*1 Plaintiff-Respondent,† Wisconsin, State Defendant-Appellant. Lance R. Ward, Appeals Court of 11, 1998. No. May 97-2008-CR. Submitted on Decided briefs 8, 1998. October (Also 645.) reported in 588 N.W.2d granted. to review †Petition
On behalf of the the cause defendant-appellant, was submitted on the briefs of Daniel P. Dunn of Dunn Law Offices, Madison.
On behalf of the the cause plaintiff-respondent, Kleinmaier, was submitted on the brief of Stephen W. assistant attorney general, with whom on the briefs E. Doyle, James was general. attorney Vergeront, Deininger, Before JJ. Roggensack DEININGER, con- felony J. Lance Ward appeals possession victions for of controlled substances with intent to on the grounds deliver evidence derived from a search of sup- his residence should have been pressed. Ward contends that the search of his residence application improper the search because warrant
was issuing provide sufficient facts from which the did not magistrate there cause to could conclude activity of criminal would be that evidence believe also contends located Ward's residence. Ward within by police officers the execution of the warrant announcing knocking presence their vio- without holding under the lates the Fourth Amendment Wisconsin, S. 520 U.S. 117 Ct. Richards (1997). agree sup- that the affidavit filed
We with Ward port to of the search lacks a substantial basis likely drug dealing would establish his also decline the State's found within residence. We adopt "good exception" faith to invitation exclusionary Leon, in United States v. rule set forth (1984). Accordingly, convic- U.S. 897 we reverse Ward's suppress tions and remand with directions during the execution of the evidence seized warrant. issue, resolution of the first we do not Given our entry the "no knock" in this case was address whether proper.
BACKGROUND City police A informa- of Beloit detective received selling marijuana. He tion that Lance Ward was requested judge to search to issue a warrant Ward's for Search War- residence. detective's "Affidavit two-story, requested permission to search a rant" *4 Royce single-family dwelling in the located at 1663 City "[m]arijuana of Beloit. The affidavit recites packaging scales, substances, and other controlled drug ledgers" drug paraphernalia, materials, and vari- possession of the crime of of THC ous other evidence intent to are "now located and concealed" with deliver and it "facts provides following on the premises, for grounds issuing to establish the Search tending Royce: for 1663 Warrant"
1.) your 11-27-96 Affiant received a call On Stopper from a Crime who stated that Derrell marijuana. Stop- sells of The Crime pounds Vance marijuana in the house of Derrell per had seen a search executed Vance. On 11-29-96 warrant was items following and the were recovered: 3,311 grams marijuana of
$11,171.00 U.S.C. grams
.3 of crack cocaine digital Lettermate scale Postal scale
Rolling papers
Pipe
THC roaches Derrell and occupancy
Indicia of Candy Vance Stopper
The Crime stated that Derrell Vance marijuana would order his and have it distributed in a or Derrell would re-order imme- day two. Vance Derrell Vance diately span. or within a two week one to to each of his pounds would distribute two dealers. family
On 11-30-96 a member of Derrell Vance family member was your contacted Affiant. This supplier Derrell that "Lance" was his told Vance marijuana. Derrell Vance needed someone get "Lance" in order to him out of make contact with jail. 12-2-96, contacted SLANT.
On Derrell Vance SLANT, your told Affiant Inspector Kreitzmann get make a deal to out that Derrell Vance wanted to his supplier Derrell told SLANT that jail. Vance Royce. These admissions was "Lance" who lives *5 prior Derrell Vance were to Derrell by to SLANT court initial appearance. Vance's Royce City of Beloit tax rolls shows 1663 as property owned Lance R. Ward.
2.) Your affiant further states he is familiar kept by the confidential files the Beloit Police with Special Operations Bureau and as a Department result that the Beloit Police has Department knows pieces intelligence indicating received four Lance Ward is a dealer.
