SEARCH AND SEIZURE LAWS FAVORING POLICE

In the war on drugs, even toilets don't escape police scrutiny.

Ryan O'Neal Pickens was in his apartment on Route V in Cape Girardeau County earlier this year when officers knocked on his door. Cpl. Brenda Cone of the Missouri State Highway Patrol waited outside the apartment building. She heard a toilet flushing.

Later, she would write in a court document: "I observed the marijuana exiting the sewer drainage pipe that allows the building's sewer lines to empty onto the ground behind the building."

Defense attorney Steven Wilson tried to convince a judge that the marijuana from the sewer pipe should not be used as evidence against his client because it was obtained without a search warrant.

The court didn't agree.

The rights of law enforcement officers to search for evidence on private property are growing as courts continue to interpret the Fourth Amendment in officers' favor, say experts on search and seizure law in Missouri. Although legal experts' answers vary about what to do when police ask to search, they all agree that privacy rights are at stake.

"It brings up a whole range of issues dealing with government power," said Ellen Y. Suni, a Kansas City, Mo., law professor who wrote a chapter on search and seizure law in the Missouri Bar Association's "Criminal Practice" reference book. "It stands between what the Supreme Court says and how it's played out on the street with police."

More often, the law is interpreted in favor of the police, said attorney Dee Wampler of Springfield, Mo.

Privacy at stake

"Citizens are losing their Constitutional rights today," said Wampler, author of "The Missouri Criminal Law Handbook" and "How To Defend Yourself Against A Cop."

"We have fewer rights to privacy in our automobiles, less in our businesses, and there are all kinds of laws on wiretapping," he said.

This gradual erosion of privacy through the courts has come from the nation's war on drugs, Wampler said. An example is the U.S. Supreme Court's most recent decision on search and seizure law, which determined that police could keep a person from entering his house before a search.

But a bigger mistake is made by individuals who attempt to answer officers' questions.

"Most people think they can talk their way out of something," Wampler said.

Innocent people have nothing to fear, counters Cape Girardeau County prosecutor Morley Swingle, who published a tape series on search and seizure laws in Missouri.

Misconceptions about the law are common, he said. Generally, a search for evidence comes only after police have received a warrant from a judge giving them legal permission.

"But people are not aware that there are so many exceptions," Swingle said

The most long-standing exception is "stop and frisk." A 1968 U.S. Supreme Court decision ruled that police could make someone stop for a quick patdown if they have reasonable cause to believe the person is carrying a weapon.

It's possible to get around the requirement of probable cause for a search, Swingle said. An officer must have an objective reason to believe that a crime has been committed and a person has an item used in the crime.

But often, Swingle said, people will voluntarily allow a search when asked, which means having a search warrant is not an issue. In about half of drug arrests that start with stops for a traffic violation, the driver gives his consent to an officer to search the car. But for the search to be legitimate, Swingle said, judges will consider several factors, including the education of the person, the number of officers, and whether the person was told he had the right to refuse.

If any of this is unclear, the police lose in court.

When an item suspected of use in a crime is left in plain sight, police have a right to seize it, Swingle said. This applies even in cases where common items such as aluminum soda cans or cigarette lighters are suspected of being modified for drug use.

Some legal advisors say it is enough to tell police that a search without a judge-issued warrant won't be allowed. Wampler doesn't agree.

"You need to keep your door shut and your mouth shut," he said. "They're taught to be intimidating."

Missouri Supreme Court Judge Stephen Limbaugh said cases of officers abusing their authority are rare.

"By and large police abide by the rules," Limbaugh said. "The state of Missouri has excellent training."

New gray areas

Areas involving technology and privacy are still not clearly defined in search and seizure law, Suni said. A case of law enforcement using thermal imaging devices to monitor heat coming from residences is an issue before the U.S. Supreme Court that will help determine privacy rights, she said.

Thermal imaging has been used to measure heat coming from residences. If an unusually large amount of energy is being used, it might indicate that marijuana is being grown under artificial lights.

Suni described a device that is under development by three companies that would eliminate the need to frisk for weapons. The handheld device is designed not only to detect metal, but determine if it is a gun.

"It would have programmed into it every possible gun configuration," Suni said.

As such techology becomes a reality, the professor said courts will have to answer more questions about privacy.

"It makes you ask at what level do we begin to draw lines," she said.