DOYLE WANTS POLICE TO DECIDE ON ENTRY
ATTORNEY GENERAL, OPPONENT ARGUE DRUG BUST CASE BEFORE JUSTICES
by FRANK A. AUKOFER
Copyright (c) 1997, Journal Sentinel Inc.

Nobody can say for sure whether law officers engaged in a
drug bust are in more danger when they knock and announce
themselves or when they simply break in without warning,
Wisconsin Attorney General James E. Doyle told the U.S.
Supreme Court on Monday.

That's why the officers themselves should be allowed to
make the "strategic and tactical" decision on the spot,
Doyle said.

But Madison lawyer David R. Karpe said that would give
police officers too much discretion, making them into
"judge, jury and executioner" in deciding whether to
violate the sanctity of someone's home.

Doyle and Karpe were on opposite sides in oral arguments
in an appeal from Wisconsin that could alter the future of
the national war against illegal drugs.

Under appeal is a decision of the Wisconsin Supreme
Court, which arose from a drug bust on Dec. 31, 1991, in
Madison. The court held that when police executed valid
search warrants issued by judges in felony drug cases, they
had a blanket exemption from a socalled "knock and
announce" rule.

That decision ran counter to a U.S. Supreme Court ruling
in an Arkansas case in 1995, and the arguments Monday were
held to help the justices reconcile the conflict. A
decision is expected sometime before the end of the court's
term on June 30. Chief Justice William H. Rehnquist led off
a lively session punctuated by laughter when he interrupted
Karpe only seconds into his argument. Karpe was speaking of
the Fourth Amendment's guarantee against unreasonable
searches and seizures and the sanctity of the home.

"This fellow was in a motel, wasn't he?" Rehnquist said.
Then he asked Karpe whether he could name any Supreme Court
decision that gave a motel room equal stature with a home.

Karpe said the definition of a home was not the
structure but what took place inside. He said protecting
the privacy of individuals and families in their homes was
the core value of the Fourth Amendment.

Doyle argued that drug dealing was a widespread, illicit
form of commerce characterized by gangs, automatic weapons
and the willingness to use those weapons. Forcing police
officers to knock and announce themselves placed them in
danger, he said, and allowed suspects to dispose of
evidence by flushing it away.

But Karpe said there was no evidence that officers were
in more danger by knocking and announcing. He said the
opposite could be true if they crashed in and the people
inside thought they were defending themselves against
burglars or other criminals.

He said police could take other steps to prevent
destruction of evidence, such as turning off the water or
plugging sewers.

At that, Justice Antonin Scalia evoked laughter when he
said, "You shut off the water, you get one flush anyway."

Doyle argued that there was little difference between a
"knock and announce" drug bust or one in which the officers
simply broke in.

He said the time lapse between an announcement and
breaking in was no more than 10 or 15 seconds, and that a
videotape of either procedure would show little difference
between them. In each case, he said, there is a lot of
shouting as police enter with guns drawn and round up
everyone, even children.

Doyle said the Wisconsin Supreme Court had simply made a
commonsense determination to allow the police on the scene
to exercise their best judgment about what procedure to
follow.

Justice Ruth Bader Ginsburg wanted to know why, if the
court allowed a blanket exemption in drug cases, police
should not be allowed the same exemption in domestic
violence cases, in which far more officers are injured and
killed.

A Clinton administration representative who supported
Doyle, Assistant Solicitor General Miguel Estrada, said
those cases usually did not involve search warrants.

Justice David H. Souter said he was concerned that if
the high court allowed a blanket exemption in drug cases,
it might be starting down a road of allowing blanket
exemptions in other types of cases.

The case started with the arrest of Steiney J. Richards,
of Detroit, in the Ramada Inn.

Officers, one of them posing as a maintenance man, went
to the motel with a search warrant. The suspect opened the
door a crack, then slammed it, broke a window and jumped
out, naked from the waist up.

Richards was arrested outside. Police found cocaine and
$3,000 in cash in the room. Richards pleaded no contest to
a felony charge of cocaine possession with intent to
distribute and was sentenced to 13 years in prison. He is
still serving his sentence.