State v. Stevens, 92-1557-CR

• Decision Date: 12 October 1993
• Docket Number: No. 92-1557-CR,92-1557-CR
• Citation: 181 Wis.2d 410,511 N.W.2d 591
• Parties: , 62 USLW 2536 STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Bruce M. STEVENS, Defendant-Respondent. . Oral Argument
• Court: Wisconsin Supreme Court

Page 591

511 N.W.2d 591

181 Wis.2d 410, 62 USLW 2536

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Bruce M. STEVENS, Defendant-Respondent.

No. 92-1557-CR.

Supreme Court of Wisconsin.

Oral Argument Oct. 12, 1993.

Decided Feb. 8, 1994.

For the defendant-respondent there was a brief by Bonnie S. Musial and Julian, Musial, Wettersten & Friedrich, S.C., Madison and oral argument by Bonnie S. Musial.

STEINMETZ, Justice.

The issues presented in this case are:

(1) Is the rule of announcement a constitutional requirement?

(2) Is a search of a residence for drugs, pursuant to a warrant, reasonable under the Fourth Amendment when the police do not comply with the rule of announcement but provide the following facts in the affidavit in support of the warrant: first, drugs that are easily disposed of are in the residence to be searched; second, drugs have been sold from the residence; and third, drug dealers are often armed?

(3) Did the police violate the defendant's Miranda rights by asking him questions concerning his name and place of residence before informing the defendant of his Miranda rights? Or, should this court adopt the "routine booking questions" exception to the Miranda requirements and apply the exception in this case?

On December 19, 1991, the Brown County Multi-Jurisdictional Group executed a search warrant for drugs and drug paraphernalia at 416 Mather Street in Green Bay. Based on evidence found during the search, the district attorney charged Bruce M. Stevens, the defendant, with possession of cocaine with intent to deliver in violation of secs. 161.01(4), 161.16(2)(b)1 and 161.41(1m)(c), Stats.

The court bound the defendant over for trial following a preliminary hearing. The defendant then moved to exclude evidence on the ground that the search warrant was executed illegally. The defendant also moved to suppress statements he made when the warrant was executed on the ground that he made the statements prior to being advised of his Miranda rights.

Following the suppression hearing, the Brown county circuit court, the Honorable Peter J. Naze, granted the defendant's motion to exclude the evidence seized in the search and to suppress the statements the defendant made while the police were in his residence executing the warrant. The court of appeals affirmed the order of the Brown county circuit court in State v. Stevens, 173 Wis.2d 290, 496 N.W.2d 201 (Ct.App.1992).

We reverse the court of appeals in part and find that the search was reasonable and the circuit court should not have excluded the physical evidence discovered during the search. We also affirm the court of appeals in part and find that the circuit court properly suppressed the statements made by the defendant before the police read him his Miranda warnings.

Several members of the Green Bay Police Department executed a search warrant at the defendant's home. The police did not request no-knock authorization in the warrant; therefore, the warrant did not authorize a no-knock entry. As planned, one of the officers, dressed as a pizza delivery man, drove into the driveway of the home and knocked on the door. No one answered. After knocking a second time, he said, "Domino's pizza. Got a pizza delivery." Someone inside responded, "We didn't order any pizza," or something to that effect, and later added, "Get real."

The officer again announced the pizza delivery but heard no response. When the police officers realized they were not going to gain entry as a result of this ruse, they proceeded to execute a dynamic entry. They first yelled, "Police, search warrant," then paused, forced the door open and entered. One officer estimated that it was four to five seconds from the time the police announced their identity and purpose until they rammed the door open. The police officers secured the house in seven to ten seconds. The person inside the house who was closest to the door claimed she did not hear anyone yell, "Police, search warrant," or anything to that effect.

A lieutenant of the police department arrived shortly after the entry to find the defendant handcuffed and sitting on the floor. The lieutenant asked the defendant if he lived there and the defendant stated that he did. When the lieutenant next asked the defendant his name, the defendant at first responded, "Zeke," and then changed his answer to, "Bruce Stevens."

The lieutenant searched the house and discovered white powder that looked like cocaine along with drug paraphernalia in the bedroom. Upon returning to the dining area, the lieutenant told the defendant he was under arrest and asked the defendant if he had any controlled substances on him. The defendant said that he did in his left front pants pocket. The lieutenant reached in the pocket and pulled out four bindles.

