State v. Ward

2000 WI 3, 604 N.W.2d 517, 231 Wis. 2d 723, 2000 Wisc. LEXIS 3

• Court: Wisconsin Supreme Court
• Decided: January 19, 2000
• Docket: 97-2008-CR
• Status: Published

Opinions

WILLIAM A. BABLITCH, J.

¶ 1. 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 tetrahydrocannabi-nol (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. . . .1 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 is required 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 did not reach Ward's motion to suppress for violation of the rule of announcement. Id. at 335.

¶ 19. The State filed a petition for review, which we granted.

I — I

¶ 20. The first issue we consider is whether the affidavit upon which the search warrant was based contained sufficient facts to support a finding of probable cause to believe that evidence of a crime would be found at Ward's residence. We conclude that the warrant-issuing judge had a substantial basis for finding that there was probable cause to issue the warrant to search the Ward residence.

¶ 21. Search warrants may issue only upon "a finding of probable cause by a neutral and detached magistrate." State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991) (citing State v. DeSmidt, 155 Wis. 2d 119, 131, 454 N.W.2d 780 (1990)). In reviewing whether there was probable cause for the issuance of a search warrant, we accord great deference to the determination made by the warrant-issuing magistrate. Id. The magistrate's determination will stand unless the defendant establishes that the facts are clearly insufficient to support a probable cause finding. Id. It is the duty of the reviewing court to ensure that the magistrate had a substantial basis to conclude that the probable cause existed. Id.

¶ 22. Our deference to the magistrate's probable cause determination supports the well-established preference under the Fourth Amendment that searches be conducted pursuant to a warrant. Id. at 990 (quoting DeSmidt, 155 Wis. 2d at 133).

¶ 23. A finding of probable cause is a common sense test.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a- fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238 (1983).

¶ 24. When a warrant-issuing judge's determination of probable cause is doubtful or marginal, we examine it in light of this strong preference that law enforcement officers conduct searches pursuant to a warrant. Higginbotham, 162 Wis. 2d at 990.

¶ 25. In this case, Ward asserts that Judge Welker did not confine his probable cause determination to the circumstances set forth in the affidavit. Ward argues that Judge Welker supplied facts to the affidavit based upon his own experience and then made inferences from the facts he provided to establish probable cause.

¶ 26. Whether there is probable cause to believe that evidence is located in a particular place is determined by examining the "totality of the circumstances." DeSmidt, 155 Wis. 2d at 131 (quoting Gates, 462 U.S. at 238). We agree with Ward that a probable cause determination must be based upon what a reasonable magistrate can infer from the information presented by the police. " 'The issuing magistrate ordinarily considers only the facts set forth in supporting affidavits accompanying the warrant application.'" United States v. Khounsavanh, 113 F.3d 279, 283 n.1 (1st Cir. 1997) (quoting United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996)). We therefore consider only the facts presented to the magistrate. A magistrate issuing a warrant must be neutral and independent and must act in a neutral and a detached manner. State ex rel. Pflanz v. County Court, 36 Wis. 2d 550, 560, 153 N.W.2d 559 (1967) (citations omitted). The subjective experiences of the magistrate are not part of the probable cause determination.

¶ 27. Therefore, we must consider whether objectively viewed, the record before the warrant-issuing judge provided " 'sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched.'" State v. Kerr, 181 Wis. 2d 372, 378, 511 N.W.2d 586 (1994) (quoting State v. Starke, 81 Wis. 2d 399, 408, 260 N.W.2d 739 (1978)). Ward contends that without Judge Welker's reliance on his experience to infer that evidence of criminal activity would be found at Ward's residence, Detective Anderson's affidavit is insufficient because it contains no statement creating a nexus between the items sought and Ward's residence on Royce Street. However, our examination of the facts leads to the conclusion that the information presented to the warrant-issuing judge was sufficient for a reasonable person to logically infer that evidence would be found at Ward's home. DeSmidt, 155 Wis. 2d at 131-32, 135.

¶ 28. The purpose behind the constitutional requirement of obtaining a search warrant is not to deny law enforcement officers the support of the usual inferences that reasonable individuals may draw from evidence. Id. at 135 (quoting Starke, 81 Wis. 2d at 409). The Fourth Amendment simply requires that a neutral and detached magistrate draw inferences instead of a law enforcement officer who is " 'engaged in the often competitive enterprise of ferreting out crime.'" State v. Beal, 40 Wis. 2d 607, 613, 162 N.W.2d 640 (1968)(quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)). Thus, "[ajlthough the finding cannot be based on the affiant's suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented." Bast v. State, 87 Wis. 2d 689, 693, 275 N.W.2d 682 (1979).

