State v. Kerr

• Decision Date: 08 February 1994
• Docket Number: No. 92-1859-CR,92-1859-CR
• Citation: 181 Wis.2d 372,511 N.W.2d 586
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James W. KERR, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 586

511 N.W.2d 586

181 Wis.2d 372

STATE of Wisconsin, Plaintiff-Respondent, v. James W. KERR, Defendant-Appellant-Petitioner.

No. 92-1859-CR.

Supreme Court of Wisconsin.

Argued Oct. 13, 1993.

Decided Feb. 8, 1994.

For the plaintiff-respondent the cause was argued by Gregory M. Posner-Weber, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

Amicus curiae brief was filed by Michael J. Fitzgerald and Coffey, Coffey & Geraghty, Milwaukee, for the American Civil Liberties Union of Wisconsin Foundation.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, State v. Kerr, 174 Wis.2d 55, 496 N.W.2d 742 (Ct.App.1993), affirming the judgment of conviction of the circuit court for Brown County, Peter J. Naze, Circuit Judge.

Two issues are raised on review: (1) Is the warrant to search for drugs in the defendant's motel room supported by probable cause? (2) In executing the warrant to search for drugs were the police justified in making a "no-knock" entry of a motel room. In other words, may law enforcement officers with a warrant to search for drugs enter a motel room without first announcing their presence (identity) and purpose and allowing time for the door to be opened?

We hold that probable cause for the issuance of the search warrant existed. We also conclude, based on our holding in State v. Stevens, Case No. 92-1557-CR, 1994 WL 39460, mandated this same date, that the no-knock entry was valid. Accordingly we affirm the decision of the court of appeals.

The facts relevant to the issues before this court are not in dispute. On October 20, 1991, Jon Spallees, a narcotics officer with the Brown County Multi-Jurisdictional Unit, requested and obtained a search warrant to search a motel room rented in the name of "James Erickson." The police later learned that "James Erickson" was the alias that defendant James W. Kerr had used to register at the motel.

The affidavit in support of the warrant disclosed that a named juvenile informant, E.J.S., who was desk clerk at the motel, observed the defendant check into the motel in the company of another male. The clerk further observed a bulge running vertically under the armpit of a tweed coat the defendant was wearing. Because he had observed his father, a police officer, wearing a handgun in a shoulder holster many times in the past, the clerk was convinced that the bulge in the defendant's overcoat concealed a handgun.

According to the clerk, the defendant behaved suspiciously, expressing no interest in the features of the motel or its prices. The defendant told the clerk that he was from Seattle, Washington, and that he would pay for two nights and might stay for up to four nights. He then paid the clerk $145 in cash, using $20 bills from a one-and-a-half-inch-thick stack of currency. The defendant declined an offer of help to carry his luggage which consisted of a small metal briefcase and a larger luggage-size metal case. Another employee at the motel confirmed the clerk's observations. Nothing in the search warrant indicates that the police had worked with the juvenile or the other motel employee previously.

The defendant's companion gave a license plate number to the clerk. Upon tracing the number, the police found that the truck was registered to Charles P. Hodge. Another narcotics officer, Officer Bennie, recognized Hodge's name; in 1990, about a year before this incident, Officer Bennie had tried unsuccessfully to purchase cocaine from Hodge during an undercover investigation. He recalled that Hodge had told him that he got "really good cocaine and heroin from the State of Washington." Officer Bennie also knew that Hodge had been arrested in 1990 for delivery of controlled substances, although he did not know whether Hodge had a conviction record.

In applying for the search warrant, Officer Spallees advised the commissioner that he had received training from the U.S. Drug Enforcement Administration, the Wisconsin Department of Justice and the FBI; that he had received training with U.S. Airport Details for purposes of airport interdiction; and that based on this training and experience, the defendant's conduct appeared to fit the profile of a drug trafficker. The defendant's conduct included: (1) use of cash to pay for airline tickets ¹ and for the motel room; (2) failure to make prior reservations or specify a departure date; (3) possession of large amounts of cash; (4) use of metal suitcases which traffickers seem to believe can evade detection of controlled substance; and (5) suspected possession of a concealed firearm.

