STATE of Wisconsin, Plaintiff-Respondent, v. Charles WILLIAMS, Defendant-Appellant.
No. 90-1459-CR
Supreme Court
Oral argument March 23, 1992.—Decided June 17, 1992.
485 N.W.2d 42
For the plaintiff-respondent the cause was argued by Marguerite M. Moeller, assistant attorney general with whom on the brief was James E. Doyle, attorney general.
CALLOW, WILLIAM G., J. This appeal arises out of a forcible, unannounced entry by police into the
There are two issues on appeal. The first issue is whether police knowledge of the existence of illegal drugs and firearms excuses compliance with the announcement requirements of the
The relevant facts are not in dispute. City of
On December 1, 1987, Detective Tony Olivas of the Metro Narcotics Unit sought a search warrant from Judge William Byrne to search Williams’ apartment based on the information described above. For the safety of the officers executing the search warrant, Detective Olivas desired a search warrant that contained a no-knock authorization allowing the officers to enter the apartment without having to knock and announce their presence. There is no indication from the face of the search warrant or the record in this case that Judge Byrne denied the no-knock request. However, for unknown reasons, the resulting search warrant did not contain a no-knock authorization. Detective Olivas mistakenly believed that he had obtained a search warrant with a no-knock authorization.
Approximately one hour after receiving the search warrant, Detective Olivas and seven other members of the Metro Narcotics Unit proceeded to Williams’ apartment to execute the search warrant. The officers first tried to gain entry into the apartment by contacting Williams on the apartment intercom system to entice him into a drug transaction. Williams refused to open the door. The officers subsequently broke the door in
Based upon this evidence, Williams was charged with possession of cocaine with intent to deliver in violation of
During the trial, the prosecution called Richard Raemisch to testify as an expert narcotics officer. Raemisch was an Assistant United States Attorney at the time of trial and a former detective in the Dane County sheriff‘s department which was one of the departments involved in the search in this case. Over objection, Raemisch testified that, based on the evidence seized from Williams’ apartment, he opined that the residents of the apartment were involved in the sale of illegal drugs. Without objection, similar testimony was elicited from Officer David Mahoney.
Williams was convicted on both counts and sentenced to five years in prison. The defendant filed a motion for post-conviction relief under
I.
Williams first argues that police may dispense with the knock and announce requirement only when they are
In response, the State relies on State v. Watkinson, 161 Wis. 2d 750, 468 N.W.2d 763 (Ct. App. 1991), for the proposition that the presence of drugs and guns is per se sufficient to satisfy the “particular grounds” requirement of Cleveland. In Watkinson, the court of appeals held that when police have knowledge that a drug dealer is armed, an unannounced entry to execute a search warrant is reasonable. Watkinson, 161 Wis. 2d at 757. The State further contends that requiring police to have particularized grounds to believe an armed drug dealer would use his weapon against them subjects the officers to an unreasonable risk of bodily harm and ignores the realities of drug trafficking in the 1990s.
The constitutional reasonableness of a search and seizure is a question of law. State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d 386 (1989). Accordingly, this court shall review this issue independently and without deference to the lower courts. Id.
The
The
While the United States Supreme Court has not yet detailed the minimum constitutional requirements for the manner in which a search warrant is executed, it is generally recognized that the knock and announce rule may be excused only if “exigent circumstances” exist to justify the no-knock entry. See Cleveland, 118 Wis. 2d at 624 and United States v. Singer, 943 F.2d 758, 762 (7th Cir. 1991). Exigent circumstances “include a reasonable belief that announcement of police presence would endanger the safety of the police or others, or a reasonable belief that unannounced entry is required to prevent the destruction of evidence.” Cleveland, 118 Wis. 2d at 624 (citing Ker v. California, 374 U.S. 23, 47 (1963) (Brennan, J., dissenting)).
In Cleveland, this court held that the no-knock entry in execution of a search warrant was constitutionally unreasonable where the law enforcement officers lacked particular grounds to give them reasonable cause to believe that the evidence, which consisted of illegal drugs, would be destroyed. Id. at 634. This court rejected a blanket approach in narcotics cases that the nature of the evidence itself, without more, permits an unannounced entry. Id. at 628. In a footnote, the Court noted that guns alone would be insufficient to justify a no-knock entry by police. Id. at 631 n.16. There was no indication in Cleveland that the suspected drug dealers were armed or had taken other security precautions that would place officers in danger if they announced their presence before entering. The present case is distinguishable from Cleveland because it is characterized by
The circumstances in Singer are strikingly similar to those in the present case. In Singer, police officers received an anonymous tip that Singer was selling illegal drugs out of his home, possessed a gun and had made threats. Following further investigation, the officers obtained a no-knock search warrant and executed an unannounced entry of Singer‘s home. Singer filed a motion to suppress the evidence seized in the search on the grounds that the execution of the search was constitutionally unreasonable. The Singer court held that the no-knock search by police did not violate the
The defendant relies primarily on People v. Dumas, 512 P.2d 1208 (Cal. 1973). Dumas was decided in 1973 by the California Supreme Court and involved a 1970 search warrant “for certain stolen railroad bonds and
The violence associated with drug trafficking today places law enforcement officers in extreme danger. Much of the fuel for such violence stems from street gangs and the profitability associated with dealing illegal drugs. An official report from the Office of the Attorney General states:
One of the most frightening aspects of the [drug dealing] street gangs is their willingness to direct their violence at each other, at the police, at members of the public—at anyone who stands in the way of their operations. What makes this violence especially frightening is the amount of firepower at their disposal . . . [T]hey now have the wherewithal to acquire semi-automatic rifles and large-caliber handguns.
