HIGH COURT RULES NIGHTTIME DRUG SEARCH BROKE LAW

LINCOLN, Neb. (AP) -- The Nebraska Supreme Court on Friday overturned the
drug conviction of a Blair man who said police broke the law by searching
his garbage and later serving a search warrant at his house at night.

Patrick Fitch, 32, was sentenced to two and one-half to five years in prison
for possession of drugs with the intent to deliver after Blair police raided
his home the night of April 19, 1996.

In an unanimous ruling, the Supreme Court agreed with Fitch that police
should have served the search warrant during the day unless officers showed
some compelling reason why a nighttime search was necessary.

``The privacy of citizens in their homes, secure from unreasonable nighttime
intrusions is a right of vast importance,'' Judge John Gerrard wrote. ``The
affidavit contained no facts that would support an inference that contraband
was being disposed of or hidden in such a manner that nighttime service was
required.''

In the affidavit requesting the search warrant, investigator Darwin Shaw
said he searched the garbage outside of Fitch's home four times between
March 21 and April 4, 1996. Shaw said he found marijuana seeds and stems,
plastic bags like those used to package drugs and a list of names and dollar
amounts.

He also said he often saw people who had been arrested on drug charges
visiting Fitch's house.

The search turned up marijuana, cash, a scale and other items.

During questioning at the police station, Fitch told officers, ``Well, it
looks like you got me good'' and gave an incriminating written statement.

In his appeal, Fitch also argued that violated his right of privacy by
searching his garbage. The Supreme Court declined to address that issue
because the illegal nighttime search was reason enough to overturn the
conviction.

The court also said that Fitch's statement to police was ``the fruit of the
poisonous tree'' and should not have been used at his trial.

Mark Raffety, the assistant attorney general who handled the case for the
state, did not return a call seeking comment.

Fitch's lawyer, Adam Sipple of Omaha, praised the decision.

``It's critical that those given the power to enforce the law are required
to act within its limitations,'' he said. ``We are fortunate to have a
Supreme Court that recognizes their duty to enforce the constitution and
thereby protect all citizens from this type of police intrusion.''

Sipple said he felt just as strongly about the search of Fitch's garbage,
even though it was not addressed in the opinion.

``If I walked out and saw a police officer going through my garbage, I'd be
pretty upset,'' he said. ``Some courts have held that that is an invasion of
privacy because of the personal nature of things that we dispose of in our
garbage -- mail, correspondence, items of personal hygiene -- that tell
about what we do in our homes.''

Checked-by: Melodi Cornett