Pubdate: Tue, 11 Jul 2006
Source: Burlington Free Press (VT)
Copyright: 2006 Burlington Free Press
Contact:  http://www.burlingtonfreepress.com/
Details: http://www.mapinc.org/media/632
Author: Adam Silverman
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

JUDGE SAYS POLICE IN VERMONT MUST KNOCK BEFORE SEARCHING

Police in Vermont must knock before raiding a home or risk having any 
evidence they discover thrown out of court, despite a recent U.S. 
Supreme Court decision to the contrary, an Essex County judge has ruled.

Judge Robert Bent, presiding over a drug case in Vermont District 
Court in Guildhall, wrote in an opinion released Monday that 
Vermont's constitution gives criminal defendants greater protection 
than that afforded by the U.S. Constitution against unreasonable 
searches and seizures.

"Evidence obtained in violation of the Vermont constitution, or as 
the result of a violation, cannot be admitted at trial as a matter of 
state law," Bent wrote, quoting a case he cited as underpinning his 
ruling. "Introduction of such evidence at trial eviscerates our most 
sacred rights, impinges on individual privacy, perverts our judicial 
process, distorts any notion of fairness and encourages official misconduct."

Bent's nine-page opinion rejects the conclusion in a 5-4 U.S. Supreme 
Court ruling handed down June 15. Justice Antonin Scalia, writing for 
the majority, said evidence that police gather during illegal 
searches still may be used in court against suspects. The ruling, 
Bent wrote, was "a substantial departure from previously established 
law," and Vermont is not bound to follow it.

States are free to give their residents more protection than the U.S. 
Constitution provides.

Bent agreed with the court's dissenting opinion, which said that 
admitting such evidence eliminates any incentive for government 
agents to follow the law.

"The exclusionary remedy should remain in full force and effect," 
Bent wrote, "at least in our small corner of the nation."

Defense lawyer David Williams of St. Johnsbury praised the ruling, 
which prevents prosecutors from using evidence of marijuana 
possession against his client, Ellen Sheltra.

"Sanity prevails in Vermont," Williams said. The search

Last fall, the Vermont State Police Drug Task Force obtained a 
warrant to search for drugs at the Island Pond home Sheltra and Clair 
Deslandes shared. The officers were preparing to enter the house Oct. 
12 when the front door suddenly opened, one of the officers would 
later testify. The agents drew their weapons, shouted "state police 
with a search warrant" and stormed inside, according to Bent's ruling.

Bent found the officer's testimony was not credible -- none of the 
three adults and two children in the house said they opened the door 
- -- and suggested the agents instead might have barged in after 
hearing someone say, "The police are here."

Police found 88 grams of marijuana and four unloaded long guns, 
Williams said. Sheltra, 42, was arrested, pleaded not guilty and was 
released on conditions. Prosecutors were seeking a felony conviction 
and a term of probation, Williams said. Charges against another 
defendant were dismissed, and Deslandes was prosecuted and pleaded 
guilty in federal court.

There are numerous circumstances in which police can bypass the 
requirement they knock, announce their presence and wait a short time 
before entering, such as a threat of harm or a chance evidence might 
be destroyed. The Sheltra case involved none of the exceptions, Bent wrote.

"The search as performed in this case was not reasonable for the 
failure of the officers to follow the knock and announce rule," the 
judge wrote.

Bent held a hearing in May to determine whether he should suppress 
the evidence, Williams said. Ruling's effect

Williams said he will seek dismissal of the charges against Sheltra.

"The state's case is weakened," he said.

Assistant Attorney General Cathy Norman, who prosecuted the case, was 
on vacation and could not be reached for comment Monday. Matt Nally, 
a supervisor with the Northern Vermont Drug Task Force, said he could 
not comment because he hadn't read the ruling.

Gov. Jim Douglas appointed Bent to the bench in February.

The ruling is not binding on other state judges -- it would become so 
only if prosecutors appeal and the state Supreme Court sides with 
Bent -- but other jurists are likely to consider the decision in 
similar cases, said Cheryl Hanna, a professor at Vermont Law School 
in South Royalton.

Vermont traditionally has provided greater protection than federal 
law does for individual rights, Hanna said. Bent's opinion portends 
an era in which people look to local jurisdictions rather than the 
nation's highest court when they feel their rights have been 
violated, Hanna said.

"We're going to see a shift to the states in being the real protector 
of people's rights as the Supreme Court becomes more conservative," she said.

Williams agreed: "The U.S. Supreme Court is radically changing the 
relationship between the government and the governed, giving the 
government greater and greater power to invade your privacy."
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MAP posted-by: Beth Wehrman