3.) Your affiant for 14 police has been officer years participated approximately and has actively raids. Affiant has been involved Special area of and Tactics since 1984. Weapons Affiant is a State of Wisconsin Certified Instructor procedures, in the area of arrest and control both receiving providing training. and Affiant is an Hostage High Instructor in the area of Rescue and Service, receiving and providing Risk Warrant both training. training, Based on affiant's experience fields, and associations with others in those he is persons many illegal aware that involved in activi- ties, including drug related crimes often arm weapons, including themselves with firearms and against sometimes use those weapons police persons destroy and others. These will also or con- given Affiant, ceal if time. based on the association, stated experience, training and very important controlling aware that a factor in raids, persons particular, during drug and in is sur- prise speed. and Affiant is also aware control injury reduces the likelihood of to all involved. Affi- ant is aware announcement eliminates surprise provides persons a residence within by time to take actions that would a reaction require officers. these reasons affiant that a requests For Affiant, NO KNOCK search warrant be issued. training experience on his based with others illegal drugs that field believes that where are sold person, they purchased by one are others and are *6 commonly the persons carried on of both. It is also place, per- true of locations where use takes commonly carry illegal drugs body. sons on their The issued the search warrant for 1663 judge and authorized a "no knock" Royce entry. When execut- warrant, ing broke down the door and police entered Ward's home as identified they simultaneously home, themselves as at and the police. Ward was police 2,578 seized of grams marijuana, grams cocaine, of scales, and other such as cash and cell phones. Ward was arrested and five con- charged with trolled offenses. He to substances moved suppress evidence, seized issued claiming warrant was with- out cause and had probable been executed violation of the rule of announcement. The trial court denied the motion to and then no contest to suppress pled Ward counts of of controlled possession two substances with sentencing, intent to deliver.1 Prior to Ward moved for motion, reconsideration of his suppression which court denied. of appeals judgment Ward conviction. deliver, possessing, of intent to Ward was convicted with cocaine, 961.41(1m)(cm)4, grams 40 to 100 of in violation of § years prison and was sentenced to five and a fine of STATS., $4,610. possessing, He was also convicted of with intent to 961.41(1m) deliver, THC, grams 500 to 2500 violation § (h)2, STATS., placed for which sentence was withheld and he was years pay probation consecutive with a that he five condition $1,915. a fine of
ANALYSIS a. Standard Review. States Con-
The Fourth Amendment United provides: stitution in their right people persons, to be secure
houses, effects, against and unreasonable papers, seizures, violated, and no searches shall issue, cause, upon sup- Warrants shall but affirmation, ported by particularly Oath or searched, describing the and the place persons or things be seized. virtually §I, 11 of the
Article Wisconsin Constitution *7 probable of a identical. When cause for issuance war challenged appeal, not on the rant is our focus is deny grant suppression trial court's decision to or issuing magistrate's motion on the determination but application probable that the for the warrant stated person challenging cause. warrant bears demonstrating burden of issuing magistrate that the evidence before the clearly insufficient. Ritacca See County Court, 72, 78, 91 2d 280 v. Kenosha Wis. 754 (1979). 751, N.W.2d magistrate's probable cause
Our review of "great pay novo; rather, not de determination is we magistrate's decision. See Illinois v. deference" (1983); Gates, 213, DeSmidt, U.S. 236 462 State 155 (1990). 119, 132, 780, Wis. 2d 454 N.W.2d 785-86 "Although may easy particular in a case it to be determine when an affidavit demonstrates the exis- probable cause, or tence of the resolution doubtful marginal largely in this area should deter- cases be preference accorded to warrants." mined (1965). Ventresca, 102, 380 U.S. States v. United Supreme Court has stated that such a The Wisconsin " 'appropriate to fur standard of review is deferential strong preference Amendment's ther the Fourth pursuant to a State v. searches conducted warrant.'" (1994) 372, 379, 511 586, 589 Kerr, 181 Wis. 2d omitted). (citations is
The test for the issuance of a search warrant
considering
totality
whether,
of the circumstances
support
warrant,
of the
cause
set forth
objects linked to the
exists to believe that
commission
likely
place designated
are
found in the
of a crime
Ehnert,
2d
in the
See State v.
160 Wis.
warrant.
(Ct.
1991).
App.
237, 239
Probable
466 N.W.2d
legalistic concept,
it
not a technical or
nor is
cause is
"stringently
susceptible of
mechanical definitions."
