State v. Meyer

¶1¶ 56. (concurring). I join the majority opinion. I write separately to address the concurring opinion of Justice Bablitch.

¶2¶ 57. Justice Bablitch takes issue with the majority's requirement of "too many 'particularized facts.'" Cone. op. at 756. He believes, because of the "deadly danger potentially awaiting the police in these circumstances," concurring op. at 757, that when four *765conditions1 are met the police should not be required to knock, announce, and await a response when executing a search warrant for evidence of drug dealing. See id.

¶3¶ 58. I agree with Justice Bablitch's policy concerns, just as I agreed with him in State v. Richards, 201 Wis. 2d 839, 549 N.W.2d 218 (1996) and State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994).2 In those cases, the majority held that because exigent circumstances were always present in the execution of a search warrant involving a felonious drug delivery, the police were not required to knock and announce their identity before making a forced entry. See Richards, 201 Wis. 2d at 847-48, Stevens, 181 Wis. 2d at 424-25. However, our majority view in Richards was rejected by a unanimous United States Supreme Court which held that a blanket exception for felony drug investigations to the knock-and-announce rule violates the Fourth Amendment to the United States Constitution. See Richards v. Wisconsin, 520 U.S. — , 117 S. Ct. 1416, *7661421 (1997). As state supreme court justices we are bound to follow the constitutional decisions of the highest court in the land.

¶4¶ 59. Neither today's decision in this case, nor the Supreme Court's decision in Richards, go so far as to require "too many particularized facts." What those holdings require is for a reviewing court to determine only "whether the facts [however many exist in that situation] and circumstances of the particular entry" justify dispensing with the knock-and-announce requirement. Richards, 117 S. Ct. at 1421; see, also, majority op. at 755.

¶5¶ 60. Justice Bablitch's test would preserve a blanket rule unless police possess evidence "to negate their beliefs that knocking, announcing, and awaiting a response poses a serious danger to them and/or potential destruction of evidence." Concurring op. at 757. Were this court to adopt the "negative evidence" condition suggested by the state and endorsed by Justice Bablitch, we would be ignoring the United States Supreme Court's requirements that the facts and circumstances of the particular situation justify a "no-knock" entry. See Richards, 117 S. Ct. at 1421, majority op. at 751. Nowhere in the Richards opinion does the Court include this "negative evidence" condition. Instead, the Court balanced the public policy concerns for the personal safety and evidentiary destruction in felony drug investigations against the privacy protections mandated by the Fourth Amendment. See id.,117 S.Ct. at 1421-22.

¶6¶ 61. This case-specific balancing is consistent with a long line of Supreme Court decisions. The Court conducted a similar balancing in Terry v. Ohio, 392 U.S. 1, 21 (1968), wherein it stated: "[I]n justifying the particular intrusion the police officer must be able to *767point to specific and articulable facts which, taken together with rational inferences, from those facts, reasonably warrant intrusion" (footnote omitted). The arresting officer in Terryhad at least 30 years of patrol experience. See 392 U.S. at 5. To legally conduct the search and seizure of the individual suspects, he needed more than professional longevity. Even the Terryquotation used by Justice Bablitch to dilute the particularity requirement operates to support the requirement: "due weight must be given. . .to the specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience." 392 U.S. at 27 (emphasis added). The majority opinion today is consistent with Richards.

¶7¶ 62. Despite Justice Bablitch's fears, the Supreme Court does not require that police officers take unnecessary risks in the performance of their duties, and neither does this court. See Terry, 392 U.S. at 23. But the final assessment of whether the risks to police safety or to evidence preservation in a particular case justify a no-knock entry must rest in "the neutral scrutiny of a reviewing court." It is for the court to determine "whether the facts and circumstances of the particular entry justified dispensing with the knock- and-announce requirement." Richards, 117 S.Ct. at 1421. The majority's decision today accurately reflects that we are bound by this rule.

¶8¶ 63. For the reasons set forth, I concur.

¶9¶ 64. I am authorized to state that Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks join this opinion.