The lieutenant also found shells in the defendant's pocket. When the lieutenant asked if he had a gun to go with the shells, the defendant said it was some place in the house. Then, the lieutenant advised the defendant of his Miranda rights for the first time. The defendant responded that he wanted an attorney.

After the defendant received his Miranda warnings, another police officer found .32 caliber bullets on the defendant. The police also seized a 20 gauge shotgun from the bedroom and a .32 caliber handgun along with five shells found elsewhere in the house.

At the suppression hearing, the trial court found that the police knocked the door down two to six seconds after announcing, "Police, search warrant." The court granted the defendant's motion to exclude the evidence, stating that the pause between announcement and entry, two to six seconds, was very brief. Because a purpose of the rule of announcement is to give the owner a chance to respond and allow the officers to enter, the police had violated the rule. The court found that suppression of the evidence was the proper remedy for this violation of the rule of announcement.

The police lieutenant in charge of executing the warrant stated that due to the nature of the drug trade, the court should excuse the police from complying with the rule of announcement in such cases. In particular, he testified that he had executed approximately 90 search warrants in drug houses. In 85 to 90 percent of those houses, he had found weapons--sometimes assault weapons. The trial court refused to follow this "drug house" exception to the rule of announcement.

The court next addressed the admissibility of the statements the defendant made prior to receiving his Miranda warnings. The prosecutor conceded that the defendant's statements about having drugs in his pocket and a gun in his house were inadmissible. However, he argued that asking the defendant who he was and where he lived were booking questions that elicited admissible answers even though the lieutenant asked them before he read the defendant his Miranda warnings. The court rejected this argument and suppressed all of the defendant's pre-Miranda warning statements.

The ultimate question concerning the search of any residence is whether it is reasonable under the Fourth Amendment to the United States Constitution. The United States Supreme Court has also held that the method of entry when executing a search warrant must be reasonable. Ker v. California, 374 U.S. 23, 38, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726 (1963).

The Supreme Court has not, however, determined whether the rule of announcement is a constitutional requirement. This court has acknowledged that some commentators believe that Ker gave the rule a constitutional dimension. ¹ On the contrary, only four justices in Ker, in fact, believed that compliance with the rule is a constitutional requirement. In dissenting in part, Justice Brennan stated:

The protections of individual freedom carried into the Fourth Amendment ... undoubtedly included this firmly established requirement of an announcement by police officers of purpose and authority before breaking into an individual's house.

Id. at 49, 83 S.Ct. at 1637.

The other five justices did not join Justice Brennan in his belief that the rule of announcement was a constitutional requirement. In the Court's plurality opinion, Justice Clark, joined by three other justices, considered whether police entry, under a common law exception to California's statutory rule of announcement, was reasonable under the Fourth Amendment. The four justices concluded that the method of entry was reasonable. These justices did not examine whether a failure to comply with the rule of announcement would constitute an unreasonable entry under the Fourth Amendment. The ninth justice, Justice Harlan, concurred with Justice Clark's result, but relied on the fundamental fairness requirement from the due process clause of the Fourteenth Amendment, rather than the reasonableness standard of the Fourth Amendment.

In light of this split in the opinions, it is not accurate to say that in Ker the Supreme Court recognized that the rule of announcement is a constitutional requirement. As noted above, only four justices reached that result. In fact, since Ker, several courts have explicitly held that the rule is not a requirement of the federal Constitution. See United States v. Nolan, 718 F.2d 589, 601-02 (3rd Cir.1983); People v. Saechao, 129 Ill.2d 522, 136 Ill.Dec. 59, 63, 544 N.E.2d 745, 749 (1989); Commonwealth v. Gomes, 408 Mass. 43, 556 N.E.2d 100, 102 (1990).

Whether or not the rule of announcement is constitutionally mandated, it has been a common law requirement in Wisconsin. ² See Cleveland, 118 Wis.2d at 622-23, 348 N.W.2d 512; State v. Moss, 172 Wis.2d 110, 115, 492 N.W.2d 627 (1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1428, 122 L.Ed.2d 796 (1993). The rule has three primary justifications. State v. Williams, 168 Wis.2d 970, 981-82, 485 N.W.2d 42 (1992). First, it serves to protect the safety of police officers and others by warning the occupants of the officers' entrance. Second, it...