Pubdate: Wed, 07 Nov 2012
Source: Times Record (Fort Smith, AR)
Copyright: 2012 Stephens Media Group
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Details: http://www.mapinc.org/media/529
Author: John Lyon

COURT: DEA VIOLATED VILONIA MAN'S RIGHTS WITH WARRANTLESS SEARCH

LITTLE ROCK - The state Court of Appeals on Wednesday sided with a 
Vilonia man who argued that drugs and firearms federal agent seized 
from him were the fruit of an illegal search and should not have been 
admitted as evidence against him.

The appeals court ruled that a federal Drug Enforcement 
Administration agent violated Elfido Gutierrez's constitutional 
rights when he entered the man's home without a warrant.

Gutierrez argued that evidence seized from his home on Oct. 14, 2010, 
should have been suppressed.

DEA Agent Jon Vannatta went to the residence while trying to find 
Gutierrez's nephew, Alonzo Gutierrez, for whom he had an arrest 
warrant. Vannatta testified that Alonzo Gutierrez had been seen 
standing outside the residence a day earlier.

Vannatta and other officers entered the residence and found that 
Alonzo Gutierrez was not present, but they did find firearms in the 
home and cocaine and methamphetamine on the person of Elfido Gutierrez.

Elfido Gutierrez was charged with possession of cocaine, possession 
of methamphetamine, simultaneous possession of drugs and firearms and 
possession of a firearm by a convicted felon. He filed a motion to 
suppress the evidence, arguing that Vannatta had no cause to enter 
his home without a warrant.

Vannatta testified that he saw a broken window on the back of the 
residence and broken glass lying on the ground, and he suspected that 
a kidnapping had occurred. The state argued that a warrantless search 
is permissible when an officer has cause to believe a person may be 
in imminent danger.

A Faulkner County circuit judge denied Gutierrez's motion. Gutierrez 
then pleaded guilty to the charges, on the condition that he be 
allowed to appeal the denial of his motion, and was sentenced to 10 
years in prison.

A three-judge panel of the Court of Appeals ruled Wednesday that the 
evidence should have been suppressed.

"There was no basis for believing that a kidnapping was under way 
that morning," Judge Robin Wynne wrote in the court's opinion. "This 
is exactly the type of 'potential or speculative harm' that this 
court has rejected as exceeding the scope of the imminent danger exception."

The court also noted that the officers conducted surveillance at the 
residence for over an hour before they entered it, and that Vannatta 
admitted in his testimony that he did not want to be "sitting out 
there all day waiting to see if anything was going to happen."
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