Pubdate: Mon, 11 Jun 2007
Source: Fort Collins Coloradoan (CO)
Copyright: 2007 The Fort Collins Coloradoan
Contact: http://www.coloradoan.com/customerservice/contactus.html
Website: http://www.coloradoan.com/
Details: http://www.mapinc.org/media/1580
Author: Sara Reed
Bookmark: http://www.mapinc.org/find?246 (Policing - United States)
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

CASE IS A LESSON IN SEARCH WARRANTS

Pair's Marijuana Charges Dropped

The Fourth Amendment to the U.S. Constitution guarantees citizens 
protection against unreasonable search and seizure at the hands of 
the government, and it was a violation of this right that led to the 
recent dismissal of a high-profile medical marijuana case in Larimer County.

A District Court judge recently ruled the search of James and Lisa 
Masters' home, which netted 39 live pot plants and was the basis of 
the case against them, was illegal because the officer who filed the 
affidavit for the search warrant walked through the home without 
consent and before obtaining a warrant.

Search warrants are a check on the power of law enforcement, said 
District Court Judge Terence Gilmore, and the officer requesting the 
warrant must show there is probable cause to believe a crime has been 
committed and include what relevant evidence of the crime will be 
found in the home, why it is believed the evidence is there and where 
that evidence will be found.

The Masterses' attorney also took issue with the detective, who 
reportedly never mentioned in the affidavit that the couple told 
officers they were medical marijuana patients.

There is an inherent trust that the officer submitting the request 
will include all evidence in the affidavit, Gilmore said, not just 
the evidence that supports the alleged crime.

"The officer should present all of the evidence on both sides," he said.

There are three conditions under which law enforcement may enter a 
person's home without first obtaining a warrant signed by a judge, 
said Assistant District Attorney Cliff Riedel: with the consent of 
the resident, in urgent situations -- such as the belief a kidnap 
victim may be in a residence and in imminent danger -- and in the 
case of a medical or other type of emergency. If an officer is in a 
home with consent of the resident and sees evidence of the crime, 
that evidence can be seized, Riedel said.

The irony of the Masterses' case, Riedel said, is that a warrant 
wasn't needed because James Masters showed other officers the 
marijuana. The search warrant could have been written based on what 
other officers observed, he said. "They tried to do exactly what the 
courts wanted them to do," Riedel said. "There was no evil intent ... 
they weren't trying to circumvent the law."

Lt. Craig Dodd, who heads the Larimer County Drug Task Force, said 
he's not spoken with prosecutors about the case, nor has he reviewed 
Chief District Court Judge James Hiatt's ruling and could not yet 
comment on the case.

Once he has done that, Dodd said he'd decide what, if any, steps to 
take, including reviewing whether additional training is needed.

"I'm going to look into it to see if there's anything we can improve 
on," he said. If a search warrant has been granted, residents cannot 
deny access to law enforcement, nor should they try to interfere with 
the search, said Bob Rand, a Fort Collins defense attorney.

However, residents do have the right to refuse access to their home 
if law enforcement does not have a warrant, Rand said. Residents 
should be very clear they do not consent to the search if law 
enforcement enters their residence without their consent.

As with all aspects of law enforcement, searches and writing 
affidavit warrants are the subject of ongoing training.

That training is vital, said Larimer County sheriff's Sgt. Joe 
Shellhammer, not only because an illegal search could get evidence 
tossed out, but because people have the right to be protected against 
illegal searches.

"You've got to do things right," he said. "If we're going to search, 
I have to be 100 percent positive."

If he is unsure whether there's enough evidence for a search, 
Shellhammer said, he'll run it past the District Attorney's Office.

"The judges here are real sticklers," he said. "They ask you a ton of 
questions, and you have to be able to answer those questions." 
- ---
MAP posted-by: Richard Lake