State v. Kenneth M. Herrmann, 2000 WI App 38, 233 Wis. 2d 135, 608 N.W.2d 406
For Herrmann: Peter J. Morin
Issue: Whether officers executing a search warrant for Landis’s apartment exceeded the scope of the warrant when they entered and searched Herrmann’s separate residential unit on the same floor.
Holding: The officers neither knew nor had reason to know that there were two apartments on the floor being searched, and their entry into a separate unit was therefore justifiable as an honest mistake; however, they were required to discontinue the search as soon as they discovered that they had entered a separate unit not described in the warrant. The controlling case is Maryland v. Garrison, 480 U.S. 79 (1987) where, as here, the officers discovered incriminating evidence before becoming aware that they were in fact in a separate apartment.
¶13 In viewing the execution of the warrant in Garrison, the Court held that if the officers knew or should have known of the error in the warrant, “they would have been obligated to limit their search to McWebb’s apartment.” Id. The Court, however, stated: “While the purposes justifying a police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.” Id. (emphasis added).
¶14 Here, there is no dispute that the officers were in the process of executing a valid search warrant on Landis’s apartment when they entered Herrmann’s apartment. The question therefore becomes whether the execution of the warrant on Landis’s apartment violated Herrmann’s constitutional right to be secure in his home. See id. at 86. Herrmann argues that the officers here either knew or should have known that there were two apartments on the second floor and should have limited their search accordingly. We disagree. First, Herrmann contends that the doorway leading to his apartment was clearly marked with a number “5.” However, as the State points out, the officers did not enter through Herrmann’s exterior door. Further, both Cragin and Frawley testified that the door to Landis’s apartment was at the top of the stairway and that the area to the right, where Herrmann’s exterior door was located, was dark and “filled full of junk.” Neither recalled seeing the number “5” above the doorway and Cragin, in fact, did not recall seeing Herrmann’s door at all.
