author: DIANE S. SYKES, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    State of Wisconsin, Plaintiff-Respondent, v. Eric A. Henderson, Defendant-Appellant.
    Supreme Court

      No. 99-2296-CR.

      Oral argument October 3, 2000.

    Decided July 9, 2001.

    2001 WI 97
    (Also reported in 629 N.W.2d 613.)

      For the defendant-appellant there were briefs and oral argument by Eileen A. Hirsch, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Diane M. Welsh, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   DIANE S. SYKES, J.

¶1. This is a challenge to a "no-knock" entry during the execution of a search warrant. The court of appeals certified the case to us to decide whether a reviewing court may consider information known to the police but not included in the warrant application in evaluating the constitutionality of the unannounced entry.

¶ 2. Stevens Point police obtained a warrant to search defendant Eric Henderson's home for evidence of drug dealing. They requested no-knock authorization, but for unexplained reasons, the warrant neither granted nor denied it. The police did not knock and announce when executing the warrant. Henderson moved to suppress the evidence recovered in the search of his home, and during the suppression hearing the narcotics officers who sought and executed the warrant testified to facts regarding Henderson and his associates known to the police but not included in the warrant application. The circuit court denied the motion. Henderson pled guilty and appealed, and the court of appeals certified the case to us.

¶ 3. The rule of announcement derives from the reasonableness clause of the Fourth Amendment rather than the warrant clause. Wilson v. Arkansas, 514 U.S. 927, 930 (1995). The constitutional reasonableness of a no-knock entry is determined by reference to the circumstances existing at the time of the entry rather than at the time the warrant was issued. Richards v. Wisconsin, 520 U.S. 385, 395 (1997); State v. Meyer, 216 Wis. 2d 729, 753, 576 N.W.2d 260 (1998). Accordingly, we conclude that a reviewing court may consider evidence beyond that which was included in the warrant application in evaluating the reasonableness of a no-knock execution of a search warrant. We further conclude that the evidence introduced at the suppression hearing — including the facts known to the police but not included in the warrant application — was sufficient to support the no-knock entry in this case, and therefore affirm the circuit court's denial of the defendant's suppression motion.

I

¶ 4. In late 1997 and early 1998, the Stevens Point Police Department targeted Eric Henderson in an ongoing cocaine and marijuana investigation. As part of that investigation, a confidential police informant, using marked "buy money," purchased approximately two grams of cocaine from Henderson at Henderson's apartment and turned it over to the police.

¶ 5. The following day, February 27,1998, Detective Mike Retzki, a Stevens Point Police Department drug investigator, applied to the Portage County Circuit Court for a warrant to search Henderson's apartment. The warrant application alleged probable cause that controlled substances would be found in the apartment based upon information obtained from confidential informants and the controlled buy the previous day. The warrant application also requested authorization for no-knock execution of the warrant. In support of no-knock execution, the application stated:

Your affiant knows through his training and experience in drug enforcement that dealers/traffickers in large quantities of cocaine and marijuana have access to weapons used in the defense of their persons, currency and contraband, and are likely to threaten law enforcement officers with the same.
And further, your affiant knows through his training and experience that dealers/traffickers in large quantities of cocaine and marijuana are likely to engage in the immediate destruction of evidence upon notification that law enforcement authorities are in the process of executing a search warrant, and thus hinder law enforcement's capacity to gain evidence of criminal activity.

The Circuit Court for Portage County, Judge John V. Finn, issued the search warrant. The warrant neither expressly granted nor denied authorization for a no-knock entry.

¶ 6. Later that day, Retzki and the SWAT team executed the warrant with a no-knock entry. In the subsequent search of Henderson's apartment, officers seized approximately 220 grams of marijuana, $959 (including $120 of marked "buy money" that the confidential informant used to purchase cocaine from Henderson the day before), and a digital scale. Henderson was charged with possession with intent to deliver marijuana within 1000 feet of a city park or school as a repeat offender, contrary to Wis. Stat. §§ 961.41(lm), 961.49, and 961.48(1) (1995-96). Henderson moved to suppress the evidence recovered during the search, contending that the search was unreasonable under the Fourth Amendment because officers did not comply with the rule of announcement when executing the warrant. Henderson also argued that the information contained in the warrant application in support of no-knock authorization was defective because it did not allege particularized circumstances justifying a no-knock warrant in this case.

¶ 7. At the suppression hearing, the State presented two witnesses, Detective Mike Retzki and Gary Koehmstedt, a Portage County Sheriff s deputy who had participated in the search. Both Retzki and Koehmstedt were veteran drug investigators who had participated in training programs for drug investigation and enforcement. Retzki had executed between 15 and 20 search warrants and Koehmstedt had executed over 30 warrants. Both testified to two concerns that prompted them to execute a no-knock entry.

¶ 8. First, the officers said they were concerned that Henderson may attempt to destroy evidence if given the standard search warrant warning by the police. Both Retzki and Koehmstedt testified that they had personally executed search warrants on drug dealers who destroyed drug evidence by flushing it down a toilet. Koehmstedt stated that on one occasion he had attempted to retrieve marijuana that a suspect had flushed down a toilet.

¶ 9. Furthermore, and specifically as to Henderson, the officers were aware that Henderson had been charged with possession of marijuana in 1994 and that he had been present in a residence upon which narcotics officers, including Koehmstedt, had executed a drug warrant in 1996. At that time, Henderson had been found in possession of large quantities of marijuana and currency. Retzki believed that Henderson's prior arrests gave him a strong incentive to avoid being caught again and charged as a repeater.

¶ 10. Additionally, the layout of Henderson's apartment made destruction of drug evidence easier in this case. The confidential informant had provided police with a diagram of the apartment indicating that the bedroom where Henderson stored his drugs was located directly across from the bathroom. Retzki testified that given that proximity, it would be easy for Henderson to dispose of any controlled substances during the time it took officers to knock and announce themselves. Finally, Retzki stated that he knew Henderson and his associates to be "very in tune with drug trafficking practices," "very careful," and "very difficult to catch," all factors leading Retzki to believe that Henderson would destroy evidence if given the opportunity.

¶ 11. Second, the officers testified that they were concerned about the possibility of violence. The officers were aware that one of Henderson's associates, Larry Moore, sold guns to his friends, and shortly before the warrant was executed, had sold a pistol to the confidential informant. Police were uncertain whether Moore carried a weapon himself. Retzki testified that another of Henderson's associates, Kevin Rutherford, was a "big concern" to the police and had been present in the apartment during the controlled buy the day before the search. The confidential informant had also told Retzki that Henderson had threatened him, telling the informant that he would retaliate if the informant ever betrayed Henderson and his associates.

¶ 12. Furthermore, Retzki testified that while working as a patrol officer he had dealt with both Henderson and Rutherford "in a very combative atmosphere" on more than one occasion. Retzki indicated that police concerns were heightened because Henderson's associates were known to be involved in gang activity. The officers were also concerned that they could not know how many of Henderson's associates would be inside the apartment at the time the search warrant was executed.

