Pubdate: Sun, 08 Jul 2007
Source: Herald-Sun, The (Durham, NC)
Copyright: 2007 The Herald-Sun
Contact:  http://www.herald-sun.com
Details: http://www.mapinc.org/media/1428
Author: Beth Velliquette

APPEALS COURT REVERSES DRUG SEARCH RULING

PITTSBORO -- The N.C. Court of Appeals has reversed a decision by
Orange-Chatham Superior Court Judge Carl Fox that Chatham County
deputies violated the law when they broke down the door of a house
where they went to search for drugs.

Based on the theory that the evidence the deputies collected was fruit
from a poisonous tree, Fox made the ruling to suppress as evidence
cocaine seized during the drug raid at a mobile home on Staley Snow
Camp Road in June 2005. Fox ruled the deputies' actions to enter the
home of Russell Harman White by force violated the Fourth Amendment of
the U.S. Constitution against unreasonable searches and seizures and
that it also violated North Carolina law and therefore the evidence
they collected was fruit from a poisonous tree. When deputies went to
the home with a search warrant, five deputies lined up one behind the
other, and the first knocked on the door. After about five seconds,
the first deputy gave the signal for a forced entry, and the deputies
entered the house and found the defendant and several other people in
the residence.

The defendant was taken into custody and read his rights and the
search warrant before the deputies began searching the home and found
cocaine and guns hidden in deep fat fryers. When confronted, the
defendant said the cocaine the deputies found was his.

The deputy who was first in line and made the decision to enter by
force did not attend the hearing to suppress the evidence, and the
other deputies could not explain why he made the decision.

In his ruling, Fox said the deputies did not show that they were
denied entrance or that they were unreasonably delayed before they
used a battering ram to break open the door.

The state appealed Fox's ruling, not on the grounds that the deputies
violated U.S. and N.C. law, but because there was an insufficient
"nexus" between the improper entry and the evidence the deputies
found. The N.C. Appeals Court panel, which included Judges Eric
Levinson, Linda McGee and Barbara Jackson, concluded that the trial
court's findings failed to support the conclusion that the evidence
should be suppressed. "The evidence must be such that it would not
have been obtained but for the unlawful conduct of the investigating
officer," Levinson wrote in the opinion. "As long as the evidence at
issue was not discovered as a direct result of the entry but as a
result of the later search conducted pursuant to the valid search
warrant, the evidence is admissible despite a substantial violation of
[the state law regarding forced entry]." The cocaine likely would have
been located even in the absence of the forced entry, according to the
opinion. "We conclude that the contraband was not subject to
suppression because it was not obtained 'as a result of' the improper
entry. The trial court erred by suppressing the contraband and the
defendant's inculpatory statement."
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