State v. Ward

231 Wis.2d 723

2000 WI 3

604 N.W.2d 517

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Lance R. WARD, Defendant-Appellant.

No. 97-2008-CR.

Supreme Court of Wisconsin.

Oral argument September 10, 1999.

Decided January 19, 2000.

For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by Daniel P. Dunn and Dunn Law Offices, Madison and oral argument by Daniel P. Dunn.

Amicus Curiae brief and oral argument by Howard B. Eisenberg, Milwaukee for The Wisconsin Association of Criminal Defense Lawyers.

¶ 1. WILLIAM A. BABLITCH, J.

The State of Wisconsin (State) seeks review of a court of appeals' decision that reversed a judgment of the circuit court convicting the defendant, Lance R. Ward (Ward), on his no-contest plea to two counts of possession of a controlled substance with intent to deliver. The court of appeals held that evidence seized during the search of Ward's home should have been suppressed because the affidavit submitted to the warrant-issuing judge in support of the search warrant failed to provide a substantial basis for finding probable cause that evidence of criminal activity was likely be found at that site. State v. Ward, 222 Wis.2d 311, 333, 588 N.W.2d 645 (Ct. App. 1998). ¶ 2. Two issues are raised on review. The first issue is whether the warrant to search for drugs at Ward's home was supported by probable cause. We conclude that the warrant-issuing magistrate had a substantial basis for finding probable cause to issue the warrant to search Ward's home, and accordingly we reverse on that issue.

¶ 3. The second issue, not reached by the court of appeals, is whether the evidence should be suppressed because officers executed an unlawful no-knock entry into the Ward residence in violation of the rule of announcement. At the time of entry, the police action was in conformance with then-existing law, subsequently changed by the United States Supreme Court. We conclude that the evidence should be admitted because the police officers acted in good faith reliance on law that was controlling at the time of the search.

¶ 4. The facts underlying this action are these. On December 4, 1996, Detective Douglas Anderson of the City of Beloit Police Department applied for a search warrant for the home of Lance R. Ward at 1663 Royce in Beloit. Detective Anderson presented an affidavit to Rock County Circuit Court Judge James E. Welker in support of the search warrant. The following facts were set forth in Anderson's affidavit.

¶ 5. First, the affidavit stated that on November 27, 1996, Beloit police received a tip from a Crime Stopper that a second individual, Darrell Vance, "sells pounds of marijuana." The Crime Stopper told police that Vance would order marijuana and within a day or two distribute one to two pounds to each of his dealers. On November 29, Beloit police executed a search warrant at the Vance home and recovered 3,311 grams of marijuana, over $11,000 in cash, .3 grams of crack cocaine and other items including tetrahydrocannabinol (THC) roaches and several scales.

¶ 6. On November 30, 1996, a Vance family member contacted Detective Anderson to report that Vance identified an individual named "Lance" as his marijuana supplier. On December 2, Vance, in the custody of the Beloit police, contacted the police to make a deal. Vance identified "`Lance' who lives on Royce" as his supplier. The Beloit tax rolls listed property at 1663 Royce as owned by Lance R. Ward.

¶ 7. Second, the affidavit stated that the confidential files maintained by the Beloit Police Department Special Operations Bureau contained four pieces of information indicating that Lance Ward is a drug dealer.

¶ 8. Third, the affidavit stated that based upon Detective Anderson's training and experience, individuals engaged in criminal activity, including drug-related crimes, often arm themselves with firearms and attempt to destroy or conceal evidence if given time. For these reasons, Detective Anderson requested the issuance of a no-knock search warrant.

¶ 9. Finally, the affidavit stated that Detective Anderson, based upon his training and experience, believed that when illegal drugs are bought and sold the parties commonly carry illegal drugs on their body.

¶ 10. Judge Welker issued the search warrant. The warrant authorized a no-knock entry.

¶ 11. Officers executed the warrant on the evening of its issuance. Although Ward was in his home watching television, the house appeared dark. The police did not knock. Officers used a battering ram to break down the door of Ward's home. The officer using the battering ram began swinging it as soon as a second officer yelled "Police. Search Warrant." Officers seized 180.9 grams of cocaine, 2,578.6 grams of marijuana, two THC pipes, rolling papers, several scales, and other items. Although ammunition was seized, no weapons were found.

