Case No. 95-1940-CR.
Decision Released: June 27, 1996 Decision Filed: June 27, 1996 This opinion will not be published. See RULE 809.23(1)(b)5, STATS.
APPEAL from a judgment and an order of the circuit court for Rock County: EDWIN C. DAHLBERG, Judge. Affirmed.
Before Gartzke, P.J., Sundby and Vergeront, JJ.
Kenneth L. Larson appeals from a judgment convicting him of possession with intent to deliver a Schedule I controlled substance contrary to § 161.41(1m), STATS. Violation of that statute is a felony because it is punishable by imprisonment in the Wisconsin state prisons. Sections 939.60, 161.41(1m)(a), STATS. He seeks review of an order denying his motion to suppress evidence the police seized in his home on May 27, 1992, on a search warrant. His motion asserted that the warrant was invalid because it contained a "no-knock" provision but the affidavit supporting its issuance failed to relate circumstances showing reasonable cause to believe that the circumstances justified a no-knock entry.
Larson describes the issues as (1) whether a no-knock warrant, based only on generalized information about the tendencies of "drug dealers," is unconstitutional under a Fourth Amendment analysis; and (2) whether failure to knock-and-announce in the execution of a search warrant is unreasonable when the persons in the home are not suspected of a crime or of presenting a danger to the police, the only suspect was in custody and the only movement detected in the house was "nervous pacing" and not destruction of evidence.
We conclude that the "blanket rule" adopted in State v. Stevens , 181 Wis.2d 410, 511 N.W.2d 591 (1994), authorizing a no-knock warrant under the circumstances present requires that we affirm. Because our Wisconsin Supreme Court reaffirmed State v. Stevens , after re-examining it in light of Wilson v. Arkansas , ___ U.S. ___, 115 S.Ct. 191 (1995), we conclude that the blanket rule established in Stevens remains the law of this state.
Following an evidentiary hearing on Larson's motion to suppress, the trial court found that the affidavit on which the no-knock search warrant was issued to search Larson's home stated in part, "It has been the experience of your affiant [police detective] that if given time drug dealers will either arm themselves and/or dispose of evidence of a drug crime. Based on this, your affiant asks that the warrant be authorized as a no-knock search warrant." Affiant stated he had received an anonymous tip that Larson was selling fifty to 100 pounds of marijuana and up to one-half pound of cocaine per week. The affiant also stated that when Larson had been arrested for possession of marijuana earlier that day, he had in his possession $5,620 and a quantity of marijuana. The same day the police had searched trash taken from the terrace at his home, and it contained evidence of drug activity.
Relying on State v. Cleveland , 118 Wis.2d 615, 348 N.W.2d 512 (1984), and State v. Williams , 168 Wis.2d 970, 485 N.W.2d 42 (1992), the trial court ruled that the supporting affidavit did not justify a no-knock provision. The Cleveland court held that to justify a no-knock entry to prevent the destruction of evidence, the police cannot rely on a blanket rule for a no-knock entry based on the proposition that drugs are easily destroyed but must have particular grounds to provide them with reasonable cause to believe that drugs will be destroyed. Cleveland , 118 Wis.2d at 628, 348 N.W.2d at 519. The Cleveland court added in dictum that a no-knock entry is not justified by the allegation that drug dealers in general are often armed. Id . at 631 n. 16, 348 N.W.2d at 521. The Williams court held that the police have probable cause for a no-knock entry only when they have information that a person possesses both firearms and a large quantity of drugs. Williams , 168 Wis.2d at 986, 485 N.W.2d at 48.
The trial court concluded that the no-knock provision was erroneously authorized, but sustained execution of the warrant on other grounds. The court found that when the officers gathered to execute the warrant about 3:00 a.m. on May 27, 1992, they had reason to believe that only Larson's wife and children occupied the premises. The officers decided that if they knocked and the wife answered the door, they would have secured the only adult present and they could then enter the premises to make the search. The court found the officers knocked but they did not announce that they were police with a search warrant.
The trial court found that while officers were knocking at the front door, an officer securing the rear area of the home saw a person silhouetted against a light in the house and pacing back and forth. When he informed the officers at the front door that there was movement in the house, they used a ram to open the door. That occurred between twenty-five and thirty-five seconds after the knocking. The officer who decided to force the entry did so because of his concern over the movement in the house and the lack of response to the knocking. He wanted the police to control the situation and eliminate the likelihood of danger to them and the occupants and to prevent possible destruction of evidence.
The trial court concluded that the totality of the circumstances surrounding the entry established that the police acted reasonably in their entry of Larson's residence. The court said that the officers had attempted to comply with the rule of announcement, and the decision to force an entry was made after some thirty seconds elapsed after knocking and after they learned of movement in the house not directed to the front door. The court said at that point they had reason to believe that evidence was being destroyed. Concluding it was reasonable for the police not to further follow the rule of announcement, the court denied the motion to suppress.
Shortly after the trial court denied Larson's motion to suppress, the Wisconsin Supreme Court decided State v. Stevens , 181 Wis.2d 410, 511 N.W.2d 591 (1994). The Stevens court overruled its prior decisions in Cleveland and Williams , and established a "blanket rule" authorizing no-knock entry provisions for warrants to search homes for evidence of delivery of drugs or evidence of possession with intent to deliver drugs. Stevens , 181 Wis.2d at 424-25, 511 N.W.2d at 595. The court held that because of the easy destruction of drugs and the consequent loss of evidence, the police need not establish that a certain quantity of drugs is in the home to be searched in order to effect a no-knock entry. Id . at 426-27, 511 N.W.2d at 596. The court also held that due to the inherent violence associated with drug dealing, the police need not offer particularized evidence of weapons to demonstrate that exigent circumstances exist justifying a no-knock search of a home. Id . at 430, 511 N.W.2d at 596.
Larson contends that Wilson v. Arkansas , ___ U.S. ___, 115 S.Ct. 1914 (1995), requires us to re-examine the blanket rule established in Stevens , 181 Wis.2d at 424-25, 511 N.W.2d at 591. Indeed, he asserts that Wilson effectively overrules Stevens . However, the Wisconsin Supreme Court undertook in State v. Richards , No. 93-0391-CR (June 12, 1996), "to examine the continued validity of Stevens in light of . . . Wilson v. Arkansas . . . ." Richards , slip op. at 2. The Richards court concluded "that Stevens remains valid," id ., reaffirmed Stevens , and concluded "that police are not required to adhere to the rule of announcement when executing a search warrant involving felonious drug delivery." Richards , slip op. at 22. Larson was convicted of felonious drug delivery. We conclude the issuance of the no-knock search warrant and its execution were proper.
The Court defined "felonious drug delivery" to mean felonious delivery of drugs or felonious possession with intent to deliver drugs in violation of Subchapter IV, Wis. Stats., §§ 161.41-43. Richards , slip op at 2, n. 2. Larson was convicted of violating § 161.41(1m), STATS.
By the Court. — Judgment and order affirmed.