State v. Stevens, 92-1557-CR

• Citation: 173 Wis.2d 290,496 N.W.2d 201
• Decision Date: 15 December 1992
• Docket Number: No. 92-1557-CR,92-1557-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, d v. Bruce M. STEVENS, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

Page 201

496 N.W.2d 201

173 Wis.2d 290

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

No. 92-1557-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 30, 1992.

Opinion Released Dec. 15, 1992.

Opinion Filed Dec. 15, 1992.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, Atty. Gen. and Stephen W. Kleinmaier, Asst. Atty. Gen.

On behalf of the defendant-respondent, the cause was submitted on the brief of Bonnie S. Musial of Julian, Musial, Wettersten & Friedrich, S.C., Madison.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

The state appeals an order suppressing Bruce Stevens' statement and evidence seized following the search of his apartment that was authorized by warrant but allegedly executed in violation of the announcement rule. The state contends that the court erred by declaring the search invalid because the police violated the announcement rule and by suppressing Stevens' statements revealing his identity and where he lived. The state argues that the police complied with the announcement rule. In the alternative, it argues that if the police failed to comply, the entry into and search of Stevens' apartment was reasonable under the fourth amendment to the United States Constitution. In any event, the state argues, suppression of the evidence is an inappropriate remedy because the evidence was seized under a validly issued warrant. Finally, the state argues that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not require suppression of Stevens' responses to the routine booking questions concerning his name and residence. Because we conclude that the warrant was executed in violation of the announcement rule, suppression of the evidence seized as a result of the invalid search is proper and Stevens' responses to questions concerning his identity and residence were obtained in violation of his constitutional rights, we affirm the order.

Green Bay police obtained a search warrant for the lower apartment at 416 Mather Street because they demonstrated they had probable cause to believe cocaine and cocaine-dealing paraphernalia were located within the residence. The police planned to execute the warrant by inducing the occupants to open the door in response to a police officer posing as a pizza delivery person. If the ruse was unsuccessful, the police planned a "dynamic entry," defined as the police entering the home as quickly as possible with overwhelming force. The purpose behind a dynamic entry is to enter before the occupants can react, reducing the chance of injury to the occupants or police.

Lieutenant Robert Boncher, who was in charge of the warrant execution, testified that he had executed ninety drug warrants in the past. He claimed that in the majority of these police had found weapons in the house. However, the police had no knowledge that there were weapons in the Mather Street residence and the warrant did not include a search for weapons.

Officer Robert Klika posed as a pizza delivery person and knocked on the door of the residence. He announced that he had a pizza delivery for Joe Wokums. A female voice told him, "We didn't order any pizza." Valeata Lappen, the woman who lived at the house, stood by the door but would not open it. Klika knocked three more times, telling Lappen that the pizza was getting cold. Lappen testified that immediately after the fourth knock, she heard a loud bang and the police were inside the house yelling, "Everybody down on the floor." The police had broken down the door and its frame. Lappen further testified that she was always within four feet of the door and that at no time did she hear anyone say, "Police, search warrant."

Klika testified that after he knocked several times at the door to no avail, he tried to open the inside door and found that it was locked. He then signalled the tactical team to break the door down with a battering ram. He further testified that the tactical team yelled, "Police, search warrant," before they broke the door down and entered the apartment.

Inside the apartment, the police found cocaine and cocaine-dealing paraphernalia, as well as several weapons. Lieutenant Gaylord Baudhuin entered the apartment after it was secured and showed Stevens the search warrant. Baudhuin then testified that he asked Stevens "if he lived there." Stevens replied that he did. After asking Stevens his name, Baudhuin asked him if he "had any controlled substances on him." Stevens replied that he had drugs in his pants pocket. Baudhuin retrieved the drugs from Stevens' pocket and then read him his Miranda rights.

Stevens moved the trial court to suppress evidence seized from the apartment and his statements following the police entry. Various police officers who were on the scene testified concerning the length of time that elapsed between the police yelling, "Police, search warrant," and the time they broke the door down. The testimony about the time ranged from a pause to two to five seconds. The trial court found that the time between the announcement and the forcible entry was at most five or six seconds, but could have been as little as two seconds or a pause.

