Posted on 04/01/2002 6:33:57 AM PST by rw4site
March 31, 2002, 9:05PM
A court case involving a drug raid at the Houston home of a Bandidos motorcycle gang member may help draw new legal boundaries for privacy rights and police search-and-seizure powers.
State District Judge Joan Huffman is expected to rule this week on a key issue raised by defense attorneys for two people arrested in the Oct. 4, 2000, raid. The attorneys want to suppress evidence seized at the home because no search warrant was obtained before a police dog sniffed for drug odors at the garage door.
Authorities cited the dog's positive reaction in getting permission from a judge to search the home for drugs, apparently a common law-enforcement tactic in Harris County. The challenge is part of a growing trend nationally to question police search powers, legal experts said last week.
A Houston federal judge in January, for instance, threw out evidence against another Bandidos member that was obtained after a police dog sniffed at the house without a warrant. The U.S. Supreme Court struck down a similar search last June.
Many legal scholars say the high court's case, Kyllo v. United States, suggests that using a dog to sniff for drugs from outside a house is considered a search. Prosecutors, however, said the Kyllo case, which deals with a thermal-imaging device used to inspect a home for marijuana cultivation, has no bearing on police dog use.
In the case before Huffman, David Gregory Smith, 39, of the 500 block of Shawnee, and Kristian Stauffer, 29, of the 3300 block of Ashton Park, are charged with aggravated possession of methamphetamines. Stauffer also was charged with delivery of methamphetamines.
Fellow prosecutor Sally Ring said using drug-sniffing dogs without search warrants is common for law enforcement. (A dog handler for the Harris County Sheriff's Department testified that he does this frequently; a spokesman for the Houston Police Department said HPD officers always have a warrant beforehand.)
Ring said no search warrant is necessary when using police dogs on private property that is not fenced or posted with "Keep Out" signs.
Smith's defense attorney, Phil Hilder, disagreed.
"She's absolutely wrong," Hilder said, citing an appellate decision in a different federal circuit. "It's a warrantless search."
People have the right to "expected privacy" at their homes, and search warrants are needed if a dog is brought onto private property to search, said Edward Mallett, Stauffer's attorney.
"The state's running upstream," Mallett said.
The search at Smith's home was one of six authorized at least in part because of the work of police dogs as part of an 11-month undercover investigation into the Bandidos motorcycle club. The searches were conducted by the Harris County Organized Crime and Narcotics Task Force, which is made up of local and federal law-enforcement officers.
The dogs "alerted" when officers allowed them to sniff garage doors and house doors, according to court records. The officers used that information, along with an informant's tips, to obtain search warrants.
The warrants were signed by state District Judge Ted Poe.
Methamphetamines and marijuana, clothing connected to the Bandidos, and pistols and knives were confiscated at Smith's house.
A search at the home of Carlton Neal Bare netted marijuana and a personal computer that allegedly contained child pornography. Bare pleaded guilty to possession of marijuana in state court, but federal prosecutors charged him with possessing child pornography.
In a hearing on the pornography charge 2 1/2 months ago, U.S. District Judge Lynn N. Hughes refused to allow prosecutors to admit evidence taken from Bare's computer because the search warrant did not give officers authority to look for that type of evidence. The charge was dropped.
Court documents also show that Hughes concluded having "a drug-sniffing dog work the cracks of windows and doors is a search."
"It is equivalent to an officer using a vacuum pump to take an air sample from the doorjamb and having it analyzed later, or in the case of using a thermal sensor," the judge stated.
Prosecutor Ring said Hughes' ruling in Bare's case has no bearing on what happens in state court. It was permissible for police dogs to sniff outside Smith's house because postal workers, visitors and other solicitors have free access to the garage doors, yard and front porch, she said.
But, said Kent Schaffer, Bare's defense attorney, "If you follow that theory, you can take a dog up and down the street and get a search warrant for every house where it barks."