U.S. Dept. of Justice, Office of the Attorney General, Drug Trafficking: A Report to The President of the United States at 35 (August 3, 1989).6
Police in smaller cities, less experienced and outgunned by the automatic assault weapons that inevitably accompany drug traffic, have struggled to meet the challenge.
....
The tide of drugs and guns has brought smaller communities face to face with the kind of . . . violence long endemic to big cities. Police are encountering offenders who are younger and more prone to hair-trigger violence than ever before.
“Big Crimes, Small Cities,” Newsweek, June 10, 1991, at 16-17.7
Bitter experience has illustrated that guns are tools of the illegal drug trade. Therefore, we conclude, as did the Singer court, that a person in possession of both firearms and large quantities of illegal drugs poses a significant threat to the safety of law enforcement officers attempting to arrest the suspected drug dealer and seize the illicit drugs. Such volatile circumstances are sufficient to constitute “exigent circumstances” justifying an unannounced entry by the officers. See Singer, 943 F.2d at 763-64. The element of surprise attending an unannounced entry allows the officers to enter and secure the
In Dalia v. United States, 441 U.S. 238, 257 (1979), the United States Supreme Court recognized that “it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant—subject of course to the general
An affidavit in support of a petition for a search warrant that sets forth circumstances that satisfy a judge that there is probable cause to believe the suspect possesses a significant amount of illegal drugs with an intent to deliver and the suspect possesses a firearm justifies the issuance of a search warrant containing a no-knock authorization. In accordance with
In the present case, Detective Olivas sought a no-knock authorization in conjunction with the search warrant. The circumstances presented to Judge Byrne con-
Irrespective of whether the search warrant authorized an unannounced entry by the police officers, events occurring subsequent to the issuance of the search warrant were sufficient to create exigent circumstances in this case that justified the unannounced entry by members of the Metro Narcotics Unit. Prior to identifying themselves, the officers attempted a ruse to entice Williams to voluntarily open the door to effectuate a drug transaction. The officers were attempting to obviate the need for a violent entry and to obtain first-hand evidence to substantiate Williams’ intent to deliver the drugs. Suspicious of the circumstances, Williams refused to succumb to the scheme. At this point, the police officers could reasonably believe that an announcement of their identity would place them in significantly greater danger. The ruse had failed and Williams was then aware that a scheme was afoot to cause a confrontation with whomever was outside his apartment. The officers could have reasonably believed that identification could have resulted in a spontaneous hostile or violent reaction by Williams, who may have thought that the police identification was merely another ploy on the part of the drug dealer that threatened him. Therefore, we conclude that exigent circumstances existed in this
II.
Williams also argues that admission of the expert opinion testimony elicited from Raemisch was a reversible error because it related to an ultimate conclusion that was to be decided by the jury.9 The State contends that expert opinion is not inadmissible simply because it embraces an ultimate issue that is to be decided by the fact-finder.
Under
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
The record indicates that Raemisch was a former sheriff‘s detective and testified not that the defendant possessed drugs with the intent to deliver but that the items seized from the apartment indicated that the residents of the apartment were involved in the sale of controlled substances. The pertinent portion of Raemisch‘s expert opinion testimony was as follows:
Q [Attorney Gretchen Hayward, Assistant District Attorney]: And do you have an opinion based on your expertise as a drug enforcement officer for many years, narcotics officer, as to what all of [items seized from the apartment] meant?
....
A [Raemisch]: Yes, I do have an opinion.
Q: What is that opinion, sir?
A: That the persons residing at [the apartment], were involved in the sale of controlled substances.
Q: And on what do you base that opinion?
A: I base that on the currency seized, the packaging materials, the scales that were found... and the other drug paraphernalia.
Raemisch testified that the evidence seized from the apartment tended to indicate that the residents of the apartment were involved in the sale of illegal drugs. His expert opinion testimony was based on the specialized knowledge obtained as a narcotics officer, an expert in the field of activities related to illegal drugs. His experience as a narcotics officer provided him with informa-
By the Court.—The judgment of the circuit court is affirmed.
SHIRLEY S. ABRAHAMSON, J. (concurring). I agree with the mandate in this case.
I.
