Pubdate: Fri, 24 Sep 2004
Source: Herald-Sun, The (Durham, NC)
Copyright: 2004 The Herald-Sun
Contact:  http://www.herald-sun.com
Details: http://www.mapinc.org/media/1428
Author: John Stevenson, The Herald-Sun
Bookmark: http://www.mapinc.org/heroin.htm (Heroin)

JUDGE RULES SEARCH UNCONSTITUTIONAL; DRUGS SEIZED THERE INADMISSIBLE

DURHAM -- A large amount of heroin, which could have brought a defendant at 
least 20 years in prison and a $500,000 fine, was thrown out as evidence 
Thursday because of what was called an illegal and unconstitutional search 
by police.

Court officials said the ruling by Judge Kenneth C. Titus would allow the 
suspect, Clinton Streeter, to avoid prosecution for allegedly trafficking 
in more than 100 grams of heroin. The drugs were seized in June 2003 from 
Streeter's residence at 3917 Townsend St.

Defense lawyer Bill Thomas argued successfully Thursday, however, that the 
warrant police used to seize the heroin was "fatally defective," meaning 
the drugs were "the fruit of an illegal search."

"The search was unconstitutional," he said. "Evidence seized in an 
unconstitutional manner cannot be presented as evidence. The 4th Amendment 
protects people in their homes from unreasonable searches."

The judge agreed.

"There is nothing, nothing in this warrant, that implicates the premises 
whatsoever," Titus ruled, referring to Streeter's home on Townsend Street. 
"It's just not enough. There was absolutely insufficient information to 
support the issuance of a search warrant."

As a result, Titus said the heroin could not be used against Streeter.

Such elimination of evidence -- "suppression" as it is called in court -- 
is rare but not unprecedented. It happens when a judge is convinced that 
officers stopped a car or searched a residence without sufficient reason, 
or "probable cause," to do so.

In Streeter's case, Thomas contended that police did not put enough details 
in an affidavit to obtain a search warrant in the first place.

"The affidavit presented to the magistrate contained no information to 
support any contention that contraband or evidence would be located in [the 
Townsend Street home]," Thomas wrote. "No informant alleged that drugs were 
ever held or sold at the residence. The police observed no activity 
whatsoever at the residence that would suggest that illegal activity was 
occurring there. The affidavit merely presented a conjectural, conclusory 
statement ... that evidence would be at the location. This is far less 
information than is needed for a showing of probable cause."

In the affidavit, an officer wrote that "It is common for persons involved 
in the sale of controlled substances to keep and store controlled 
substances and proceeds from the sale of controlled substances at their 
place of residence."

"This is pure conjecture," Thomas argued Thursday.

He said the N.C. Supreme Court has "explicitly denied that probable cause 
for a search ... could be inferred from the fact that an occupant of the 
residence was believed to be a drug dealer."

Similarly, the state Court of Appeals has ruled more than once that an 
officer's conclusion that drugs sales are taking place in a particular 
residence does not constitute probable cause, Thomas added.

Streeter could still be prosecuted for another 9.5 grams of heroin found in 
his car, however, because Thomas lost his argument that police illegally 
stopped Streeter's vehicle in June 2003.

"This evidence is the fruit of a traffic stop conducted without reasonable 
suspicion," the lawyer wrote. "This traffic stop was conducted in response 
to an uncorroborated tip by a confidential, and perhaps anonymous, 
informant. There was no independently observed evidence of illegal conduct."

On that point, the judge disagreed, ruling that there was "nothing tainted" 
about the traffic stop.

If convicted of having the 9.5 grams of heroin, Streeter could face a 
minimum prison term of five years and 10 months, along with a $50,000 fine.
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