Tompkins,
116, 125,
2d
423 N.W.2d
State v.
Wis.
(1988). Rather,
"flexible,
it
common-sense
823, 827
is
plausibility
particular
of the
conclusions
measure
379, Kerr,
human
181 Wis. 2d at
about
behavior."
issuing mag-
required
All that
N.W.2d at 588.
"simply
practical,
. . . make a
istrate is that he or she
given
whether,
all the circum-
common-sense decision
.
forth in the affidavit . .
there is a fair
stances set
probability or
of a crime will
contraband
particular place." Gates,
arrest."2 Ward issuing judge concluding proba- erred in there was drug dealing cause to that evidence of would ble believe concession, be found his residence. Given Ward's we application the warrant do not address whether a lack of insufficient for reasons other than linking information activity premises of criminal searched. dispute
The State does not the affidavit in support of the search warrant contains no information marijuana had sold out of his residence at Ward Royce, or that controlled substances or related recently there, or items had been observed ever. only following presents Rather, the affidavit infor- provides mation, none of which a direct link between activity dwelling of criminal and the at 1663 evidence Royce: recently Vance, Derrell had arrested who been dealing marijuana, Royce on identified "Lance" supplier; property Street as his Beloit tax records indi- property cated that Lance Ward owned the at 1663 Royce; police "pieces had received four of intelli- gence" indicating drug In that Lance Ward is a dealer. concluding paragraph affidavit, the detective training experience, drug that, on avers based his buyers commonly carry sellers and contraband their "persons," place, per- and that "where use takes commonly carry illegal drugs body." sons on their The provides experience-based similar, no state- detective regarding propensity ment dealers judge presided proceedings same circuit who over previously had for the search Ward's case issued Ward's residence.
conceal controlled substances and other evidence of their dealing within residences.3 The trial court acknowledged the affidavit's failure a direct provide connection sought between items searched, and the it dwelling but concluded was reasonable for an issuing magistrate to infer that dealers would their drug store and other evi- products dence of criminal activity within their residences:
Well, inference, isn't it though, a reasonable given all what we in drug know about life the world of dealers, drugs are out ordinarily dealt of some- body's they house so that don't maintain corner stores, candy stores? that,
When defense counsel in his replied experience, drugs are sold and stored at other various locations
3During argument before trial court on Ward's motion motion, suppression reconsideration of the denial of his Ward's counsel told the court: Well, simply it proper [the detective] I think would been have had and, drag inserted a sentence in that Mr. is a there Ward dealer my upon experience, drugs keep based in dealers their houses. language.
You will not find that That is the State in what needs this case. appeal We do not decide on this whether the inclusion such a statement, training experience, pro- based the affiant's vides a for a finding substantial basis cause to drug dealing likely that evidence found believe would within a dealer's See 2 residence. WAYNE R. LaFave, AND SEARCH 3.7(d) (3d 1996) ("[I]t commonly at ed. held § Seizure gap linking drug [a home] information sales to dealer's merely experi- can be filled on the basis of the affiant-officer's ordinarily supply, keep ence that dealers their records (footnote omitted)). monetary profits at But see State v. home." (N.D. Mische, 1989), which we discuss opinion. text of below the this personal and auto- residences, such as taverns
than experience that its mobiles, the court stated *10 contrary: eight in the last has been that
[M]y experience cases that deal with I have had numerous years, I remember a time thing, kind of can't this they dealing drugs when somebody when Now, person's house[.] the being dealt out of weren't everywhere, but there are different customs maybe I Beloit, every case that have here in that's been ever had. denying to reconsider the
Later, motion when Ward's sentencing, prior informed counsel to the court issue experience rely my all the time in "I own that reviewing things." these argues citing cases, of federal State, a number reasonably precisely magistrate make the can by issuing judge the in this case. See
