State v. Peardot, 83-296-CR

• Decision Date: 25 May 1984
• Docket Number: No. 83-296-CR,83-296-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Bruce PEARDOT, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 172

351 N.W.2d 172

119 Wis.2d 400

STATE of Wisconsin, Plaintiff-Respondent, v. Bruce PEARDOT, Defendant-Appellant.

No. 83-296-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 13, 1984.

Opinion Released May 25, 1984.

Opinion Filed May 25, 1984.

Mary E. Waitrovich, Asst. State Public Defender, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Jeffrey M. Gabrysiak, Asst. Atty. Gen., for plaintiff-respondent.

Before GARTZKE, P.J., DYKMAN, J., and RUDOLPH T. RANDA, Reserve Judge.

DYKMAN, Judge.

Defendant Bruce Peardot appeals from a conviction of delivering a controlled substance, party to a crime, secs. 161.41(1)(a) and 939.05, Stats., and an order denying his postconviction motion alleging ineffective assistance of counsel and other errors. We affirm.

The evidence showed that a citizen informant used marked currency to purchase LSD from James Linder, who had obtained the LSD from defendant and who passed the marked bills on to him. The bills were found in defendant's wallet when he was arrested without a warrant later that night at his house. Defendant's trial counsel did not move to suppress the currency. At a pretrial hearing attended by neither defendant nor his attorney, the trial court granted the state's motion in limine to admit the currency.

At the postconviction hearing, defendant's trial counsel, Philip Arneson, testified that he had not moved to suppress the currency because he believed that defendant's roommate had admitted the officers to defendant's home and a suppression motion would have been a waste of time. He failed to appear at the hearing on the state's motion for the same reason.

After hearing testimony from defendant, his roommate, and the officers, the trial court concluded that the entry was without consent, but that exigent circumstances justified the entry, because defendant might have disposed of the currency before the officers could obtain a warrant. It found that Arneson was not ineffective and that defendant had not been deprived of his right to counsel at the hearing. ¹

Motion to Suppress

Effective representation is "that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients who had privately retained his [or her] services." State v. Harper, 57 Wis.2d 543, 557, 205 N.W.2d 1, 9 (1973). The question is whether a reasonable basis existed for the lawyer's actions. State v. Rock, 92 Wis.2d 554, 560, 285 N.W.2d 739, 742 (1979). The lawyer will not be determined ineffective, however, unless the defendant is prejudiced by the lawyer's action or failure to act. State v. Felton, 110 Wis.2d 485, 503, 329 N.W.2d 161, 169 (1983). The standard of effectiveness required by the sixth amendment to the United States Constitution is whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). Additionally, a court must determine whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, --- U.S. at ----, 104 S.Ct. at 2068. These tests are equivalent to the tests used in Harper, Rock and Felton.

Because the trial court correctly concluded that exigent circumstances justified the entry, defendant was not prejudiced by Arneson's failure to move the evidence be suppressed. Defendant therefore was not denied effective assistance of counsel.

Defendant attacks the trial court's conclusion that exigent circumstances justified the warrantless entry. A warrantless entry by criminal law-enforcement officials may be permissible under the fourth amendment to the United States Constitution when there is "compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978). "The presence of evidence reasonably believed to be in imminent danger of removal or destruction is well-recognized as a circumstance which may permit immediate police action." United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir.1978). In determining whether exigent circumstances existed, the reviewing court must concern itself with what the officers had reason to believe at the time of their entry. Ker v. California, 374 U.S. 23, 40 n. 12, 83 S.Ct. 1623, 1633 n. 12, 10 L.Ed.2d 726 (1963). Since the facts are undisputed, we will determine as a matter of law whether exigent circumstances existed. State v. Drogsvold, 104 Wis.2d 247, 267, 311 N.W.2d 243, 253 (Ct.App.1981).

Exigent circumstances existed here. The marked currency was the best evidence linking defendant with the sale of the LSD. If the police had not moved quickly, defendant could easily have disposed of the money in any of several ways--by spending it, by giving it to someone else, by hiding it, or by depositing it in a bank account. A third person was in the house when defendant and Linder exchanged the money for the LSD; he could have told defendant that Linder had been arrested and thereby given defendant reason to dispose of the marked bills. It was 7:40 p.m. when the sale occurred, and later still when defendant was arrested; it would have been difficult to obtain a warrant at that hour. Reasonable officers could have believed that there was a "compelling need for official action." Tyler, supra. The warrantless entry of defendant's home was not unlawful under the fourth amendment to the United States Constitution.

Defendant argues that because the arresting officers did not believe that exigent circumstances compelled their entry, the entry cannot be justified on an exigent-circumstances theory. The arresting officers testified that they believed this was a routine felony arrest and that they entered defendant's home because they believed his roommate had given them permission to do so. They said that when they received the call to pick defendant up, they did not go immediately to his home, but finished the task they were doing.

The officers' subjective belief is not determinative of whether the entry was permissible under the exigent circumstances exception. Their subjective belief would be relevant under the emergency exception, under which police may "[make] warrantless entries and searches when they reasonably believe that a person is in need of aid." State v. Prober, 98 Wis.2d 345, 360, 297 N.W.2d 1, 9 (1980). There was no emergency present here, however, so the rules of the emergency exception do not apply. This court must determine whether exigent circumstances exist independently, Drogsvold, supra, without reference to the beliefs of the officers involved.

Defendant argues that because the police captain saw him leave the house where the sale occurred and did not arrest him, any exigency which may have existed was dissipated. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 361, 97 S.Ct. 619, 633, 50 L.Ed.2d 530 (1977) (Burger, C.J., concurring) (...