¶ 13. On cross-examination, Retzki testified that he was aware of the foregoing facts when he applied for the search warrant, but had not included them in his request for no-knock authorization. Retzki said he was not aware of any changes in circumstances or additional facts that came to light between the time of the warrant application and the time police executed the warrant.

¶ 14. Henderson argued that because the police were aware of the information now proffered as justification for the no-knock entry at the time they sought the warrant, but had not included it in the warrant application, the State was barred from introducing the information after-the-fact at the suppression hearing on the no-knock entry. In a written decision, the circuit court denied the suppression motion, relying on the distinction between a probable cause inquiry, in which a reviewing court is confined to the evidence presented to the magistrate who issued the warrant, and a no-knock inquiry, in which a reviewing court examines the facts as of the time the search warrant was executed. The circuit court found the totality of the evidence sufficient to justify the officers' concerns about the destruction of evidence and the possibility of violence, and upheld the no-knock entry.

¶ 15. Following denial of his motion, Henderson pleaded no contest to one count of possession of marijuana with intent to deliver as a repeat offender, contrary to Wis. Stat. §§ 961.41(lm)(h)l and 961.48(1). He then appealed. The court of appeals certified the case, asking us to decide two questions: 1) may the State use information known to the police but not included in a warrant application to later justify an unannounced entry in the execution of the warrant, and 2) was the evidence introduced at the suppression hearing — either including or excluding the facts known to the police but not included in the warrant application — sufficient to justify the unannounced entry in this case?

I — I I — I

¶ 16. This case presents a question of constitutional fact that we review under a two-part standard. State v. Hughes, 2000 WI 24, ¶ 15,233 Wis. 2d 280, 607 N.W.2d 621. We uphold the circuit court's findings of historical or evidentiary fact unless clearly erroneous. Id. We independently review the circuit court's application of constitutional principles to those evidentiary-facts. Id.

¶ 17. Henderson argues that the officers' decision to dispense with the rule of announcement in the execution of the search warrant at his home violated his Fourth Amendment rights. The Fourth Amendment prohibits unreasonable searches and seizures and sets forth the manner in which warrants shall issue:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV.

¶ 18. The reasonableness clause of the Fourth Amendment is a statement of broad protection against unreasonable searches and seizures. The determination of reasonableness is made by reference to the particular circumstances of each individual case, Ker v. California, 374 U.S. 23, 33 (1963) (plurality opinion), and balances " 'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Constitutional reasonableness relates not only to the grounds for a search or seizure but to the circumstances surrounding the search or seizure's execution. Id.

¶ 19. The Fourth Amendment's warrant clause provides more particularized protections governing the manner in which search and arrest warrants are issued. The warrant clause requires that officers obtain prior judicial authorization for a search from a neutral, disinterested magistrate. Dalia v. United States, 441 U.S. 238, 255 (1979). It also requires the officer seeking a warrant to demonstrate upon oath or affirmation probable cause to believe that " 'the evidence sought will aid in a particular apprehension or conviction'" for a particular offense. Id. (quoting Warden v. Hayden, 387 U.S. 294, 307 (1967)). Finally, it requires that warrants must particularly describe the place to be searched, as well as the items to be seized. Id. Searches made without warrants issued pursuant to the requirements of the warrant clause are presumed to be unconstitutional. Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984).

¶ 20. The specific focus of this case is the rule of announcement, which relates to the manner in which search warrants are executed. State v. Cleveland, 118 Wis. 2d 615, 623, 348 N.W.2d 512 (1984), overruled on other grounds by State v. Stevens, 181 Wis. 2d 410, 430, 511 N.W.2d 591 (1994). The rule of announcement requires that, when executing a search warrant, officers: 1) announce their identity; 2) announce their purpose; and 3) momentarily wait for the occupants to refuse their admittance or open the door. Meyer, 216 Wis. 2d at 734-35 n.4. The rule protects the safety of police officers and others, prevents the physical destruction of property, and takes into consideration the limited privacy interests of the occupants of the premises to be searched. Id.-, State v. Williams, 168 Wis. 2d 970, 981-82, 485 N.W.2d 42 (1992), overruled on other grounds by Stevens, 181 Wis. 2d at 430.

¶ 21. The modem rule of announcement derives from an English common law rule that required a sheriff, when executing a search warrant, to announce his purpose before breaking down a door. Wilson, 514 U.S. at 931-32 (citing Semayne's Case, 77 Eng. Rep. 194, 195-96 (K.B. 1603)). This common law rule was recognized as a tradition "embedded in Anglo-American law." Miller v. United States, 357 U.S. 301, 313 (1958).

¶ 22. For some time it was uncertain whether the rule of announcement was simply a common law tradition or whether it had constitutional dimensions. The Court's decision in Ker seemed to suggest the latter: "the method of entering the home may offend federal constitutional standards of reasonableness and therefore vitiate the legality of an accompanying search." Ker, 374 U.S. at 38. It was not until Wilson, 514 U.S. at 930, that the United States Supreme Court addressed the issue directly.

¶ 23. In Wilson, narcotics officers executing search and arrest warrants at Sharlene Wilson's Arkansas home did not knock and announce, but, rather, entered the home through an unlocked screen door, while identifying themselves as police. Wilson, 514 U.S. at 929. Wilson challenged the entry, arguing that the search was invalid because of the officers' failure to comply with the rule of announcement. Id. at 930. The Court explored the long history of the common law knock and announce principle, and concluded that the rule of announcement forms part of the Fourth Amendment's reasonableness inquiry:

[W]e have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure. . .we hold that in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment.

Id. at 934.

¶ 24. Like other components of constitutional reasonableness, the rule of announcement is not an absolute requirement. Id. Indeed, since the rule's earliest common law origins, courts have recognized that under certain circumstances law enforcement officers may forcibly enter a premises without announcement. Ker, 374 U.S. at 38. While the Supreme Court in Wilson firmly grounded the rule of announcement in the Fourth Amendment's reasonableness clause, the Court also recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Wilson, 514 U.S. at 934. Wilson indicated that an unannounced entry might be reasonable in circumstances "presenting a threat of. . .violence," or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given." Id. at 936.

¶ 25. The Court later clarified the circumstances that constitute exceptions to the rule of announcement in Richards, 520 U.S. at 394. The issue in Richards focused on the constitutionality of a blanket exception to the rule of announcement in felony drug cases. Id. at 387-88. The judicial officer who issued the warrant in Richards had declined no-knock authorization, but the police dispensed with the rule of announcement anyway. Id. at 388. This court concluded that police officers executing search warrants in felony drug cases are never required to comply with the rule of announcement. State v. Richards, 201 Wis. 2d 845, 866, 549 N.W.2d 218 (1996).

