State v. Suits, 75--150--CR

• Decision Date: 30 June 1976
• Docket Number: No. 75--150--CR,75--150--CR
• Parties: STATE of Wisconsin, Respondent, v. Stephen M. SUITS, Appellant.
• Court: Wisconsin Supreme Court

Page 206

243 N.W.2d 206

73 Wis.2d 352

STATE of Wisconsin, Respondent, v. Stephen M. SUITS, Appellant.

No. 75--150--CR.

Supreme Court of Wisconsin.

Argued June 1, 1976.

Decided June 30, 1976.

Norman C. Anderson, Madison (argued), Wheeler, Van Sickle & Anderson, Madison, on the brief, for appellant.

Marguerite M. Moeller, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

HANLEY, Justice.

Three issues are presented on this appeal:

1. Was the search warrant improperly executed, thus requiring the suppression of evidence obtained pursuant to its authority?

2. Was the search warrant invalid as facially demonstrating a lack of probable cause justification for search of the entire residential premises?

3. Was the defendant denied a fair trial by the refusal of the trial court to sever his trial from that of his co-defendant?

Warrant Execution

On the evening of March 29, 1973, seven officers of the Dane County Sheriff's Department proceeded in several vehicles to a farmhouse in Mazomanie for the execution of a search warrant concerned with the controlled substance marijuana and its derivative form, hashish. None of the officers were in uniform. Detective Kretschman, the officer in charge of the warrant execution, was in the lead vehicle. He recalled that his vehicle's headlights were turned off as it entered the farmhouse driveway. The headlights of the other vehicles were apparently seen by house occupants in the kitchen.

Detective Kretschman proceeded directly to the front door of the house. In his testimony, he recalled crossing a front porch, the door of which was completely open, to a front door that was open for approximately one foot. As he approached the dwelling itself, Detective Kretschman heard music and numerous voices and concluded that a party was taking place. When he reached the partially open door to the dwelling itself, Detective Kretschman saw several people in what appeared to be a living room. He testified that these occupants were watching his approach. The officer then pushed the door open and entered. Apparently this door opened directly into the living room. Kretschman identified himself and showed his badge, mentioning that he had a search warrant. Eleven people were found on the premises.

Suits and Plaster were the only residents present at the time. They were being visited by friends and acquaintances, with cardplaying and beer-drinking taking place. At the time of the police entrance, both Suits and Plaster were in the kitchen. They had just observed car lights and the announcement by Detective Kretschman occurred seconds later.

Defendant contends the execution of the search warrant was illegal due to the failure of the executing officers to announce their identity and purpose and to allow time for the occupants to open the door before entering the premises.

The most recent pronouncement of this court involving the 'rule of announcement' in execution of a search warrant is stated in State v. Meier (1973), 60 Wis.2d 452, 210 N.W.2d 685, where this court recognized that rigid compliance with the rule is not required in order for a search to be reasonable. Instead, each case must be decided on its own particular circumstances since no two cases challenging the execution of a search warrant will be factually alike.

In Meier the police had positive knowledge that a few days before the search, drugs were being sold on the premises occupied by the defendant. A reliable informer had purchased drugs under police surveillance. Armed with the warrant, police officers knocked on the door and the defendant responded by partially opening it. The police immediately pushed the door wide open, immobilized the defendant and then showed their authority. The trial court found that the manner of executing the warrant was reasonable. On appeal, this court affirmed the trial court's finding, stating:

'Our attention is directed to language in Morales v. State (1969), 44 Wis.2d 96, 170 N.W.2d 684, which the defendant would construe to mean that the police must always follow a set, routine procedure before entering on a premise to conduct a search. Such is not the fact, and it would be impractical to endeavor to establish such a formula. . . .' Meier, supra, at p. 457, 210 N.W.2d at p. 688.

Since the approach of the officers was observedA nd the party noises were high, the indications to Officer Kretschman were that his knock would not have been heard and would have amounted to a useless gesture. In addition the door was open about one foot and the officers had no way of knowing that the door opened directly into the living room. The officer immediately identified himself and stated his purpose. It is difficult to maintain that the privacy of the living room occupants was any more violated by the officers' presence inside of the threshold rather than a few feet back.

We conclude that in view of the circumstances, execution of the search warrant in the manner described by the officers was not unreasonable.

Validity of Search Warrant

In testimony on the motion to suppress evidence, Suits and Plaster testified that they each paid rent, as did Gatto, for the use of a separate, private bedroom and shared rights to the common areas of the kitchen, bathroom, basement, living and storage rooms. Claiming that the farmhouse is a multiple-unit dwelling, not unlike a boarding house, Suits argues that there existed no probable cause for the search of his bedroom and therefore the warrant purporting to authorize such action was overbroad and invalid. When the officers searched the residence, controlled substances were found in common areas and in bedrooms occupied by Suits and Gatto.

The warrant designated certain premises in Mazomanie, being occupied by Gatto 'and other persons unknown,' and further described as:

'A 1 1/2 story, white frame house with yellow shutters, dark green roof and dark blue foundation surrounded by a white picket fence, located 1 mile east of Highway 78, on the north side of Dunlop Hollow Road, with an address of Rt. #1 Mazomanie, and phone number of 608--795--4402.'

It is well settled that lack of prior knowledge as to the multiple residence character of a structure does not necessarily render a warrant for the whole invalid. In United States v. Santore (2nd Cir. 1960), 290 F.2d 51, the court held that federal agents did not have to retreat and obtain a new warrant when they entered defendant's house and found that he had internally modified it to take in a tenant family.

Under facts similar to those in the present case, the court in People v. Gorg (1958), 157 Cal.App.2d 515, 321 P.2d 143, held that a search of the entire premises was justified where the search warrant authorized the search of a lower flat and named one of the tenants as the person occupying the premises. In Gorg the lower flat consisted of three separate bedrooms having unlocked doors, each bedroom being occupied by a different tenant, with common areas of a bathroom, a kitchen, and a living room. The three occupants shared the latter rooms of the apartment and split the utility expenses. Each tenant paid rent to the owner.

The decision in Gorg is in keeping with recent cases that recognize that residences occupied by more than one unrelated individual are quite distinct from multi-unit structures and formally-managed boarding houses. All may appear to be single family structures, and a warrant issued in ignorance of that fact is not thereby invalid. Frequently the probable cause basis for a search is activity at or shipment to that location in a manner that does not directly implicate all or exclude some.

Suits points out that the search warrant for the whole farmhouse was justified by the rather ambivalent statement of Gatto, made after a hashish sale to an undercover agent, that all the dope the agent could desire to purchase was available to him at the farmhouse. Gatto thus neither confirmed nor denied his ownership of all or part of the cache from which he could deal.

Equating Gatto with any other person whose statements may support probable cause for issuance of a warrant, Suits claims no satisfaction of the second requirement of Aguilar. In Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the United States Supreme Court noted that the warrant affidavit should demonstrate circumstances from which it could be concluded that the information source was in a position to gain his knowledge and was credible in this instance. Since Gatto did make the controlled substance delivery, the only question concerns the veracity and interpretation of his statement as to his future supply.

When the officers procured the warrant, they knew that Gatto resided at the farmhouse and concluded that his statement appeared credible as an admission against penal interest. Suits denies that one could reasonably infer from Gatto's statements that controlled substances were located 'throughout the premises.' He claims the only reasonable interpretation of their meaning is that Gatto personally possessed such quantities in those portions of the premises occupied by him. Such an interpretation overlooks the fact that Gatto simply said he had gotten the hashish from the farmhouse and referred to it as a single, integrated unit. This would reasonably indicate that...