HIGH COURT DIVIDED IN DRUG CASES

The Wisconsin Supreme Court's close decisions cut restrictions placed on
police searches.

Cary Segall Wisconsin State Journal

A sharply divided Wisconsin Supreme Court, in issuing three decisions in
drug cases Wednesday, cut the restrictions the federal and state
constitutions place on police searches.

The court decided, 4-3, that:

Evidence police obtain in violation of the Fourth Amendment and a nearly
identical provision of the state constitution may sometimes be used to
convict a person of a crime.

Police may search the homes of suspected high-volume drug dealers without
specific evidence linking drugs to the home.

Police may search large parts of the wooded yards of many homes without a
warrant.

In two of the decisions, the court created an exception to a 77-year-old
high court decision that excludes the use of improperly obtained evidence
in criminal cases.

The court made its first exception to the exclusionary rule to cases in
which police with no-knock warrants burst into the homes of suspected drug
dealers without knocking and identifying themselves.

Rock and Racine county judges had issued the warrants after the Wisconsin
Supreme Court decided in June 1996 that police with a warrant to search for
drugs can always break into a home unannounced.

After the warrants were executed, the U.S. Supreme Court decided in April
1997 that the state court had wrongly created a blanket exception to the
Fourth Amendment requirement that police knock and identify themselves
before executing a search warrant.

The U.S. high court said police must knock unless they have a reasonable
suspicion knocking would be dangerous or lead to the destruction of evidence.

Relying on the U.S. Supreme Court ruling, lawyers for Lisa Orta and Ricardo
Ruiz, who shared a Racine home, and for Lance Ward of Beloit argued that
the evidence seized in the no-knock raids of their clients' homes should be
thrown out.

Ward's lawyer, Dan Dunn, also said the warrant that allowed the search of
Ward's home was defective because police had no evidence Ward had drugs there.

In Ward's case, an accused marijuana dealer had told police that "Lance who
lives on Royce" was his supplier. Police used city records to find that
Lance Ward lived at 1663 Royce and then got a warrant from Judge James
Welker letting them bust into Ward's house.

Police used a battering ram to break down Ward's door and found him
watching TV. They also found cocaine, marijuana, scales and ammunition, but
no weapons.

Welker rejected Ward's challenge and convicted him of possessing drugs with
intent to sell them.

The 4th District Court of Appeals threw out the conviction. The court
decided, 2-1, that the warrant was defective because police hadn't provided
Welker specific evidence of criminal activity at Ward's home.

But Justice Bill Bablitch, writing for the high court majority, said the
evidence "was sufficient for a reasonable person to logically infer that
evidence would be found at Ward's home."

Justices Pat Crooks, Diane Sykes and Jon Wilcox agreed with Bablitch.

The four also said the evidence could be used even though Welker issued the
warrant while relying on the state high court decision that was ruled
unconstitutional by the U.S. high court.

They said the exclusionary rule was meant to deter improper police conduct
and the police and judge had acted in good faith in relying on a decision
of the state high court.

"In this case, we do not believe that excluding the evidence seized by the
police will serve any remedial objective, or that judicial integrity is
sullied by admission of the evidence," Bablitch wrote.

The four reached the same decision in the cases of Orta and Ruiz,
overruling Racine County Circuit Judge Gerald Ptacek and the 2nd District
Court of Appeals.

Justices Shirley Abrahamson, Ann Walsh Bradley and David Prosser said the
court had wrongly created an exception to the exclusionary rule and wrongly
let police search Ward's home without specific evidence that he had drugs
there.

Prosser said the majority had vindicated shoddy police work in adopting a
rule that will nearly always let police search the homes of suspected drug
dealers without sufficient evidence.

"The liberties secured by the United States Constitution must not be
compromised in society's struggle to combat illegal drugs," Prosser wrote.

"Search warrants are an essential safeguard against government
overreaching. They protect privacy in persons, houses, papers and effects
...," he added. "Thus, the integrity of search warrants is vital, and it
must not be impaired by government zeal to suppress drugs."

Prosser said police had reasonable grounds to enter the home of Orta and
Ruiz without knocking and the majority could have decided those cases and
Ward's case without creating an exception to the exclusionary rule.

"It is a momentous event when this court throws over more than 75 years of
precedent and yields to the persistent entreaties of the state to recognize
a good faith exception to the exclusionary rule," Prosser wrote. "That we
should use the Ward case as the vehicle for declaring such an exception is
an abomination, because it vindicates substandard police performance."

Dunn said there are 30 to 40 similar state cases pending and he will
consider appealing to the U.S. Supreme Court.

In the court's other Fourth Amendment decision, the majority said Price
County sheriff's deputies without a warrant had acted properly in searching
Thomas Martwick's 1.52 wooded acres and finding five marijuana plants
growing in pails 50 feet from his house.

In reversing the 3rd District Court of Appeals, the majority said the
deputies didn't need a warrant because the plants weren't in an area
closely connected to Martwick's home, called the home's curtilage. The
majority noted that the plants weren't in the cleared area within 20 feet
of the house and that Martwick hadn't fenced his land.

"If the entire lot were curtilage, then this court would be creating an
observation-free zone for criminal activity on all wooded property, greatly
undercutting legitimate law enforcement efforts," Crooks wrote for the
majority.

Abrahamson, Bablitch and Bradley dissented.