Pubdate: Tue, 30 Mar 2004
Source: Clarion-Ledger, The (MS)
Copyright: 2004 The Clarion-Ledger
Contact: http://www.clarionledger.com/about/letters.html
Website: http://www.clarionledger.com/
Details: http://www.mapinc.org/media/805
Author: Jerry Mitchell

LAWYERS: SEARCH RULING MERITS HIGH COURT REVIEW

Allowing officers to conduct searches without warrants is an attack on the 
constitution, leaves the door open to abuse and must be reviewed by the 
U.S. Supreme Court, say two Mississippi defense attorneys.

But a law school professor - a former prosecutor - says the 11-4 decision 
by the 5th U.S. Circuit Court of Appeals is based on common sense and the 
high court has already affirmed a similar argument.

The 5th Circuit ruled last week that officers don't need a warrant to 
conduct a swift search of private property to ensure their safety. The 
ruling affects Mississippi, Louisiana and Texas.

"A sweep of this nature is a complete unhinging of the Fourth Amendment," 
which bars unreasonable searches and requires warrants for law enforcement 
searches, said Jackson defense lawyer Merrida Coxwell. He anticipates the 
high court will take on the case.

Former prosecutor Tommy Mayfield of Jackson, who now does some defense 
work, agreed: "I predict another court is going to look at this. I think 
they ought to."

Mayfield said his problem with the decision is "while the intent initially 
may have been a very narrow application, those things tend to widen beyond 
their intended meaning."

The Supreme Court refuses to hear nearly all cases appealed to it. Pat 
Bennett, a former prosecutor and professor at Mississippi College School of 
Law, believes that will happen in this case.

She said the high court upheld the same principle in support of a swift 
sweep in a previous case, although that case involved an arrest. "I don't 
see it as an issue the court will take on," she said.

Writing for the majority in the 11-4 decision, Judge William Lockhart 
Garwood said, "We hold that a protective sweep ... need not always be 
incident to an arrest. We conclude that the protective sweep here was valid."

Quoting a previous case, Garwood noted, "If a suspect is 'dangerous,' he is 
no less dangerous simply because he is not arrested."

In a 1994 case, the 5th Circuit held that police can make a so-called 
protective sweep if officers are arresting someone.

On Oct. 17, 2000, an employee of Kelly Donald Gould of Denham Springs, La., 
contacted the sheriff's office there, claiming Kelly Donald Gould "intended 
to kill two judges and unidentified police officers and to destroy 
telephone company transformers."

Checking further, authorities discovered Gould was a felon with a violent past.

Deputies went to Gould's mobile home with no search or arrest warrant but 
were invited in by a roommate, who told them Gould was probably asleep "in 
his bedroom. You are more than welcome to come in and check it out."

The deputies said they looked for him under the bed and in two closets, 
where they found three rifles. They later found Gould hiding in the woods 
and seized the weapons after they got him to sign a permission for the search.

The majority's decision in the case last week reversed a ruling by U.S. 
District Judge James Brady that guns found in that sweep could not be used 
as evidence because they were obtained illegally. Judge Charles Pickering 
did not take part because he wasn't on the court when the case was submitted.

Dissenting justices argued the ruling creates another exception to 
constitutional protections against unlawful search and seizure.

"I have no doubt that the deputy sheriffs believed they were acting 
reasonably and with good intentions," Judges Harold DeMoss Jr. and Carl E. 
Stewart wrote. "But the old adage warns us 'The road to hell is paved with 
good intentions.' "

Judge E. Grady Jolly would have thrown out the evidence.

"The constitutionality of such searches must be assessed under a standard 
of general reasonableness," he wrote.

In this case, he concluded, it was unreasonable to search Gould's bedroom 
and closets. "It was used to justify the search of an open room in the 
absence of the subject."

Mayfield said the court did limit where police might look, concluding the 
officers "didn't look anywhere except where a person might be hiding, as 
opposed to looking in a desk drawer."

He said he wasn't sure officers had the right to look in the closets once 
they didn't see Gould because they had no warrant. He said Gould's roommate 
may not be able to give such broad consent to search, although the roommate 
could have given permission to search a common area such as the living room 
or kitchen.

One factor that does make a difference is Gould gave consent to the search 
after deputies arrested him, he said.

Bennett said it didn't matter if Gould gave permission because the deputies 
had already spotted the weapons - legally - after the roommate gave them 
permission to enter.

"Once police are legitimately in a place where they're authorized to be, 
and there is some concern for their safety, then they can make cursory 
inspections," she said. "It's not like pulling open dresser drawers. 
They're looking solely for persons."

Several other appeals courts have ruled similarly, and Bennett said the 
matter is merely one of common sense - officers spotting weapons in the 
legitimate search of an individual.

The ruling could only apply in a few circumstances and has been 
mischaracterized by some, she said. "It must be legitimate."

Aaron Condon, former prosecutor and professor emeritus of the University of 
Mississippi School of Law, said he isn't surprised by the ruling since 
deputies were engaged in a lawful search for a fugitive with probable cause 
to arrest him. "They were looking at this residence where he was expected 
to be," he said. "They looked in places he was expected to be hiding."

The defense could make a good argument the evidence should be thrown out, 
he said, but "I can see if he was threatening to kill judges, the judges 
might take a different view." 
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