State v. Thomas William Brady, 2007 WI App 33, PFR filed 2/13/07
For Brady: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: Where the target of a search was not at home when the police forcibly entered pursuant to a search warrant, their unannounced entry did not, although not authorized by the warrant, violate the fourth amendment.
¶13 The first consideration is the safety of the police and others. Here, because Brady was not home, his safety was not endangered. Conversely, the officers were not threatened because their entry could not “provoke violence” from a surprised Brady. The safety consideration was not violated.
¶14 The second consideration is protection of property. Although the trial court found the home was forcibly entered, there was no damage to the lock or any other property. The sanctity of the homeowners’ property was preserved.
¶15 The last consideration is the privacy right. We reiterate, however, that this is a limited privacy right. Brady was not home, so there was not even a miniscule chance the deputies would infringe upon his dignity. Police would not, for example, break in and find Brady in an embarrassing or compromising situation. The intrusion upon the sanctity of the home—the primary violation of which Brady complains—was authorized by the search warrant, the issuance of which Brady has not challenged.
A threshold oddity: the court fails to cite State v. Dennis Moslavac, 230 Wis. 2d 338, 602 N.W.2d 150 (Ct. App. 1999), which refused to enforce the knock-announce rule when the premises are unoccupied. Perhaps that is because when the police entered someone was at Brady’s home (a resident of the premises, for that matter, ¶4), so it was indeed occupied—just not by Brady, the target of the search. Why, then, wasn’t safety indeed an issue? In brief, the court’s analysis has all the earmarks of a “standing” analysis: Brady’s privacy interests weren’t compromised because he wasn’t home at the time; yet, the court takes pains to say that it is not reaching a conclusion on what it describes as “standing,” that instead it is rejecting “Brady’s substantive challenge,” ¶7 and id. n. 2. But that rejection is largely premised, as the quote above indicates, on the fact that Brady wasn’t home, hence suffered no loss of privacy by virtue of manner of entry—however, to say that privacy interests weren’t breached is indeed to say that the person has no “standing” to complain, which makes the holding quite muddled. As Rakas v. Illinois, 439 U.S. 128 (1978) put it,
For we are not at all sure that the determination of a motion to suppress is materially aided by labeling the inquiry identified in Jones as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge. … But this Court’s long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.
When a fourth-amendment decision refers to “standing,” then, it refers to the substantive issue of whether privacy interests were violated, a point made explicitly by State v. David Allen Bruski, 2007 WI 25, ¶22 (“an individual must have standing. … There is not a bright-line test for determining when an individual has standing, but standing exists when an individual has a reasonable expectation of privacy”; and going on, in footnote 2, to explain the difference between “standing” as a general requirement of litigation and the violation of 4th A rights).
Not that it really matters. To see why, ask, What if Brady had been home? In that event, two of the three concerns noted above would be in play, yet he still wouldn’t be entitled to fourth amendment suppression, given the sweep of Hudson v. Michigan, 126 S.Ct. 2159 (2006), which for all practical purposes eliminated the knock-and-announce rule. The court of appeals cites Hudson, but oddly without giving it this sweeping application. Rather, as the blockquote above indicates, the ruling is narrowly limited to the facts, most significantly that Brady wasn’t home when the police entered, secondarily that no property was damaged during entry. Compare that seemingly fact-contingent analysis to Hudson’s broad language:
In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial–incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.
Whether the person is or is not present when unannounced entry can’t make any difference to the social costs incurred by “the massive remedy of suppressing evidence,” so it’s hard to see why Hudson wouldn’t apply to Brady’s situation. If anything, the potential deterrence factor weighs more heavily when the occupant is present, for the simple reason that the potential for tragic mishap is greater; Hudson was at home when the police entered, but his presence wasn’t enough to outweigh the social costs. This is another way of saying that although Brady is fact-bound, it effectively kills off knock-and-announce litigation in Wisconsin. If you’re home, suppression isn’t permissible under Hudson, and if you’re away then your privacy rights haven’t been infringed under Brady. The real issue is whether an Art. I, § 11 argument survives Hudson, and on that critical point the court of appeals’ entire analysis is as follows, ¶8 n. 3: “The equivalent provision in the Wisconsin Constitution is art. I, § 11. Because the two constitutions contain ‘substantially identical provisions,’ see Alston v. State, 30 Wis. 2d 88, 94, 140 N.W.2d 286 (1966), we may apply the United States Supreme Court’s Fourth Amendment analyses to our own parallel state constitutional questions.” That’s the extent of the court’s analysis. And so it is that the “New Federalism” revolution ends with a whimper, not a bang.