Pubdate: Sat, 25 Jul 1998
Source: News & Observer (NC)
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Contact 2:  Anne Saker
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Reversing a marijuana conviction, a Court of Appeals panel rules that a
police investigator cannot consciously lie to secure a search warrant.

RALEIGH -- In a decision that some lawyers say will remind police to be more
careful in seeking search warrants, the state Court of Appeals has thrown
out a Raleigh man's drug conviction because a police detective lied to get a
warrant for the man's house.

Judge K. Edward Greene, writing for a unanimous three-judge panel, said that
in asking for search warrants, police sometimes make statements they
mistakenly believe are true. But they cannot knowingly lie in making their
case to a magistrate, Greene wrote.

The case does not break legal ground, but it does invalidate a once-common
practice in the Raleigh Police Department: employing the vague term "using
investigative means" to mean police picked up and went through a suspect's
trash.

"I'm delighted," said Raleigh lawyer Duncan McMillan, who appealed the case
on behalf of Michael Severn. "We understood that this was a very frequent
practice. This time, though, the police got caught in a lie."

"It's a good day when the courts recognize that lying under oath is
problematic," said Louis Bilionis, a criminal procedure expert at the law
school of the University of North Carolina at Chapel Hill.

Raleigh criminal defense lawyer Rick Gammon, once a Raleigh police officer,
said the ruling instructs police that the truth cannot fall victim to the
pressure to make arrests.

"This is a good ruling because it requires the officer to be truthful in the
affidavit, and it preserves the integrity of the affidavit and the search
warrant," Gammon said.

The detective in the case, R.A. McLeod, said Friday, "I'm not going say a
thing about it. Not a word."

Police Chief Mitch Brown and police attorney Dawn Bryant could not be
reached for comment. Assistant Attorney General Elizabeth Parsons said no
decision has been made about taking the case to the state Supreme Court.

Barring a move to the high court, the Court of Appeals ruling Tuesday sends
the case back to Wake County Superior Court.

The case began in August 1996 when McLeod got a tip that Severn, then living
on Ryegate Drive in Raleigh, was selling marijuana from his home.

McLeod went to Ryegate Drive and picked up a full trash bag from a trash can
just outside the house. Amid the trash, McLeod found a plastic straw with
cocaine residue and two grams of marijuana seeds, stems and leaves.

Police can take someone's trash as part of an investigation as long as they
pick it up on the day and time of regular collection.

McLeod then filed an affidavit asking a Wake County magistrate for a search
warrant to go into Severn's house. Instead of saying that he made a trash
pickup, he wrote under oath that he recovered "marijuana and cocaine from
inside Severn's residence, using investigative means."

The detective got the search warrant, and in Severn's house he found
marijuana and drug paraphernalia. Severn was charged with possession.

At a February 1997 hearing, McMillan, Severn's lawyer, asked Judge F. Gordon
Battle to throw out the warrant. McLeod testified then that he had not gone
inside the house himself to get the evidence on which to base the search
warrant.

He also said he wrote the term "using investigative means'' in his affidavit
so Severn would not know that McLeod found the incriminating evidence in his
trash. He said writing that term on search-warrant affidavits was a standard
practice in the department's drugs and vice unit.

But the Court of Appeals said McLeod crossed a fine line between unknowingly
making a false statement and telling a lie.

"It is true that every false statement in an affidavit is not necessarily
made in bad faith," the court said. A person making a sworn statement "may
be unaware that a statement is false and therefore include the statement in
the affidavit based on a good-faith believe of its veracity."

But McLeod, the court said, "admitted that he did not go inside of the
residence; therefore, by stating in the affidavit that he had recovered
evidence from within the residence, he knowingly made a false statement."

The ruling also said the term "using investigative means" does not confer
truthfulness on the affidavit, and it "further supports our holding that the
affidavit was entered in bad faith."

The court ruled that nothing else in the affidavit was good enough to
persuade a magistrate to issue a search warrant, so the court threw out
Severn's conviction.

Christina Fanney, who prosecuted the case in Superior Court, said she thinks
McLeod might have been in a hurry when writing the affidavit.

"We've told officers: If you did a trash pickup, say you did a trash
pickup," she said.

In 1997, officers executed 396 search warrants on Wake County houses. A
review Friday of 60 search warrants issued in 1998 found that a dozen bore
the words "using investigative means." Four of those warrants reported that
police obtained evidence in a trash pickup.

Joining Greene in the decision were Judges Mark Martin and Patricia
Timmons-Goodson. A0A0A0A0

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Checked-by: Melodi Cornett