State v. Henderson, 99-2296-CR.

• Citation: 629 N.W.2d 613,245 Wis.2d 345,2001 WI 97
• Decision Date: 09 July 2001
• Docket Number: No. 99-2296-CR.,99-2296-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Eric A. HENDERSON, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

245 Wis.2d 345

2001 WI 97

629 N.W.2d 613

STATE of Wisconsin, Plaintiff-Respondent, v. Eric A. HENDERSON, Defendant-Appellant.

No. 99-2296-CR.

Supreme Court of Wisconsin.

Oral argument October 3, 2000.

Decided July 9, 2001.

For the defendant-appellant there were briefs and oral argument by Eileen A. Hirsch, assistant state public defender.

For the plaintiff-respondent the cause was argued by Diane M. Welsh, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DIANE S. SYKES, J.

This is a challenge to a "no-knock" entry during the execution of a search warrant. The court of appeals certified the case to us to decide whether a reviewing court may consider information known to the police but not included in the warrant application in evaluating the constitutionality of the unannounced entry.

¶ 2. Stevens Point police obtained a warrant to search defendant Eric Henderson's home for evidence of drug dealing. They requested no-knock authorization, but for unexplained reasons, the warrant neither granted nor denied it. The police did not knock and announce when executing the warrant. Henderson moved to suppress the evidence recovered in the search of his home, and during the suppression hearing the narcotics officers who sought and executed the warrant testified to facts regarding Henderson and his associates known to the police but not included in the warrant application. The circuit court denied the motion. Henderson pled guilty and appealed, and the court of appeals certified the case to us.

¶ 3. The rule of announcement derives from the reasonableness clause of the Fourth Amendment rather than the warrant clause. Wilson v. Arkansas, 514 U.S. 927, 930 (1995). The constitutional reasonableness of a no-knock entry is determined by reference to the circumstances existing at the time of the entry rather than at the time the warrant was issued. Richards v. Wisconsin, 520 U.S. 385, 395 (1997); State v. Meyer, 216 Wis. 2d 729, 753, 576 N.W.2d 260 (1998). Accordingly, we conclude that a reviewing court may consider evidence beyond that which was included in the warrant application in evaluating the reasonableness of a no-knock execution of a search warrant. We further conclude that the evidence introduced at the suppression hearing—including the facts known to the police but not included in the warrant application—was sufficient to support the no-knock entry in this case, and therefore affirm the circuit court's denial of the defendant's suppression motion.

I

¶ 4. In late 1997 and early 1998, the Stevens Point Police Department targeted Eric Henderson in an ongoing cocaine and marijuana investigation. As part of that investigation, a confidential police informant, using marked "buy money," purchased approximately two grams of cocaine from Henderson at Henderson's apartment and turned it over to the police.

¶ 5. The following day, February 27, 1998, Detective Mike Retzki, a Stevens Point Police Department drug investigator, applied to the Portage County Circuit Court for a warrant to search Henderson's apartment. The warrant application alleged probable cause that controlled substances would be found in the apartment based upon information obtained from confidential informants and the controlled buy the previous day. The warrant application also requested authorization for no-knock execution of the warrant. In support of no-knock execution, the application stated:

Your affiant knows through his training and experience in drug enforcement that dealers/traffickers in large quantities of cocaine and marijuana have access to weapons used in the defense of their persons, currency and contraband, and are likely to threaten law enforcement officers with the same. And further, your affiant knows through his training and experience that dealers/traffickers in large quantities of cocaine and marijuana are likely to engage in the immediate destruction of evidence upon notification that law enforcement authorities are in the process of executing a search warrant, and thus hinder law enforcement's capacity to gain evidence of criminal activity.

The Circuit Court for Portage County, Judge John V. Finn, issued the search warrant. The warrant neither expressly granted nor denied authorization for a no-knock entry.

