Pubdate: Wed, 22 Sep 1999 Source: Lincoln Journal Star (NE) Copyright: 1999 Lincoln Journal Star Contact: PO Box 81609, Lincoln, NE 68508 Fax: (402) 473-7291 Feedback: http://www.journalstar.com:80/info/about_ljs/letform Website: http://www.journalstar.com/ Author: Butch Mabin COURT RULES OUT POT AS EVIDENCE A Nebraska man found with 1 pound of marijuana won't be prosecuted if an Appeals Court opinion stands.On Tuesday, the Appeals Court said the drugs should be suppressed as evidence because authorities based the search on an unreliable source. Jerry S. Keen of Kearney County was arrested in February 1998 after the Nebraska State Patrol seized the marijuana from his home. "I'm obviously happy about the decision," Keen's attorney, Greg C. Harris of Kearney, said. "I don't think I should comment any more because they might appeal this to the Supreme Court." Kearney County Attorney David G. Wondra was unavailable Tuesday. Harris said authorities found "a touch more than a pound" of marijuana in Keen's home. According to the opinion Tuesday, the Kearney County Sheriff's Office received an anonymous telephone tip in September 1997 that Keen was selling marijuana for sex. The office then passed the information to the State Patrol. On Feb. 10, 1998, patrol officer Jeffrey Shelton, dressed in civilian clothes, went to Keen's home, identified himself, and told Keen about the marijuana report. Keen invited the officer inside and, after questioning from him, produced the marijuana. At no time did Shelton tell Keen he was under arrest and was free to end the interview. Keen was subsequently charged with possession of marijuana weighing more than 1 pound. He pleaded not guilty and filed a motion in Kearney County District Court to have the marijuana suppressed. District Court Judge Stephen Illingworth later ruled the telephone tip was unreliable and stale and granted Keen's motion. Prosecutors appealed to the appeals court. In upholding Illingworth, the Appeals Court focused on prosecutors' failure to show the anonymous caller was a reliable source. "The caller was never identified, and there is no indication in this record that further investigation was made as to the reliability of that information," the court said. "Such information would not justify the issuance of a search warrant." - --- MAP posted-by: Richard Lake