State v. Watkinson

• Citation: 161 Wis.2d 750,468 N.W.2d 763
• Decision Date: 19 March 1991
• Docket Number: No. 90-2135-CR,90-2135-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John Jay WATKINSON, d Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 763

468 N.W.2d 763

161 Wis.2d 750

STATE of Wisconsin, Plaintiff-Respondent, v. John Jay WATKINSON, ^d Defendant-Appellant No. 90-2135-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 5, 1991.

Opinion Released March 19, 1991.

Opinion Filed March 19, 1991.

Mark Lukoff, First Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Stephen W. Kleinmaier, Asst. Atty. Gen., for plaintiff-respondent.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

John Jay Watkinson appeals from judgments, entered on guilty pleas, convicting him of possessing cocaine with intent to deliver, in violation of section 161.41(1m)(c)1, Stats., and possessing marijuana, in violation of section 161.41(3r), Stats. ¹ The cocaine and marijuana were discovered in Watkinson's home during a search conducted pursuant to a "no knock" search warrant issued by a circuit court judge. The sole issue on appeal is whether the affidavit in support of the search warrant established probable cause for the judge to permit the entry into Watkinson's home to be made without the officers first announcing their presence and purpose, and then allowing time for the door to the home to be voluntarily opened. We conclude that it did, and, accordingly, we affirm.

On December 19, 1988, a "no knock" search warrant was issued for the first floor unit of a two-family building on North Jefferson Street in the city of Milwaukee. The warrant described the unit as being occupied by Watkinson and authorized a search for cocaine, drug paraphernalia, items indicating the identity of those in control of the premises, as well as money and other fruits of criminal activity. The affidavit submitted to the judge by a detective with the Milwaukee police department in support of the search-warrant request related that a confidential informant had made a "controlled buy" from Watkinson at the first floor unit within the previous seventy-two hours and that Watkinson had told the confidential informant that he could return to purchase additional cocaine, as represented by the affidavit, "anytime in the future." The affidavit also requested that the search warrant authorize a "no knock" entry "for the protection of officers during the execution of the search warrant" because the informant told the police officers involved "that the subject known as John J. Watkinson has a .38 Cal. revolver in his residence."

The Fourth Amendment's proscription against unreasonable searches and seizures not only mandates that there be probable cause to conduct the search or make the seizure but also that the search or seizure be done in a reasonable manner. Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985); Gouled v. United States, 255 U.S. 298, 305-306, 41 S.Ct. 261, 263-264, 65 L.Ed. 647 (1921), overruled on other grounds, Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 300-310, 87 S.Ct. 1642, 1646-1652, 18 L.Ed.2d 782 (1967). Thus, absent exigent circumstances, law enforcement officers executing a search warrant must first announce their presence and purpose and then give those within the premises to be searched sufficient time to voluntarily permit the officers to enter. See Ker v. California, 374 U.S. 23, 38-41, 46-53, 83 S.Ct. 1623, 1632-1634, 1635-1640, 10 L.Ed.2d 726 (1963) (entry to arrest) (opinion by Clark, J., on behalf of four members of the Court; opinion by Brennan, J., on behalf of four members of the Court); State v. Cleveland, 118 Wis.2d 615, 623-624, 348 N.W.2d 512, 517 (1984). Pre-entry announcement is not required, however, where there is "a reasonable belief that announcement of police presence would endanger the safety of the police or others, or a reasonable belief that unannounced entry is required to prevent the destruction of evidence." Cleveland, 118 Wis.2d at 624, 348 N.W.2d at 517; see also section 968.14, Stats. ("All necessary force may be used to execute a search warrant or to effect any entry into any building or property or part thereof to execute a search warrant.").

Although the procedure is not specifically authorized by statute, the search warrant may authorize a "no knock" entry if the magistrate finds that is justified by "particular grounds in the given case." Cleveland, 118 Wis.2d at 626-628, 348 N.W.2d at 518-519. ² In Cleveland, a "no knock" entry was sought to prevent the destruction of the drugs that were the object of the search. Id., 118 Wis.2d at 620, 348 N.W.2d at 515. There was no showing, however, "that made it reasonable to believe that the drugs would be destroyed unless the entry was unannounced" other than the general averment that the suspect was selling drugs. Id., 118 Wis.2d at 630, 348 N.W.2d at 520. Cleveland held this was insufficient to justify an unannounced entry. Ibid.

Although the affidavit in support of the "no knock" warrant in Cleveland did not assert that the officers believed they would be at risk if they were forced to first announce their presence and purpose, the state subsequently sought to justify the "no knock" entry on that ground. The state argued that the officers were at risk because, as phrased by the court, "drug dealers are often armed." Id., 118 Wis.2d at 631 n. 16, 348 N.W.2d at 521 [161 Wis.2d 755] n. 16. Cleveland rejected this additional, post hoc, argument as well.

The fact that a person is a member of a class of persons more likely to resist search is not sufficient to justify unannounced entry. The officer must have knowledge of specific facts that indicate that this particular person will conduct himself or herself in this manner when confronted by police. In this case, however, there was no information that the defendant was armed or had taken other security precautions.

Ibid. We must analyze the sufficiency of the affidavit here against this background. As with the determination of whether there is probable cause to issue a search warrant, we give " 'great deference' " to the decision of the issuing magistrate as to whether the warrant should have a "no knock" provision. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) ("[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' ") (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969)). Thus, "[i]f the matter is close, we must give the magistrate the benefit of the doubt and sustain the search." See State v. Bruckner, 151 Wis.2d 833, 862, 447 N.W.2d 376, 388 (Ct.App.1989). ³

The judge who issued the search warrant in this case was presented with more than a generalized observation that drug dealers are often armed. Rather, he was specifically told that the confidential informant, who had recently purchased cocaine from Watkinson and who was assured by Watkinson that more was available, reported that Watkinson had "a .38 Cal. revolver in his residence." Watkinson argues that this is not enough. He contends that we should adopt the rationale of People v. Dumas, 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208 (1973), which requires that even where law enforcement officers know that the suspect has a firearm, the officers must also "reasonably believe the weapon will be used against them if they proceed with the ordinary announcements." Id., 109 Cal.Rptr. at 309, 512 P.2d at 1213. We decline to engraft Dumas onto the law of this state. ⁴

Dumas requires an unreasonable certainty of danger and puts law enforcement officers executing search warrants at undue risk. As explained by the dissenting judge in State v. Jeter, 30 Wash.App. 360, 634 P.2d 312 (1981), requiring law enforcement officers to first know that the suspect has a "propensity to use the gun in resistance" before...