State v. Stevens
| Decision Date | 16 September 1997 |
| Docket Number | No. 97-0758-CR,97-0758-CR |
| Citation | 213 Wis.2d 324,570 N.W.2d 593 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. Bruce M. STEVENS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Henry R. Schultz, of Green Bay.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Stephen W. Kleinmaier, Assistant Attorney General.
Before CANE, P.J., and MYSE and HOOVER, JJ.
Bruce M. Stevens appeals a judgment of conviction, arguing that the trial court erroneously denied his motion to suppress evidence obtained after a "no-knock" entry of his home. Stevens contends that the police did not have a reasonable suspicion that knocking and announcing their presence would have inhibited the efficient investigation of the crime or endangered the police officers' safety. Stevens contends that the entry therefore violated his Fourth Amendment right to be free from unreasonable searches and seizures, and that the evidence obtained after the unlawful entry should be suppressed. Because we conclude that the entry violated Stevens's Fourth Amendment rights, and further conclude that suppression of the seized evidence is the proper remedy, we reverse the judgment of conviction and remand for further proceedings.
This case has a long history of appellate review. Initially, the trial court granted a motion to suppress the results of a search of Stevens's house because the officers executing the warrant failed to allow a sufficient time for the occupants of the home to respond to their demand for entry. On appeal by the State, this court affirmed the order after concluding that the police violated the knock and announce requirement of the Fourth Amendment to the United States Constitution , and that the evidence seized as a result of the unlawful entry should therefore be suppressed. State v. Stevens, 173 Wis.2d 290, 496 N.W.2d 201 (Ct.App.1992). The Wisconsin Supreme Court reversed, concluding that the rule of announcement was not a constitutional requirement, and that Wisconsin courts were therefore free to hold that a blanket exception permitting the police to enter without announcing their presence could be created in all felony drug-related warrants. State v. Stevens, 181 Wis.2d 410, 420-24, 511 N.W.2d 591, 593-95 (1994). The supreme court then created such a blanket exception in all felony drug cases, and remanded to the trial court. Id.
On remand, the trial court denied Stevens's motion to affirm the earlier suppression order. The trial court relied on State v. Richards, 201 Wis.2d 845, 549 N.W.2d 218 (1996), in which the Wisconsin Supreme Court affirmed its Stevens holding. After Stevens filed notice of appeal in this case, the United States Supreme Court struck down Richards, holding that the Fourth Amendment does not permit a blanket exception to the knock and announce requirement for felony drug investigations. Richards v. Wisconsin, --- U.S. ----, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).
The facts in this case were set forth in our original decision and summarized by our supreme court as follows:
Several members of the Green Bay Police Department executed a search warrant at [Stevens'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, 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. 1 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 [Stevens] handcuffed and sitting on the floor. The lieutenant asked [Stevens] if he lived there and [Stevens] stated that he did. When the lieutenant next asked [Stevens] his name, [Stevens] 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 [Stevens] he was under arrest and asked [Stevens] if he had any controlled substances on him. [Stevens] 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 [Stevens's] pocket. When the lieutenant asked if he had a gun to go with the shells, [Stevens] said it was some place in the house. Then, the lieutenant advised [Stevens] of his Miranda rights for the first time. [Stevens] responded that he wanted an attorney.
After [Stevens] received his Miranda warnings, another police officer found .32 caliber bullets on [Stevens]. 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 [Stevens'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.
Allegations involving the freedom from unreasonable searches and seizures raise a question of constitutional fact that we review without deference to the trial court. State v. Jackson, 147 Wis.2d 824, 829, 434 N.W.2d 386, 388 (1989). Whether suppression is the appropriate remedy for violations of the Fourth Amendment likewise raises a question of law that we determine independently from the trial court's determination.
Stevens first argues that the United States Supreme Court decision in Richards requires us to hold that the police entry into his home is an illegal entry in violation of the Fourth Amendment. The State responds that Richards permits an entry without announcement when a reasonable suspicion exists that an announced entry would endanger the officers' safety, or inhibit the effectiveness of the investigation by allowing a suspect to destroy the evidence being sought by the search warrant.
The State argues that it can and does meet the Richards reasonable suspicion standard by relying on the generalized experience of law enforcement in similar cases. The State suggests that law enforcement officers with years of experience in the field of drug enforcement have learned that drug dealers are frequently armed. Based on this, the State argues, law enforcement officers could well conclude in any given drug-related case that announcing their presence before raiding a home would endanger their safety. The State similarly suggests that this generalized experience discloses that defendants in drug cases will take immediate steps to destroy or dispose of the evidence that is sought by the search warrant upon learning of the presence of law enforcement officers.
Under the particular facts of this case, the State concedes to having no specific information that either Stevens was armed or likely to offer armed resistance to the officers, or that he had the ability to destroy the drugs in his possession if the officers announced their entry. The State's position is that the officers' generalized information regarding drug transactions was sufficient to create the type of reasonable suspicion required under the Fourth Amendment, despite their lack of specific knowledge that Stevens was unarmed or unlikely to destroy evidence.
We reject the State's contentions for a variety of reasons. First, we note that the United States Supreme Court in Richards specifically provided that a "no-knock" entry can only be justified based on a reasonable suspicion, "under the particular circumstances," that knocking and announcing would be dangerous, futile, or would inhibit the effective investigation of crime. Id. at ----, 117 S.Ct. at 1421 (emphasis added). This language is inconsistent with the State's contention that some form of generalized police knowledge is sufficient to create a reasonable suspicion.
Second, we agree with the United States Supreme Court that any burden placed on the police as a result of the particularized showing requirement is only a modest one. Id. at ----, 117 S.Ct. at 1422. If the police have a reasonable suspicion based on specific and articulable facts (i.e., something beyond a mere hunch) that announcing their presence will endanger their safety or present an opportunity for a suspect to destroy evidence, the police may effect an entry without announcement. Id.
Irrespective of the low threshold of the evidence required to lawfully effect a "no-knock" entry, however, the...
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