The officer did not request, nor did the search warrant authorize, a no-knock entry. When executing the warrant on October 21, 1991, the police did not announce their entry and used a ram to break down the door. Heroin, syringes, other drug paraphernalia, and the defendant's wallet containing over $5,600 were seized. No gun was found.

Prior to trial, the defendant moved to suppress the evidence seized under the search warrant, arguing that the search warrant was unsupported by probable cause and that the officers' no-knock entry was in violation of the rule of announcement. The circuit court denied the motion. The defendant was convicted of possession of heroin with intent to deliver contrary to sec. 161.41(1m)(a) and (d)2, Stats.1991-92. The court of appeals affirmed the judgment of conviction, concluding (1) that the totality of the circumstances supported a finding of probable cause and (2) that exigent circumstances justified the no-knock entry.

The first issue we address is whether probable cause for the issuance of the search warrant existed. In making this determination, we are confined to the record that was before the warrant-issuing commissioner. State v. DeSmidt, 155 Wis.2d 119, 132, 454 N.W.2d 780 (1990). The duty of the reviewing court is to ensure that the warrant-issuing commissioner had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982). A court must determine whether the commissioner who issued the warrant was "apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched." State v. Starke, 81 Wis.2d 399, 408, 260 N.W.2d 739 (1978). See also State v. Benoit, 83 Wis.2d 389, 395, 265 N.W.2d 298 (1978). The warrant-issuing commissioner's determination of probable cause cannot be upheld, however, if the affidavit provides nothing more than the legal conclusions of the affiant. State v. Higginbotham, 162 Wis.2d 978, 992, 471 N.W.2d 24 (1991).

The evidence necessary to establish probable cause to issue a search warrant is less than that required to support a bindover following a preliminary examination. State v. Benoit, 83 Wis.2d 389, 394, 265 N.W.2d 298 (1978). "Probable cause is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior." State v. Petrone, 161 Wis.2d 530, 547-548, 468 N.W.2d 676 (1991).

The task of the warrant-issuing commissioner "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ..., including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982).

Great deference should be given to the warrant-issuing commissioner's determination of probable cause. State v. DeSmidt, 155 Wis.2d 119, 132, 454 N.W.2d 780 (1990) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983), and United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984)); State v. Hanson, 163 Wis.2d 420, 422-423, 471 N.W.2d 301 (Ct.App.1991). The deferential standard of review is " 'appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.' " State v. DeSmidt, 155 Wis.2d 119, 133, 454 N.W.2d 780 (1990), (quoting Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984)). ²

The affidavit supporting the search warrant in this case contains a minimal factual basis to support probable cause. However, according great deference to the warrant-issuing commissioner's decision, we agree with the court of appeals' analysis of the probable cause issue in this case under the standard of review the court has set forth. As the court of appeals stated: "Whether probable cause exists is to be determined by analyzing the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982). 'We accord great deference to the warrant-issuing judge's determination of probable cause, and that determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause.' State v. Higginbotham, 162 Wis.2d 978, 989, 471 N.W.2d 24, 29 (1991). We conclude that the totality of the circumstances [in this case] ... permitted the [warrant-issuing judge] to conclude that probable cause existed for the crimes of possession of controlled substances and carrying a concealed weapon. Although there was no direct evidence of [the defendant's] drug possession and no single circumstance that alone would justify the warrant, there was extensive circumstantial evidence that, taken together, justified a finding of probable cause." State v. Kerr, 174 Wis.2d 55, 60-61, 496 N.W.2d 742 (Ct.App.1993).

In examining whether probable cause existed, we first consider the "veracity" and "basis of knowledge" of persons supplying the hearsay...