The court concluded that the warrant was validly issued, but that the execution violated the announcement rule. The court therefore suppressed all of the evidence seized from the apartment and all of Stevens' statements following the entry.

Whether the search was reasonable and complied with the requirements of the fourth amendment to the United States Constitution is a question of constitutional fact that we review as a question of law without deference to the trial court's conclusions. State v. Williams, 168 Wis.2d 970, 980-81, 485 N.W.2d 42, 46 (1992). The fourth amendment's proscription against unreasonable searches and seizures requires not only the existence of probable cause to conduct the search but also that the search be conducted in a reasonable manner. Id.

The announcement rule, set forth in State v. Cleveland, 118 Wis.2d 615, 622, 348 N.W.2d 512, 517 (1984), and reaffirmed in Williams, 168 Wis.2d at 981, 485 N.W.2d at 46, dictates the manner in which the government may legitimately intrude. The rule requires police officers seeking to enter a dwelling to execute a search warrant to announce their identity and purpose and allow time for the occupants to open the door voluntarily. Cleveland, 118 Wis.2d at 622, 348 N.W.2d at 517.

The purposes behind the announcement rule are:

(1) protecting the individual's privacy in the home; (2) decreasing the potential for violence by alerting the resident that the officer is legitimately on the premises; and (3) preventing the physical destruction of property by giving the resident the opportunity to admit the officer voluntarily.

Id.

The state contends that the police complied with the announcement rule when they waited two to six seconds after the announcement before they broke Stevens' door down. The state relies on language in State v. Long, 163 Wis.2d 261, 266, 471 N.W.2d 248, 251 (Ct.App.1991), that "[c]ourts have refused to set a strict time limit for the announcement rule. There cannot be a hard and fast time limit given the myriad of potential circumstances that could confront an officer serving a warrant." The state also cites several cases from other jurisdictions in support of its proposition that the officers complied with the announcement rule.

In Long, the police officers approached the door, knocked and shouted, "Police search warrant." After waiting seven to ten seconds and receiving no response, they battered down the outer door. When they reached the inner door, they again knocked and shouted, "Police; search warrant." After another five to seven seconds, the police battered down the inner door. Id. at 264, 471 N.W.2d at 250. We concluded that the officers complied with the announcement rule. Id. at 267-68, 471 N.W.2d at 251.

None of the cases the state cites supports its contention that waiting two to six seconds after the announcement before forcibly entering is sufficient to comply with the announcement rule. In United States v. Streeter, 907 F.2d 781, 788-89 (8th Cir.1990), the officers shouted "Police, search warrant, open the door" repeatedly and then waited five to ten seconds after hearing activity inside the house that would indicate that their safety would be threatened if they waited longer before they forcibly entered. In United States v. One Parcel of Real Property, 873 F.2d 7, 9 (1st Cir.1989), officers at another door yelled "police" and five to ten seconds later a second officer yelled "police" and waited another five to ten seconds before forcibly entering. Finally, in United States v. Phelps, 490 F.2d 644, 646 (9th Cir.1974), the officers knocked and announced their presence, waited five to ten seconds, knocked and announced their presence again and waited an additional five to ten seconds before entering. The state cites other cases approving entry after a time lapse of ten seconds or more between the announcement and entry.

Here, the police waited no more than five or six seconds and perhaps as little as two seconds before battering Stevens' door down. In fact, the officers' testimony demonstrates their intent to make a dynamic entry immediately after they determined the ruse had failed, and not to wait for the occupants to respond to their announcement. In effect, the police did not intend to wait for the occupants to respond to their announcement before forcibly entering, which is directly contrary to the knock and announce requirement. While we recognize that there is no hard and fast time limit, the announcement rule requires that the occupants be given time to voluntarily allow the police to enter. We find nothing that authorizes such a short passage of time between the announcement and forcible entry, and we agree with the trial court...