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Search Warrant – “Order”; Search Warrant – Return; Search Warrant – No-Knock Entry

State v. William A. Grantham, 2010AP2693-CR, District 3, 12/13/11

court of appeals decision (not recommended for publication); for Grantham: Peter C. Rotter; case activity

Search warrant, for thermal imaging device use against residence, passes muster even if labeled “order.”

¶5        Grantham acknowledges that our supreme court has concluded, “An order meeting the parameters of a search warrant set out in [Wis. Stat. § 968.12(1)][2] is a statutorily authorized warrant, even though the document is entitled ‘order.’”  State v. Sveum, 2010 WI 92, ¶56, 328 Wis. 2d 369, 787 N.W.2d 317.  “As the statute clearly states, ‘[a] search warrant is an order.’”  Id. (quoting Wis. Stat.§ 968.12(1)).  Nonetheless, Grantham contends Sveum is distinguishable because that case dealt with a vehicle search, while here police searched Grantham’s home.

¶6        Grantham does not, however, explain the legal significance of this factual difference.  Instead, he merely quotes language from Sveum indicating the court assumed, arguendo, that the warrant application there failed to establish probable cause to search any buildings, and holding the warrant was therefore invalid as to any buildings.  Grantham does not argue probable cause was lacking here. Further, there is nothing in Sveum or Wis. Stat. § 968.12(1) to suggest that a search warrant may be properly titled as an “order” when authorizing vehicle searches, but must be titled as a “warrant” when authorizing searches of homes or other buildings.[3]

Challenge to police failure to make return under § 968.17(1), with respect to thermal imaging search, is also controlled by Sveum (timely return is ministerial duty, violation of which doesn’t affect validity of warrant absent prejudice to defendant). Any images of the thermal imaging search, if they existed at all, wouldn’t be Grantham’s “property,” therefore any property rights he had were unaffected by the omitted return, ¶¶7-10.

Authorization for no-knock entry supported by information that Grantham ran “a large growing operation” and sold marijuana out of his house; that he had a loaded pistol that he “uses … as protection”; and that he kept several pit bulls inside the residence. Acknowledging existence of reasonable inferences that officer safety might not be endangered, the court stresses “the very low standard of reasonable suspicion of danger” needed for no-knock entry.” Knowledge that a drug dealer is armed suffices, ¶¶12-18, citing as to the last point: State v. Hanson, 163 Wis. 2d 420, 425, 471 N.W.2d 301 (Ct. App. 1991); and State v. Watkinson, 161 Wis. 2d 750, 757, 468 N.W.2d 763 (Ct. App. 1991)

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