2007 WI APP 33

COURT OF APPEALS

DECISION

DATED AND FILED

January 17, 2007

Cornelia G. Clark

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2006AP1339-CR	Cir. Ct. No.� 2005CF148
STATE OF WISCONSIN��			IN COURT OF APPEALS



State of Wisconsin,� �� Plaintiff-Respondent,� �� v. Thomas William Brady,� �� Defendant-Appellant.�

�� APPEAL from a judgment and an order of the circuit court for Marinette County:� Tim A. Duket, Judge.� Affirmed.�

�� Before Cane, C.J., Hoover, P.J., and Peterson, J.

�1�� HOOVER, P.J.� Thomas Brady appeals a judgment of conviction for being a felon in possession of a firearm and an order denying his motion to suppress evidence.� Brady asserts the police violated his Fourth Amendment rights by failing to follow the knock-and-announce rule.� We conclude the police did not infringe on any of the interests protected by the announcement rule.� Accordingly, we affirm the judgment and order.

Background

�2�� On July 31, 2005, sheriff�s deputy Barry Degnitz and a second deputy visited Brady�s home, seeking a woman for whom an arrest warrant had been issued.� Brady was cooperative, allowing officers into the home to search for the woman.� While in the home, Degnitz noticed firearms and ammunition in plain sight.� Degnitz later learned that Brady and one of his roommates, Thomas Fleischfresser, had felony convictions.� Thus, Degnitz sought a search warrant for the firearms and ammunition he observed.� The warrant was issued, but it did not contain a �no-knock� provision.

�3�� On August 1, Degnitz and deputy Christopher Tonn executed the warrant. They knocked for approximately one minute, but did not announce their identity or that they had a warrant.� There was no response, and the only extraneous noise the officers noted was an air conditioner, making average noise for that type of appliance.

�4�� Because there was no answer, the deputies attempted to �jimmy� the lock on the door.� They succeeded in unlatching the door without damage and entered.� Neither Brady nor Fleischfresser was home.� The third roommate, Troy Fuller, was sleeping on the couch.� The officers conducted their search according to the warrant, seizing guns, ammunition, and hunting gear.�

�5�� Brady was charged as a felon in possession of a firearm.� He brought his motion to suppress, alleging a Fourth Amendment violation for the jimmying of the lock in violation of the announcement rule.� Although the court determined there was forcible entry, it characterized the entry as a technical violation and applied the futility exception, concluding even had the deputies announced themselves, there would have been no response from Fuller inside.� Accordingly, the court denied the motion.� Brady then pled no contest.� The court imposed a fine, which was stayed pending appeal.[1]

Discussion

�6�� We review a motion to suppress in two steps.� State v. Eason, 2001 WI 98, �9, 245 Wis. 2d 206, 629 N.W.2d 625.� We uphold the trial court�s factual findings unless clearly erroneous, but we apply constitutional principle to the facts de novo.� Id.� Here, the facts are undisputed so only the legal question remains.� See State v. O�Brien, 223 Wis. 2d 303, 315, 588 N.W.2d 8 (1999).

�7�� Brady complains that the deputies� failure to knock and announce violated his �right to privacy in his home.�� The State effectively challenges Brady�s standing, asserting he cannot complain of an improper search because he was not home at the time.� However, we need not analyze the standing question in any particular depth because we conclude Brady�s challenge fails in any event.[2]

�8�� The Fourth Amendment to the United States Constitution requires searches to be reasonable.[3]� Whether officers have followed the announcement rule is part of a Fourth Amendment reasonableness inquiry.� Wilson v. Arkansas, 514 U.S. 927, 934 (1995); Eason, 245 Wis. 2d 206, �17.

�9�� The announcement rule �requires the 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 [] allow the occupants time to open the door.�� Eason, 245 Wis. 2d 206, �17 (quotations omitted).� The rule thus fulfills three purposes:� protecting the safety of police and others; preventing the physical destruction of property; and protecting the limited privacy interests of the occupants of the premises to be searched.� Id.

�10�� The first purpose, safety, is important because �an unannounced entry may provoke violence in supposed self-defense by the surprised resident.�� Hudson v. Michigan, __ U.S. __, 126 S.Ct. 2159, 2165 (2006).� To prevent physical destruction of property, the knock-and-announce rule gives individuals an opportunity to comply with the law and avoid property damage resulting from forced entries.� Id.� Finally, the �privacy� interest here is a narrow protection of the resident�s dignity.� That is, �it assures the opportunity to collect oneself before answering the door.�� Id.

�11�� Brady makes much of the general right to be secure in his home or personal effects.� However, that more general privacy right is protected by the warrant requirement, not the announcement rule.� Id.� Indeed, �[w]hat the knock-and-announce rule has never protected � is one�s interest in preventing the government from seeing or taking evidence described in a warrant.�� Id.

�12�� Ultimately, when we determine whether to apply the exclusionary rule, we must examine whether the disputed search �has infringed an interest of the defendant which the Fourth Amendment was designed to protect.�� Rakas v. Illinois, 439 U.S. 128, 140 (1978) (emphasis added); see also Hudson, __ U.S. at ___, 126 S.Ct. at 2163-65.� In this case, that means we must examine the purposes of the knock-and-announce rule that Eason, 245 Wis. 2d 206, �17, described, as they relate personally to Brady.

�13�� The first consideration is the safety of the police and others.� Here, because Brady was not home, his safety was not endangered.� Conversely, the officers were not threatened because their entry could not �provoke violence� from a surprised Brady.� The safety consideration was not violated.

�14�� The second consideration is protection of property.� Although the trial court found the home was forcibly entered, there was no damage to the lock or any other property.� The sanctity of the homeowners� property was preserved.

�15�� The last consideration is the privacy right.� We reiterate, however, that this is a limited privacy right.� Brady was not home, so there was not even a miniscule chance the deputies would infringe upon his dignity.� Police would not, for example, break in and find Brady in an embarrassing or compromising situation.� The intrusion upon the sanctity of the home�the primary violation of which Brady complains�was authorized by the search warrant, the issuance of which Brady has not challenged.

�16�� The knock-and-announce rule protects three things:� the safety of the officers and residents, the integrity of personal property, and residents� dignity.� None of these protected interests, as they relate to Brady personally, was violated in this case. See Rakas, 439 U.S. at 140.� Accordingly, despite what might be considered a technical violation of the knock-and-announce rule, there is no justification for applying the exclusionary rule in this case because the constitutionally protected interests remain intact.� The motion to suppress was properly denied.

�� By the Court.�Judgment and order affirmed.

[1] Although a valid no contest plea usually waives nonjurisdictional defenses, one exception is that the right to challenge suppression motions remains.� See Wis. Stat. � 971.31(10). �All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

[2] Because we conclude Brady�s substantive challenge fails, we need not discuss the State�s alternate arguments.� See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on narrowest possible grounds).

[3] The equivalent provision in the Wisconsin Constitution is art. I, � 11.� Because the two constitutions contain �substantially identical provisions,� see Alston v. State, 30 Wis. 2d 88, 94, 140 N.W.2d 286 (1966), we may apply the United States Supreme Court�s Fourth Amendment analyses to our own parallel state constitutional questions.

Case No.:	2006AP1339-CR
Complete Title of Case:		� Petition for Review filed

Opinion Filed:	January 17, 2007
Submitted on Briefs:�	December 18, 2006


JUDGES:	Cane, C.J., Hoover, P.J., and Peterson, J.
��
��

Appellant
ATTORNEYS:	On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender.�

Respondent
ATTORNEYS:	On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and Peggy A. Lautenschlager, attorney general.