Pubdate: Wed, 03 Oct 2001
Source: Lincoln Journal Star (NE)
Copyright: 2001 Lincoln Journal Star
Contact:  http://www.journalstar.com/
Details: http://www.mapinc.org/media/561
Author: Kevin O'Hanlon, The Associated Press

STATE COURT TO SET SEARCH PARAMETERS

The Nebraska Supreme Court was asked Tuesday to clarify how far police 
officers can go in asking to enter a home without a search warrant.

The high court heard the case of William D. Tucker of Lincoln, who said he 
gave police permission to "look around" his apartment and then watched them 
find drugs after opening drawers and cupboards.

Tucker was sentenced to 15 months to 30 months in prison after police found 
marijuana, amphetamine, cocaine and drug paraphernalia inside his apartment 
in 1998.

Tucker's lawyer said that Tucker gave officers permission to view the 
interior of his apartment but not to thoroughly search it.

"He never consented, but they continued to search through his dresser 
drawers and kitchen cabinets," said Shawn Elliott of the Lancaster County 
Public Defender's Office.

Police were responding to a complaint about the smell of marijuana coming 
from Tucker's apartment.

After police first talked to Tucker at his door, he handed them a "roach 
clip" used to hold marijuana cigarettes.

The officers then pressed him for several minutes for permission to come 
inside before Tucker retrieved some marijuana from inside his apartment.

Even then, the officers persisted, and Tucker eventually allowed them in.

The testimony of the officers differed as to whether they used the term, 
"look around" or "search."

Tucker said that when he let the officers come in, he stated: "Doesn't the 
dictionary term of 'look around' mean visual?" and that the officers nodded 
in agreement.

He then said the officers also agreed with him when he said "that doesn't 
mean opening or closing drawers or going into anything."

Elliott said the search violated Tucker's right against unreasonable search 
and seizure.

"When the state claims that a defendant has consented to a search, the 
burden is on the government to prove that the search was voluntarily 
permitted, invited or agreed to," he said.

He said the trial court erred by noticing the inconsistencies in the 
officers' statements about the conversation with Tucker.

He also said the officers' repeated requests to come inside amounted to 
coercion.

"The record establishes that three uniformed, armed police officers 
accosted Mr. Tucker after midnight at the threshold of his home," Elliott 
said. "The officers persisted in asking that he consent to search."

Assistant Attorney General Thomas Olsen said the record proves that Tucker 
gave the officers permission to search his apartment and that they had 
reason to believe more drugs were inside.

He stressed that once the officers were inside, Tucker opened a kitchen 
drawer that uncovered a water pipe.
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