State v. Ward, 97-2008-CR

CourtCourt of Appeals of Wisconsin
Citation222 Wis.2d 311,588 N.W.2d 645
Docket NumberNo. 97-2008-CR,97-2008-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, d v. Lance R. WARD, Defendant-Appellant.
Decision Date08 October 1998

Page 645

588 N.W.2d 645
222 Wis.2d 311
STATE of Wisconsin, Plaintiff-Respondent, d
Lance R. WARD, Defendant-Appellant.
No. 97-2008-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs May 11, 1998.
Opinion Released Oct. 8, 1998.
Opinion Filed Oct. 8, 1998.

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[222 Wis.2d 313] On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel P. Dunn of Dunn Law Offices, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.


[222 Wis.2d 314] DEININGER, J.

Lance Ward appeals felony convictions for possession of controlled substances with intent to deliver on the grounds that evidence derived from a search of his residence should have been suppressed. Ward contends that the search of his residence was improper because the search warrant application did not provide sufficient facts from which the issuing magistrate could conclude there was probable cause to believe that evidence of criminal activity would be located within Ward's residence. Ward also contends that the execution of the warrant by police officers without knocking and announcing their presence violates the Fourth Amendment under the holding in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

We agree with Ward that the affidavit filed in support of the search warrant lacks a substantial basis to establish that evidence of drug dealing would likely be found within his residence. We also decline the State's invitation to adopt the "good faith exception" to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Accordingly, we reverse Ward's convictions and remand with directions to suppress the evidence seized during the execution of the warrant. Given our resolution of the first issue, we do not address whether the "no knock" entry in this case was proper.


A City of Beloit police detective received information that Lance Ward was selling marijuana. He requested a judge to issue a warrant to search Ward's residence. The

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detective's "Affidavit for Search Warrant" requested permission to search a two-story, single-family dwelling located at 1663 Royce in the [222 Wis.2d 315] City of Beloit. The affidavit recites that "[m]arijuana and other controlled substances, scales, packaging materials, drug paraphernalia, drug ledgers" and various other evidence of the crime of possession of THC with intent to deliver are "now located and concealed" on the premises, and it provides the following "facts tending to establish the grounds for issuing a Search Warrant" for 1663 Royce:

1.) On 11-27-96 your Affiant received a call from a Crime Stopper who stated that Derrell Vance sells pounds of marijuana. The Crime Stopper had seen marijuana in the house of Derrell Vance. On 11-29-96 a search warrant was executed and the following items were recovered:

3,311 grams of marijuana

$11,171.00 U.S.C.

.3 grams of crack cocaine

Lettermate digital scale

Postal scale

Rolling papers


THC roaches

Indicia of occupancy for Derrell and Candy Vance

The Crime Stopper stated that Derrell Vance would order his marijuana and have it distributed in a day or two. Derrell Vance would re-order immediately or within a two week span. Derrell Vance would distribute one to two pounds to each of his dealers.

On 11-30-96 a family member of Derrell Vance contacted your Affiant. This family member was told by Derrell Vance that "Lance" was his supplier of marijuana. Derrell Vance needed someone to make contact with "Lance" in order to get him out of jail.

[222 Wis.2d 316] On 12-2-96, Derrell Vance contacted SLANT. Inspector Kreitzmann of SLANT, told your Affiant that Derrell Vance wanted to make a deal to get out of jail. Derrell Vance told SLANT that his supplier was "Lance" who lives on Royce. These admissions to SLANT by Derrell Vance were prior to Derrell Vance's court initial appearance.

The City of Beloit tax rolls shows 1663 Royce as property owned Lance R. Ward.

2.) Your affiant further states he is familiar with the confidential files kept by the Beloit Police Department Special Operations Bureau and as a result knows that the Beloit Police Department has received four pieces of intelligence indicating that Lance Ward is a drug dealer.

3.) Your affiant has been a police officer for 14 years and has participated in approximately 185 drug raids. Affiant has been actively involved in the area of Special Weapons and Tactics since 1984. Affiant is a State of Wisconsin Certified Instructor in the area of arrest and control procedures, both receiving and providing training. Affiant is an Instructor in the area of Hostage Rescue and High Risk Warrant Service, both receiving and providing training. Based on affiant's training, experience and associations with others in those fields, he is aware that persons involved in many illegal activities, including drug related crimes often arm themselves with weapons, including firearms and sometimes use those weapons against the police and others. These persons will also destroy or conceal evidence if given time. Affiant, based on the stated experience, training and association, is aware that a very important factor in controlling persons and in particular, during drug raids, is surprise and speed. Affiant is also aware that control reduces the likelihood of injury to all involved. Affiant is aware that announcement eliminates [222 Wis.2d 317] surprise and provides persons within a residence time to take actions that would require a reaction by officers. For these reasons affiant requests that a NO KNOCK search warrant be issued. Affiant, based on his training and experience with others in that field believes that where illegal drugs are sold by one person, they are purchased by others and are commonly carried on the persons of both. It is also true of locations where drug use takes place, persons commonly carry illegal drugs on their body.

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The judge issued the search warrant for 1663 Royce and authorized a "no knock" entry. When executing the warrant, the police broke down the door and entered Ward's home as they simultaneously identified themselves as police. Ward was at home, and the police seized 2,578 grams of marijuana, 180 grams of cocaine, and other evidence such as scales, cash and cell phones.

Ward was arrested and charged with five controlled substances offenses. He moved to suppress the seized evidence, claiming the warrant was issued without probable cause and had been executed in violation of the rule of announcement. The trial court denied the motion to suppress and Ward then pled no contest to two counts of possession of controlled substances with intent to deliver. 1 Prior to sentencing, Ward moved for reconsideration of his suppression motion, which the court denied. Ward appeals the judgment of conviction.

[222 Wis.2d 318] ANALYSIS

a. Standard of Review.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, § 11 of the Wisconsin Constitution is virtually identical. When probable cause for issuance of a warrant is challenged on appeal, our focus is not on the trial court's decision to grant or deny a suppression motion but on the issuing magistrate's determination that the application for the warrant stated probable cause. The person challenging the warrant bears the burden of demonstrating that the evidence before the issuing magistrate was clearly insufficient. See Ritacca v. Kenosha County Court, 91 Wis.2d 72, 78, 280 N.W.2d 751, 754 (1979).

Our review of the magistrate's probable cause determination is not de novo; rather, we pay "great deference" to the magistrate's decision. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. DeSmidt, 155 Wis.2d 119, 132, 454 N.W.2d 780, 785-86 (1990). "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined[222 Wis.2d 319] by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The Wisconsin Supreme Court has stated that such a deferential standard of review is " 'appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.' " State v. Kerr, 181 Wis.2d 372, 379, 511 N.W.2d 586, 589 (1994) (citations omitted).

The test for the issuance of a search warrant is whether, considering the totality of the circumstances set forth in support of the warrant, probable cause exists to believe that objects linked to the commission of a crime are likely to be found in the place designated in the warrant. See State v. Ehnert, 160 Wis.2d 464, 470, 466 N.W.2d 237, 239 (Ct.App.1991). Probable cause is not a technical or legalistic concept, nor is it susceptible of "stringently mechanical definitions." State v. Tompkins, 144 Wis.2d 116, 125, 423 N.W.2d 823, 827 (1988). Rather, it is a "flexible, common-sense measure of the plausibility of particular conclusions about human behavior." Kerr, 181 Wis.2d at 379, 511 N.W.2d at 588. All that is required of the issuing magistrate is that he or she "simply make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a

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