Pubdate: Wed, 19 Jan 2000 Source: Minneapolis Star-Tribune (MN) Copyright: 2000 Star Tribune Contact: 425 Portland Ave., Minneapolis MN 55488 Fax: 612-673-4359 Feedback: http://www.startribune.com/stonline/html/userguide/letform.html Website: http://www.startribune.com/ Forum: http://talk.startribune.com/cgi-bin/WebX.cgi Author: Robert Imrie, Associated Press Writer APPEALS COURT REVIVES EVIDENCE IN MARIJUANA CASE WAUSAU, Wis. - A divided state appeals court Wednesday ruled that Dunn County law enforcement officials acted properly in investigating illegal marijuana after unwittingly going into another apartment than the one they originally searched. In a 2-1 decision, the 3rd District Court of Appeals said a judge erred by suppressing most evidence obtained in the probe. According to court records, the investigation involved two apartments upstairs of an old commercial building in rural Menomonie that had a layout like a " catacomb, with rooms leading to other rooms." The Dunn County Sheriff' s Department, with assistance from the West Central Drug Task Force, had a search warrant for one apartment in which they found five pounds of marijuana in a closet April 9, 1998. Near the closet, the investigators unchained a lock on another door and walked into what they thought was a storage room of the apartment they had a warrant to search, court records said. In a closet in that room, the officers found what they believed was a marijuana growing operation consisting of nine withered plants. A short time later, they realized they had entered a second apartment of Kenneth H. Herrmann. Herrmann made some incriminating statements about drugs and investigators recovered about one ounce of marijuana from beneath a couch after Herrmann told them where it was, court records said. Officers asked Herrmann' s permission to search his apartment but he refused. Investigators then obtained a search warrant and discovered 50 more marijuana plants and a " sophisticated" growing operation, court records said. Hermann was charged with unlawfully manufacturing marijuana. Subsequently, Dunn County Circuit Judge William Stewart ordered that all evidence except the nine marijuana plants found in the closet had been illegally obtained in violation of Herrmann' s constitutional right to be secure in his home. The three-judge appeals court said the judge properly suppressed Herrmann' s incriminating statements and the marijuana found under the couch but there was " sufficient untainted evidence" to support the search warrant later issued for Herrmann' s apartment. The panel said it was reasonable for officers to unchain and enter the door into what they mistakenly believed was just another room in the apartment being legally searched. In dissenting with that ruling, Judge Michael Hoover said the officers should have known that proceeding beyond a locked door " would exceed the scope of their lawful search." " Under my analysis, the officers never would have entered Hermann' s residence and would therefore not have been in a position to make any observations upon which a warrant could be issued, " Hoover said. - --- MAP posted-by: Derek Rea