¶ 6. Later that day, Retzki and the SWAT team executed the warrant with a no-knock entry. In the subsequent search of Henderson's apartment, officers seized approximately 220 grams of marijuana, $959 (including $120 of marked "buy money" that the confidential informant used to purchase cocaine from Henderson the day before), and a digital scale. Henderson was charged with possession with intent to deliver marijuana within 1000 feet of a city park or school as a repeat offender, contrary to Wis. Stat. §§ 961.41(1m), 961.49, and 961.48(1) (1995-96).¹ Henderson moved to suppress the evidence recovered during the search, contending that the search was unreasonable under the Fourth Amendment because officers did not comply with the rule of announcement when executing the warrant.² Henderson also argued that the information contained in the warrant application in support of no-knock authorization was defective because it did not allege particularized circumstances justifying a no-knock warrant in this case.³

¶ 7. At the suppression hearing, the State presented two witnesses, Detective Mike Retzki and Gary Koehmstedt, a Portage County Sheriffs deputy who had participated in the search. Both Retzki and Koehmstedt were veteran drug investigators who had participated in training programs for drug investigation and enforcement. Retzki had executed between 15 and 20 search warrants and Koehmstedt had executed over 30 warrants. Both testified to two concerns that prompted them to execute a no-knock entry. ¶ 8. First, the officers said they were concerned that Henderson may attempt to destroy evidence if given the standard search warrant warning by the police. Both Retzki and Koehmstedt testified that they had personally executed search warrants on drug dealers who destroyed drug evidence by flushing it down a toilet. Koehmstedt stated that on one occasion he had attempted to retrieve marijuana that a suspect had flushed down a toilet.

¶ 9. Furthermore, and specifically as to Henderson, the officers were aware that Henderson had been charged with possession of marijuana in 1994 and that he had been present in a residence upon which narcotics officers, including Koehmstedt, had executed a drug warrant in 1996. At that time, Henderson had been found in possession of large quantities of marijuana and currency. Retzki believed that Henderson's prior arrests gave him a strong incentive to avoid being caught again and charged as a repeater.

¶ 10. Additionally, the layout of Henderson's apartment made destruction of drug evidence easier in this case. The confidential informant had provided police with a diagram of the apartment indicating that the bedroom where Henderson stored his drugs was located directly across from the bathroom. Retzki testified that given that proximity, it would be easy for Henderson to dispose of any controlled substances during the time it took officers to knock and announce themselves. Finally, Retzki stated that he knew Henderson and his associates to be "very in tune with drug trafficking practices," "very careful," and "very difficult to catch," all factors leading Retzki to believe that Henderson would destroy evidence if given the opportunity.

¶ 11. Second, the officers testified that they were concerned about the possibility of violence. The officers were aware that one of Henderson's associates, Larry Moore, sold guns to his friends, and shortly before the warrant was executed, had sold a pistol to the confidential informant. Police were uncertain whether Moore carried a weapon himself. Retzki testified that another of Henderson's associates, Kevin Rutherford, was a "big concern" to the police and had been present in the apartment during the controlled buy the day before the search. The confidential informant had also told Retzki that Henderson had threatened him, telling the informant that he would retaliate if the informant ever betrayed Henderson and his associates.

¶ 12. Furthermore, Retzki testified that while working as a patrol officer he had dealt with both Henderson and Rutherford "in a very combative atmosphere" on more than one occasion. Retzki indicated that police concerns were heightened because Henderson's associates were known to be involved in gang activity. The officers were also concerned that they could not know how many of Henderson's associates would be inside the apartment at the time the search warrant was executed.

¶ 13. On cross-examination, Retzki testified that he was aware of the foregoing facts when he applied for the search warrant, but had not included them in his request for no-knock authorization. Retzki said he was not aware of any changes in circumstances or additional facts that came to light between the time of the warrant application and the time police executed the warrant.

¶ 14. Henderson argued that because the police were aware of the information now proffered as justification for the no-knock entry at the time they sought the warrant, but had not included it in the warrant application, the State was barred from introducing the information after-the-fact at the suppression hearing on the no-knock entry. In a written decision, the circuit court denied the suppression motion, relying on the distinction between a probable cause inquiry, in which a reviewing court is confined to the evidence presented to the magistrate who issued the warrant, and a no-knock inquiry, in which a reviewing court examines the facts as of the time the search warrant was executed. The circuit court found the totality of the evidence sufficient to justify the officers' concerns about the destruction of evidence and the possibility...