapon. R.J. Adams & T.M. McTernan, Street Survival: Tactics Armed (1980). shootings invaria- Encounters 35 Police almost range bly occur at close and are over almost instantly.10 Allegro, at 555. cases, majоrity
In is ten feet or the vast the officer Normally, from the assailant. the initial less determinative, exchange gunfire is with most with no confrontations over two to three seconds mately percent population. United States These of the total 380,249 Nearly at 41. agencies employed a total of officers. Id. 22,000 reported enforcement officers were to have received law injuries resulting personal from their assaults. Id. cases, feet or less In almost half of the the officer is five away. murders in New York Of the more than 250 officer 20 feet City 1854 to the assailant was more than from Cops, away only Chapman, one See S. when he fired case. Staying Alive: The Murder Police Killers Officers (1986) 1972-1984, (noting percent that from 52.4 America their assailants murdered were zero to five feet from officers away). percent were six to ten feet and 20.6 half shots fired. Almost more than a total of three time, assailants. multiple an officer will face regard will fire without While the assailants accommodate their bystanders, the officer must presence. omitted). (footnotes
Id. at 555 Michigan Summers, v. 452 U.S. 702-03 (1981), recognized harm to that the "risk of Court subject occupants [of an area and the both routinely search] exercise minimized if the officers unquestioned The sooner command of the situation." complete situation, the control of the the officers have *15 any suspects likely between less it is that confrontation gunfire. point Mini- escalate to the of and officers will safety only mizing not of risk, turn, in ensures the this suspects and of innocent officers, also of but bystanders. points for officers to control
All of this
to the need
safety
immediately,
only for their own
the scene
not
safety
others,
also to seize evidence of
and the
but
drug delivery.
warrant
all,
After
a search
felonious
place
go
particular
to seize
to
to a
commands officers
drug paraphernalia.
Stevens,
and
evidence of
"easily disposable
recognized
nature of nar-
that the
we
provides police
evidence sufficient to form a
cotics
necessary
that no-knock
is
reasonable belief
prevent
,
Stevens 181 Wis.
the destruction of evidence."
knock and announce their
2d at 425. If officers must
they provide
occuрants
authority
presence,
and
only
opportunity
to arm them-
house with the
not
involving drugs.
dispose
selves,
of the evidence
but
Allowing police
command of the situation is
to take
of a search
to the safe and effective execution
thus vital
drug delivery. Moreo-
of felonious
warrant
evidence
executing
warrant are in the
ver, the officers
a search
position to decide how to take command of the
best
police
cases,
situation. In some
officers will undoubt-
edly
safety,
safety
others,
decide that their
they
the effective execution of the warrant dictate that
might
they
announce; in
cases,
knock and
other
decide
procedure
counterproductive
that such a
would be
or
dangerous.
police
this,
even
"In cases like
where the
supported
probable
warrant,
cause,
have a valid
drug dealing,'
search a home for 'evidence of
the officers
executing the warrant have the incentive to choose the
entry." Stevens,
safest method
It is difficult by the any right privacy given to tection is identity purpose rule. Once announcement if always permis- stated, entry permitted; must denied, delayed for an inordinate or even sion is forced, provided the time, entry may be amount of admission. gaining in purpose a valid officer has occupant, in the is vested Since no discretion ... protect privacy? notice his manner does what balanced, privacy seem protections Thus to the compared when tenuous to be somewhat true particularly harm. This is public potential evidence, destruction of respеct potential probable when one considers especially any have to be met would requirement cause event. Nonsense, An Ebner, No-Knock
Sonnenreich Alleged L. Rev. Problem, 44 St. John's Constitutional (1970). 626, disruption privacy is almost interests
Here, entirely warrant, not the valid to the attributable entry. "[W]here have a war- unannounced only property, retain the residents search the rant to privacy." very Stevens, 181 Wis. 2d limited interest Stevens, we stated that: at 432.
