Court Says Search Violated Rights

By JOHN DIEDRICH
jdiedrich@journalsentinel.com
Posted: Aug. 29, 2007

Milwaukee Police Lacked Warrant

Taking aim at a tactic used by Milwaukee police, a federal court found that officers and federal drug agents violated constitutional protections when they broke down the door of a north side home in 2005 in a search that led to 500 grams of cocaine and a gun.

The 7th Circuit U.S. Court of Appeals reversed the decision to allow the drugs and gun as evidence against Darnell Ellis, who was sentenced to nearly six years in prison, according to the ruling released this week. “The problem in this case is that the officers and agents lacked a warrant when they approached the home and utilized tactics that, if allowed to go unchecked, would eliminate the Fourth Amendment warrant requirement for a home with any connection to drugs,” the opinion written by Appeals Court Judge Michael Kanne says.

The U.S. attorney’s office “is still studying the court’s opinion,” said Assistant U.S. Attorney John Manning, who declined to comment further. Milwaukee Police Chief Nannette Hegerty was unavailable to comment, and an official with the Drug Enforcement Administration deferred to prosecutors.

Ellis’ attorney at Kohler Hart Powell, SC said officers crossed the line in their search.

“That line is the Constitution,” he said. “The war on drugs has more officers close to that line than ever before.”

According to the opinion, the case started with a drug deal between a federal informant and another man. Agents watched the transaction March 21, 2005, and followed the man’s suspected supplier to a house in the 3700 block of N. 40th St. The man wouldn’t identify his supplier, so five officers and agents went to the house for a “knock and talk,” where officers try to get into a home without a search warrant by getting the occupant’s consent.

Besides knowing the suspected supplier went there, officers knew a man who lived there in the past had two drug convictions, but they had no other basis for probable cause.

The uniformed officers knocked and asked Ellis, 27, if they could come in because they were investigating a missing child, which was a lie. Ellis said he didn’t live in the house, also a lie, and refused to let them in.

An officer at a side door said he heard running on stairs in the house and concluded someone was trying to destroy drugs, calling that out to the others. They broke down the door and found cocaine residue. Then they got a warrant signed by a state judge, searched more and found a gun and 2.5 kilograms of cocaine.

The appeals court found that people running inside a house surrounded by police wasn’t enough to conclude drugs were being destroyed.

“If the police knock on the door and seek to talk to the occupant without a warrant, there likely will be movement within a home,” the ruling says.

The officers and agents should have done more work investigating the house and come up with a better story than that they were looking for a lost child, the court said. They chose to announce their presence, but once Ellis denied their search, the government couldn’t try to “save its case by kicking in the side door when it lacked either a warrant or probable cause,” the ruling says.

The search was upheld by Magistrate Judge Aaron Goodstein and U.S. District Chief Judge Rudolph Randa. Ellis pleaded guilty but reserved the right to appeal the search.

Ellis remains in prison. If prosecutors don’t appeal the ruling, the case will return to Randa.