¶ 29. The facts supporting a finding of probable cause to search are as follows. The affidavit states that Derrell Vance "sells pounds of marijuana." Vance distributes marijuana to his dealers. A search of the Vance home turned up 3,311 grams of marijuana and over $11,000 in cash. It can be reasonably inferred from these facts that Vance is himself a substantial dealer.

¶ 30. Vance identifies his supplier as Lance who lives on Royce. Vance supplies no other address or location. We agree with the State that it can be inferred from this information that Vance obtained the marijuana from Lance where Lance lived, on Royce. Given the large quantity of drugs involved, the link of a supplier of drugs and an address, plus the reasonable inference that Vance deals in a high volume of drugs and therefore "Lance" is an even bigger fish, leads us to conclude that the affidavit presents a substantial basis to find probable cause to believe that illegal items will be found at the home of Lance Ward on Royce. The obvious and reasonable inference is that Lance dealt drugs from his home. It is not the only inference that can be drawn, but it is certainly a reasonable one. The test is not whether the inference drawn is the only reasonable inference. The test is whether the inference drawn is a reasonable one.

¶ 31. Although Ward argues that this type of inference cannot be made without an explicit statement in the affidavit linking the illegal drugs to the Ward residence, we disagree.

¶ 32. We have rejected taking an overly technical and formalistic approach to the contents of an affidavit.

'[Alffidavits for search warrants,. . .must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. ...'

Higginbotham, 162 Wis. 2d at 991-92 (quoting Starke, 81 Wis. 2d at 410).

¶ 33. Ward contends that had Detective Anderson inserted a sentence in his affidavit to the effect that Ward is a drug dealer and, based upon the detective's experience, drug dealers keep drugs in their homes, the affidavit would have been satisfactory. Ward makes a similar argument in distinguishing this case from State v. Bernth, 246 N.W.2d 600 (Neb. 1976). In Bernth, the. Nebraska Supreme Court considered whether a search warrant was supported by sufficient grounds to believe that marijuana was kept at the defendant's residence. Id. at 601. The affidavit offered by police stated that the defendant had told a police informant that he had "pounds of grass for sale," and that the informant had identified the defendant's place of residence. Id. The affiant also stated that he believed the controlled substance was situated at the residence. Id. Ward contends that this statement in Bernth by the affiant created a nexus between the items sought and the location. We believe this level of formalism is not in keeping with the totality of the circumstances test. As the Bernth court noted, "[s]eldom can an affiant seeking a search warrant state positively that a certain residence contains contraband. Such a conclusion can only be arrived at by a magistrate on consideration of known facts and common-sense probabilities." Id. at 602.

¶ 34. Our reasoning in State v. Tompkins, 144 Wis. 2d 116, 423 N.W.2d 823 (1988), applies here. Where there is evidence that would lead a reasonable person to conclude "that the evidence sought is likely to be in a particular location," there is probable cause for a search of that location, even if it may also be reasonable to conclude that the evidence may be in a second or third location as well. Id. at 125. We conclude that the warrant-issuing judge could reasonably infer that because Darrel Vance, himself a high volume dealer, identified "Lance on Royce" as his supplier, and that Lance Ward owned a home on Royce, there was probable cause to search the Ward residence.

¶ 35. Finally, Ward contends that Vance, the informant, was inherently unreliable because Vance had no past record of reliability and was attempting to bargain his way out of jail. When considering this issue Judge Welker stated that Vance was making an inculpatory statement under circumstances where, if his statements were found to be untruthful, Vance would be in deeper trouble. Under these circumstances, the judge found Vance to be reliable. We find Judge Welker's conclusion to be reasonable.

