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Court of appeals approves no-knock warrant; finds no Brady violation

State v. Robert Brian Spencer, 2017AP1722-CR, 4/16/19, District 1 (not recommended for publication); case activity (including briefs)

Spencer raised many issues on appeal: insufficient evidence to support his conviction, multiple ineffective assistance of counsel claims, and a Brady violation. This post focuses on the 2 most interesting claims: ineffective assistance for failure to move to suppress evidence obtain via a no-knock warrant and the DA’s failure to turn over evidence of an officer’s disciplinary history.

Ineffective assistance for failure to file a motion to suppress. The court of appeals rejected this claim because because trial counsel can’t be ineffective for failing to make a make a meritless argument. State v. Allen, 2017 WI 7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 245. Opinion, ¶40. The court note that a no-knock warrant may be issued where police “have reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile.” State v. Eason, 2001 WI 98, ¶4618, 245 Wis. 2d 206, 629 N.W.2d 625. And it found that the State satisfied this test:

¶37 In this case, the search warrant was issued based on information from a confidential informant that Spencer had a firearm. The informant had seen Spencer with the firearm within five days of the warrant being requested. A noknock manner of execution was requested due to the high probability that Spencer was armed. We conclude that this establishes the requisite reasonable suspicion for issuing the no-knock warrant.

The court of appeals explained that even if reasonable suspicion were lacking, police could still execute the warrant based on their good faith belief in the issuing judge’s determination. Eason, ¶27. Opinion, ¶38.

Brady violation. Brady requires the State to disclose material evidence that is favorable to the accused. Evidence is “material” only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. See Brady v. Maryland, 373 U.S. 83 (1963); State v. Harris, 2004 WI 64, ¶12, 272 Wis. 2d 80, 680 N.W.2d 737. Spencer argued that the fact that one of the testifying officers had been disciplined once 10 years for “failing to be inattentive and zealous in the discharge of his duties” diminished his credibility. He wanted to use this evidence to impeach that officer’s credibility. The court of appeals rejected this argument because a second officer testified to the same facts as the first officer. Thus, impeachment of the first officer would not have affected the outcome of the trial. Opinion, ¶¶42-43.


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