United States v. Singer

727 F. Supp. 1281, 1990 U.S. Dist. LEXIS 46, 1990 WL 223
CourtDistrict Court, E.D. Wisconsin
DecidedJanuary 2, 1990
DocketNo. 89-Cr-59
StatusPublished
Cited by2 cases

This text of 727 F. Supp. 1281 (United States v. Singer) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Singer, 727 F. Supp. 1281, 1990 U.S. Dist. LEXIS 46, 1990 WL 223 (E.D. Wis. 1990).

Opinion

DECISION and ORDER

TERENCE T. EVANS, District Judge.

As anyone who watches television these days knows, the search of a home by police officers looking for drugs is not an activity for wimps. The police usually arrive with things like sledgehammers, bullhorns, tear gas, shotguns, and drawn 357 magnums. Usually the officers figuratively tiptoe up to the door of the house, say to themselves “Ready, set, go,” and then knock loudly on the door, yelling “Police — search warrant.” If the door isn’t opened within a second or two (which it almost never is), the officers, at least on television, usually barge in and, after a few moments of pandemonium, “secure” the premises so the actual search can be conducted.

When drugs are found while executing a search warrant, a defendant charged with their possession often asks a judge to “suppress” their use at trial. In 99 out of 100 cases the defendant argues that probable cause to support the issuance of the search warrant did not exist. This is that 1 case out of 100 where the existence of probable cause is not in dispute. Rather, the issue in this case concerns the manner of entry into a premises to conduct a search. Before getting to the issue, a little background is in order.

James Singer and Brian Halenka are charged with conspiracy to manufacture, distribute, and possess amphetamine and methamphetamine with intent to distribute. Mr. Singer is also charged with possessing 3.2 kilograms of methamphetamine. The methamphetamine charged in the second count was seized during a search of Mr. Singer’s residence at 1328 South 85th Street, West Allis, Wisconsin, on January 25, 1989.

The search of the Singer residence on January 25, 1989, began at 9:02 a.m. It was conducted by fifteen police officers armed with a search warrant issued the previous day by Milwaukee Circuit Court Judge Joseph P. Callan. In addition to authorizing the search, Judge Callan stated that entry into the Singer home could be done in the so-called “no-knock” fashion. That is, Judge Callan said the officers could enter the home without first announcing their presence and giving the occupants an opportunity to open the door.

Judge Callan’s decision to permit a “no-knock” entry into the Singer home was based upon the following testimony:

Q (Asst. D.A.) And you are seeking a no-knock search warrant?
A (Police Officer Porter) Yes.
Q (Asst. D.A.) Why is it that you are seeking a no-knock search warrant?
A (Porter) Reasons are on the CAP or Community Against Pushers complaint, we received information that the subject at 1328 South 85th Street has involvement with handguns and it is my experience through working on the street, involvement with informants working undercover and recent conversations with other law enforcement officers that drug dealers fre[1283]*1283quently are known to have weapons in their possession.
Q (Asst. D.A.) Are there any other reasons why you are seeking a no-knock search warrant?
A (Porter) For the safety of the officers involved.
Q (Asst. D.A.) Do you know whether—
A (Porter) And to prevent the disposal of possible evidence.
Q (Asst. D.A.) And when you say to prevent the disposal of possible evidence, what do you mean by that?
A (Porter) Oftentimes if it takes a longer amount of time to enter and secure a residence, there is a possibility of the substances to be destroyed by either flushing them down the toilet or the use of substances such as bleach to destroy the substances.
Q (Asst. D.A.) Detective Sage, do you have any other information that you can provide to the Judge to assist him in any way?
A (Sage) No.
Q (Asst. D.A.) Detective or, Sergeant Porter, do you have any other information that you could provide to the Judge to assist him in any way?
A (Porter) Not to my knowledge.

Transcript of Search Warrant Application Hearing of January 24, 1989, pp. 12-13.

A state search, as this one was, is governed by state law as long as the law applied does not violate the fourth amendment. Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963). Wisconsin state law authorizes the use of “all necessary force” in the execution of search warrants. Wis.Stat. § 968.14. This provision has been construed to permit “no-knock” entry where justified by the facts of a particular case. See State v. Suits, 73 Wis.2d 352, 243 N.W.2d 206 (1976).

Although “no-knock” entries are clearly permitted under Wisconsin law, they are the exception, not the rule. As the Wisconsin Supreme Court noted in State v. Cleveland, 118 Wis.2d 615, 622, 348 N.W.2d 512. (1984).

[t]he requirement that police officers seeking to enter a dwelling in execution of a warrant must announce their presence (identity) and purpose and allow time for the door to be opened, known as the rule of announcement, has long been recognized in Anglo-American common law. (Footnote omitted.) The earliest common-law decision enunciating the rule apparently was in 1603 in Semayne’s Case, 5 Coke Rep 91a, 91b, 11 Eng.Rul.Cas. 629, 631, 77 Eng.Rep. 194, 195, where the court said:
“In all cases when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K[ing]’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.”

The rule of announcement addresses the manner in which a legitimate government intrusion into a private dwelling is to take place. As noted in Cleveland, the rule serves three important purposes: (1) protecting the individual’s privacy in the home; (2) decreasing the potential for violence by alerting the resident that the officer is legitimately on the premises; and (3) preventing the physical destruction of property by giving the resident the opportunity to admit the officer voluntarily.

The rule requiring an announcement before entry also has federal constitutional implications. Ker, 374 U.S. at 46, 83 S.Ct. at 1636. Generally, the fourth amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers’ authority and purpose, or (2) where the officers are justified in the belief that persons within (or the officers themselves) are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is [1284]*1284being attempted. 374 U.S. at 47, 83 S.Ct.

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Related

United States v. James Paul Singer
943 F.2d 758 (Seventh Circuit, 1991)
United States v. Hidalgo
747 F. Supp. 818 (D. Massachusetts, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
727 F. Supp. 1281, 1990 U.S. Dist. LEXIS 46, 1990 WL 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-singer-wied-1990.