¶ 26. The United States Supreme Court concluded that a blanket exception to the rule of announcement for all felony drug cases is not constitutionally permissible. Richards, 520 U.S. at 387-88. However, the Court held that police officers may dispense with the rule of announcement where there is "a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id. at 394; accord Meyer, 216 Wis. 2d at 734-35.

¶ 27. The Supreme Court in Richards also held that the reasonableness of an officer's decision to enter without knocking and announcing is evaluated by a reviewing court based upon information known to the officer at the time of entry. Richards, 520 U.S. at 395; accord Meyer, 216 Wis. 2d at 753. Thus, while rejecting a blanket exception for felony drug cases, the Court nevertheless upheld the unannounced entry in Richards because it was reasonable under the circumstances at the time of the entry. The Court held that a magistrate's refusal to pre-authorize a no-knock entry in a search warrant does "not alter the reasonableness of the officers' decision, which must be evaluated as of the time they [executed the warrant]." Richards, 520 U.S. at 395.

¶ 28. In another context, the Supreme Court has rejected the argument that the manner in which a warrant is executed is subject to the requirements of the warrant clause. Dalia, 441 U.S. at 257. In Dalia, the Justice Department sought and obtained a warrant to intercept telephone conversations on two phones at Lawrence Dalia's business office. Although the warrant did not explicitly authorize agents to covertly enter Dalia's office to plant the bugging device, agents did so. Id. at 245. Dalia challenged the evidence obtained from the bugs. The Supreme Court upheld the entry, concluding that the Fourth Amendment does not require officers to obtain prior judicial authorization for the exact manner of execution of a warrant:

Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements [of the warrant clause] discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant — subject of course to the general Fourth Amendment protection "against unreasonable searches and seizures."
It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held — and the Government concedes — that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.

Id. at 257-58 (footnote omitted).

¶ 29. These cases yield a number of fundamental principles: 1) the rule of announcement is a requirement of the Fourth Amendment's reasonableness clause, not its warrant clause; 2) the validity of a no-knock execution of a search warrant is subject to after-the-fact judicial review for constitutional reasonableness, which is determined by reference to the circumstances as they existed at the time of the entry; and 3) the manner in which a search warrant is executed is not subject to the requirements of the warrant clause and therefore does not require prior judicial authorization.

¶ 30. Applying these principles here, we conclude that a court reviewing the reasonableness of a no-knock execution of a search warrant is not precluded from considering facts known to the police but not included in the search warrant application. The relevant inquiry focuses on the circumstances existing at the time of the entry and the reasonableness of dispensing with the rule of announcement because compliance with the rule would be dangerous or futile, would risk destruction of evidence or would otherwise inhibit the effective investigation of the crime.

¶ 31. This conclusion is not, as Henderson suggests, contrary to the rule against "rehabilitating" a warrant after-the-fact by information known to the police but not included in the warrant application. See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565 n.8 (1971) ("an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate"); Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964) ("[i]t is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention"). See also State v. Kerr, 181 Wis. 2d 372, 380, 511 N.W.2d 586 (1994) (a court reviewing the validity of a warrant is confined to the record presented to the issuing magistrate, whose findings are upheld unless "clearly insufficient to support a finding of probable cause").

¶ 32. The rule, stated in Aguilar and reiterated in Whiteley, applies only to challenges to the sufficiency of a search warrant under the warrant clause, not challenges to the manner of execution of a search warrant under the reasonableness clause. The cases recognized that allowing the probable cause basis for the issuance of a warrant to be bolstered after the fact would render the warrant clause meaningless by essentially allowing warrants to be issued upon less than probable cause, as long as the proper showing could be made later. Whiteley, 401 U.S. at 565 n.8 (citing Aguilar, 378 U.S. at 109 n.l). They also recognized that allowing defective warrants to be "rehabilitated" in this way would remove the initial probable cause determination from the neutral magistrate where the constitution explicitly places it. Id. at 565-66. These concerns are not present in the post hoc evaluation of a law enforcement decision to dispense with the rule of announcement, which is not a component of the Fourth Amendment's warrant clause but its reasonableness clause and therefore is not subject to prior judicial authorization.

¶ 33. Moreover, jurisdictions are divided over the question of whether magistrates may authorize no-knock entries in a warrant at all. See 2 Wayne R. LaFave, Search and Seizure § 4.8(g) (3d ed. 1996). Some courts have concluded that such warrants are permissible only where they are authorized by a specific statutory enactment. See, e.g., State v. Eminowicz, 520 P.2d 330, 332 (Ariz. Ct. App. 1974); Parsley v. Superior Court, 513 P.2d 611, 614 (Cal. 1973); State v. Bamber, 630 So. 2d 1048 (Fla. 1994). But see, e.g., Cox v. State, 286 S.E.2d 482, 484-85 (Ga. Ct. App. 1981); Commonwealth v. Scalise, 439 N.E.2d 818, 822 (Mass. 1982); State v. Lien, 265 N.W.2d 833, 838 (Minn. 1978).

¶ 34. In Wisconsin, judicial officers are authorized to issue no-knock warrants. In Cleveland, 118 Wis. 2d at 626, we considered the question of whether, in the absence of specific statutory authorization, judicial officers may issue no-knock warrants. We concluded that they may, because "there may be occasions in which facts justifying an unannounced entry would be known at the time the warrant is sought, and that both law enforcement officers and citizens benefit from review of the entry by a neutral magistrate." Id. (footnotes omitted). Similarly, in Williams we stated:

[WJhenever the police officers possess sufficient information at the time of the application for a search warrant that justifies dispensing with the announcement rule, they should present such information to a judge for the determination of whether to authorize the no-knock entry by police.

Williams, 168 Wis. 2d at 986.

¶ 35. The court of appeals, in its certification, asked us to address "[w]hether the directives offered in Williams and Cleveland should be elevated to a constitutional rule comparable to that for probable cause challenges." The court asks, in effect, whether the reference to "should" in Williams actually means "must." It does not. Wilson, Richards, and Dalia establish quite clearly that as a matter of Fourth Amendment law, a no-knock entry is subject only to an after-the-fact judicial review for reasonableness; it does not require prior judicial authorization inasmuch as it is not a component of the Fourth Amendment's warrant clause.

H-i I — I I — I

¶ 36. The constitutional validity of the unannounced entry in this case therefore turns on whether the evidence introduced at the suppression hearing — including the facts known to the police but not included in the warrant application — was sufficient to meet the Richards test. That is, was the evidence sufficient to establish a "reasonable suspicion that knocking and announcing. . .under the particular circumstances, would be dangerous or futile, or. . .would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence"? Richards, 520 U.S. at 394; Meyer, 216 Wis. 2d at 734-35. This showing is not high. Richards, 520 U.S. at 394.

