Pubdate: Sat, 10 Apr 2004
Source: Lexington Herald-Leader (KY)
Copyright: 2004 Lexington Herald-Leader
Author: Bruce Schreiner, Associated Press


Court Says Search Was Improper

FRANKFORT - Pike County sheriff's deputies improperly seized marijuana
as they "went snooping" in a house trailer and outbuilding without a
search warrant, the Kentucky Court of Appeals said yesterday.

However, other marijuana plants that were in plain view were properly
confiscated and could be admitted as evidence at trial, a three-judge
panel ruled.

The appeal was by Jeanette Lindeman and Clifton Machniak. They entered
conditional guilty pleas after Pike County Circuit Judge Charles Lowe
Jr. refused to suppress the evidence. The appellate ruling sent the
case back to Lowe's court. Lindeman and Machniak would have to decide
whether to seek to change their pleas and go to trial.

Deputies Chris Phillips and Bob Wright went to the trailer after
taking Lindeman's juvenile son into custody on suspicion of drug use.
Wright smelled marijuana and walked to the back, where he found
marijuana plants growing in six buckets in plain view.

Lindeman and Machniak, her boyfriend, were arrested. From the porch,
one deputy saw marijuana and a scale on a coffee table inside the trailer.

Phillips testified that, after taking the juvenile inside to retrieve
some medication, he saw more marijuana plants in the kitchen, a
bedroom and a hallway. Wright found plants in an outbuilding with a
shaded window.

Lindeman and Machniak were charged with cultivating more than five
marijuana plants with the intent to traffic.

Because they did not contest the officers' right to enter the
property, marijuana plants found in plain view behind the trailer and
immediately upon entering the trailer with Lindeman's consent could be
admitted as evidence, the court said.

The defendants contended Phillips went beyond consent when he ventured
down a hallway, and the appeals court agreed.

"Instead of merely escorting the juvenile into the residence, Deputy
Phillips left the juvenile alone and ventured some 50 feet down a
hallway," Chief Judge Tom Emberton of Edmonton said in writing for the
appeals court. "Although he did not open any drawers or doors, he
exceeded the scope of Lindeman's permission."

Phillips said he walked through the trailer for self-protection, to
make sure no one else was there. Emberton noted that the adult
suspects were outside and unarmed. Nor had they threatened the officers.

"If there were an actual fear of danger, it would have been reasonable
for the officer to remain with the juvenile at the front of the
trailer and after retrieving the medication, to exit the residence,"
Emberton wrote.

Wright also said he entered the outbuilding because he thought it
might be occupied, which could pose a danger. He said he saw a light
and heard a fan running when he peered inside.

Emberton said Wright's explanation "seems to be only a pretext for a
warrantless search. ... The officers, to put it simply, went snooping."

Judges Wilfrid A. Schroder of Covington and Julia Tackett of Lexington
joined in the decision.
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