Pubdate: Sun, 10 Dec 2006
Source: Austin American-Statesman (TX)
Copyright: 2006 Austin American-Statesman
Contact:  http://www.statesman.com/
Details: http://www.mapinc.org/media/32
Author: Tony Plohetski, American-Statesman Staff

DRUG CONVICTION THROWN OUT BY JUDGE; OFFICER UNDER
INVESTIGATION

Defense Attorney Says Officials Told Him 'Something Tainted' Arrest.

A judge has thrown out a man's felony drug conviction  after internal 
affairs detectives and prosecutors began  reviewing how an Austin 
police officer handled the  man's August arrest.

Authorities are trying to determine whether officer  James Learmonth 
had probable cause to search Ernest  Smith after a traffic stop in 
East Austin and whether  he was truthful in police reports and court 
documents  in describing the incident, Tom Stribling, who is 
representing Learmonth, said Saturday.

Smith complained to Austin police about the arrest  after pleading 
guilty to drug charges in September,  said Smith's attorney, Keith 
Lauerman. He declined to  discuss what his client told police in the complaint.

Officials with the Travis County district attorney's  office then 
contacted Lauerman and recommended that he  seek to have the 
conviction overturned because they  said they thought "something 
tainted" Smith's arrest,  Lauerman said.

The charges' dismissal comes the same week that  officials said they 
are investigating an officer's use  of force earlier this year 
against a man who has mental  retardation. The investigation is also 
looking into how  officer Gary Griffin's supervisors reviewed 
the  incident and why they concluded that the force was  justified.

Stribling declined to comment further on the  investigation involving 
Learmonth, and prosecutors said  they could not discuss an ongoing 
investigation.

Acting Police Chief Cathy Ellison could not be reached Saturday.

State District Judge Bob Perkins said he threw out  Smith's 
conviction on a charge of possession of a  controlled substance 
Friday at the request of  prosecutors and Lauerman, who cited 
possible violations of the U.S. and Texas consti-tutions.

Perkins said he did not know the specifics of the  possible violations.

Lauerman said Learmonth wrote in court documents that  he pulled 
Smith over after seeing what he thought was a  drug transaction and 
that during a search, he found  more than a gram of cocaine.

The attorney said Smith pleaded guilty to the drug  charges and 
accepted probation because he feared that a  jury trial would result 
in a prison sentence. Smith  also pleaded guilty to unrelated charges 
of  unauthorized use of a motor vehicle and drug  possession, Lauerman said.

He said he had been unaware that Smith had concerns  about how the 
officer handled the arrest until after  the guilty plea.

Learmonth was investigated and cleared last year after  he and a 
fellow officer stopped a car with a defective  taillight and then 
chased the driver, who police said  fled on foot.

During the chase, the man fired several shots at them,  police have 
said, and Learmonth's fellow officer  returned fire but didn't hit the man.

The second officer also was investigated and cleared.
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