|
COURT
OF APPEALS
DECISION
DATED AND FILED
November 12, 2008
David
R. Schanker
Clerk of Court of Appeals
|
|
2008 WI App 176
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.
|
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
|
|
|
|
|
|
|
|
|
State of Wisconsin,
Plaintiff-Appellant,
v.
Eric Dwayne Rogers,
Defendant-Respondent.
|
|
|
|
|
|
|
|
|
APPEAL
from an order of the circuit court for Racine County: Charles
h. constantine, Judge. Reversed
and cause remanded with directions.
Before Brown, C.J., Anderson,
P.J., and Snyder, J.
¶1 BROWN, C.J. This
case presents two novel issues, at least in Wisconsin.
The first issue deals with a situation where the affidavit supporting
the search warrant was correct, but the warrant itself identified the wrong
vehicle as the subject of the search because the officer used a prior,
unrelated search warrant to help him draft this one, and in so doing,
carelessly lifted information from the old warrant and put it into the
new. The second issue examines the law
when police wait inside a home while
a search warrant is being obtained to search it, rather than waiting outside
the home. We hold that the search
warrant for the vehicle was valid because the issuing magistrate obviously
based its decision on the fact that the executing officer had personal
knowledge of the car to be searched and his attached affidavit, correct on its
facts, illustrated that personal knowledge.
We further hold that entry into the home, under these facts, was illegal, but the illegality was attenuated by
knowledge that two hours passed, no search for contraband took place during the
entry, and the eventual search of the residence was pursuant to a valid search
warrant. We reverse and remand with
directions for further proceedings not inconsistent with this opinion.
¶2 A Racine police investigator learned from a confidential
informant that a “black male in his late 30’s” known as “Eric” was selling
cocaine “from a white Cadillac Deville four door with Wisconsin license plate
[] 526KHR.” Previously, the confidential
informant had provided information to the Racine
police department that led to at least ten arrests in the last year. The investigator also learned that the
Wisconsin DOT issued that license plate number to an Eric D. Rogers, date of
birth, November 21, 1969, residing at 1200 Superior St. in
Racine. The car was a white 1998 Cadillac DeVille
four door. This information built on
additional evidence that the investigator had learned about Rogers
over the last month from the police department’s own records and the
investigator’s own personal contacts and knowledge of Rogers, his car and his residence. The investigator put this information in an
affidavit and attached it to his search warrant application on December 4,
2006.
¶3 Pursuant to this application, the magistrate issued a search
warrant that day for Rogers’
car. The search warrant expressly
“incorporated by reference” the investigator’s affidavit. The affidavit correctly identified Rogers’
car all three times. On the face of the
search warrant, however, the investigator incorrectly identified Rogers’ car. The investigator drafted the warrant by
typing over the relevant parts of an old search warrant. In the first paragraph the warrant identified
the car as a “1996 Ford Crown Victorian four door, with a Wisconsin
Registration plate of 484LGS.” In the
next paragraph, the warrant identified the car as a “WHITE 1998 CADILLAC
DEVILLE FOUR DOOR with a Wisconsin license
plate of 425KHR.” Nowhere on the face of the warrant is Rogers’ car correctly
identified.
¶4 Later that night, two other police officers pulled Rogers over in his
DeVille because they knew about the search warrant. These officers also knew Rogers and his car from prior contacts or
observations. The officers identified
Rogers, the lone occupant, and the Cadillac DeVille, and advised him of the
search warrant. Then they removed and
cuffed Rogers,
and patted him down. During the pat
down, the officers found more than $1800 in currency and two cell phones.
¶5 Shortly thereafter, a Racine
police sergeant arrived and read the warrant to Rogers.
The sergeant noted the incorrect information, but the officers decided
the warrant was still valid based on the correct information in the
affidavit. While searching the car, the
officers seized nine grams of cocaine.
During the stop, the officers also saw Rogers’
brother and others making phone calls, prompting them to secure Rogers’ residence to
prevent the destruction of evidence while the investigator got another search
warrant.
¶6 The officers proceeded to Rogers’ residence and conducted a “protective
sweep.” Rogers’ mother met the officers at the door
and silently cooperated with their entry after learning that a search warrant
was being written. Rogers’ mother is a seventy-nine-year-old
woman who requires a walker and an oxygen tank.
She testified that she did not give the officers any verbal or other
indication that they could enter the residence.
The officers told her that “they had to come there to stay there and
wait for the warrant.” Upon entering,
the officers looked for other occupants throughout the residence. At that time no one else was home. The officers proceeded to wait inside the
residence and watch their television show for about two hours. During that time, Rogers’ brother appeared, and the officers
monitored all of his movements.
¶7 Shortly thereafter, the police executed the second warrant
and searched Rogers’
residence. The police seized additional
evidence including 143.5 grams of cocaine and two and one-half bags of
marijuana.