¶ 12. Ward subsequently offered two motions to suppress the evidence seized at his home. Judge Welker, who had authorized the search warrant, presided at the suppression hearing.

¶ 13. First, Ward argued that the affidavit for the warrant did not allege sufficient sworn facts to establish probable cause to believe that evidence of criminal activity would be found at Ward's home. Judge Welker determined that the petition for a warrant contained sufficient facts to draw a reasonable inference that there was evidence of a crime at Ward's Royce Street home.

¶ 14. At the motion hearing, Ward's defense counsel argued that the police did not present any facts in their affidavit from which it could be inferred that illegal drugs were kept at the Ward residence:

THE COURT: What about my experience has (sic) been that in the last eight years, I have had numerous cases that deal with this kind of thing, and I can't remember a time when somebody was dealing drugs when they weren't being dealt out of the person's house? Now, maybe there are different customs everywhere, but here in Beloit, that's been every case that I have ever had.

Defense Counsel: But are you allow—you can make inferences based on reasonableness. That's what the Court says. But don't you think you need a factual basis to make the inference? I mean, if Lance Ward lived on Royce Street—

THE COURT: Well, you seem to agree that there was sufficient information here to issue a warrant to arrest Mr. Ward.

Defense Counsel: I think that there is information indicating he was the dealer. I think that you probably could have issued a warrant for his arrest.

THE COURT: All right. Well, if that's the case, if there is enough evidence—if there is enough information to arrest his person, and if my experience is that drug dealers ordinarily deal drugs out of their houses, why isn't there enough evidence then to search his house?

Defense Counsel: Because nobody told you that. . . drug dealers deal out of their houses.

THE COURT: You don't think I can rely on my own experience?

Defense Counsel: No. . . .I think you can rely on your own experience in making inferences from facts, but I don't believe that you can make inferences in a search warrant based upon information that you know which is not supportive, at least by a factual allegation, within the four corners of a warrant.

. . .

THE COURT: I have had numerous, numerous experiences with respect to drug dealers in the Beloit community, and I do believe that I'm entitled to draw the inference that, when the police have established that there is a drug dealer who is dealing large amounts of drugs, I believe I am able to draw the inference that the high probability is that those drugs are being dealt out of his place of residence, and that's based upon my experience, and I think that I can't—I don't think that a magistrate isrequired to shut his eyes to that fact.

Judge Welker subsequently denied this motion.

¶ 15. Ward's second motion was to suppress the physical evidence seized by police based upon of the violation of the rule of announcement.¹ Judge Welker denied this motion. Thereafter, Ward pled no contest to two counts of possession of a controlled substance with intent to deliver.

¶ 16. A sentencing hearing was scheduled for May 14, 1997. Prior to the hearing, the United States Supreme Court decided Richards v. Wisconsin, 520 U.S. 385 (1997). In Richards, the Court disagreed with our rule permitting an exception to the rule of announcement when officers execute a search warrant in felony drug investigations. Ward requested the reconsideration of his motions to suppress the seized evidence. Both motions were denied. In considering the impact of Richards, Judge Welker stated that the purpose of the exclusionary rule is to deter misconduct. The judge concluded that this purpose would not be served in this situation, in which the officers relied upon a warrant that was issued in compliance with what was then the controlling law. Ward appealed his conviction.

¶ 17. The court of appeals reversed. The court of appeals held that the affidavit presented to Judge Welker in support of a warrant to search the Ward residence did not provide a substantial basis for finding probable cause that evidence of drug dealing would likely be found at the Royce Street address. Ward, 222 Wis.2d at 333. The court of appeals stated:

Although we will defer to a magistrate's conclusion whenever possible, and we will permit reasonable inferences to sustain the reliability and timeliness of information in a warrant application, neither the Fourth Amendment nor Article I, § 11 of the Wisconsin Constitution permits a magistrate to infer a link between evidence of drug dealing and the dealer's residence when the application is devoid of any facts or information from which to infer such a link.

Id.

¶ 18. Having concluded that the warrant to search Ward's home lacked probable cause, the court of appeals...