¶ 37. The evaluation focuses on the particular facts of the case and the reasonable inferences that can be drawn from the facts, considered in combination with the officer's training and experience. Meyer, 216 Wis. 2d at 735. We do not resort to blanket rules or generalizations. Id. at 748-51. As we have seen, two considerations typically justify dispensing with the rule of announcement — officer safety and preservation of evidence. Both are present under the specific circumstances of this case.

¶ 38. The officers who executed this search warrant reasonably suspected that Henderson might destroy the drug evidence if they knocked and announced. Henderson's prior record of drug dealing certainly gave him an incentive to do so, given the heightened penalties for repeat drug offenders. See Wis. Stat. § 961.48. Furthermore, the officers knew that the layout of Henderson's apartment and, more specifically, the location of the room in which he stored his drugs — across from the bathroom — made quick destruction of the evidence particularly easy. The officers were also aware, based upon their previous experiences, that drugs like marijuana and cocaine are easily destroyed and that drug dealers often flush them down the toilet as the police are crossing the threshold with a warrant.

¶ 39. The officers also reasonably suspected that announcing entry in this case might endanger their safety. The police knew Henderson to be combative during previous encounters and also knew that he had threatened violence against the confidential informant. Furthermore, they were aware that Henderson's associate, Larry Moore, had sold guns to his friends and to the confidential informant. They also knew Henderson and his associates were involved in gang activity.

¶ 40. Henderson argues that it was unreasonable to suspect that he would attempt to destroy evidence since he had not done so in the past, and that it was improper to consider the activities of his associates in evaluating the risk to officer safety. These are weak arguments at best. A history of evidence destruction is not a threshold requirement for a no-knock entry, and the potential presence.of associates known to have weapons or gang affiliation is highly relevant to the inquiry. The no-knock entry was reasonable under all the circumstances.

IV

¶ 41. We conclude, therefore, that because the constitutionality of a no-knock execution of a search warrant depends upon its reasonableness at the time of execution, a reviewing court may consider all facts and circumstances known to the police at the time of the unannounced entry, including information not included in the warrant application. We further conclude that the facts of this case support the circuit court's conclusion that compliance with the rule of announcement would have endangered officer safety and risked the destruction of evidence. Accordingly, we affirm.

By the Court. — The order of the circuit court is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 42. (dissenting). I do not agree that the officers' testimony in this case satisfies the U.S. Supreme Court's test for a no knock entry. I therefore dissent.

¶ 43. The majority opinion concludes that the officers in this case had two grounds for dispensing with th^ constitutional rule of knocking and announcing their presence: (1) knocking and announcing their presence might have allowed the defendant to destroy evidence and (2) knocking and announcing their presence might have endangered the officers' safety. Some particularity to support reasonable suspicion is required under Richards v. Wisconsin, 520 U.S. 385 (1997).

¶ 44. First, there are not sufficiently particular facts to suggest that the officers had reasonable suspicion that knocking and announcing their presence would allow the destruction of evidence.

¶ 45. The majority opinion relies on the fact that the bedroom where the drugs were kept is near a bathroom, making destruction of evidence easy. However, in most apartments and indeed in most houses, each room usually has easy access to a bathroom.

¶ 46. The majority opinion also relies on the fact that Henderson had a prior drug-dealing record. Thus, the majority concludes, Henderson had added incentive to avoid getting caught. What criminal lacks incentive to avoid getting caught? If anything, Henderson's own criminal history supports the conclusion that Henderson was unlikely to destroy evidence. Indeed, testimony established that in two prior searches that turned up drugs, Henderson did not attempt to destroy evidence.

¶ 47. Second, there are not sufficiently particular facts to suggest that the officers had reasonable suspicion that knocking and announcing their presence would endanger their safety.

¶ 48. The officers' testimony focused on the dangerousness posed by a so-called associate of the defendant, Larry Moore. But the testimony gives no indication of the extent of Moore's "association" with the defendant or whether the officers believed that Moore or Moore's weapons would be present in the home.

¶ 49. Although the testimony establishes that the officers believed that a second individual, Kevin Rutherford, might be present in the defendant's residence, the officers did not provide any information to evaluate the reasonableness of their suspicion that Rutherford's presence might endanger their safety, were officers to knock and announce their presence. The officers testified only that Rutherford was "a big concern" and that they had previously interacted with Rutherford in a combative atmosphere.

¶ 50. But the officers also testified that the defendant was not known to carry a weapon, and they did not testify about any specific acts of violence by the defendant against officers. Without particular allegations of violent conduct, general allegations regarding the defendant's "gang affiliation" do not establish a reasonable suspicion that knocking and announcing the officers' presence might endanger the officers' safety.

¶ 51. For the reasons set forth, I dissent.

¶ 52. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

       All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated.

       Henderson did not dispute that the warrant application demonstrated sufficient probable cause.

       Henderson's motion appears to concede that the warrant issued in this case authorized a no-knock entry, and only disputes whether or not the underlying facts were sufficient to justify no-knock execution. The warrant itself, however, does not contain explicit authorization for a no-knock entry.

       Wisconsin's search and seizure provision, Article I, Section 11 of the state constitution, is substantively identical to the Fourth Amendment. Our interpretation of the state constitutional provision has been consistent with the United States Supreme Court's interpretation of the Fourth Amendment. State v. Ward, 2000 WI 3, ¶ 55, 231 Wis. 2d 723, 604 N.W.2d 517.

        State v. Richards, 520 U.S. 385, 394 (1997).

       The magistrate in the present case failed to authorize a no knock entry. The fact that a warrant does not authorize a no knock entry adds a layer of complexity to the good faith exception adopted in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625. In Eason, this court concluded that the exclusionary rule does not apply where officers rely in good faith on a warrant authorizing a no knock entry, provided that the officers conduct sufficient investigation and review before applying for the warrant. Good faith reliance may be undermined where, as here, officers do not include in the affidavit all information known at the time they apply for a warrant or where the officers subsequently learn of facts that undermine reasonable suspicion.

        See State v. Bamber, 630 So. 2d 1048, 1055 n.6 (Fla. 1994) (information that drugs were stored "near the bathroom" was not sufficient to establish reasonable suspicion that they may be destroyed, because "there is nothing in the affidavit to show that the proximity of drugs to the bathroom is anything but happenstance. The residence was a conventional four-bedroom, four-bath home, and virtually any room in the home would have been 'near a bathroom.'").

         See majority op. at ¶ 38.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Judicial Disciplinary Proceedings Against the Honorable Robert Crawford, Milwaukee County Circuit Court Judge. Wisconsin Judicial Commission, Complainant, v. The Honorable Robert Crawford, Respondent.
    Supreme Court

      No. 00-0640-J.

      Oral argument April 6, 2001.

    Decided July 9, 2001.

    2001 WI 96
    (Also reported in 629 N.W.2d 1.)

      For the complainant there was a brief by Thomas J. Basting and Brennan, Steil, Basting & MacDougall, S.C., Janesville, and James C. Alexander, Wisconsin Judicial Commission, and oral argument by Thomas J. Basting.