¶8 On December 5, 2006, the State charged Rogers with five drug crimes based on these
two searches and seizures. Rogers filed a motion to
suppress all evidence obtained from these searches.
¶9 At the suppression motion hearing, the trial court concluded
that the first search warrant was invalid and that the second search was
pursuant to an unlawful entry. The trial
court held that the two mistakes on the face of the warrant rendered the
warrant invalid and the stop and search of Rogers’ car and person unlawful. The trial court also held that the police
unlawfully entered and waited inside Rogers’
residence without a warrant or exigent circumstances, which rendered the
subsequent search unlawful.
¶10 On appeal, the State argues that the search warrant for Rogers’ car was valid
because the mistakes constitute “technical irregularities” within the meaning
of Wis. Stat. § 968.22
(2005-06)
and that evidence seized from Rogers’
residence is attenuated from their prior entry, even if the entry was unlawful.
Standard of Review
¶11 The constitutional reasonableness of a search and seizure is a
question of law. State v. Nicholson, 174 Wis. 2d 542, 545, 497
N.W.2d 791 (Ct. App. 1993). Whether
probable cause and exigent circumstances exist are also both questions of law
subject to independent, de novo review. See State v. Kiper, 193 Wis.
2d 69, 79-80, 532 N.W.2d 698 (1995); State v. Faust, 2004 WI 99, ¶9, 274 Wis. 2d 183, 682 N.W.2d
371.
Search of the Vehicle
¶12 The Fourth Amendment requires that search warrants particularly
describe the place to be searched and the person or things to be seized. Nicholson, 174 Wis.
2d at 546 (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987)). This requirement is intended to prevent a
general or wide-ranging exploratory search and to ensure that the search is
carefully tailored to its justification.
Id. To satisfy this intent, the
particularity requirement compels search warrants to describe the intended
place and items sought so that “the searcher [can] reasonably ascertain and
identify the things which are authorized to be seized” at the place intended to
be searched. State v. Noll, 116 Wis. 2d 443, 450-51, 343
N.W.2d 391 (1984).
¶13 In Hill v. California, 401 U.S. 797, 804 (1971), the United
States Supreme Court held that the touchstone of reasonableness under the
Fourth Amendment is sufficient probability, not certainty. A warrant containing incorrect information
still passes constitutional muster if “there [i]s no reasonable probability
that the wrong premises would be searched.”
See People v. Rodriguez, 680 N.Y.S.2d 2 (N.Y. App. Div. 1998). This prevents the suppression of evidence
because of technical irregularities that do not affect the defendant’s
substantial rights. See Wis. Stat. § 968.22. In Rodriguez, the court held that there
was no reasonable probability when (1) the affidavit in support of the warrant
application correctly listed the address three times and (2) the executing
officer applying for the warrant had personal knowledge of the place to be
searched. Rodriguez, 680 N.Y.S.2d
at 2.
¶14 In Nicholson, 174 Wis.
2d at 547-49, we held that the executing officer’s personal knowledge and the
presence of correct information overcame any incorrect information in the
warrant. There, the police’s
confidential informant personally showed the police officer Nicholson’s
apartment building and pointed out the particular apartment and how to gain
access to it. Id. at 546. This provided the officer with personal
knowledge of the place to be searched. Id. The search warrant and affidavit
described the physical location correctly, but provided the wrong property
address. Id. The officer did not know that the
warrant inaccurately described the premises until he began executing it. Id. at
547-48. Upon learning of the error, the
officer continued the search because he still believed he was in the right
apartment, “(1) it was the apartment pointed out to [the police officer] by the
informant, (2) it was the apartment for which the officers sought the warrant,
and (3) it was the apartment to which the warrant was intended to apply.” Id. at
548 (emphasis omitted). We held that
these facts ensured that the search complied with the warrant and overcame any
technical irregularity in the warrant itself without affecting any substantial
right of Nicholson. Id. at 548-49.
¶15 In this case, the executing officer had personal knowledge and
the officer attached and incorporated a correct affidavit. The affidavit correctly identified Rogers’ car three times,
describing the correct color, make, model, and style of the car along with the
correct license plate. This information
was based on the executing officer’s personal knowledge from prior encounters
with Rogers and
his car and from the confidential informant.
¶16 The face of the warrant, however, identified Rogers’ car incorrectly both times. First it identified a completely different
car, then the correct car with two incorrect numbers in the license plate. The executing officer stated that the
mistakes were a scrivener’s error from copying the information from an old
search warrant.
¶17 We hold that the mistakes on the face of the warrant are a
technical irregularity under Wis. Stat. § 968.22
and that the warrant meets the Fourth Amendment standard of
reasonableness. When the executing
officer has personal knowledge and attaches and incorporates an affidavit with
the correct information, a magistrate may conclude that there is no reasonable
probability that the officers will search the wrong premises. See State v. Gralinski, 2007 WI App
233, ¶¶15-16, 306 Wis.