inference made (4th Anderson, 851 F.2d Cir. States v. United 1988) ("[T]he place to searched nexus be between may by the items to seized be established inferences of of the item and the normal where nature evidence.") likely keep such The Seventh one would issuing for an stated that it is reasonable Circuit has drug dealing magistrate is to infer "that evidence of likely United States found the dealers live." where 1997) (7th (citing Singleton, Cir. 1097, 1102 125 F.3d (7th Lamon, F.2d Cir. United States v. 1991)); 1366, 1369 Pitts, United States v. 6 F.3d see also ("In (9th 1993) recog Circuit, we have Cir. Ninth drug '[i]n dealers, nized that likely the case of evidence (citation the dealers live.'" to be found where omitted)).4 Emphasizing issuing the deference due an magistrate's judgment weighing sufficiency applications marginal cases, search warrant State asks us to follow these cases and affirm because issuing judge here "relied on his common sense and experience inferring from the information in the affi- drug dealing davit evidence would be found at defendant, the home of the who was shown the affi- davit to be a dealer." warrant-issuing magistrate may rely
Whether a experience solely infer, on his or her own from infor person drugs, mation that a sells dealing likely person's will be found within the resi question impression dence is a of first in our state. The *11 Supreme recognized, however, Wisconsin Court has issuing magistrates may draw "the usual infer ences which reasonable men from draw evidence" when determining particular application whether a warrant states cause to that evidence of crimi believe activity likely designated nal found in a Starke, location. See v. 399, 409, State 81 Wis. 2d 260 (1978) (citing N.W.2d United States v. Ven (1965)). esca, Starke, tr 380 U.S. In the supreme "only court concluded that one infer reported ence"—that a certain fact was based on the personal arresting of one of observation officers — could from be drawn the affidavit. The court however, Appeal, Some U. S. Circuit Courts of have been reluctant to endorse a "blanket" inference contraband will See, likely e.g., be found in the residences of dealers. (4th 1993) ("In Lalor, 1578, 1583 United States v. 996 F.2d Cir. circuits, upheld this and other residential searches have been only activity where some information links the criminal residence."). defendant's not deficient for affidavit therefore
held that the was averring expressly that the statement was based not personal id. observation. See - Similarly, 389, 399, Benoit, v. 83 Wis. 2d in State (1978), supreme court 298, 303 265 N.W.2d suppression on the order that was based reversed a testimony support in trial court's determination specifically items to show that the "did not warrant suspect's The residence." seized still at were supreme discus the "reasonable inference" court cited "[t]he fact that the and concluded that sion Starke suspect's knew the informant brother who was place residence, cou his brother's to be searched was hearing only pled held twelve the fact that the with robbery, days permits a reasonable inference after the could still be found that the items listed in the warrant place 399-400, 265 searched." Id. at in the to be at 303. inferences Benoit dealt ratified Starke and magistrate's regarding either the conclusions
with a in an affidavit or the for information contained basis Here, are asked to timeliness of the information. we supplies ratify magistrate's informa- inference which wholly missing application. from a tion that is supreme upon Ventresca, In which our United States Supreme Benoit, Starke and court relied both interpret reviewing courts to test and Court instructed "in a common-sense affidavits search warrants *12 issuing magis- fashion," and to defer to the realistic marginal cases," the court also or but trate "doubtful cautioned: cause can be made say
This is not to conclusory, stat- purely are out affidavits which the affiant's or an informer's belief ing only 324 probable cause exists without detailing any of the "underlying upon circumstances" which that belief is based. Recital some underlying circum- stances in the is essential magistrate affidavit if is to perform his detached and not serve function merely as a rubber stamp police. (1965) United States v. Ventresca, 102, 108-09 380 U.S. added).5 (emphasis Similarly, discussing the func issuing magistrate tion of an in the context of an arrest supreme warrant, our court has stated: [I]t is constitutionally essential that the magistrate be mindful underlying circumstances before he authorizes the issuance of a magis- warrant. The trate may accept without question suspicions but, or conclusions of a complainant contrary, must determine the existence of prob- able cause after being apprised of the relevant facts. In performing function, this the magistrate or court commissioner a judicial serves as officer and must act in a neutral and detached manner. Simpson,
