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"Narcotics enforcement is serious, risky business," says Van Hollen. "The court of appeals sensibly concluded that officers could enter Lee's apartment and ensure their safety by looking for possible occupants and suspects."
MADISON - This morning, the Wisconsin Court of Appeals held that Milwaukee police acted properly when, after seeing suspected drugs and drug paraphernalia through the open door of Kevin Raphael Lee's apartment, they entered and conducted a "protective sweep" of the apartment in search of its occupants.
Attorney General J.B. Van Hollen, whose office represented the State of Wisconsin in the appeal, quickly praised the decision. "Narcotics enforcement is serious, risky business," said Van Hollen. "The court of appeals sensibly concluded that officers could enter Lee's apartment and ensure their safety by looking for possible occupants and suspects."
Acting on complaints of drug dealing, Milwaukee police went to the upper unit of a north side Milwaukee duplex. They discovered the door to the apartment wide open and saw what they suspected to be cocaine, marijuana, and supplies used in drug dealing. After announcing their presence and receiving no response, the officers entered the apartment and conducted a protective sweep. The sweep revealed the apartment was unoccupied. Shortly thereafter, Lee returned to the residence and was arrested.
Lee challenged the seizure of the drugs and paraphernalia found in his apartment, claiming the officers violated his Fourth Amendment rights by entering the apartment without a warrant. The Wisconsin Court of Appeals disagreed. The court found that, from their observations through the open door, police had probable cause to believe that Lee's apartment contained evidence of criminal activity. The court then concluded that the potential threat to officer safety justified their entry and the resulting protective sweep.
From the court's decision and opinion:
We conclude that these facts would allow a reasonable police officer to believe that entry into Lee's apartment in order to perform a protective sweep was necessary due to a potential threat to the officers' safety. In light of the wide open door, the officers could reasonably believe that someone was likely inside. People do not customarily leave the front door to their residences open when they leave, especially when illegal narcotics are easily seen through the open door. The officers announced their presence and received no response. From this, the officers could reasonably believe that persons inside the apartment were aware that police officers were outside the open door, that controlled substances and other evidence of criminal activity were visible to the officers, that the occupants were the subject of police suspicion, and that a raid may be imminent. The officers could also reasonably believe that the occupants were, under these circumstances, nervous and agitated, and would take the steps necessary to evade apprehension.
The officers were faced with a Hobson's choice if they did not enter the apartment to perform a protective sweep. If they waited on the landing and guarded the drugs for the time necessary to obtain a warrant, they may have found themselves in grave danger. If they retreated in an attempt to avoid the potential danger, an occupant would likely destroy the evidence. Nothing in the record suggests that the amount of drugs the officers saw through the open door was too voluminous to be easily disposed of, and Lee does not argue to the contrary. Moreover, retreating would not necessarily obviate the potential risk to the officer's safety during the time it took to decide to return down the stairs and then to do so. We conclude that articulable facts exist to demonstrate that the officers had reasonable suspicion that individuals may be hiding in the apartment who would pose a danger to them, and that a warrantless entry into the apartment for purposes of conducting a protective sweep of the apartment was justified.
Kevin Raphael Lee is currently incarcerated at the Oshkosh Correctional Institution in Oshkosh, Wisconsin.
The decision and opinion in State v. Kevin Raphael Lee, Nos. 2007AP2976-CR and 2007AP2977-CR, appears on the Wisconsin Court of Appeals's website:
The Milwaukee County District Attorney's Office represented the State of Wisconsin in Milwaukee County Circuit Court. Assistant Attorney General Aaron R. O'Neil represented the State in the Wisconsin Court of Appeals.