JUSTICES PUT POLICE ON NOTICE

Court Voids Evidence In Warrantless Search

The state Supreme Court yesterday warned police departments that
while not required by law, it is "good policy" to advise people that
they have a right to refuse to consent to a warrantless search of
their person or property.

And the court sharply criticized a Chesterfield police officer who
failed to follow this procedure even after he illegally detained a
black college student to search him for drugs without a good reason.

Officer Jason Graves found a small amount of marijuana in Dorian
Hight's pocket, but the high court yesterday unanimously declared the
evidence inadmissible. The court sent the case back to Keene District
Court for a new trial.

"(W)e are troubled by the purpose and the flagrancy of the illegal
misconduct in this case," Justice Joseph Nadeau wrote for the court.

Chesterfield Police Chief Earl Nelson did not return phone calls
seeking comment.

Concord Police Chief Jerry Madden said his officers make it a
practice to inform people of their right to refuse a request for a
warrantless search.

"That authority, I think, has to be used correctly and respectfully,
so as to not put people in the position of feeling they really don't
have any choice," he said.

Though yesterday's decision was steeped in concerns about racial
power differentials and stereotyping, the actual legal issues dealt
with matters of established search and seizure case law, said Albert
"Buzz" Scherr, a professor at Franklin Pierce Law Center.

"It's a case that applies some very well settled principles to a
different set of facts," he said.

The incident happened on May 9, 1999, on a dark section of Route 9,
just east of the Brattleboro Bridge. The stop began lawfully, both
parties agree: At 8:40 p.m., Graves, who is white, pulled over Hight,
who is black, for going 47 mph in a 35 mph zone and for a broken
taillight. Two of Hight's college friends, both white, were also in
the car.

Graves asked Hight where he had been and where he was going. Hight
replied that he and his friends were returning from Boston to
Landmark College in Putney, Vt., where they were students. Hight
surrendered his license and registration; Graves brought them to his
patrol car, determined they were valid and then wrote Hight a ticket.

But upon returning to Hight's car, Graves asked Hight to step outside
his vehicle. Hight complied. They walked to the side of the road.
Graves asked Hight what he and his friends had been doing in Boston.
Hight said they were "just hanging out." Graves said he thought it
was "a long way to drive to simply hang out with no destination in
mind." Hight said they had also gone to a frat party. Graves said he
was concerned that Hight had picked up drugs in Boston - which, he
told the trial judge, he knew to be a "source city" for drugs.

Graves asked for permission to search Hight's car for drugs. Hight
gave his consent. But because he didn't have any backup, Graves
immediately asked Hight if he could pat him down to look for drugs.
Again, Hight said yes. Graves found a plastic film container that
contained .04 gram of marijuana. The officer then asked to search
Hight's wallet, where he found rolling papers. The other two
passengers were not searched. Hight was charged with a misdemeanor
for drug possession offense and fined.

Keene District Court Judge Edward Tenney found Hight guilty and
rejected his motion to suppress the drug evidence.

In the appeal, Stephen Fuller of the attorney general's office, who
represented Graves, conceded that Graves did not have enough evidence
to detain Hight longer than it took to write his traffic ticket. But,
Fuller argued, Hight had willfully and knowingly given Hight his
consent to search his person.

But Concord lawyer Joshua Gordon, who represented Hight in his
appeal, argued that Hight had not willfully given his consent.

"On the dark side of the road, near the guardrail, now separated from
his companions, without any . . . indication that he was free to
leave nor pause to give him time to consider his rights, Mr. Hight
was asked to consent to a search," Gordon wrote in his appellate
brief.

"Faced with these circumstances, most people would feel coerced into
consenting," Gordon wrote. "Mr. Hight's encounter was additionally
layered with race. He was stopped by a white officer in an area where
few blacks live. He predictably responded to Officer Graves by being
exceedingly polite and submissive."

The court agreed with Gordon. Graves did nothing to "purge the taint"
of the illegal detainment, Nadeau wrote: Graves had not given Hight
his license and registration back, suggesting that Hight was not free
to leave. He did not inform Hight of his right to refuse the search.
He gave Hight no time to think over his options.

Nadeau wrote that he found the illegal detainment especially
troubling in this case: "It is disconcerting that the officer sought
consent to search not only the defendant's car, but his person, based
upon such innocuous facts as he had driven to Boston with a purpose
to 'hang out,' he had attended a 'frat party' there and he was
returning to college in Vermont."

Graves's failure to inform Hight of his rights suggested that he was
on a "fishing expedition for incriminating evidence," Nadeau wrote.
As a matter of policy, he wrote, the Supreme Court has always advised
police officers to inform people of their right to refuse a
warrantless search.

He added it was also "troublesome" that Graves hadn't searched
Hight's white friends.