2d 101, 743 N.W.2d 448 (courts review the magistrate’s inferences, not the
police officer’s, though the magistrate may consider an officer’s special
experience or knowledge). Accordingly,
the officers’ seizure of cocaine evidence from Rogers’
car and their subsequent search of Rogers’
person were pursuant to a valid search warrant.
Search of the Home
¶18 A warrantless police entry and search of a private residence is
valid “where the government can show both probable cause and exigent
circumstances that overcome the individual’s right to be free from government
interference.” State v. Hughes, 2000 WI
24, ¶17, 233 Wis.
2d 280, 607 N.W.2d 621. Probable cause
requires that the officers have a “fair probability” that criminal evidence
will be found in a particular place. Id.,
¶21. To prove exigent circumstances, the
State must objectively show that an “officer, under the facts as they were
known at the time, would reasonably believe that delay in procuring a search
warrant would gravely endanger life, risk destruction of evidence, or greatly
enhance the likelihood of the suspect’s escape.” Id., ¶24.
¶19 In this case, the police entered Rogers’
residence after seizing contraband from his car and person and then seeing Rogers’ brother and
others at the scene talking on their phones.
This triggered the officers’ entry into Rogers’
residence, upon the silence of Rogers’
elderly mother, and their protective sweep of the residence. The officers did not find or seize any
contraband during their protective sweep.
Still, they remained in the residence for two more hours, monitoring the
inhabitants’ movements, but not otherwise searching the residence. Then, after the warrant arrived, the officers
searched Rogers’
residence and seized contraband.
¶20 We hold that the initial entry and protective sweep of Rogers’ residence was an
unlawful, warrantless entry because no exigent circumstances were present. The officers’ hunch, after seeing Rogers’
brother and others on their cell phones, that someone would destroy evidence at
Rogers’ residence was just that—a guess that someone might be calling Rogers’
home. The officers actually had no idea
who Rogers’
brother or the other persons were calling, and probably to this day, do not
know for sure who they were calling.
Nonetheless, the officers figured that one of them might be calling the
residence, that more drugs might be located in that residence and that they
better get over to the residence and secure it before the drugs
disappeared. This is not enough
information to qualify as exigent circumstances. To constitute exigent circumstances, the
officers would have needed knowledge that someone would in fact destroy
evidence at a specific place. They would
have had to actually overhear one of those phone calls, and hear that one or
more of them was attempting to get to Rogers’
residence before the police or was directing someone to destroy evidence at
that residence. Entering Rogers’ residence based
on just that guess, after confronting an elderly woman who needs oxygen and
uses a walker, and seeing no other person in the residence, was not
warranted. The officers could have used
a less intrusive method by controlling who entered and exited the residence
without actually entering and remaining in the residence. See Illinois v. McArthur, 531 U.S. 326, 336
(2001).
¶21 Still, “evidence is not to be excluded if the connection
between the illegal police conduct and the discovery and seizure of the
evidence is ‘so attenuated as to dissipate the taint.’” Segura v. United States, 468 U.S. 796, 805 (1984) (citation omitted); see State
v. Simmons, 220 Wis.
2d 775, 780, 585 N.W.2d 165 (Ct. App. 1998).
Three factors are relevant to our inquiry: (1) the temporal proximity of the unlawful
entry to the search, (2) the presence of intervening circumstances, and (3) the
purpose and flagrancy of the official misconduct. See State v. Walker, 154 Wis.
2d 158, 187-88, 453 N.W.2d 127 (1990).
Importantly for this case, when the police have an “independent source”
for their discovery, such as a warrant based on wholly unconnected information,
the evidence seized is not to be excluded.
Segura, 468 U.S. at
805, 814.
¶22 Based
on the circumstances of the entire evening, the State has met all three
factors. The officers’ good police work
and prior drug seizure led them to apply for an additional search warrant based
on that contraband. Then the officers
waited two hours to search the residence with a valid warrant, albeit while
waiting inside watching television.
True, they did also perform a protective sweep, but they did not base
their search or warrant on the unlawful entry or protective sweep. Instead, the officers obtained the search
warrant for Rogers’ residence based entirely on
an independent source—their prior search and seizure of Rogers’ car and person. Thus, the search of Rogers’ residence was sufficiently attenuated
from the unlawful entry to permit the search and seizure of evidence of
unlawful drug dealing. Had the search
been conducted as a result of the illegal entry or had the protective sweep
been just a pretext for a search for contraband, or had the police used
information from the illegal entry to obtain the search warrant, this would be
a different case.
¶23 Because we find that the evidence seized from Rogers’ car,
person and residence was pursuant to valid search warrants, we reverse the
trial court’s suppression order. We
remand for further proceedings not inconsistent with this opinion.
By the Court.—Order reversed and cause remanded with
directions.