¶ 36. In finding that the affidavit supplied sufficient facts from which to draw an inference of probable cause to search, we are not suggesting that when there is sufficient evidence to identify an individual as a drug dealer, as all the parties conclude there was, that there is sufficient evidence to search the suspect's home. In this case, the affidavit identifies one address in Beloit and two individuals who both deal drugs in volume. Accordingly, we find sufficient facts in the affidavit to connect illegal drugs to the Ward residence and therefore find a basis for finding probable cause to issue a search warrant.²

II

¶ 37. We turn then to Ward's second basis for arguing that evidence seized by the Beloit police should be suppressed. Ward argues that the evidence seized at his home is inadmissible because it was obtained as the result of an unconstitutional violation of the rule of announcement. " 'Whether searches and seizures pass constitutional muster is a question of law, which this court reviews without deference to the lower courts.'" State v. Meyer, 216 Wis. 2d 729, 746, 576 N.W.2d 260 (1998) (quoting State v. Guy, 172 Wis. 2d 86, 93, 492 N.W.2d 311 (1992)).

¶ 38. For Fourth Amendment purposes, an entry that does not comply with the rule of announcement "is justified if police have a 'reasonable suspicion' [under the particular circumstances] that knocking and announcing would be dangerous, futile, or destructive to the purposes of the investigation." Meyer, 216 Wis. 2d at 749-50 (quoting United States v. Ramirez, 523 U.S. 65, 67-68 (1998)). Following the principles set forth by the Supreme Court, we have held that when there is no compliance with the rule there must exist particular facts to support an officer's reasonable suspicion that exigent circumstances exist. Id. at 751.

¶ 39. The nature and structure of our federal system of government shape our analysis of the no-knock issue presented in this case. In general, state courts exercise concurrent jurisdiction with the federal courts in cases arising under the Constitution of the United States. "The two together form one system of jurisprudence, which constitutes the law of the land for the State. . ." Claflin v. Houseman, Assignee, 93 U.S. 130, 137 (1876). On federal questions, the determinations of the United States Supreme Court are binding upon state courts. State v. Mechtel, 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993). However, " '[u]ntil the Supreme Court of the United States has spoken, state courts are not precluded from exercising their own judgment upon questions of federal law.'" Id. (quoting United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970)). This court "has been designated by the constitution and the legislature as a law-declaring court." State ex rel. La Crosse Tribune v. Circuit Ct., 115 Wis. 2d 220, 230, 340 N.W.2d 460 (1983). Our decisions interpreting the United States Constitution are binding law in Wisconsin until this court or the United States Supreme Court declares a different opinion or rule.

¶ 40. In Stevens, 181 Wis. 2d at 424-25, this court initially adopted a rule providing that when the police have a search warrant, supported by probable cause, to search a residence for evidence of felony drug delivery or dealing, the officers are justified in making a no-knock entry. Subsequent to our decision in Stevens, the Supreme Court held that the rule of announcement forms part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995). In light of Wilson, we considered whether the Fourth Amendment allows a blanket exception to the general requirement of "knock and announce" for entries into premises pursuant to a search warrant for evidence of felonious drug delivery. State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (June 12, 1996). In Richards we reaffirmed our rule that "exigent circumstances are always present in the execution of search warrants involving felonious drug delivery: an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police." Id. at 847-48.

¶ 41. Thus on December 4, 1996, when Judge Welker signed the search warrant and authorized a no-knock entry into the Ward residence, the law in Wisconsin for over two years, and as twice affirmed by this court, authorized police executing a search warrant for evidence of felonious drug activity to make a no-knock entry. However, three months after the search of Ward's home, the Supreme Court issued an opinion in apparent disagreement with our conclusion that the Fourth Amendment permits a per se exception to the rule of announcement when officers execute a search warrant in a felony drug investigation. Richards v. Wisconsin, 520 U.S. at 388.

¶ 42. We review this chronology of events to emphasize that although the officers in this case did not comply with the rule of announcement, this was not due to negligence, a mistake of law, or willful or malicious misconduct by the officers. All the parties relied upon a rule set forth as a matter of judicial discretion by this court in Stevens and State v. Richards. We thus begin our analysis as one that requires this court to consider what is the appropriate remedy when evidence is seized in conformance with controlling law as articulated by this court which is subsequently reversed.

¶ 43. To begin, we first consider whether the violation of the rule of announcement comes before us as a question to be considered under the Fourth Amendment to the United States Constitution,³ an issue arising under art. I, § 11 of the Wisconsin Constitution,⁴ or both. We find that both the Wisconsin Constitution and the Fourth Amendment are properly before this court.