State ex rel. White v. 28 590, 594, 137 Wis. 2d (1965). 391, quotes length Higginbot The State at from State v. ham, 978, 162 Wis. 2d 989-92, 471 N.W.2d 29-30 (1991) support argument its the deferential review, standard for our which we have described Supreme Ventresca, The U. S. Court United States v. (1965), 380 U.S. Appeals holding reversed a Court of that a warrant affidavit was insufficient because it "failed to clearly alleged hearsay indicate which facts therein were or knowledge." which were within the affiant's own There was no question presented that the affidavit information which focused searched, on activities and evidence at the location to be a house operating. in which a still was believed to be See id. at 112-16. *13 issuing judge's requires infer- to endorse the above, us invariably have evidence dealers ence that activity homes. The deference we in their criminal issuing magistrate, not however, "is accord to an must 897, Leon, 468 U.S. United States See boundless." (1984). "[Reviewing not defer to a war- courts will 914 'provide not the that does on an affidavit rant based magistrate determining basis with a substantial (citation probable cause.'" Id. at 915 the existence omitted). princi- acknowledged supreme this The court concluding Higginbotham. ple that After probable properly magistrate cause to had found arson, committed individuals had that certain believe accept simply as suffi- that conclusion did not the court the arson would be that evidence of cient to establish suspected of the of one in the home vehicle found it "must still the court stated that Rather, arsonists. basis for there was a substantial determine whether probable issuing judge cause that there to find was found" at the locations be that evidence would Higginbotham, 995, 2d at 162 Wis. searched. foregoing support statement, at 31. In following quoted States v. United the court from 1982): (5th "[T]he fact 942, Cir. Freeman, 685 F.2d person has that a there cause believe automatically give a crime does committed police probable house for evidence cause to search his of that crime."6 Higginbotham, 162 Wis. 2d in State v. supreme court (1991), 24, there 31-32 concluded 471 N.W.2d issuing judge to conclude that for the
was "a substantial basis
at
would be found"
probability
a 'fair
there was
that:
the residence. It determined
case, it
reasonable to infer
[u]nder
of this
the circumstances
might
sought
in view of
found at the...
residence
that the items
Thus,
are not
we
convinced that
holding urged
*14
State,
the
that a
by
magistrate's
inference
drug
dealers
keep incriminating
evidence
their
homes
reasonable,
always
is consistent with
case
Wisconsin
a
law.7 Such
blanket
rule would relieve
enforce-
law
suspects
the close connection all three
had to the residence.
home,
property
likely
their
Because of
nexus
the
the
to
. ..
awas
storage
hiding place
sought-after shoes, glove,
or
for the
and flam-
liquids
suspects
mable
could link the
the
to
crime. These are
commonlykept
items
at the home.
995-96,
Id. at
The court addressed
whether this was sufficient to
support
light
argument
a search warrant in
of Kerr's
that the
profile
necessarily
courier
"not
and observations did
indi-
possession
drugs."
cate
of
Id. at
We also find the federal cases on which State rely unpersuasive would have us many In for another reason. though cases, of the even the courts state that it activity is reasonable to infer that evidence of criminal drug dealers, will be found within residences of presented issuing magistrates information question link includes facts that residences activity. instance, criminal For in United States v. Sin- (7th 1997), gleton, 125 F.3d 1102-03 Cir. two drug purchases vicinity had been made in residence to In Reddrick, be searched. United States v. (7th 1996), 90 F.3d Cir. an informant had police told that he or she "had seen about 13 kilos of day cocaine inside of the residence" on the the warrant *16 question. issued in to search the residence And in a originating Wisconsin, in Lamon, case United States v. (7th 1991), 930 F.2d the 1188 Cir. court con- cluded the warrant to search one residence was valid it because was based on information that appli- therein,
transactions had occurred cation for a second search the warrant defendant's
