JUDGE SAYS POLICE IN VERMONT MUST KNOCK BEFORE SEARCHING

Police in Vermont must knock before raiding a home or risk having any
evidence they discover thrown out of court, despite a recent U.S.
Supreme Court decision to the contrary, an Essex County judge has ruled.

Judge Robert Bent, presiding over a drug case in Vermont District
Court in Guildhall, wrote in an opinion released Monday that
Vermont's constitution gives criminal defendants greater protection
than that afforded by the U.S. Constitution against unreasonable
searches and seizures.

"Evidence obtained in violation of the Vermont constitution, or as
the result of a violation, cannot be admitted at trial as a matter of
state law," Bent wrote, quoting a case he cited as underpinning his
ruling. "Introduction of such evidence at trial eviscerates our most
sacred rights, impinges on individual privacy, perverts our judicial
process, distorts any notion of fairness and encourages official misconduct."

Bent's nine-page opinion rejects the conclusion in a 5-4 U.S. Supreme
Court ruling handed down June 15. Justice Antonin Scalia, writing for
the majority, said evidence that police gather during illegal
searches still may be used in court against suspects. The ruling,
Bent wrote, was "a substantial departure from previously established
law," and Vermont is not bound to follow it.

States are free to give their residents more protection than the U.S.
Constitution provides.

Bent agreed with the court's dissenting opinion, which said that
admitting such evidence eliminates any incentive for government
agents to follow the law.

"The exclusionary remedy should remain in full force and effect,"
Bent wrote, "at least in our small corner of the nation."

Defense lawyer David Williams of St. Johnsbury praised the ruling,
which prevents prosecutors from using evidence of marijuana
possession against his client, Ellen Sheltra.

"Sanity prevails in Vermont," Williams said. The search

Last fall, the Vermont State Police Drug Task Force obtained a
warrant to search for drugs at the Island Pond home Sheltra and Clair
Deslandes shared. The officers were preparing to enter the house Oct.
12 when the front door suddenly opened, one of the officers would
later testify. The agents drew their weapons, shouted "state police
with a search warrant" and stormed inside, according to Bent's ruling.

Bent found the officer's testimony was not credible -- none of the
three adults and two children in the house said they opened the door
- -- and suggested the agents instead might have barged in after
hearing someone say, "The police are here."

Police found 88 grams of marijuana and four unloaded long guns,
Williams said. Sheltra, 42, was arrested, pleaded not guilty and was
released on conditions. Prosecutors were seeking a felony conviction
and a term of probation, Williams said. Charges against another
defendant were dismissed, and Deslandes was prosecuted and pleaded
guilty in federal court.

There are numerous circumstances in which police can bypass the
requirement they knock, announce their presence and wait a short time
before entering, such as a threat of harm or a chance evidence might
be destroyed. The Sheltra case involved none of the exceptions, Bent wrote.

"The search as performed in this case was not reasonable for the
failure of the officers to follow the knock and announce rule," the
judge wrote.

Bent held a hearing in May to determine whether he should suppress
the evidence, Williams said. Ruling's effect

Williams said he will seek dismissal of the charges against Sheltra.

"The state's case is weakened," he said.

Assistant Attorney General Cathy Norman, who prosecuted the case, was
on vacation and could not be reached for comment Monday. Matt Nally,
a supervisor with the Northern Vermont Drug Task Force, said he could
not comment because he hadn't read the ruling.

Gov. Jim Douglas appointed Bent to the bench in February.

The ruling is not binding on other state judges -- it would become so
only if prosecutors appeal and the state Supreme Court sides with
Bent -- but other jurists are likely to consider the decision in
similar cases, said Cheryl Hanna, a professor at Vermont Law School
in South Royalton.

Vermont traditionally has provided greater protection than federal
law does for individual rights, Hanna said. Bent's opinion portends
an era in which people look to local jurisdictions rather than the
nation's highest court when they feel their rights have been
violated, Hanna said.

"We're going to see a shift to the states in being the real protector
of people's rights as the Supreme Court becomes more conservative," she said.

Williams agreed: "The U.S. Supreme Court is radically changing the
relationship between the government and the governed, giving the
government greater and greater power to invade your privacy."