State v. Kerr

496 N.W.2d 742, 174 Wis. 2d 55, 1993 Wisc. App. LEXIS 83
Court of Appeals of Wisconsin·Decided January 26, 1993·No. No. 92-1859-CR.·Published·Cited by 2 cases

Opinion

LaROCQUE, J.

James Kerr appeals his convictions for possession of heroin with intent to deliver contrary to sec. 161.41 (lm)(a) and (d)2, Stats., obstructing an officer contrary to sec. 946.41(1), Stats., and denial of his motions to suppress evidence. Kerr argues that the search warrant for his motel room was unsupported by probable cause and the officers' no-knock entry was in violation of the rule of announcement. We conclude that probable cause existed and that exigent circumstances justified a no-knock entry. We therefore affirm.

[59] The undisputed facts are as follows: A Brown County narcotics officer requested a search warrant to search a motel room rented in the name of "James Erickson" (hereafter, Kerr).1 The affidavit in support of the warrant disclosed that a named juvenile informant, who was the motel's desk clerk, observed Kerr check into the motel in the company of another male. The clerk noticed that Kerr was wearing a tweed coat and that there was a bulge in his coat running vertically under his armpit. Because the clerk’s father was a police officer and he had observed his father wearing a handgun in a shoulder holster many times in the past, he was convinced that Kerr was concealing a handgun under the coat. The clerk stated that Kerr behaved suspiciously, expressing no interest in the features of the motel or its prices. Kerr told the clerk that he was from Seattle, Washington, and that he would pay for two nights. He paid the clerk $145 in cash, using $20 bills from a one- and-one-half-inch-thick stack of currency. Kerr and his companion were carrying a small metal briefcase and a larger luggage-size metal case. Kerr declined an offer of help to carry his luggage. The clerk's observations were confirmed by another named informant.2

The officer traced the license plate number given the motel clerk by Kerr's companion to Charles P. Hodge. Another named narcotics officer had tried to purchase cocaine from Hodge in 1990. Hodge, born in Washington, had stated to the officer that "he gets really good cocaine and heroin from the State of Washington," [60] and that Hodge was driving the same vehicle now registered at the motel. The officer also knew that Hodge was arrested in 1990 for delivery of controlled substances.

The officer indicated that he had received training from the U.S. Drug Enforcement Administration, the Wisconsin Department of Justice and the FBI; that he had received training with U.S. Airport Details for purposes of airport interdiction; and that based upon his training and experience, Kerr demonstrated several indi-ces and characteristics of a drug trafficker. Among these characteristics were Kerr's use of cash to pay for airline tickets and the motel, without prior reservations, and imprecise departure plans; possession of large amounts of currency; the use of metal suitcases to attempt to avoid controlled substance detection; and the apparent possession of a firearm.

When executing the warrant, the police did not announce their entry and used a ram to break down the door. The police seized heroin, syringes, other drug paraphernalia and Kerr's wallet containing over $5,600, but no gun.

A search warrant may only issue on the basis of a finding of probable cause by a "neutral and detached magistrate." State v. DeSmidt, 155 Wis. 2d 119, 131, 454 N.W.2d 780, 785 (1990). Whether probable cause exists is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). "We accord great deference to the warrant-issuing judge's determination of probable cause, and that determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause." State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24, 29 (1991).

[61] We conclude that the totality of the circumstances as outlined permitted the magistrate to conclude that probable cause existed for the crimes of possession of controlled substances and carrying a concealed weapon. Although there was no direct evidence of Kerr's drug possession and no single circumstance that alone would justify the warrant, there was extensive circumstantial evidence that, taken together, justified a finding of probable cause. Kerr was in the company of a person with an arrest record for drug dealing and recent drug related ties to the state of Washington, Kerr's place of origin. He appeared to be armed and carrying a large amount of cash. Kerr's behavior and appearance caused a named citizen informant and a corroborating citizen to be articulably suspicious. Moreover, when an average citizen gives information to the police, the police should be permitted to assume they are dealing with a credible person absent any special circumstances suggesting otherwise. United States v. Phillips, 727 F.2d 392, 397 (5th Cir. 1984).

Kerr contends that the claim of drug possession was based on an unspecified drug profile and that such conduct as carrying one's own bag, paying cash and lacking interest in motel services is not necessarily indicative of a person in possession of drugs. Kerr cites United States v. Hall, 978 F.2d 616 (10th Cir. 1992), in support of his argument.

In Hall, the police seized the luggage of a passenger traveling on a train because the person appeared nervous, had paid cash for a one-way ticket, was traveling alone in a private compartment and was carrying a very heavy suitcase. The court held that police lacked reasonable suspicion to seize the luggage. The case presented [62] here, however, is markedly stronger. In addition, the police did not rely solely on a "profile" to justify the warrant. Therefore, we conclude that the totality of the circumstances establishes that there was probable cause to issue the warrant.

Next, Kerr argues that the evidence should be suppressed because the police failed to comply with the knock and announce rule. Kerr argues that because the police believed they possessed sufficient evidence to justify a no-knock entry when applying for the search warrant and failed to request authorization for it, the evidence should be suppressed.

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State v. Kerr, 496 N.W.2d 742, 174 Wis. 2d 55, 1993 Wisc. App. LEXIS 83 (Wis. Ct. App. 1993).

496 N.W.2d 742 (State v. Kerr) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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