329 applica- permanent also sufficient. residence was on the fact that for was based tion the second warrant drug dealing had been other evidence of cocaine and in an automobile found in the first residence belonging suspect, and on an officer's statement years investigating on nine of that "based trafficking traffic — conducting hun- area and the Milwaukee many investigations .... I find instances of dreds [major drug keep moneys, drug dealers] records, and drugs, including quantities cocaine, other additional they at 1186. do not sell out of."8Id. at the residence Bernth, also refers us to State The State (Neb. 1976), presents facts more which closely aligned now consider. The affida- with those we suspect only had told a stated that the vit Bernth "pounds grass" that he had informant reliable suspect's sale, that the informant had identified place residence, the affiant and that "believed situated there." Id. at 601. controlled substance was question, Supreme posed Court thus The Nebraska mari- identification of the situs of the "Is this sufficient concluding: juana?" affirmative, It in the Id. answered private is a area inac- An individual's residence can only to all others. Its contents cessible or by persons occupants other than the determined on the basis of observation of inhabi- invitees tants, actions, Seldom can an their and remarks. positively a search warrant state seeking affiant contraband. Such that a certain residence contains only by magistrate arrived at a conclusion can above, no the affidavit before us contains As we have noted statement from the detective who experience-based similar residence, and we do not sought the to search Ward's pro presence of such a statement would address whether n.3, result. See above. duce different *17 on known consideration of facts and common-sense probabilities. of Controlled substances are consider- street, users, able value on the much sought after and, subject a kept place, unless safe to theft. Wide experience years over has demonstrated that usually such items kept place are a dealer's of residence and under constant or surveillance supervision. obviously The defendant was a dealer. He 'pounds' had of a marijuana. quantity Such would not be carried on his or left person unpro- tected in an logic automobile. Where then does kept? common sense dictate that it There would be answer, only is one his magistrate residence. A experience required ignore to lessons of or to disregard logic and common sense. We conclude for a search was suffi- affidavit cient and the to suppress properly motion evidence overruled. at 602-03.
Id.
We concur with Nebraska court's observation that direct controlled substances are "positively" to at be found a certain will sel- residence applicant. dom available to search warrant rejection position However, our on State's this appeal police does not mean must obtain a direct premises of observation controlled substances may suspected a warrant before obtained to search a drug Lalor, See dealer's home. United States v. (4th 1993) (citing examples F.2d Cir. activity [which] "some information links the criminal prior discovery residence," the defendant's such as: a suspect's place residence; contraband a sus- pect's negotiating return to residence his between consummating transaction; a drug activity and surveillance residence). suspect's connects which examples, including Professor LaFave cites additional R. the home." 2 occur "near Wayne sales which *18 3.7(d) § at 378-79 & LaFave, Seizure Search and 1996). (3d nn.143-44 ed. supreme reasoning two other state find the We us to be the issue before have addressed courts which persuasive. 821, Silvestri, 618 A.2d In State v. more (N.H. 1992), Supreme Hampshire Court the New very to us the State extends invitation declined urges adopt per if rule that a se here: "The State us person magistrate that a is a determines finding probable to search that a cause dealer, then automatically person's The court follows." residence requirement that its "consistent" instead followed residence and nexus the defendant's "some between shown] [be drug-dealing order establish activities probable In State v. the residence." Id. cause to search (N.D. 1989), the North Mische, 448 N.W.2d refusing Supreme Court, in to sustain a war- Dakota police though in the officer had averred rant even training application that, on his and based regularly experience, "individuals who he believed that keep controlled sub- substances deal controlled paraphernalia ... at their and documentation stances, "special protection" pointed to the residence." The court personal the Fourth residences under afforded to Amendment: allegations general do not conclude that
We at the residence of may kept contraband in establish- cannot be considered person involved However, in to issue a warrant. ing probable cause given to the home special protection view States Con- Amendment to the United the Fourth I, Section of the North and Article stitution additional Constitution, something Dakota that con- the facile conclusion objective more than ordinarily kept traband is required in the home should be to establish cause to search that home.... at 422.