Even under the rule announcement, after the police have announced their identity and purpose, occupants the must let them in within a reasonable police time or the may force way their in. The occu- pants' privacy interests are limited to knowing the police are entering and perhaps effecting the entry. method of The occupants do not have the right entry. to refuse
Id. compare privacy
When we these limited interests public allowing the substantial interest has safely effectively and execute a search overwhelmingly warrant, public the balance favors the interest. widely regarded
Police have narcotics enforcement particularly dangerous as a area of work for beginning early some time. However, 1980's, gangs, hazards to officers escalated. Street spawned by decay already cities, America's propensity known for their for irrational violence, drug major entered the business on a scale.11 In the gangs Street have been documented in cities in the throughout United States country's most of history, but by media, accounts practitioners, sug some researchers gest gangs posing now a more serious crime problem past. than in the Department Justice, U.S. National Institute Justice, of (1993). Gangs: Street Knowledge Current Strategies reports
And while conflict about the extent to which gangs play organized an drug role in trafficking, recent research suggests gang highly members are drug visible in the trade. Id. addition, easy gang it is weapons. members to obtain (for easy teenagers get guns). It's real just You have to have the
money, somebody get and know gang who can one. Most members probably have . . drug They . it's related to a dealer. contact the him, pay gun." "OK, dealer and tell say "I so much for a He'll *18 adjusted and confronted 1970's, the 1960's higher of viоlence. level a change radi- law enforcement risks of
When the regulate by cally, which courts rules changes. Therefore, we conclude reflect those should always present exigent in the circumstances drug involving felonious warrants of search execution delivery. public circumstances in these interests privacy outweigh of the occu- interests minimal far pants dwelling has warrant which a search of the Accordingly, already Stevens we re-affirm been issued. required to adhere to are not conclude that executing a search when announcement the rule of delivery. involving The decision felonious warrant appeals is affirmed. court of of the appeals By the court of decision of the Court.—The affirmed. ). {concurring On ABRAHAMSON,J. S. SHIRLEY by court I con- the circuit facts found the basis of the majority, executed that the clude, as does against reasonable under was the defendant separately I con- because I write Amendment. Fourth majority's of the blanket reaffirmation that the clude exception knock-and-announce rule first decreed to the run, like, gauge 50 to you." wоuld about A .12 sawed-off I'll sell it to fully- really buys gun a Nobody 50 unless its ever over 90 bucks. (a gang someone main interests when . . One of the automatic. .
member) money. Really guns or [is] a house to look for breaks into they guns to look for. want Summary Field Conly, Hearing the National H. Catherine Dallas, Texas, Revised Gangs Gang Violence in Study on Justice, (Washington D.C.: National Institute Report Draft 1991), at 13. December
866
181
2d
Stevens,
410,
State v.
Wis.
N.W.2d
(1994),
(1995),1
denied,
cert.
(1995). "presumption
Wilson made clear that there is a announcement," favor S. Ct. at but requirement the "Fourth Amendment's flexible of rea- rigid sonableness should not be read to rule mandate ignores countervailing announcement law enforcement interests." 115 S. Ct. at Law 1918. *19 including physi- enforcement the threat of interests — cal harm to law enforcement officers or the existence of likely reason to believe that evidence would be destroyed given may if advance notice were establish — entry. the of an reasonableness unannounced at Id. prosecution 1919.2 The burden is on the exi- show gent exсusing entry. circumstances the Id. no-knock
By reaffirming declaring Stevens and that neither findings of fact nor a determination of reasonableness
1In Stevens , the court examined the facts of the case they provided concluded that law reasonable basis for the Stevens court entry. enforcement officers' The unannounced proceeded then to create a blanket rule law enforcement comply officers need never with rule the knock-and-announce probable through when the have cause a search warrant delivery drugs possession evidence of of or evidence Stevens, with intent to deliver. 2d The Wis. at 435. in Stevens holding jettisoned longstanding Wisconsin case law knock-and-announce interpreting applying the rule. although The Court "that held a search or of a seizure might dwelling if constitutionally be defective officers announcement, prior enter without law enforcement interests may also unannounced establish the reasonableness an Wilson, (1995). State v. entry." 1914, 1919 115 S. Ct. involving necessary any warrant of case search
are today's majority opinion premises drug dеaler, of a the major- ignores instructions in Wilson. the Court's "long-established ity ignores the Court's also recognition under the reasonableness standards susceptible not of Procrustean Amendment are Fourth application" to be on its "each case is decided because v. United own and circumstances." Ornelas facts (U.S. May 95-5257, WL 276414 1996 at *5 States, No. 1996) (quoting v. 374 U.S. Ker California, (1963)). Moreover, and also in contradiction to what reasoning logi- majority opinion's teaches, Wilson cally complete knock- to the abandonment of the leads every involving the execu- and-announce rule in case tion of a search warrant.