    For the respondent there were briefs by Thomas J. Crawford, Mark E. Hersh and Mark Hersh Law Office, S.C., Milwaukee, and oral argument by Thomas J. Crawford.

   PER CURIAM.

¶ 1. We emphasize at the outset what this case is not about: it is not about a judge's right to comment publicly on or criticize the administration of the courts, the justice system or the district attorney's office. Judge Robert Crawford did not forfeit his right to speak freely and petition about such matters when he took the bench, nor does any judge. However, the conduct at issue in this case went beyond mere criticism of the administration of the justice system, and descended into threats and attempted coercion, undertaken with the purpose of overcoming another judge's legitimate, reasoned judgment on an administrative issue.

¶ 2. This case is about Judge Crawford's attempts to intimidate another judge. Judge Crawford made numerous allegations against Milwaukee County's chief judge, the chief judge's daughter (an attorney in the Milwaukee County District Attorney's office) and the district court administrator, suggesting that they had engaged in "influence peddling" and other misconduct in office. He threatened to "go public" with his allegations unless the chief judge dropped his attempts to regulate Judge Crawford's court hours.

¶ 3. In other words, Judge Crawford tried to coerce the chief judge to change an administrative order by threatening to publicly accuse the chief judge, a member of his family, and his top administrator of professional misconduct. That is, Judge Crawford tried to force the chief judge's hand, by threatening public disclosure of extraneous, unfounded, but nevertheless potentially embarrassing professional and personal matters.

¶ 4. Judge Crawford's attempt to intimidate a judge in the performance of his official duties is a direct assault on the independence and integrity of the judiciary. Supreme Court Rule 60.03(2) states a principle of judicial independence. It provides that "[a] judge may not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment." Judge Crawford attempted to induce Chief Judge Michael Skwierawski to violate this provision of the Code of Judicial Conduct. This case, therefore, goes to the heart of judicial independence.

¶ 5. We conclude, as did the panel, that Judge Crawford's attempt to intimidate another judge violated SCR 60.03(1), which provides that "[a] judge shall respect and comply with the law [including the Code of Judicial Conduct] and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." By attempting to intimidate a fellow judge to decide a disputed matter on the basis of family and political considerations rather than the merits, Judge Crawford acted in a manner that undermined rather than promoted public confidence in the integrity and impartiality of the judiciary.

¶ 6. The panel recommended that Judge Crawford be suspended from judicial office for one year. We conclude that a 75-day suspension of Judge Crawford from the bench is appropriate.

I — I

¶ 7. On March 6, 2000, the Judicial Commission (Commission) filed a complaint with this court alleging that Judge Crawford had violated the Code of Judicial Ethics. Judge Harry G. Snyder, Judge Richard S. Brown, and Judge Daniel P. Anderson, all of District II of the Court of Appeals, were appointed to serve as members of the judicial conduct panel to hear the Commission's allegations against Judge Crawford. On September 18-21, 2000, the panel conducted an evi-dentiary hearing in this matter at which both the Judicial Commission and Judge Crawford appeared with counsel.

¶ 8. Judge Crawford does not dispute that the events recited below occurred. Further, he does not dispute that the various oral and written statements attributed to him were, in fact, made by him.

¶ 9. Although his written and oral arguments before this court were imprecise on the subject, it appears that Judge Crawford's specific dispute with the facts of this matter is reflected in the assertion that Chief Judge Skwierawski "did not provide neutral leadership while enforcing his stop-work order," and that his allegations regarding the chief judge's daughter, Assistant District Attorney Audrey Skwierawski, had a factual foundation. The panel concluded that these allegations against Chief Judge Skwierawski and Audrey Skwierawski were unfounded, and, as factual findings, its conclusions are entitled to deference. In any event, however, our disposition of this matter does not depend on the factual basis for Judge Crawford's allegations about Assistant District Attorney Skwierawski or Chief Judge Skwierawski. That Judge Crawford used these personal and professional misconduct allegations in an effort to gain leverage over the chief judge in an effort to pressure him to change an administrative order is the material point.

¶ 10. We need not review or adopt every finding of fact of the panel since we base our decision solely on the following facts as drawn from those findings and as supported by the record.

¶ 11. Shortly after Judge Crawford took the bench in August 1996, he began to regularly remain on the bench into the lunch hour and after regular business hours. He had several discussions in 1997 with then Chief Judge Patrick Sheedy regarding the impact of these hours on Judge Crawford's staff. This situation resulted in the issuance of a July 2, 1997, administrative order ("the Sheedy order") which directed Judge Crawford to give the staff various breaks during the day and to consult with Chief Judge Sheedy before proceeding with extended hours. Judge Crawford was warned that the directives in the order were mandatory and his failure to follow them would result in sanctions. He did not question the authority of Chief Judge Sheedy to issue the order nor did he seek review of it by this court. The Sheedy order was issued under the authority given to a chief judge by SCR 70.20 and SCR 70.19(1), (3)(c), and (3)(f) and 70.20.

¶ 12. A March 23, 1998, memorandum from Chief Judge Sheedy to Judge Crawford reiterated the limitations on his court schedule, absent prior approval from Chief Judge Sheedy. Once again Judge Crawford did not seek review of this restriction.

¶ 13. Chief Judge Sheedy was succeeded as chief judge by Judge Michael Skwierawski in August 1998. Receiving information suggesting that Judge Crawford was violating the Sheedy order, Chief Judge Skwieraw-ski, with the assistance of District Court Administrator Bruce Harvey, examined the status of Judge Crawford's compliance. The information received, primarily from Judge Crawford's staff, was that he was continuing to deprive his staff of required breaks and was conducting court beyond the specified hours.

¶ 14. As a result, Chief Judge Skwierawski requested that Judge Crawford meet with him on November 20, 1998. Mr. Harvey and another circuit judge also attended the meeting during which Chief Judge Skwierawski confronted Judge Crawford with the information concerning his alleged noncompliance with the Sheedy order. Judge Crawford denied violating the order and accused Chief Judge Skwierawski of pressing this matter only because Judge Crawford had been previously critical of Assistant District Attorney Audrey Skwierawski, Chief Judge Skwierawski's daughter, and the district attorney's office in general. Judge Crawford further accused Chief Judge Skwier-awski of "influence peddling." He stated he would "go public" with his criticisms of Audrey Skwierawski if Chief Judge Skwierawski did not drop the criticism of his hours.

¶ 15. Judge Crawford's allegations about Audrey Skwierawski arose out of circumstances beginning with her assignment to Judge Crawford's court for a few months in 1996, after which she asked to be reassigned because of what she considered the adverse working conditions in that court.