Id. summary, presented
In we conclude the affidavit issuing judge support of a warrant to search Royce provide did a substantial basis for find- ing probable drug dealing cause evidence of would likely Although found at location. will we defer magistrate's possible, to a conclusion whenever we permit will reasonable inferences to sustain relia- bility and timeliness of information in warrant application, neither the Fourth nor Amendment Article *19 permits magis- §I, 11 of the Wisconsin Constitution drug dealing trate to infer a link between evidence of application and the dealer's when residence the is any or devoid facts information from which to infer Accordingly, judgment a link. such we reverse Ward's of conviction on and direct that remand the evidence Royce suppressed. seized from 1663 be ordered Exception c. The Faith v. Good under U.S. Leon. argues if State that even this court concludes present application provide the did not a sub- issuing judge the stantial basis for to find Royce, cause a search of 1663 the evidence seized is good exception under faith still admissible the exclusionary Leon, rule. See States v 468 United U.S. (1984). 897, 926 The State reasons that the because language of the Wisconsin United States Constitu- virtually regarding identical, tions search warrants is generally and since Wisconsin courts follow federal precedents interpreting constitution, when our own we
333 exception good adopt in Leon. set forth faith should the Wisconsin notes that when The State further Supreme seized viola that evidence Court decided admissible, it is not Constitution tion of the Wisconsin exclusionary with rule consistent an noted that Hoyer existing State, 180 See v. federal decisions. then (1923). 89, 92 407, 415, 193 N.W. Wis. argument premises are if the for the State's
Even
necessarily
that this court
follow
valid, it does
exception
graft
good
the exclusion-
onto
faith
free
Hoyer.
ary
adopted by
supreme
We
court
rule
adopting
previously
the State's
concluded
have
position
overruling
"effectively
is tantamount
privi-
Hoyer,"
function nor our
"is neither our
which
lege."
428, 432, 367
Grawien, 123 Wis. 2d
State v.
(Ct.
1985);
App.
v.
also State
816, 818
see
N.W.2d
420,
444
324, 333,
2d
DeSmidt, 151 Wis.
(Ct.
1989),
grounds,
App.
155
rev'd on other
423-24
(1990).9 We are as bound
N.W.2d 780
Wis. 2d
by
454
previously published
as
decisions of this court
Supreme
Court. See
the Wisconsin
are
those of
we
166, 189-90, 560 N.W.2d
Cook, 208
2d
Cook v.
Wis.
(1997). Accordingly,
to consider
we decline
246, present
dur-
facts, seized
whether,
Collins,
court,
Wis.
opinion
In
of this
State
another
(Ct.
1984),
relied on the ratio
App.
we
363 N.W.2d
2d
(1984)
concluding
Leon,
d. The Authorization
Knock"
"No
argues
Ward also
that the seized evidence should
suppressed
have been
because it was obtained follow-
ing
entry,
issuing judge
a "no knock"
which the
holding
in
authorized
violation of the
of Richards v.
(1997).
Wisconsin,
385,
520 U.S.
CONCLUSION above, we reverse reasons discussed For the judgment for further and remand of conviction Ward's opinion. proceedings consistent with this Judgment By cause reversed and the Court. — remanded with directions. Today major- (dissenting). the
ROGGENSACK, J. ity it because concludes Ward's conviction reverses probable cause to issue the warrant there was residence, the search of his where authorized which grams grams marijuana, of cocaine and 2,578 drugs the sales of articles associated with various other majority opinion does on a so based found. were great deference to the does not accord standard that judge issued the who common sense conclusions respectfully therefore, I dissent. warrant; and must prove prevail appeal, must In to Ward order issuing judge clearly the was that the evidence before judge's support the conclusion that there to insufficient State, Bast v. cause to issue warrant. (1979). 682, 684 There 689, 692, 2d 275 N.W.2d 87 Wis. probable cause determination elements of a are two can be must make before warrant which an issuer (1) sought objects linked with the must be issued: (2) fair crime, and there must be a commission of objects place probability found in the that those will be 389, 395, 265 Benoit, 83 Wis. 2d searched. State (1978). question Here, there is no drug paraphernalia, drugs found, if would Rather, the commission of a crime. linked with judge's challenge is on the focus of drugs probability a fair that there was conclusion drug paraphernalia would be found at Ward's *22 residence. "great proba-
This court accords
deference" to the
issuing judge.
ble cause
of
determinations
State v.