As the circuit court stated, it‘s a close call. I conclude that there was a sufficient showing in this case of specific and articulable facts known to the officers at the time of entry that led the officers, and would lead a reasonable person, to believe that compliance with the knock-and-announce requirement would endanger the safety of the officers or others. Thus the officers were excused from the knock-and-announce requirement.1
In this case the officers who executed the warrant (which was silent about no-knock entry)2 had reasonable grounds to believe at the time the warrant was executed that the defendant sold controlled substances out of his apartment, that he had a history of narcotics and burglary violations, that he had been convicted of a felony battery, and that he possessed a handgun to protect him-
I do not think mere possession of or access to a firearm is always a sufficient ground to jettison the knock-and-announce rule.3 People with no intention of attacking police possess firearms in their homes. The federal Bureau of Alcohol, Tobacco, and Firearms estimates that there are approximately 200 million firearms in the nation, about one per person. The Wisconsin court of appeals’ certification recounts that between 41 and 53 percent of respondents living in the Midwest reported a firearm in their home in the years 1973-1989.4
On the one hand, the suspect‘s access to a firearm means that the firearm may be used against law enforcement officers. On the other hand, a suspect may be less likely to shoot at police officers who identify themselves as such and more likely to shoot at what the suspect may view as unidentified intruders breaking into a residence. Indeed one of the reasons for the knock-and-announce
Danger to the officers and the public from a knock-and-announce entry may be sufficiently established from the fact that the warrant relates to a particular type of serious criminal conduct, that the suspect has a firearm, and that there is reasonable suspicion of the suspect‘s violent nature. The suspect‘s known threats, as in Singer, or record of violent conduct, as in this case, and the suspect‘s possession of large quantities of drugs and a firearm are specific facts upon which officers might reasonably base their conclusion that the firearm will be used against them if they proceed with the ordinary announcements.5
Unannounced forcible entry is a serious disturbance of the security of people in their homes and cannot be justified on a per se, blanket basis. Each situation merits individual analysis. Cleveland, 118 Wis. 2d at 628-29.
II.
The expert witness, Raemisch, could testify about the characteristics of a drug dealer. This information is
Raemisch‘s testimony, however, went beyond imparting information about typical drug dealers. It was tantamount to a statement that the witness believed that the defendant committed the crime.6 This testimony is not permitted because the witness is testifying beyond his field of expertise; he is giving an opinion as an expert about a conclusion which the jurors could draw from the evidence themselves. The jury can determine whether the state has proved the elements of this crime beyond a reasonable doubt without any expert opinion. Cf. State v. Friedrich, 135 Wis. 2d 1, 16, 398 N.W.2d 763 (1987) (ordinarily juror can knowledgeably determine credibility of the witness without help of expert witness); State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984) (expert witness may not opine that there was no doubt whatsoever that the complainant was an incest victim); State v. Robinson, 146 Wis. 2d 315, 431 N.W.2d 165 (1988) and State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988) (jury, not expert witness, draws inferences of guilt and credibility without assistance of expert witness). See also McCormick on Evidence sec. 12, at 147 (4th ed. 1992).
For the reasons set forth, I concur.
Notes
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
State v. Cleveland, 118 Wis. 2d 615, 630, 348 N.W.2d 512 (1984).The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
In any event, whether the manner of entry is reasonable is to be determined at the time of entry. State v. Cleveland, 118 Wis. 2d 615, 630, 348 N.W.2d 512 (1984).161.16 Schedule II. (1) INCLUDED SUBSTANCES. The controlled substances listed in this section are included in schedule II.
....
(2)(b)1. Cocaine, except as specified in s. 161.14(7)(a).
Section 161.41(1m), Stats., provides in relevant part:
161.41 Prohibited acts A—Penalties.
(1m) Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture or deliver, a controlled substance. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance prior to and after the alleged violation.
We rejected in Cleveland the state‘s argument that because drug dealers are armed, the officers could reasonably believe that their safety would be endangered if they announced their presence. We concluded that the fact that a person is a member of a class of persons more likely to resist search is not sufficient to justify unannounced entry. The officer must have knowledge of specific facts that indicate that this particular person will conduct himself or herself in a dangerous manner when confronted by law enforcement officers. 118 Wis. 2d at 631, n.16.In United States v. Singer, 943 F.2d 758, 762 (7th Cir. 1991), the suspect had a handgun and had made threats.
161.14 Schedule I. (1) INCLUDED SUBSTANCES. The controlled substances listed in this section are included in schedule I.
....
(4)(t) Tetrahydrocannabinols, commonly known as “THC,” in any form including tetrahydrocannabinols contained in marijuana, obtained from marijuana or chemically synthesized....
Citing Sourcebook of Criminal Justice Statistics—1989, Hindelang Criminal Justice Research Center, Table 2.49.For a decision concluding that a suspected drug dealer possessing a gun was not sufficient exigent circumstances to excuse the law enforcement officers from knocking and announcing their purpose before entering, see People v. Condon, 50 Crim. L. Rptr. 1555 (Ill. S. Ct. March 25, 1992). In that case the officers had no knowledge of any violent conduct by the suspect.
“Raemisch testified that the evidence seized from the apartment tended to indicate that the residents of the apartment were involved in the sale of illegal drugs.... [His] expert opinion testimony... was not merely a lay opinion on the determination of whether Williams actually intended to deliver the drugs.”
907.04 Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.