¶ 44. The State asserts Ward's motion to suppress evidence seized due to a violation of the rule of announcement arises only under the Fourth Amendment. As a result, the State contends that this court should therefore limit its consideration of the issue to Fourth Amendment jurisprudence. As a matter of Fourth Amendment jurisprudence, the State argues that the evidence should be admitted under the good faith exception to the exclusionary rule.⁵ Illinois v. Krull, 480 U.S. 340 (1987). Ward contends that his motion to suppress the physical evidence seized because of the violation of the rule of announcement was preserved on state and federal grounds. We agree that both the Fourth Amendment and art. I, § 11 of the Wisconsin Constitution are at issue here.

¶ 45. Although it is the general rule that issues not raised or considered in the circuit court will not be considered for the first time on appeal, this rule is not absolute. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998); Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). "When an issue involves a question of law rather than of fact, when the question of law has been briefed by both parties and when the question of law is of sufficient public interest to merit a decision, this court may exercise its discretion to address the issue." Apex Electronics Corp., 217 Wis. 2d at 384. Application of art. I, § 11 of the Wisconsin Constitution is a question of law. The parties briefed the issue of an exception to the exclusionary rule in their arguments regarding the first issue in this case, the validity of the search warrant. Amici curiae also submitted a brief discussing the exclusionary rule as a matter of state constitutional law, to which the State filed an in-depth response. In addition, at oral argument, counsel for Ward specifically discussed this issue. In addition, although our decision in this case will affect only a narrow band of cases arising between our holding in State v. Richards and Richards, we consider the question of the application of the Wisconsin Constitution to this matter to be of sufficient public interest to merit our address. Finally, a consolidated case decided today invokes both the Wisconsin and United States Constitutions. State v. Orta, 2000 WI 4, 231 Wis. 2d 782, 604 N.W.2d 543.⁶ Therefore, to the extent that there are any doubts on this point, we exercise our discretion and address the Wisconsin constitutional issue as well as the Fourth Amendment issue presented in this case.

¶ 46. The exclusionary rule bars evidence obtained in an illegal search and seizure from a criminal proceeding against the victim of the constitutional violation.⁷ Krull, 480 U.S. at 347. The Supreme Court has stated that "the [exclusionary] rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calendra, 414 U.S. 338, 348 (1974) (footnote omitted). Application of the rule "has been restricted to those areas where its remedial objectives are thought most efficaciously served." Id. at 348.

¶ 47. "The [exclusionary] rule is calculated to prevent, not repair." Elkins v. United States, 364 U.S. 206, 217 (1960). Although this remedial principle appears to be the sole pillar supporting the Supreme Court's contemporary rationale for application of the exclusionary rule a second principle, judicial integrity, has been cited in the Court's exclusionary rule jurisprudence:

It was of this [judicial integrity] that Mr. Justice Holmes and Mr. Justice Brandeis so eloquently spoke in Olmstead v. United States. . . ."For those who agree with me," said Mr. Justice Holmes, "no distinction can be taken between the Government as prosecutor and the Government as judge.". . ."In a government of laws," said Mr. Justice Brandéis, "existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — -to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

Elkins, 364 U.S. at 222—23 (quoting Olmstead v. United States, 277 U.S. 438, 470, 485 (1928)).

¶ 48. Whether the purpose of the exclusionary rule is solely remedial or also a matter of judicial integrity, the Supreme Court has made clear that for Fourth Amendment purposes "the policies behind the exclusionary rule are not absolute. Rather, they must be evaluated in light of competing policies." Stone v. Powell, 428 U.S. 465, 488 (1976). In Powell the Supreme Court said:

Although our decisions often have alluded to the 'imperative of judicial integrity,¹ they demonstrate the limited role of this justification in the determination whether to apply the rule in a particular context. . . .While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.

Id. at 485 (internal citation and footnotes omitted).

¶ 49. In this case, we do not believe that excluding the evidence seized by the police will serve any remedial objective, or that judicial integrity is sullied by admission of the evidence. On December 4,1996, the officers' actions were in conformance with the law in Wisconsin, as articulated by this court, allowing for no-knock entries. The greenest law student, the sawiest defense counsel, and a roomful of law professors would have reached the same conclusion. We find it impossible to say that under such facts and in consideration of binding federal precedent, the exclusionary rule should be applied to this violation of the rule of announcement.

¶ 50. Our conclusion is supported by the rule articulated by the Supreme Court in Krull. In Krull, police officers conducted a search pursuant to an Illinois statute authorizing warrantless administrative searches of certain premises licensed by the state. Krull, 480 U.S. at 342-44. The Illinois Supreme Court subsequently found that the statute violated the Fourth Amendment, and the evidence seized pursuant to the statute was suppressed. Id. at 346. The United States Supreme Court concluded that the evidence should be admitted under a good-faith exception to the Fourth Amendment exclusionary rule. Id. at 346, 360. The Court stated:

The application of the exclusionary rule to'suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer's actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.