Higginbotham,
978, 989,
162 Wis. 2d
24,
471 N.W.2d
(1991).
supporting
29
The facts
the warrant must be
interpreted and tested in a common
and
sense
realistic
realizing they
"normally
by
fashion,
are
drafted
nonlawyers in the midst and haste of a criminal inves-
tigation.
requirements
Technical
of elaborate
specificity
pleadings
once enacted under common law
proper place
have no
in
991,
this area."
at
Id.
471
(quoting
at
Starke,
N.W.2d
30
State v.
Darrell who had been drugs possession. marijuana grams in his other information that Ward was Therefore, the officer had baggie drugs, simply selling or two but a small supplied A dealers. reasonable rather, that he at resi- from the size of the cache Vance's inference large quantities of was that there would dence sup- marijuana he with because had associated Ward plied large quantities drugs Furthermore, Vance. identifying Ward as a dealer the information days supplier received within as ofVance was few being signed 4, 1996; on December of the warrant therefore, it fresh information. issuing judge
It for the to believe was reasonable *23 supplying drug dealers, to he had that keep large if Ward was quantities drugs Therefore, somewhere. by given presented appeal question whether, this marijuana quantities large that Ward was the reported recently, provided it was to to Vance have drugs he would have and inference that reasonable dealings drug in his home. evidences of by question addressed Wiscon- A similar was Supreme There, in Kerr. the court concluded sin Court occupied for the motel room that a search warrant drug dealer, had even a known but Kerr, who not merely "suspicious"1 in a fashion when enter- behaved ing affirmed motel, was valid. court probable decision that there was issuer's "practical search Kerr's room because of cause to in decisions are to common sense" manner which those He a metal paid had for the room with cash. had Kerr anyone help carry. him He did not want suitcase which he did leaving for the hotel. And a citizen give not a definite date thought weapon on might that he have a concealed informant him, actually had been though weapon no seen. appeal. Kerr,
be made and reviewed 181 Wis. at 2d at Here, 511 N.W.2d 588. the case is much stronger upholding the warrant because there was evidence, both from and Vance from confidential infor- mants, that Ward was an active dealer and that providing large quantities drugs he was to others. Knowing those facts increased the inference that there probability drugs was a fair had Ward paraphernalia hidden or stored in his home.2 While those facts do create an "irrefutable inference" that drugs will be found residence, Ward's such an infer- inference, ence is a reasonable Kerr as teaches. Higginbotham also it focused on cause as related to the location for which a search warrant was again, actually issued. There no one had seen the gloves liquids shoes, flammable were the sub- jects Rather, of the warrant. the location was identified persons it because was residence of three had who acting very suspicious subsequent been manner attempted Writing majority Hig- an arson. for the ginbotham, clearly permits Justice Bablitch sought consideration of whether the after items are commonly kept home, at a as reasonable consideration for the issuer of a warrant. home,
Because of their nexus the Frasier likely storage was a property hiding place or for the *24 2Although agree majority just I with the that the because police selling that person drugs have evidence a is it does always keep home, follow that he will in I them his do not "always" by believe the Higginbot- is test established Kerr and Rather, only ham. the is issuer of the warrant to determine probable" "fairly given large quantities whether it is that the of drugs have, they Ward was could present believed to in his home.
339
shoes,
flammable
gloves,
liquids
and
sought-after
suspects
link
to the crime. These are
could
the
that
commonly
at the
kept
home.
items
995-96,
2d at
471
at
Higginbotham,
162 Wis.
reasoning,
Bablitch
a common
applied
32. In so
Justice
to
of
issuer's
sense
the court's review
the
approach
on all
rely
the issuer to
reasona-
permitted
decision and
no
from
facts
That
is
inferences
the
presented.
ble
in
asked
the issuing judge
than what was
of
different
the
Here,
who issued
judge
this case.
the
that
have
concluded
reasonably
Ward's residence could
in
to
According
house.
drugs
Ward stored or hid
his
it is a
occurrence for
dealers.
that
common
judge,
I
the
Additionally,
agree
majority's
while
with'
adopt
this court
is not "mandated"
to
statement
the
the
Circuit's conclusions about
likelihood
Seventh
dealer,
of
should
the home
we
finding drugs
reasoning apparent
also not
the common sense
ignore
(7th Cir.
States v.
Singleton,
United