APPEALS COURT BLOCKS EVIDENCE TAKEN FROM WARRANTLESS SEARCH

RALEIGH -- Law officers had no right to enter a home without a warrant just
because they believed a small amount of drug evidence was about to be
destroyed, the state Court of Appeals ruled Tuesday.

As part of an undercover sting operation involving a marijuana sale,
deputies and police officers entered a Halifax County home where Gregory
Nowell lived.

A truck driver who was caught with the drugs by Cumberland County officers
agreed to wear a secret listening device and sell 50 pounds of marijuana to
Nowell at his home so they could make an arrest. The officers would listen
to the alleged transaction while an undercover Halifax County deputy
accompanied the driver on the deal.

The truck driver entered the home while the deputy stayed inside the car.
Authorities say Nowell left the home to get the "rest of the money" and
returned with Michael Lynn Taylor.

A police officer listening to the radio transmission told sheriff's Lt. Don
Stanfield that the "deal had been talked about" inside and that Taylor,
Nowell and the truck driver had asked for rolling papers so that they could
"smoke a joint."

Stanfield "felt like that was the time that (the officers) needed to make
an arrest before (Nowell and Taylor) could consume any drugs," according to
the court.

The officers immediately rushed into the house and they found a marijuana
brick partially opened with close to $40,000 in cash. Nowell and Taylor
were arrested, while the officers searcher the rest of the home and found
drug paraphernalia.

Nowell filed a motion to suppress evidence recovered from his home, calling
it the results of an illegal search and seizure. The trial judge denied the
motion.

Nowell and Taylor jointly went on trial later that year. Motions to dismiss
the drug charges against them were also denied. Nowell and Taylor both were
found guilty of drug possession and trafficking; Nowell also was convicted
of using a home to sell drugs. The pair appealed.

Law officers can make a warrantless search of an apartment when there are
"exigent circumstances," or when a situation requires immediate action.
These circumstances can include the probable destruction or disappearance
of a controlled substance, according to the opinion.

But in this case, the amount of marijuana to be destroyed -- one joint from
50 pounds -- wasn't enough to justify the warrantless search, Judge Edward
Greene wrote for the majority in the 2-1 opinion.

The court reversed the denial of Nowell's motion to suppress evidence from
the search and ordered a new trial for him.

Judge Patricia Timmons-Goodson sided with Greene.

Judge Joseph John dissented, saying the ruling would create "a completely
unworkable standard."

Police would have to make snap judgments about the quality or quantity of
evidence before deciding if the amount being used would effectively destroy
it, he said. Destroying even a little evidence also could change the
maximum sentences allowed in drug convictions, John said.

"Officers should not have to engage in a guessing game as to how much
evidence has been removed or how much remains, before they can bring
depletion to a halt," John wrote.

All three agreed with Taylor's appeal that charges against him should be
dismissed because there wasn't substantial evidence he possessed marijuana.
The evidence didn't show that Taylor, who arrived after the marijuana was
in the house, had "both the power and intent to control" the drug in
Nowell's home, the judges wrote.