Pubdate: Sat, 02 Oct 1999 Source: Omaha World-Herald (NE) Copyright: 1999 Omaha World-Herald Company. Contact: http://www.omaha.com/ Forum: http://chat.omaha.com/ Author: Robynn Tysver HIGH COURT OVERTURNS DRUG CASE Lincoln - Drug-sniffing dogs cannot be used by police outside an apartment without reasonable suspicion that a crime has been committed, the Nebraska Supreme Court ruled Friday. The ruling extends the legal umbrella of the Fourth Amendment - the right to be secure against unreasonable searches and seizures - to outside the four walls of an apartment. "I think this is a major win for Fourth Amendment protections," said Glenn Shapiro, an Omaha attorney who represented the apartment dweller in the case. In 1997, police took a drug dog to an apartment hallway based on a tip from an anonymous caller. The high court said the search violated the U.S. Constitution because apartment dwellers have a legitimate expectation of privacy in the hallways immediately outside their doors. And, the court said, police must have reasonable suspicion that a crime has taken place. An anonymous call is not enough to warrant such action. "The Fourth Amendment embodies the centuries-old principle of respect for the privacy of the home," Judge Lindsey Miller-Lerman wrote for the majority. "Under the federal and Nebraska Constitutions, a canine sniff for illegal drugs conducted at the threshold of a dwelling detects information regarding the contents inside the home, and an individual has a legitimate expectation of privacy inside the home even as to these unworthy contents," Miller-Lerman wrote. The ruling overturned the drug convictions of Eddie R. Ortiz Jr., an Omaha man who was sentenced in June 1998 to three to five years in prison for possession of cocaine with intent to deliver and two to three years in prison for possession of marijuana with intent to deliver. The drugs seized from Ortiz's apartment were "the fruits of an unconstitutional search." As such, they should not have been admitted as evidence in his case, the court said. Shapiro said it was unlikely that Douglas County would subject Ortiz to a second trial because all of the county's evidence was deemed inadmissible with the ruling. Ron Moravec, an assistant attorney general who represented the state in the appeal, could not be reached. Ortiz lived in an apartment on South 70th Street. In August 1997, a person called Omaha police and said Ortiz had been distributing cocaine from his apartment for a year. Police then went to Ortiz's apartment with a drug dog named Pogo. The dog sniffed outside the apartment and gave indications that drugs were inside. Police then obtained a "no-knock" search warrant. Inside the apartment, police found a quarter-ounce of cocaine, 4 ounces of marijuana, $6,300 in a kitchen drawer and $11,000 in a freezer. Police also found a notebook containing records of drug transactions. Ortiz, who was not home at the time of the search, turned himself in about a week later. In its ruling, the court said police did not have reasonable suspicion to use a drug dog outside Ortiz's apartment based on one telephone call. "This information . . . was an uncorroborated allegation from an anonymous source whose reliability was unknown to police," Miller-Lerman wrote. "The officers did not conduct a meaningful investigation," she added. In a concurring opinion, Judge William Connolly said he agreed with the ruling but disagreed with the legal conclusions. Connolly said he would extend the protection of privacy outside the threshold of a home to include protection against warrantless searches in almost all situations and regardless of whether reasonable suspicion exists or not. In Connolly's opinion, police should have obtained a warrant before bringing the drug dog to the apartment building. "Due to the heightened expectation of privacy one has in his or her dwelling, I would apply the standard principle that absent only a few narrowly prescribed . . . circumstances, the search of a dwelling must be made pursuant to a warrant based on probable cause," Connolly wrote. - --- MAP posted-by: Derek Rea