Pubdate: Fri, 07 Sep 2001 Source: Concord Monitor (NH) Copyright: 2001 Monitor Publishing Company Contact: http://www.cmonitor.com/ Details: http://www.mapinc.org/media/767 Author: Lisa Wangsness Bookmark: http://www.mapinc.org/racial.htm (Racial Issues) JUSTICES PUT POLICE ON NOTICE Court Voids Evidence In Warrantless Search The state Supreme Court yesterday warned police departments that while not required by law, it is "good policy" to advise people that they have a right to refuse to consent to a warrantless search of their person or property. And the court sharply criticized a Chesterfield police officer who failed to follow this procedure even after he illegally detained a black college student to search him for drugs without a good reason. Officer Jason Graves found a small amount of marijuana in Dorian Hight's pocket, but the high court yesterday unanimously declared the evidence inadmissible. The court sent the case back to Keene District Court for a new trial. "(W)e are troubled by the purpose and the flagrancy of the illegal misconduct in this case," Justice Joseph Nadeau wrote for the court. Chesterfield Police Chief Earl Nelson did not return phone calls seeking comment. Concord Police Chief Jerry Madden said his officers make it a practice to inform people of their right to refuse a request for a warrantless search. "That authority, I think, has to be used correctly and respectfully, so as to not put people in the position of feeling they really don't have any choice," he said. Though yesterday's decision was steeped in concerns about racial power differentials and stereotyping, the actual legal issues dealt with matters of established search and seizure case law, said Albert "Buzz" Scherr, a professor at Franklin Pierce Law Center. "It's a case that applies some very well settled principles to a different set of facts," he said. The incident happened on May 9, 1999, on a dark section of Route 9, just east of the Brattleboro Bridge. The stop began lawfully, both parties agree: At 8:40 p.m., Graves, who is white, pulled over Hight, who is black, for going 47 mph in a 35 mph zone and for a broken taillight. Two of Hight's college friends, both white, were also in the car. Graves asked Hight where he had been and where he was going. Hight replied that he and his friends were returning from Boston to Landmark College in Putney, Vt., where they were students. Hight surrendered his license and registration; Graves brought them to his patrol car, determined they were valid and then wrote Hight a ticket. But upon returning to Hight's car, Graves asked Hight to step outside his vehicle. Hight complied. They walked to the side of the road. Graves asked Hight what he and his friends had been doing in Boston. Hight said they were "just hanging out." Graves said he thought it was "a long way to drive to simply hang out with no destination in mind." Hight said they had also gone to a frat party. Graves said he was concerned that Hight had picked up drugs in Boston - which, he told the trial judge, he knew to be a "source city" for drugs. Graves asked for permission to search Hight's car for drugs. Hight gave his consent. But because he didn't have any backup, Graves immediately asked Hight if he could pat him down to look for drugs. Again, Hight said yes. Graves found a plastic film container that contained .04 gram of marijuana. The officer then asked to search Hight's wallet, where he found rolling papers. The other two passengers were not searched. Hight was charged with a misdemeanor for drug possession offense and fined. Keene District Court Judge Edward Tenney found Hight guilty and rejected his motion to suppress the drug evidence. In the appeal, Stephen Fuller of the attorney general's office, who represented Graves, conceded that Graves did not have enough evidence to detain Hight longer than it took to write his traffic ticket. But, Fuller argued, Hight had willfully and knowingly given Hight his consent to search his person. But Concord lawyer Joshua Gordon, who represented Hight in his appeal, argued that Hight had not willfully given his consent. "On the dark side of the road, near the guardrail, now separated from his companions, without any . . . indication that he was free to leave nor pause to give him time to consider his rights, Mr. Hight was asked to consent to a search," Gordon wrote in his appellate brief. "Faced with these circumstances, most people would feel coerced into consenting," Gordon wrote. "Mr. Hight's encounter was additionally layered with race. He was stopped by a white officer in an area where few blacks live. He predictably responded to Officer Graves by being exceedingly polite and submissive." The court agreed with Gordon. Graves did nothing to "purge the taint" of the illegal detainment, Nadeau wrote: Graves had not given Hight his license and registration back, suggesting that Hight was not free to leave. He did not inform Hight of his right to refuse the search. He gave Hight no time to think over his options. Nadeau wrote that he found the illegal detainment especially troubling in this case: "It is disconcerting that the officer sought consent to search not only the defendant's car, but his person, based upon such innocuous facts as he had driven to Boston with a purpose to 'hang out,' he had attended a 'frat party' there and he was returning to college in Vermont." Graves's failure to inform Hight of his rights suggested that he was on a "fishing expedition for incriminating evidence," Nadeau wrote. As a matter of policy, he wrote, the Supreme Court has always advised police officers to inform people of their right to refuse a warrantless search. He added it was also "troublesome" that Graves hadn't searched Hight's white friends. - --- MAP posted-by: Josh