¶ 16. In May 1998 Audrey Skwierawski prepared a criminal complaint as a "negotiated issuance," alleging a misdemeanor fourth-degree sexual assault against a defendant who had already agreed to plead guilty to the charge as part of a plea bargain. The case was assigned to Judge Crawford's court and scheduled for a guilty plea proceeding.

¶ 17. The complaint recited the 14-year old female victim's account of the incident, in which she alleged that the defendant held a gun to her neck, threatened to kill her, and forced her to have non-consensual sexual intercourse. The complaint also recounted the statement of the 17-year old defendant, in which he admitted the sexual intercourse, but said it was consensual and not the result of any threats, nor at gunpoint, and that the victim was retaliating against him because he had ended their relationship. One of the investigating officers uncovered material inconsistencies in the victim's version of the incident and concluded that she had either lied about or substantially exaggerated what had occurred. Nevertheless, because the victim was underage, and consent was therefore not a defense, the case was charged, but as a "negotiated issuance" misdemeanor instead of a felony.

¶ 18. Audrey Skwierawski did not handle the plea in front of Judge Crawford on July 22, 1998, because it was reassigned to the regular assistant district attorney handling matters in his court at the time. During the plea colloquy, Judge Crawford questioned whether the case had been appropriately charged, although he eventually accepted the plea.

¶ 19. Two months later, in September of 1998, Judge Crawford sent a memorandum to Milwaukee County District Attorney E. Michael McCann claiming that Audrey Skwierawski had filed a criminal complaint that "she knew was materially false."

¶ 20. Chief Judge Skwierawski reissued Chief Judge Sheedy's hours-of-operation order for Judge Crawford's court on November 24, 1998, ("the Skwier-awski order"). In general, Judge Crawford was again required to adhere to the designated scheduling and not to deviate without permission from Chief Judge Skwierawski or Mr. Harvey.

¶ 21. On January 11, 1999, Judge Crawford sent a memorandum to Chief Judge Skwierawski in which he threatened to petition this court if Judge Skwieraw-ski did not vacate his work hours order within three days. Judge Crawford also sought the removal of District Court Administrator Harvey, who is married to a Milwaukee County assistant district attorney, complaining that he was "misusing his administrative position by entertaining complaints from the district attorney's office on my rulings." Judge Crawford also asserted that on several prior occasions, both in public and in private, Mr. Harvey had criticized his sentencing practices.

¶ 22. Judge Crawford and Chief Judge Skwier-awski met on January 14, 1999, with two other circuit judges present. Judge Crawford denied violating either the Sheedy or the Skwierawski orders and claimed that Chief Judge Skwierawski was merely retaliating against him because of his prior criticism of Audrey Skwierawski and the district attorney's office.

¶ 23. At this meeting, Judge Crawford also claimed that in March 1997 he received an anonymous letter, which he had since destroyed, stating that he would be a "one-term judge" and that he was "cuckoo." Judge Crawford told Chief Judge Skwierawski that he believed, based on the handwriting and other factors, that Audrey Skwierawski had sent him the letter.

¶ 24. Once again Judge Crawford told Chief Judge Skwierawski that if he did not withdraw his work hours order, he would "go public" concerning "influence peddling" by Chief Judge Skwierawski and Mr. Harvey, and about Audrey Skwierawski's conduct in his court, including her drafting of what he considered to be a false criminal complaint and her alleged sending of the anonymous letter. Judge Crawford was agitated at this meeting and his tone and demeanor were threatening. Chief Judge Skwierawski informed Judge Crawford that he would not vacate either his order or the Sheedy order.

¶ 25. Later that day Judge Crawford sent an email to all circuit judges in Milwaukee County, recounting the meeting with Chief Judge Skwierawski and again threatening to "go public" with allegations of "insider lobbying and influence peddling," as well as what he perceived to be irregularities in Milwaukee judges' work hours.

¶ 26. On January 28, 1999, Judge Crawford filed a "Petition for Review of Administration in First Judicial District" with this court, asking it to vacate the Skwierawski order, remove Chief Judge Skwierawski as chief judge, and fire Mr. Harvey as district court administrator. The petition repeated the allegations against these two, as well as Audrey Skwierawski and the district attorney's office. Ultimately the Judicial Commission took up the matter and filed a complaint against Judge Crawford with this court. The matter was referred to the chief judge of the court of appeals for the selection of a judicial conduct panel.

¶ 27. The panel concluded as a matter of law that Judge Crawford wilfully violated SCR 60.03(1) by making numerous unfounded allegations against other members of the justice system, and that this did not promote public confidence in the integrity and impartiality of the judiciary. It also concluded that Judge Crawford wilfully violated SCR 60.04(2)(a) and Wis. Stat. § 943.30(1) and (4) by his conduct during the January 14, 1999, meeting with Chief Judge Skwierawski and his subsequent filing of the petition before this court. In this regard, the panel concluded that Judge Crawford's conduct demonstrated that he had failed to maintain professional competence in matters of judicial and administration and failed to cooperate with Chief Judge Skwierawski and other court officials in the administration of court business.

I — I I — I

¶ 28. Judge Crawford was charged with violating SCR 60.03(1) requiring a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The panel concluded that he had violated this standard.

¶ 29. The Comments to the rule assist in applying the standard to actual conduct. The Comments recognize that the standard might be violated in a variety of ways and that it is not practical to list every conceivable prohibited act in the Code itself. Improprieties under the rule include violations of law, court rules or other specific provisions of the Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. The Comment reads in full as follows:

Public confidence in the judiciary is eroded by irresponsible or improper conduct of judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the chapter. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this chapter. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

¶ 30. As we explained previously, the events that led to this proceeding started with a dispute between Judge Crawford and two successive chief judges over the hours of his court. Judge Crawford had a right to disagree with the restrictions placed upon him, to express his disagreement publicly and to petition this court for redress.

¶ 31. But Judge Crawford was not entitled to threaten Chief Judge Skwierawski in an effort to compel him to change his administrative decision. In this case, the threat to Chief Judge Skwierawski involved members of the chief judge's family and the district court administrator. In the meetings with Chief Judge Skwierawski on November 20, 1998, and January 14, 1999, and the January 11,1999, memorandum, as well as in the January 14, 1999, e-mail, Judge Crawford attempted to force Chief Judge Skwierawski to change his administrative order by threatening to "go public" with his "influence peddling" and misconduct allegations. Chief Judge Skwierawski — and Chief Judge Sheedy before him — was acting within the scope of his duties as chief judge in issuing and enforcing the administrative order. Whatever the validity of his disagreement with those actions, Judge Crawford improperly pressured the chief judge to alter the situation by use of threats instead of reason.

¶ 32. Judge Crawford's threats against the chief judge were, in effect, attempts to induce him to violate SCR 60.03(2). Judge Crawford was pressuring the chief judge to decide the administrative dispute on the basis of family relationships and political considerations rather than the merits, conduct which, if committed, would itself violate the Code. Supreme Court Rule 60.03(2) specifically provides: "[a] judge may not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment."

