State v. Larson

572 N.W.2d 127, 215 Wis. 2d 155, 1997 Wisc. App. LEXIS 1329
CourtCourt of Appeals of Wisconsin
DecidedNovember 13, 1997
DocketNo. 95-1940-CR
StatusPublished
Cited by2 cases

This text of 572 N.W.2d 127 (State v. Larson) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Larson, 572 N.W.2d 127, 215 Wis. 2d 155, 1997 Wisc. App. LEXIS 1329 (Wis. Ct. App. 1997).

Opinion

DEININGER, J.

Kenneth Larson appeals a judgment convicting him of possession of a controlled substance (THC), with intent to deliver, in violation of § 161.41(lm), Stats., 1991-92.1 He claims the trial court erred in denying his motion to suppress evidence obtained during the execution of a search warrant at his home. He argues that the warrant was improperly executed when the police failed to announce their presence prior to entering the dwelling, in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. We conclude, however, that at the time the police executed the warrant, they had a reasonable suspicion that announcing their presence would allow the destruction of evidence, which justified their ultimate decision to enter without announcing their presence and authority.

BACKGROUND

This case is before us on remand from the U.S. Supreme Court. The Court vacated our prior decision affirming the trial court's denial of Larson's suppression motion, State v. Larson, No. 95 — 1940-CR, unpublished slip op. (Wis. Ct. App. June 27, 1996). We [158]*158had affirmed the trial court in reliance on the Wisconsin Supreme Court's opinions in State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994), and State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996), which established and reaffirmed a "blanket rule" that "police are not required to adhere to the rule of announcement when executing a search warrant involving felonious drug delivery." Richards, 201 Wis. 2d at 866, 549 N.W.2d at 227. The U.S. Supreme Court thereafter ruled, however, that the Fourth Amendment does not permit a blanket exception to the "knock-and-announce" requirement for felony drug investigations. Richards v. Wisconsin, 520 U.S. —, 117 S. Ct. 1416, 1421-22 (1997). The Court has instructed us to consider Larson's appeal in light of its opinion in Richards.

In our prior opinion, we summarized the factual underpinnings and trial court proceedings in this case as follows:

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.
[159]*159The 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 [160]*160point 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.

State v. Larson, No. 95-1940-CR, unpublished slip op. at 3-5 (Wis. Ct. App. June 27,1996).

The parties have filed supplemental briefs, and we now consider the facts and their arguments in light of Richards v. Wisconsin, 520 U.S. —, 117 S. Ct. 1416 (1997).

ANALYSIS

Both the Fourth Amendment to the United States Constitution and Article I, section 11 of the Wisconsin Constitution, guarantee citizens the right to be free from "unreasonable searches and seizures." In reviewing an order denying a motion to suppress evidence, an appellate court will uphold a trial court's factual findings unless they are against the great weight and clear preponderance of the evidence. State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d 386, 388 (1989). However, whether a search passes constitutional muster is a question of law subject to de novo review. State v. Richardson, 156 Wis. 2d 128, 137-38, 456 N.W.2d 830, 833 (1990).

Although the Supreme Court in Richards set aside Wisconsin's "blanket exception" to the knock-and-announce rule for felony drug investigations, it concluded that the circumstances surrounding the no-knock entry in that case justified the entry. Richards, 520 U.S. —, 117 S. Ct. at 1422. The Court explained that "the reasonableness of the officers' decision . . . must be evaluated as of the time they entered" the premises to be searched. Id. A "magistrate" had refused [161]*161to issue a "no-knock" warrant for Richards' hotel room. Id. at — , 117 S. Ct. at 1418. An officer knocked on the hotel room door at 3:40 a.m., claiming to be a maintenance man. Richards cracked open the door, saw a uniformed officer behind the "maintenance man," and quickly slammed the door shut. Two or three seconds later, the police kicked and rammed the door open. Id. at — , 117 S. Ct. at 1419. The Court concluded on these facts that the police had acted reasonably:

These actual circumstances — petitioner's apparent recognition of the officers combined with the easily disposable nature of the drugs — -justified, the officers' ultimate decision to enter without first announcing their presence and authority.

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Bluebook (online)
572 N.W.2d 127, 215 Wis. 2d 155, 1997 Wisc. App. LEXIS 1329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-larson-wisctapp-1997.