Krull at 349—50.

¶ 51. The court in Krull indicated it was "concerned solely with whether the detective acted in good faith reliance upon an apparently valid statute." Id. at 357 n.13. The Court found that he did. Id. at 360. In this case we are concerned solely with whether the officers acted in good faith reliance upon the pronouncements of this court.

¶ 52. Execution of a no-knock entry in this case was founded upon a rule articulated by this court. Having been obtained pursuant to the search and seizure principles we expounded, we cannot say now that the subsequent change in Fourth Amendment jurisprudence has somehow transformed the character of the evidence seized at the Ward home into something so tainted that it mars judicial integrity. Nor will any remedial purpose be achieved through exclusion of the evidence when the officers and magistrate followed, rather than defied, the rule of law. Accordingly, we conclude that the evidence is admissible under the Fourth Amendment.

¶ 53. We turn then to art. I, § 11 of the Wisconsin Constitution. We conclude that in this case, the Wisconsin Constitution does not require exclusion of the evidence seized at the Ward residence.

¶ 54. Issues of federalism and sovereignty again shape our discussion. The holdings of the United States Supreme Court do "not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Cooper v. California, 386 U.S. 58, 62 (1967). We have also stated:

This court. . .will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin and the laws of this state require that greater protection of citizens' liberties ought to be afforded.

State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977).

¶ 55. The text of art. I, § 11 of the Wisconsin Constitution and the text of the Fourth Amendment of the United States Constitution are essentially identical. Tompkins, 144 Wis. 2d at 131. Our interpretation of the Wisconsin search and seizure provision has normally been consistent with the requirements of the United States Constitution as interpreted by the Supreme Court. Id. at 133. Therefore as an initial matter, the rule of announcement is one part of the reasonableness inquiry under art. I, § 11 of the Wisconsin Constitution, in conformity with the Supreme Court's decision in Wilson v. Arkansas, 514 U.S. at 930.

¶ 56. Thus, we next consider whether the evidence seized at the Ward residence should be suppressed pursuant to the Wisconsin exclusionary rule adopted in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923).

¶ 57. We first consider whether the exclusionary rule adopted in Hoyer is merely a judge-made rule, as the State contends, or whether, as the defendant argues, it is a personal right under the Wisconsin Constitution. We have decided this question and there is no need to revisit it. When discussing the exclusionary rule in Tompkins, we stated:

The protection of rights and the preservation of judicial integrity depend in reality on the deterrent effect of the exclusionary rule. Unlawful police conduct is deterred when evidence recovered in unreasonable searches is not admissible in courts. The Wisconsin cases discussed in Hoyer and statements of that court all concerned judicial protection against police oppression. That is, the exclusionary rule developed as a judicial remedy to deter unreasonable searches and seizures. The fourth amendment was and is a limit on the powers of government.

Tompkins, 144 Wis. 2d at 133-34.

¶ 58. We do not reexamine our conclusions in Tompkins that the exclusionary rule in Wisconsin is a judicial remedy. However, we concur with the views expressed by the Vermont Supreme Court which stated that "[e]ven if our exclusionary rule were no more than a judicially created remedy, this Court would maintain the obligation to ensure that the remedy effectuates [state constitutional] rights." State v. Oakes, 598 A.2d 119, 121 (Vt. 1991). The Vermont Supreme Court further stated:

By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court's decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court's decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates [the state constitutional] rights, and would disserve those rights.

Id. 598 A.2d at 122.

¶ 59. Although we generally conform art. I, § 11 to Fourth Amendment jurisprudence, it would be a sad irony for this court to exhort magistrates to act as something more than "rubber stamps" when issuing warrants, and to then act as mere rubber stamps ourselves when interpreting our Wisconsin Constitution. It is our responsibility to examine the State Constitution independently. This duty exists even though our conclusions in a given case may not differ from those reached by the Supreme Court when it interprets the Fourth Amendment. State v. Guzman, 842 P.2d 660, 667 (Idaho 1992).

¶ 60. In this case, because the police and magistrate relied upon our rule from State v. Richards, we conclude that the Wisconsin Constitution does not require suppression of the evidence.