¶ 33. Judges are obligated to "comply with the law." SCR 60.03(1). This includes court rules such as the Code. SCR 60.01(10).

¶ 34. Judge Crawford was plainly attempting to improperly compromise Chief Judge Skwierawski's judgment in the ongoing dispute over court hours by appealing to his relationship with his daughter, his top administrator and others in the court system. Had Chief Judge Skwierawski altered his administrative order in capitulation to Judge Crawford's threats, Judge Crawford would have succeeded in coercing another judge to violate the Code.

¶ 35. Judges are sworn to exercise independent judgment and to decide cases and administrative matters on the merits, without regard to improper extraneous influences or outside pressures, such as family, social, political or other relationships. Judge Crawford threatened the chief judge in an attempt to overcome his otherwise legitimate, reasoned judgment on an administrative issue. This conduct undermines public confidence in the integrity and impartiality of the judiciary in general and in Judge Crawford's integrity and impartiality in particular. A judge who attempts to manipulate administrative decisions by threats of a retaliatory and personal nature demonstrates an attitude about the boundaries of legitimate judicial decision-making that is inconsistent with the integrity and independence of the judiciary. Judge Crawford's conduct in this regard violated of SCR 60.03(1).

¶ 36. There can be no dispute that Judge Crawford's conduct .was wilful. Indeed, he does not assert that it was anything other than freely made, and does not claim that it was the product of duress or coercion. Further, no judge could have reasonably concluded that it was proper to attempt to influence the actions of a chief judge by means of threats.

¶ 37. We do not seek by this decision to stifle criticism by judges regarding matters of concern to the administration of justice and to the public. But the right to voice criticism does not exist in a vacuum. Rather, the right must be exercised in a fashion that comports with the Code of Judicial Ethics.

III

¶ 38. In imposing discipline in this case, which may be reprimand, censure, suspension, or removal, we employ the standard stated in In the Matter of Judicial Disciplinary Proceedings Against Dreyfus, 182 Wis. 2d 121, 129, 513 N.W.2d 604 (1994): "[tjhe discipline imposed should be determined by the extent that the public needs protection from unacceptable judicial behavior, based upon the seriousness of the judge's misconduct and the likelihood that it would recur." Discipline is not intended to punish the judge. Further, we impose discipline on a de novo basis, although the panel's recommendation is entitled to some deference. In the Matter of the Complaint Against Seraphim, 97 Wis. 2d 485, 513, 294 N.W.2d 485 (1980).

¶ 39. The sanction that we impose must convey to the public the gravity with which this court views judicial misconduct. Those who sit in judgment in both civil and criminal matters, in which the lives and livelihood of the citizens of this state are involved, must be above reproach. When a judge fails to live up to the demanding, but necessary, standards that are imposed upon the elected judiciary, the integrity of the entire judicial process can be only reaffirmed by a sanction commensurate with the conduct.

¶ 40. Past judicial misconduct cases before this court are of limited usefulness in setting the sanction appropriate for this case, which involves unique circumstances. We have not established, nor will we here, a "bright line" standard when, for example, reprimand or censure is warranted as opposed to suspension. Each case is different, and is considered on the basis of its own facts. This individualized approach to discipline, however, is guided by some general principles.

¶ 41. Suspension and removal from office are "drastic measures," generally reserved for very serious or repeated violations of the Code. Seraphim, 97 Wis. 2d at 513. Factors considered in establishing the length of a suspension, either in aggravation or in mitigation, have included a history of prior judicial misconduct (in Gorenstein and In the Matter of the Complaint Against Van Susteren, 118 Wis. 2d 806, 348 N.W.2d 579 (1984)), and the presence of a remorseful and cooperative attitude (in Dreyfus).

¶ 42. Judge Crawford has engaged in seriously unacceptable judicial behavior. He has demonstrated no understanding of the impropriety of his behavior and therefore has expressed no remorse for it. Indeed, he has continuously portrayed himself as a maverick, an innocent victim of a "hostile work environment" who has an absolute "right to be obnoxious in [his] public expression." He apparently believes that it is perfectly ethical for one judge to threaten another in order to overcome his reasoned judgment and decide a disputed issue on the basis of something other than the merits, indeed, on the basis of extraneous personal and political considerations. This demonstrates a serious disregard for the responsibilities of a judge.

¶ 43. On the other hand, Judge Crawford has not previously been disciplined. Accordingly, we decline the Commission's invitation to remove him from office. While Judge Crawford's misconduct was serious, it was not so substantial a threat to the public as to warrant the ultimate sanction of removal. It did not occur in the performance of his adjudicative role, and it did not affect the specific rights of any litigant or member of the public. His misconduct occurred in the context of an internal administrative matter, and implicated more generalized concerns.

¶ 44. To be sure, Judge Crawford's willingness to resort to personal, political threats in his running feud with successive chief judges was disturbingly out-of-bounds and clearly unethical. His tactics were vigorously and properly resisted, and therefore did not accomplish their purpose. The record contains no evidence that Judge Crawford has engaged in unethical behavior in the cases that come before him on the bench. Therefore, we also conclude that Judge Crawford's conduct does not warrant the one-year suspension recommended by the panel. A lesser sanction will suffice both to protect the public and to convey to Judge Crawford the impropriety of his conduct such that it is unlikely to recur.

¶ 45. Clearly, however, reprimand or censure alone is insufficient. Judge Crawford misused his judicial position, calling into question his understanding of and capacity to abide by the rules that govern all judges in their conduct on and off the bench.

¶ 46. We conclude that the appropriate sanction is a suspension from judicial office for a period of 75 days. This period is commensurate with the gravity of Judge Crawford's misconduct and the extent to which it jeopardized public confidence in the integrity and independence of the judiciary. This suspension is sufficiently long to impress upon Judge Crawford the fundamental requirements of judicial office and to demonstrate to the public the judiciary's dedication to preserving integrity within its ranks.

¶ 47. It Is Ordered that Judge Crawford's conduct merits discipline. He is hereby suspended from the office of circuit judge without compensation, and prohibited from exercising any of the powers or the duties of a circuit judge in the state of Wisconsin, for a period of 75 days, commencing July 31, 2001.

       We review, pursuant to Wis. Stat. § 757.91 (1999-2000), the judicial conduct panel's findings of fact, conclusions of law and recommendation for discipline.
      Section 757.91 provides: Supreme court; disposition
      The supreme court shall review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability. The rules of the supreme court applicable to civil cases in the supreme court govern the review proceedings under this section.

        All subsequent statutory references to the Wisconsin statutes are to the (1999-2000) edition.

