State v. Eason

*281 DAVID T. PROSSER, J.

¶101. (dissenting). Hundreds of hours have been devoted to the legal issues in this relatively minor drug case, when a few minutes of good police work or careful magistrate inquiry could have prevented the problem. The court resolves the issues by burying almost 80 years of legal precedent to create a good faith exception to the exclusionary rule. Because the small gain that may come out of this sea change in our law does not outweigh the potential loss of liberty to our citizens, and because this case offers a feeble excuse to make such a far-reaching change, I respectfully dissent.

¶ 102. On April 27, 1998, Beloit Police Officer John Fahrney prepared an affidavit to support a search warrant at 802 Bluff Street, Apartment B, in the City of Beloit. His affidavit unquestionably presents probable cause to search the named premises, and the Beloit police did excellent work in gathering the evidence to establish probable cause.

¶ 103. However, Officer Fahrney wanted to dispense with the rule of announcement in executing the warrant. To secure judicial authority for this tactic, he was required to show a detached magistrate reasonable suspicion that an announcement would be dangerous, futile, or inhibit the investigation of the crime by allowing suspects to destroy evidence. State v. Meyer, 216 Wis. 2d 729, 734-35 , 576 N.W.2d 260 (1998) (citing Richards v. Wisconsin, 520 U.S. 385, 394 (1997)); see State v. Orta, 2000 WI 4, ¶¶ 17-20 , 231 Wis. 2d 782 , 604 N.W.2d 543 (Prosser, J., concurring). All members of the court conclude that he failed.

¶ 104. For me, the question of reasonable suspicion is very close. There is no question that Clinton Bentley was a drug dealer who sold cocaine, and he sold the cocaine out of Apartment B. Cocaine can be dis *282 posed of more easily than marijuana, raising a concern about destruction of evidence. Moreover, Bentley was arrested for aggravated assault in Illinois in 1989 (nine years earlier), and he was arrested in Beloit in April 1998 (a few days earlier). All this is disturbing. Nevertheless, there is nothing in the affidavit that indicates why Clinton Bentley would attempt to destroy evidence more than any other cocaine dealer; and there is nothing in the affidavit that explains the disposition of the 1989 arrest or the nature of the 1998 arrest, and nothing that shows any criminal convictions between the 1989 and 1998 incidents. Proof of a conviction in 1989, violence in the intervening years, or possession of a firearm might have made this an easy case.

¶ 105. Shannon Eason was the other resident of Apartment B. She allegedly had been "arrested" for "such things as larceny (nine times), obstructing (three times), and ASSAULT (twice)." Again, however, the affidavit fails to state any particulars, including most significantly the dates, the places, and the disposition of these "arrests." There are no facts or circumstances given in connection with any of the incidents. It is risky for a court to draw inferences from incomplete information which might turn out to be compelling but also might prove to be meaningless.

¶ 106. If the officer had simply taken a few minutes to write an additional paragraph or two showing some relevant convictions or other circumstances that would provide reasonable suspicion that Shannon Eason or Clinton Bentley would present a danger to officers, his affidavit could have been approved, handily.

¶ 107. It is possible that Officer Fahrney knew exactly how many criminal convictions Bentley and Eason had. After all, his affidavit asserts that he *283 "checked Beloit police computer records." It is possible that the Beloit Police Department had ample information in its files to remove any doubt that Bentley and Eason could be dangerous. It is possible that Fahrney and Court Commissioner Meyer discussed paragraph 4 of the affidavit (listing arrests) before the Court Commissioner signed the warrant. It is possible that Commissioner Meyer was personally familiar with Bentley or Eason from experience in court and could have testified as much. It is possible that Commissioner Meyer turned to a computer to check the Circuit Court Automation Program (CCAP) and obtained evidence of some relevant convictions before he approved the warrant.

¶ 108. Our problem is that Officer Fahrney was never brought to a hearing to explain his knowledge, or to describe what happened when he interacted with the Court Commissioner at the time he obtained the warrant. There is no record of what Commissioner Meyer said, much less what he thought. There is no effort to bolster or supplement the warrant application. There is no evidence of any ádditional information available to officers before they executed the warrant. All we have is an inadequate affidavit.

¶ 109. The typed affidavit is dated April 27, 1998. The typed warrant is dated April 28, 1998. The warrant was signed by Commissioner Meyer at 2:51 p.m. on April 27, 1998 — the day before the officer expected to obtain the warrant. If only someone had taken a little more time to perfect the affidavit.

¶ 110. We often draw on baseball analogies to explain American life. In baseball, a player who fails to touch all the bases is not permitted to score. In fact, the player is out. There is no good faith exception for failing *284 to touch third base. The officer and the magistrate should have touched third base.

¶ 111. Personal liberty is not a game. It is the hallmark of our country. Upholding the rule of law will not always produce a popular outcome, but it will preserve freedom. That is our duty as an independent judiciary.

¶ 112. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.