Pubdate: Sat, 18 Jan 2003 Source: Oklahoman, The (OK) Copyright: 2003 The Oklahoma Publishing Co. Contact: http://www.oklahoman.com/ Details: http://www.mapinc.org/media/318 Author: Mac Bentley RULING ON SEARCH COMES TOO LATE FOR PROSECUTION SAYRE -- A recent ruling by the Oklahoma Court of Criminal Appeals is too late to help prosecute one drug defendant, but it could be useful if a co-defendant is brought to trial. James Paul and Melvyn Patterson were stopped on a traffic violation by Elk City police in May 2001. A drug-detecting dog alerted officers to the car's trunk, where officers found 164 pounds of marijuana. Paul was brought to trial on a drug-trafficking charge in May in Beckham County. After prosecutors presented their case, Associate District Judge Joe Jackson ruled the search was illegal and dismissed the case. "The effect of that is, once the trial started, jeopardy was attached and I can't refile (the case)," Assistant District Attorney Lisa Birdwell said. Birdwell appealed the "question of law," even though Paul could not be retried. Last week, the state Court of Criminal Appeals overruled the trial judge and said the search was legal. "I posed two questions to the Court of Criminal Appeals," Birdwell said. "Does the alert of a drug dog give officers probable cause to search a vehicle stopped for a traffic violation on a highway without a search warrant? And, second, is an officer who has probable cause ... required to obtain a search warrant to search the vehicle?" The appeals court said the dog's alert does provide probable cause, and the officer does not need a warrant. A defendant can't be retried when his case is dismissed after a jury has been seated. But Birdwell said she doesn't think that has anything to do with Patterson, who failed to show for a court hearing in March and is not in state custody. In the appeals court's ruling, Judge Charles Chapel wrote that the officer had a right to prolong the traffic stop because of suspicions raised by inconsistent statements about destination and questionable proof of ownership or authority to operate the vehicle. - --- MAP posted-by: Jay Bergstrom