Pubdate: Fri, 24 Jul 1998 Source: Associated Press Author: Kevin O'Hanlon Associated Press Writer HIGH COURT RULES NIGHTTIME DRUG SEARCH BROKE LAW LINCOLN, Neb. (AP) -- The Nebraska Supreme Court on Friday overturned the drug conviction of a Blair man who said police broke the law by searching his garbage and later serving a search warrant at his house at night. Patrick Fitch, 32, was sentenced to two and one-half to five years in prison for possession of drugs with the intent to deliver after Blair police raided his home the night of April 19, 1996. In an unanimous ruling, the Supreme Court agreed with Fitch that police should have served the search warrant during the day unless officers showed some compelling reason why a nighttime search was necessary. ``The privacy of citizens in their homes, secure from unreasonable nighttime intrusions is a right of vast importance,'' Judge John Gerrard wrote. ``The affidavit contained no facts that would support an inference that contraband was being disposed of or hidden in such a manner that nighttime service was required.'' In the affidavit requesting the search warrant, investigator Darwin Shaw said he searched the garbage outside of Fitch's home four times between March 21 and April 4, 1996. Shaw said he found marijuana seeds and stems, plastic bags like those used to package drugs and a list of names and dollar amounts. He also said he often saw people who had been arrested on drug charges visiting Fitch's house. The search turned up marijuana, cash, a scale and other items. During questioning at the police station, Fitch told officers, ``Well, it looks like you got me good'' and gave an incriminating written statement. In his appeal, Fitch also argued that violated his right of privacy by searching his garbage. The Supreme Court declined to address that issue because the illegal nighttime search was reason enough to overturn the conviction. The court also said that Fitch's statement to police was ``the fruit of the poisonous tree'' and should not have been used at his trial. Mark Raffety, the assistant attorney general who handled the case for the state, did not return a call seeking comment. Fitch's lawyer, Adam Sipple of Omaha, praised the decision. ``It's critical that those given the power to enforce the law are required to act within its limitations,'' he said. ``We are fortunate to have a Supreme Court that recognizes their duty to enforce the constitution and thereby protect all citizens from this type of police intrusion.'' Sipple said he felt just as strongly about the search of Fitch's garbage, even though it was not addressed in the opinion. ``If I walked out and saw a police officer going through my garbage, I'd be pretty upset,'' he said. ``Some courts have held that that is an invasion of privacy because of the personal nature of things that we dispose of in our garbage -- mail, correspondence, items of personal hygiene -- that tell about what we do in our homes.'' - --- Checked-by: Melodi Cornett