I. by exception majority The blanket embraced today squared with the Wilson decision. cannot law Wilson, Under courts rather than enforcement determining charged with whether officers comply particular of a facts and circumstances search Amendment's Fourth command that such a Wilson, Ct. search be 115 S. at 1919. reasonable. high The action taken Arkansas court after *20 the case remanded from the United States Wilson was Supreme provides an illustrative contrast with Court today. by majority the taken The Arkansas action the Supreme summarily trial court Court remanded the though provided significantly even the in Wilson facts present stronger grounds in this for rec- than case exigent exception ognizing to the an circumstances Wilson, knock-and-announce rule. evidence that the drug purchase a included an actual accused was dealer police Further, of made a informant. the accused had brandished a semi-automatic weapon while kill an threatening informant if she worked police, the while the accused's housemate had previ- ously been convicted arson and firebombing.
The Supreme Arkansas Court's reluctance to draw legal conclusions prior the trial court's initial deter- mination of a no-knock whether at was issue despite strong evidence it indicating reasonable — was —contrasts con- sharply this court's sweeping clusion that all no-knock entries in involving cases drug are, dealers facto, reasonable. ipso Instead "mak[ing] any necessary findings of fact . . . the determination makfing] of reasonableness" which Wilson requires,3 the insteаd majority concludes executing against Prior to the search warrant the defen case, police dant this knew that had defendant previously possession packets been for the arrested of 63 Furthermore, cocaine. after the defendant had checked out hotel, police another had plastic bags found clear sandwich like the packaging Finally, ones used in cocaine. information an obtained from informant demonstrated that defendant companions engaged and his had a conduct matched profile, cash, including courier paying refusing room service, making receiving phone from numerous calls their room.
While the circuit court found that facts these were suffi- probable warrant, cient to establish cause for search found it justify them insufficient to a no-knock warrant and therefore rejected request for a no-knock warrant. police warrant, proceeded
When the to execute the addi- play. tional circumstances came into When the first sought ruse, entry through posing with one officer main- as a man, opened rapidly tenance defendant the door and then again. it dispute shut state and the defendant whether the recognized defendant that the man" "maintenance was a officer, he the fully as well as whether saw uniformed
869 exigent social conditions circumstances under current warrants in the execution of search always present drug delivery.4 felonious involving Court Supreme either the United States Had Wilson or the Arkansas Court remand Supreme upon exception to a version of the blanket subscribed they the need not have majority today, announced of and a of findings remanded for fact determination reasonableness, there was no but question because accused in Wilson was dealing owned a drugs, that the courts, to use it. Both how- and had threatened gun, standing right "maintenance man." The officer the the testimony the as self- circuit court characterized defendant's serving accepted apparently the officers' statement what happened. had circumstances, compliance these with knock-
Under gesture." It has constitute a "useless and-announce-rule would required it long recognized "that notice is not when is been purpose authority evident from circumstances that premises." within 2 already of the known those (3d and Seizure LaFave, 4.8(f), Search Wayne at 620 ed. § R. 1996) Berry, see also State v. cases); 2d (collecting 174 Wis. (Ct. 1993) (when App. 746 law enforcement N.W.2d compliance the rule" officers hold a belief that "reasonable gesture," they need not of announcement "would be useless it). comply with majority heeded Jus might appropriately more have purpose reminder of the Fourth
tice Scalia's recent requirement preserve "is to Amendment of reasonableness persons inviolability degree respect privacy for the property provision existed when the was of their later, age adopted if a less virtuous should become accus —even considering all sorts of intrusion 'reasonable.'" tomed to (1993) Dickerson, (Scalia, J., Minnesota v. U.S. concurring).