       SCR 60.03(1) states:
      (1) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      The panel also found that Judge Crawford violated SCR 60.04(2)(a) requiring a judge to discharge administrative responsibilities without bias or prejudice and encouraging cooperation with other judges and court officials in the administration of court business.
      SCR 60.04(2)(a) states:
      (2) In the performance of the duties under this section, the following apply to administrative responsibilities:
      (a) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.
      Wisconsin Stat. § 757.81(4)(a) provides:
      (4) "Misconduct" includes any of the following:
      (a) Wilful violation of a rule of the code of judicial ethics.

       The panel also concluded that Judge Crawford's conduct violated Wis. Stat. § 943.30(1) and (4).

        Wisconsin Stat. § 943.30(1) and (4) provides:
      (1) Whoever, either verbally or by any written or printed communication, maliciously threatens to accuse or accuses another of any crime or offense, or threatens or commits any injury to the person, property, business, profession, calling or trade, or the profits and income of any business, profession, calling or trade of another, with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against the person's will or omit to do any lawful act, is guilty of a Class D felony.
      (4) Whoever violates sub. (1) by attempting to influence the official action of any public officer is guilty of a Class D felony.

       Notwithstanding general concessions on his part that, for example, "the factual basis may be mistaken" for the petition he filed with this court, he also asserts that "his beliefs were substantially correct" and "he continues to believe the gist of the petition is true."

       The standard of review to be applied to the panel's findings of fact by this court is the clearly erroneous standard, formerly expressed in terms of "against the great weight and clear preponderance of the evidence." See In the Matter of Judicial Disciplinary Proceedings Against Aulik, 146 Wis. 2d 57, 69, 429 N.W.2d 759 (1988); In the Matter of the Complaint Against Seraphim, 97 Wis. 2d 485, 509, 294 N.W.2d 485 (1980).

       SCR 70.19(1), (3)(c) and (3)(f) provides:
      (1) The chief judge is the administrative chief of the judicial administrative district. The chief judge is responsible for the administration of judicial business in circuit courts within the district, including its personnel and fiscal management. The general responsibility of the chief judge is to supervise and direct the administration of the district, including the judicial business of elected, appointed and assigned circuit judges.
      (3) In the exercise of his or her general responsibility, the chief judge has the following duties:
      (c) Where necessary, establishment of days and hours for court operation.
      (f) Establishment of policies and plans.
      SCR 70.20 provides: Authority of the chief judge
      The chief judge shall exercise within the judicial administrative district the full administrative power of the judicial branch of government subject to the administrative control of the supreme court. The chief judge may order that his or her directives, policies and rules be carried out. Failure to comply with an order of the chief judge may be grounds for discipline under sections 757.81 to 757.99 of the statutes.

       The panel further found that Judge Crawford had continued to violate the Sheedy order, requiring the actions taken by Judge Skwierawski, and that Judge Crawford's various allegations against the other individuals were without factual foundation.

       This court determines whether the facts found by the panel constitute a violation of this provision independently of the panel. See Wis. Stat. § 757.91 (rules applicable to civil cases govern the review); Schreiber v. Physicians Ins. Co. of Wis., 223 Wis. 2d 417, 426, 588 N.W.2d 26 (1999) (application of facts to pertinent law is question of law which supreme court reviews independently of lower courts' determinations).

       SCR 60.01(10) provides:
      In this chapter:
      (10) "Law" means court rules, statutes, constitutional provisions and legal conclusions in published court decisions.

       See generally In re Kelly, 238 So. 2d 565, 570 (Fla. 1970):
      [Clriticism taken by methods which prevent honest discussion and a fair rebuttal can be expected only to have a destructive result.. ,[I]fthe methods used raise suspicion of motives among the judges, and renders the courts all suspect to the public, the result can only be an increase in disrespect for law and order....

       Judge Crawford has challenged the panel's conclusion that his conduct violated SCR 60.04(2)(a) and Wis. Stat. § 943.30(1) and (4) although he has not been criminally charged with this offense. With respect to the latter, it was the panel's opinion that once Judge Crawford threatened to "go public" with his allegations, he violated this statute because he was threatening injury to the "profession, trade or calling" of Judge Skwierawski, a public official, "with intent to compel" him to vacate his earlier order against his will. Crawford has argued that this statute is overbroad as it criminalizes the dissemination of information which is merely fair comment on the administration of justice.
      We do not need to reach the issue concerning the application of SCR 60.04(2)(a) and Wis. Stat. § 943.30(1) to Judge Crawford's conduct. As a general rule, when resolution of one issue disposes of a matter, we will not address additional issues. See, e.g., Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998). We have concluded that Judge Crawford violated SCR 60.03(1), and impose a sanction on that basis alone.
      We also reach no conclusion as to whether Judge Crawford maintained improper court hours to begin with and whether he violated the Sheedy and Skwierawski orders. The sanction which we impose in this case does not reflect any determination with respect to this matter. We do, however, caution Judge Crawford that after his suspension is completed he must follow these, and any similar, orders of the chief judge unless directed otherwise by this court.

       The statutory definition of judicial misconduct requires "wilful violation" of the Code and past cases have defined that term. In the Matter of Judicial Disciplinary Proceedings Against Tesmer, 219 Wis. 2d 708, 729, 580 N.W.2d 307 (1998) stated:
      Prior judicial disciplinary cases have established that "wilful" means that the judge's conduct was not the result of duress or coercion and that the judge knew or should have known that the conduct was prohibited by the Code of Judicial Ethics. In [citation omitted], the statutory term "wilful" was understood to mean "freely made and not the result of duress or coercion."

       Judge Crawford asserts that his conduct is protected by his rights to freedom of speech and to petition the government. But that defense is irrelevant as we have decided this case. Unlike the panel, we have not ruled on the factual basis for his various allegations. Thus it is unnecessary to decide whether, as he claims, his conduct is sanctionable only if it violates an actual malice standard. See New York Times v. Sullivan, 376 U.S. 254 (1964) (defamation claim by public official against newspaper requires proof of actual malice). We also are not sanctioning Judge Crawford for having petitioned this court, whatever the truthfulness of the statements in that petition. Finally, we note regardless that in general judges are subject to some limitation on their constitutional rights that might not otherwise apply to private citizens. See In the Matter of Disciplinary Proceedings Against Gorenstein, 147 Wis. 2d 861, 434 N.W.2d 603 (1989); In re Honorable Charles E. Kading, 70 Wis. 2d 508, 235 N.W.2d 409 (1975); Seraphim, 97 Wis. 2d 485. As
        Scott v. Flowers, 910 F.2d 201, 212 (5th Cir. 1990), stated: "[T]he state may restrict the speech of elected judges in ways that it may not restrict the speech of other elected officials."

       Article VII, Section 11 of the Wisconsin Constitution states:
      Each, justice or judge shall be subject to reprimand, censure, suspension, removal for cause or for disability, by the supreme court pursuant to procedures established by the legislature by law. No justice or judge removed for cause shall be eligible for reappointment or temporary service. This section is alternative to, and cumulative with, the methods of removal provided in sections 1 and 13 of this article and section 12 of article XIII.