According to a 1997 opinion from Judge Harvey Hudson of the state's 14th Court of Appeals, "canine sniff is not a search." But that opinion dealt with a police dog sniffing luggage at the Amtrak station in Houston.
Legal scholars said challenges to warrantless searches of private property are growing.
In the Kyllo case, the U.S. Supreme Court ruled in favor of the defendant who protested the law-enforcement agents' use of a thermal-imaging device to detect heat lamps used for growing marijuana inside his home. The high court ruled that police needed a search warrant because the imaging device intruded on the home, said David Dow, a law professor at the University of Houston Law Center and a civil rights expert. A dog is even more intrusive, Dow said.
But Sandra Guerra Thompson, another UH law professor, said in Kyllo, the court ruled against the warrantless search because the imaging device indiscriminately gathered information about heat inside the home.
By contrast, Thompson said, drug-sniffing dogs are trained to sense only drug odors and do not indiscriminately search a home.
Today they search and seize, without warrants, suspected drug dealers. Tomorrow they may well search and seize, without warrants, Constitution loving citizens.
Ring is an aberation - a prosecutor that believes I need to fence and post my yard before I have an expectation of privacy?
What rubbish. Bottom line, I could never go onto a person's property to run a narcotics K9 around the house without a warrant. I would be trespassing the minute I stepped on the property, therefore the dog's alert, and any warrant issued based on the alert, would be properly suppressed.
They really need to get a grip.
According to this prosecutor's postulation, one has to affirmatively assert their rights, otherwise they are assumed to have waived those rights? That's absurd!
It's frightening what legal theories some overzealous prosecutors can come up with.
Yes, and it's frightening how common "overzealous" prosecutors are. They are the rule rather than the exception. Anything for a conviction!
drug dealers are scum - but this type of "law enforcement" is complete BS.
Wouldn't it be nice if the courts would simply make that the standard: Whatever is illegal for private citizens to do, is illegal for the cops to do!!!
The root of the problem is this crazy notion that criminals are entitled to a windfall if the cops screw up. So the courts are forced to make decisions regarding the legality of the cops' action, almost literally under the gun: They have some convicted rapist/torturer/pervert/murderer who will WALK if they rule that the cops erred. Of course, what they should rule is, "Yes, the cops erred, but no, you don't get a get-out-of-jail-free card as a result. You're still just as guilty either way. Have a nice life, and remember not to bend over to pick up the soap."
By contrast, thermal imagers by nature only sense thermal variations and do not indiscriminately search a home.
And consequently can be 'trained' to give any reponse that the police officer might indicate is desired.
When they come for your guns they could train dogs to alert on Hoppe's solvent or gun oil.
On the other hand, I do not see an expectation of privacy in gaseous emissions from private property. If there's a gas coming from my buildings, and I take no measures to contain or control its emission, then that gas' presence is not protected against search, IMHO.
And even then, they had to at least HAVE one of these blank search warrants. Where are our government lackeys to explain to us why such hideous invasion of privacy is necessary?
If they can do it to an innocent criminal (I know that sounds strange, but let's call a spade a spade) then how long will it be before they are planting evidence on you because you feel wrong to them, or the officer doesn't like your bumper sticker...?
Not 100% sure but, I think it means with another felony. In this case, possession of pistols, knives, and pornography. Somehow a firearm/knife any where on the premises will escalate the charge to "aggravated."
fyi or FYI is short for "for your information."
Except that in a great many cases (not this one, I know), the judges are making the rulings after the defendant has been convicted.
If they can do it to an innocent criminal (I know that sounds strange, but let's call a spade a spade) then how long will it be before they are planting evidence on you because you feel wrong to them, or the officer doesn't like your bumper sticker...?
That's not even the same category of misdeed as searching without a warrant. Planted evidence (if it can be discovered as such) of course needs to be thrown out, becuase it is a lie. But truthful evidence obtained illegally is just as truthful as evidence obtained legally.
The bottom line is this: Freeing criminals for the indiscretions of the police does absolutely nothing - Nada. Zilch. Zip. - to protect innocent victims of police abuse.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.