ever, declined the to a opportunity announce blanket rule as such the rule embraced today by the majority.5 it
Hence is not that surprising federal and state (in Court) courts addition the Arkansas Supreme which have had occasion to interpret Wilson apply have also conducted fact-specific, case-by-case analyses whether determining no-knock entries made in exe- cuting drug-related warrants had met the Fourth Amendment's requirement of reasonableness.6
5According to
reply
the accused's
brief in Wilson
filed
defendant,
the
Supreme
United States
the
Court
the state
and all of the
supporting
position
amici
sought
state's
rule exempting drug
blanket
searches from the reach of the
Reply
Petitioner,
knock-and-announce rule.
Brief for
v.
Wilson
(U.S.
94-5707,
Arkansas,
120155,
17,
No.
1995 WL
at *11
Mar.
1955).
6See, e.g.,
Murphy,
United States v.
69 F.3d
242-43
(8th
(1996) (no-knock
1995),
denied,
Cir.
cert.
116 Ct.
S.
entry to
drug
execute search warrant on
prem
manufacturer's
;
ises reasonable under Wilson no-knock
entries
reasonable
"particular
when
regarding
premises
facts
to be searched"
surrounding
"circumstances
the execution
the warrant"
exigent circumstances;
establish
police informed that accused
weapon,
weapons
premises,
sometimes carried a
were on
past
accused had a
parole
violent
and that accusеd was on
conviction);
from second-degree
Wilson,
murder
State
F.
v.
(Kan. 1995) (no-knock
Supp.
entry to execute search
upheld;
warrant
for crack cocaine
determination of reasonable
required by
requires
ness
particular
Wilson
had
that "officers
exigent
existed";
reasons to believe that
circumstances
"reason
inquiry
particular
regarding
ableness
focuses on what
facts
premises"
Moore,
time);
were
known
officers at the
State v.
(Neb.
1995) (no-knock
App.
entry
majority opinion Wilson. interpretation its supporting none — cites United States Finally, majority no eliminating requirement case Court Supreme (no-knoek (N.M. 1995) warrant to execute arrest App. Ct. reasonable; against drug while fact that defend traffickers was trafficking possessing and of suspected ants were enough compliance with rule of weapons not itself excuse was evi announcement, revealed additional review of record *23 thereby established dence of defendants' violent tendencies entry); v. no-knock State Ordonez-Vil reasonableness (Or. 1995) (no-knock lanueva, entry App. 908 333 Ct. to P.2d warrant for controlled substances reasonable execute search Wilson; previously sub informant had seen controlled under easily destroyed if might police complied stances which be rule); Mastracchio, v. 672 A.2d the knock-and-announce State (R.I. 1996) entry 438, (question whether no knock to premises warrant dealer's was reasona execute search on court; alleged no- although that ble remanded to circuit state entry justified preserve safety pre to officers' knock was evidence, not made vent destruction of circuit court had the findings and requisite factual determination reasonable (Va. 176, 179 ness); Hargrave Commonwealth, Ct. v. 464 S.E.2d 1995) (no-knock entry App. search warrant for execute Wilson; object of although the the search unreasonable under suspicion drugs, police particularized did not have was destroyed). readily evidence could or would be (1st Jewell, 20, v. 23-24 Cir. See also United States F.3d 1995) (Wilson requires of whether an affidavit a determination presented support application warrant an a no-knock establishing entry a no-knock describes circumstances reasonable); 169, Conley, Supp. United States v. 911 F. would be 1995) (W.D. ("based Wilson, teachings on Pa. that the circumstances of each factual situation Court believes by determining the Court in whether the should considered Fourth unannounced is unreasonable under Amendment"). point specific,
officers be able to articulable and indi- justifying vidualized facts their actions each case. by majority None of the cases cited relieves the require- state in Fourth Amendment from cases particular ment that officers' actions in a case be subject meaningful judicial review to determine "objectively whether their actions e.g., Terry See, reasonable." (1968);Michigan Ohio, 1, 21-22 v. 392 U.S. v. (1981); Summers, 692, 452 U.S. 702-03 Graham v. Con (1989). recognize nor, 490 U.S. 396-97 IWhile "[t]he embody calculus of reasonableness must allowances for the fact that officers are often split-second judgments," forced to make , Graham 490 judg U.S. at it nevertheless is crucial that those according "objective ments be assessed to an standard" judge. Terry, a detached and neutral 21- U.S. at 22. allowing law enforcement officers rather than