Pubdate: Mon, 10 Dec 2007
Source: Herald-Sun, The (Durham, NC)
Copyright: 2007 The Herald-Sun
Author: John Stevenson


DURHAM -- A rare decision was handed down in Durham County Superior
Court last week, with Judge Ron Stephens ruling that police
unconstitutionally searched a house before arresting a narcotics suspect.

Stephens then threw out evidence seized in the case, depriving
authorities of the ability to prosecute Anthony Maxwell on charges of
possessing cocaine that allegedly was hidden in his rectum.

Defense lawyer Bill Thomas successfully contended a police search
warrant was "fatally defective in that it failed to allege any facts
whatsoever" from which a magistrate could find sufficient grounds --
or probable cause -- to target Maxwell.

"Searches conducted without probable cause violate the Fourth and
Fourteenth Amendments, which protect our liberty and our legitimate
expectation of privacy," Thomas said after winning the argument.

According to court documents, it all began in April 2006, when police
received complaints that a man in a wheelchair was selling marijuana
from his residence at 1103 Fern St., Apt. B.

After two undercover officers buy at that address, the police Special
Operations Division entered the house with a warrant on July 13, 2006,
and searched all five people inside, the paperwork said.

A handgun, $39 in cash and two bags of a white powdery substance
believed to be cocaine were found on a man in a wheelchair. In
addition, a plastic bag allegedly containing cocaine powder and crack
cocaine was found in Maxwell's rectal area, the paperwork indicated.

But Thomas said the warrant was flawed because it contained no reason
to search anyone except the person in the wheelchair.

Maxwell was merely visiting the house in question and did not live
there, Thomas added.

He said the courts have consistently held that search warrants may be
issued only when there is "a fair probability that contraband or
evidence of a crime will be found in a particular place or on a
particular person."

However, there was "absolutely no individualized probable cause that
[Maxwell] was involved in any criminal activity or that he possessed
any contraband," Thomas wrote.

Judge Stephens, a former chief prosecutor in Durham, accepted the

Documents like those drafted by Thomas are called motions to suppress
evidence. They are filed frequently but rarely granted, according to
court officials.

Such paperwork was entered in the now-ended Duke lacrosse sex-offense
case, alleging an "unduly suggestive and misleading" photo lineup was
used by investigators. But the case fell apart and was dismissed
before a judge could rule on the motion.

In another high-profile Durham case, a motion to suppress accused
police of improperly searching the home of novelist and first-degree
murder suspect Michael Peterson six years ago. That motion was denied,
and Peterson later was sentenced to life in prison without parole for
killing his wife, Nortel Networks executive Kathleen Peterson.

Every now and then defense lawyers hit pay dirt with motions to

One of those hits came in November 2005, when a judge ruled that state
alcohol-enforcement agents illegally raided a Markham Avenue house
where Duke University students were partying.

District Judge Craig Brown said the agents improperly failed to obtain
a search warrant and neglected to inform students of their rights
before citing them.

As a result of the constitutional violations, evidence seized at the
party -- including statements and breath samples from students -- had
to be thrown out, the judge ruled.

"Constitutional rights are not technicalities," Brown said at the
time. "Constitutional rights are fundamental."

In September 2004, a large amount of heroin was eliminated as evidence
in a Durham case because of what was called an illegal and
unconstitutional police search. The big drug stash could have brought
the defendant, Clinton Streeter, at least 20 years in prison and a
$500,000 fine if he had been convicted.

The circumstances in that situation were almost identical to those of
last week's Maxwell case.

Another deficient search warrant was the culprit.

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