¶ 61. In determining whether this evidence should be excluded under the Wisconsin Constitution, we find persuasive the rational used in United States v. Peltier, 422 U.S. 531 (1975). In Peltier, Border Patrol agents stopped a vehicle 70 air miles from the Mexican border. Peltier, 422 U.S. at 533. The Border Patrol searched the vehicle and seized 270 pounds of marijuana from the trunk of the car. Id. at 532. Four months after this stop occurred, the United States Supreme Court "held that a warrantless automobile search, conducted approximately 25 air miles from the Mexican border by Border Patrol agents, acting without probable cause, was unconstitutional under the Fourth Amendment." Id. at 532-33 (citing Almeida-Sanchez v. United States, 413 U.S. 266 (1973)). Although the stop of Peltier was unconstitutional under the rule from Almeida-Sanchez, the Supreme Court decided that the evidence should not be excluded. The Supreme Court stated that the basis for the stop was founded upon the Border Patrol's reliance upon a federal statute, administrative regulations implementing the statute, and continuous judicial approval of the regulation. Id. at 540-41. The Supreme Court stated:

[u]nless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm. If the purpose of the exclusionary rule is to deter unlawful police conduct then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.

Id. at 542 (internal citations and footnote omitted).

¶ 62. Similarly, we believe that law enforcement officers and magistrates must be allowed to reasonably rely upon the pronouncements of this court. Therefore, we hold that under the Wisconsin Constitution the evidence seized at the Ward residence is admissible. The officers acted in reliance upon pronouncements of this court. That is the only issue before us and is the only issue we decide.

¶ 63. In summary, we conclude that the warrant was issued with probable cause to search Ward's residence. In addition, the officers' failure to comply with the rule of announcement violated the Fourth Amendment and art. I, § 11 of the Wisconsin Constitution. However, because the officers relied, in objective good faith, upon the pronouncements of this court we hold that exclusion of the evidence would serve no remedial objective and, therefore, the evidence seized at the Ward residence should be admitted. Finally, we hold that as a matter of state constitutional law the evidence is properly admissible.⁸

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

1 The rule of announcement requires "police to do three things before forcibly entering a home to execute a search warrant: 1) announce their identity; 2) announce their purpose; and 3) wait for either the occupants to refuse their admittance or, in the absence of an express refusal, allow the occupants time to open the door." State v. Stevens, 181 Wis. 2d 410, 423, 511 N.W.2d 591 (1994); State v. Meyer, 216 Wis. 2d 729,734-35, 576 N.W.2d 260 (1998).

2 Because we find the search warrant was supported by probable cause, we do not reach the State's argument suggesting that the evidence seized at the Ward home is admissible under a good faith exception to the exclusionary rule.

3 Amendment IV of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

4 Article I, § 11 of the Wisconsin Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

5 For the purposes of this case we assume without deciding that the exclusionary rule is the proper remedy for a violation of the rule of announcement.

6 In State v. Orta, 2000 WI 4, 231 Wis. 2d 782, 604 N.W.2d 543, a consolidated case, officers executing a search warrant made a no-knock entry that was valid under our rule from 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). As in this case, the defendants moved to suppress the evidence seized by the police after the United States Supreme Court decided Richards v. Wisconsin, 520 U.S. 385 (1996). For the reasons set forth in this opinion, we held in Orta that the evidence seized in that case is admissible. Orta, 2000 WI 4, ¶ 2.

7 The State argues that the exclusionary rule does not generally apply to evidence seized in the execution of a search warrant after a violation of the rule of announcement. According to the State, when a violation of the Fourth Amendment occurs, the court must find sufficient causal relationship between the violation and the discovery of evidence to support application of the exclusionary rule. United States v. Ramirez, 523 U.S. 65, 72 n.3 (1998). Because we deny the motion to suppress on other grounds, we need not address this issue.

8 Having concluded that the evidence is admissible under the Wisconsin Constitution because the officers relied upon a rule established by this court, we need not consider the State's alternative argument that the officers reasonably relied upon the no-knock search warrant.

1 A number of courts confronted with facts similar to those presented in this case have concluded no nexus was established between the drug dealing and the defendant's home. These cases are discussed in the court of appeals thorough opinion. See also State v. Thien, 977 P.2d 582, 588 (Wa. 1999) (en banc) (warrant authorizing the search of a drug dealer's apartment must present specific evidence tying the residence to the illegal activity).