the courts to make the ultimate determination of particular whether a search has been conducted rea- sonably, majority ignored has the United States Supreme "[t]he Court's admonition that scheme of the meaningful only Fourth Amendment becomes when it point is assured that at some the conduct of those *24 charged enforcing subjected with the laws can to the scrutiny judge detached, more neutral of a who must particular evaluate the reasonableness a search or of light particular Terry seizure in the circumstances." of (1968) added). (emphasis Ohio, 1, v. 392 U.S. 21 HHHH majority opinion characterizes its blanket exception exception general as "a narrow to the rule" requiring entry. Majority op. a knock-and-announce at majority's reasoning, 848. The however, leads inexora- bly knock need never the conclusion that the to is not reviewable. and that their decision and announce majority exception opinion sets result, the As a the the rule of announcement. forth swallows "[p]olice According majority, officers face an to the every they go unquantifiable into time risk ofviolence op. Majority at to a search warrant." house execute Forty-two agree percent this of 850.1 with assessment. kind million have some of America's 96.4 households Twenty-four percent of the households have firearms. pistols, shotguns and 23% have rifles.7 The 27% have esti- Alcohol, Tobacco and Firearms federal Bureau of approximately million mates that there are person.8 per As the nation, one firearms about opinion majority points out, firearms claimed the lives officers killed in the line of the law enforcement 92% duty 1986. between 1977 and reasoning majority, According then, to the large country in this and the of firearms number large percentage of of officers caused fire- deaths compelling to need eliminate the arms would create entries; in all warrant rule search knock-and-announce any occupants probability more of thе the premises that one or ipso gun would, facto, access to a estab- has exigent making a no-knock lish circumstances reasonable. pertaining
Perhaps aware its evidence fire- attempts majority proves much, arms far too dangers executing distinguish associated dangers drugs from search warrants related Arkansas, v. Petitioner, 94-5707,1995 Wilson No. Brief 1995) (Ark. (citing n.49 Jan. Statistical WL *42 at (1992), 409 & of the States Tables 702. Abstract United Williams, 970, 992, 485 See State v. 168 Wis. 2d N.W.2d (1992) (Abrahamson, J., concurring).
874 accompanying any execution of the search warrant claiming only heightened the "risks are when Majority op. However, involved." at 853. by majority support crime statistics cited do not "drug growing contention that related is a op. violence con- police mortality." Majority tributor at 853 n.8. my IAs set forth in , to Stevens concurrence 2d n.18, Wis. at 448 the total of officers number killed duty 1991, on declined 1978 to did from as the number involving drug- of officers killed in arrest situations (9 percent) related officers matters. Fewer officers/4.3 consequence drug-related were murdered aas vio- periods lence from in 1978-81, 1992-94 than from 1982-86, or From 1987-91.9 1978-94 about twice as many pursuits stops in officers were killed traffic or as involving drug-related killed in were arrest situations During years, matters.10 the same more officers were answering family while killed calls disturbance for quarrels involving than in were killed arrest situations drug-related matters.11 one officer killed in Wis- Dept.
9U.S. Hindelang of Justice Criminal Justice Center, Research 1994 Sourcebook Criminal Justice Statis tics at 357. 10The total of law number enforcement officers killed in stops pursuits traffic or was while 94 were killed in distur family quarrels bance calls and 91 killed in were arrest involving drug-related During period situations matters. 1992-1994, respec officers were killed in 1992 and engaged tively, and 9 were killed in traffic while pursuits stops; during years, or the same 3 officers were killed year drug-related involving each arrest situations matters. Id. percentage Id. The number and of officers killed while handling transporting prisoners custody or doubled between period 1978-81 and 1987-91. Id. *26 answering in was a domestic disturbance
consin call. my to in Stevens
What I stated
concurrence
injury
today:
of even
while the death or
remains true
many,
empir-
too
the
law enforcement officer is one
one
support
majority's
the
ical evidence cited does not
executing
cases
search wаrrants
rationale that
dangerous
Ste-
more
officers than other activities.
is
to
(Abrahamson,
concurring).
