99-2296-CR State v. Henderson

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“The rule against ‘rehabilitating’ a warrant after-the-fact by information known to the police but not included in the warrant application… applies only to challenges to the sufficiency of a search warrant under the warrant clause, not challenges to the manner of execution of a search warrant under the reasonableness clause. The cases recognized that allowing the probable cause basis for the issuance of a warrant to be bolstered after the fact would render the warrant clause meaningless by essentially allowing warrants to be issued upon less than probable cause, as long as the proper showing could be made later. Whiteley, 401 U.S. at 565 n .8 (citing Aguilar, 378 U.S. at 109 n. 1). They also recognized that allowing defective warrants to be ‘rehabilitated’ in this way would remove the initial probable cause determination from the neutral magistrate where the constitution explicitly places it. Id. at 565-66. These concerns are not present in the post hoc evaluation of a law enforcement decision to dispense with the rule of announcement, which is not a component of the Fourth Amendment’s warrant clause but its reasonableness clause and therefore is not subject to prior judicial authorization.”

“The officers who executed this search warrant reasonably suspected that Henderson might destroy the drug evidence if they knocked and announced. Henderson’s prior record of drug dealing certainly gave him an incentive to do so, given the heightened penalties for repeat drug offenders. See Wis. Stat. ß 961.48. Furthermore, the officers knew that the layout of Henderson’s apartment and, more specifically, the location of the room in which he stored his drugs – across from the bathroom – made quick destruction of the evidence particularly easy. The officers were also aware, based upon their previous experiences, that drugs like marijuana and cocaine are easily destroyed and that drug dealers often flush them down the toilet as the police are crossing the threshold with a warrant.”

Affirmed.

DISSENTING OPINION: Abrahamson, C.J. “[T]he officers also testified that the defendant was not known to carry a weapon, and they did not testify about any specific acts of violence by the defendant against officers. Without particular allegations of violent conduct, general allegations regarding the defendant’s ‘gang affiliation’ do not establish a reasonable suspicion that knocking and announcing the officers’ presence might endanger the officers’ safety. For the reasons set forth, I dissent.”

Sykes, J.

Attorneys:

For Appellant: Eileen A. Hirsch, Madison

For Respondent: Diane M. Welsh, James E. Doyle, Madison