Supreme Court tosses drug conviction because of illegal search

The Nevada Supreme court has overturned Joseph Lee Proferes' drug conviction, saying the Elko SWAT team had no legal right to search him just because he knocked on the door of a suspected drug dealer's home.

Proferes was detained and searched when he knocked on the door of the home. Officers testified it was their policy to detain and search everyone who arrives when they are executing a search warrant at a residence.

"The practice and procedure of seizing and searching anyone who knocks on a door during the execution of a search warrant on a residence violates the Fourth Amendment," the high court ruled.

To do so, they said, police must have a reasonable suspicion that the person is a criminal.

"Here, the officers had nothing more than a hunch that appellant was engaged in any criminal activity or was armed and dangerous," the opinion states.

The state argued that people involved in illegal drugs rely heavily on firearms and that officers should have the right to search anyone who shows up at a crime scene.

In addition, the court pointed out that Proferes was not advised of his rights when he was asked if he had weapons or controlled substances on his person. They found a packet containing methamphetamine in the search.

Members of the Supreme Court agreed police committed a similar violation in the case of Robert Henry Lisenbee, who was arrested by Humboldt County deputies.

They stopped him outside a residence because he resembled a burglary suspect they were seeking. But Lisenbee produced proof that he was not the suspect and had only a small pocket knife.

At that point, the deputies tried to seize him for a more extensive search and Lisenbee ran. When he was caught, they found a bag of methamphetamine he threw away during his flight.

But a district judge threw out the drug evidence, saying it was the product of an illegal search.

"There is substantial evidence to support the district court's ruling that the sheriff's deputies did not have reasonable suspicion to detain Lisenbee after he had given the police proper identification," wrote Justices Myron Leavitt, Deborah Agosti and Nancy Becker.

Justices Bill Maupin and Miriam Shearing disagreed, saying they thought the police had the right to search further.

"In short, no person has the right to resist legal or illegal detention by police officials absent a felonious application of force by the officer," they said.

But all five supported reinstating the case, saying Lisenbee gave up his rights to challenge the drug evidence when he fled.

The final word in that case, however, was filed by Justice Cliff Young and Chief Justice Bob Rose, who said not only was the attempt to seize and search Lisenbee illegal, but that the evidence discovered after he fled should be tossed out and the charges against him dismissed.

After he proved he wasn't the burglar they were looking for, Young and Rose argued, "the officers lacked the necessary reasonable suspicion to justify his continued detention."

"The majority appears to have overlooked the wealth of authority indicating that contraband abandoned during flight is inadmissible if it is the product of a prior illegal search or seizure," they said.

They said the majority decision to the contrary is a bad precedent.

"To admit the contraband into evidence would likely encourage similar Fourth Amendment violations in the future," their dissenting opinion concludes.


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