J.,
,
can on a justify exception the an to rule circumstances a reasonable announcement and render no-knock Amendment. under Fourth premise majority opinion on rests rule likelihood knock-and-announce increases the against enforcement officers. In those violence law cases, of reasonableness would enable rule many other enter without announcement. officers may instances, however, expose law enforcement officers to unneces- and other individuals themselves they sary not their do announce violence when presence.12 experience entries Both brief federаl with no-knock newspaper articles indicate the well as numerous recent
as law pose entries can lethal risks that no-knock both often they and the individuals whose homes enforcement officers enter. Stevens, at my I 181 Wis. 2d explain
As concurrence authorizing 447-48, a federal statute no-knock warrants affirming sweeping Rather than blanket exception to the knock-and-announce rule first repealed later, only years following four highly was numerous publicized citizens, imagining no-knock raids in which terrified homes, entering that intruders were their discovered instead were entering "intruders" law enforcement officers statute, without notice. The was one which described senator lawlessness," provoked as "an invitation to official numerous newspaper recounting articles the details of various no-knock *27 raids; reproduced more Congres- than 100 of them were in the Virginia, sional Record. In a previously woman who had been who, burglarized young executing shot killed a officer and a no- warrant, night; knock in of entered her bedroom the middle California, through in in living a father was shot the head his as he roоm cradled his infant son. Both the woman and the man any 15,170-76 wrongdoing. Cong. were innocent of See Rec. (1973) articles); 23,242-58 (collecting Cong. (same); Rec. see Garcia, also Charles Patrick The Knock and Announce Rule: A Approach Exception, New to the Destruction Evidence (1993) L. (describing Colum. Rev. 704-05 unfortunate inci- resulting dents from no-knock raids in undertaken accordance statute). with the 1970 federal
For injuries more recent accounts of officers innocent see, drug entries, e.g., Abrahamson, victims in no-knock Alan Nightmare Dark, Times, 12,1992, in Shots L.A. Dec. at 1 (U.S. drug agents acting tip identify on bad failed to themselves making entry; occupant, thought forcible who he was before being robbed, agent and shot and wounded was himself shot in arm, leg, lung; drugs found); Bovard, shoulder no James Innocent, by No-Knock Entries Police Take Their Toll on Chris- (no-knock Monitor, 24,1994, May drug tian Science at 18 raids mistakes; alia, frequently describes, entry inter no-knock in Stockton, CA, 63-year-old in a which homeowner killed killed, although officer and was then himself no were found); Corella, Hipólito R. Police Admit SWAT Team Raided Home, Wrong Daily Star, July 1993, B1 (police Arizona at through grenade window crashed and detonated stun in Stevens, I in would heed the instructions advanced of the the reasonableness Wilson Court and assess of the facts in this case on the basis entry no-knock Wilson, ignores today The court's decision presented. juris- Fourth Amendment dispenses longstanding of reasonableness assessment prudence requiring very law case, and may place in each particular protect greater it purports enforcement officers of the today have availed ourselves We should peril. mistake in Stevens. Instead to correct our opportunity we it. compounded have forth, set I concur the judgment. the reasons
For three children under townhouse whose inhabitants included woman; told 75-year-old owner 911 and was five dialed screaming "the men orders at dispatcher masked officers"); family his Toni frightened were members Error, Raid, Apologize Fatal Police Admit Locy, Boston (in 27,1994 raid, Globe, at 1 made no-knock Mar. minister, wrong chasing 75-year-old who apartment, Stanton, Cops' result); fatal as a Sam suffered a heart attack *28 Drugs, on Exam- Deadly Mistakes in All-Out War San Francisco (no-knock iner, against drug raids often executed Feb. house, facing unknown wrong "and the tension involved trouble"; involving three incidents inno- can lead describes entries). cent victims no-knock