LAWYERS: SEARCH RULING MERITS HIGH COURT REVIEW

Allowing officers to conduct searches without warrants is an attack on the
constitution, leaves the door open to abuse and must be reviewed by the
U.S. Supreme Court, say two Mississippi defense attorneys.

But a law school professor - a former prosecutor - says the 11-4 decision
by the 5th U.S. Circuit Court of Appeals is based on common sense and the
high court has already affirmed a similar argument.

The 5th Circuit ruled last week that officers don't need a warrant to
conduct a swift search of private property to ensure their safety. The
ruling affects Mississippi, Louisiana and Texas.

"A sweep of this nature is a complete unhinging of the Fourth Amendment,"
which bars unreasonable searches and requires warrants for law enforcement
searches, said Jackson defense lawyer Merrida Coxwell. He anticipates the
high court will take on the case.

Former prosecutor Tommy Mayfield of Jackson, who now does some defense
work, agreed: "I predict another court is going to look at this. I think
they ought to."

Mayfield said his problem with the decision is "while the intent initially
may have been a very narrow application, those things tend to widen beyond
their intended meaning."

The Supreme Court refuses to hear nearly all cases appealed to it. Pat
Bennett, a former prosecutor and professor at Mississippi College School of
Law, believes that will happen in this case.

She said the high court upheld the same principle in support of a swift
sweep in a previous case, although that case involved an arrest. "I don't
see it as an issue the court will take on," she said.

Writing for the majority in the 11-4 decision, Judge William Lockhart
Garwood said, "We hold that a protective sweep ... need not always be
incident to an arrest. We conclude that the protective sweep here was valid."

Quoting a previous case, Garwood noted, "If a suspect is 'dangerous,' he is
no less dangerous simply because he is not arrested."

In a 1994 case, the 5th Circuit held that police can make a so-called
protective sweep if officers are arresting someone.

On Oct. 17, 2000, an employee of Kelly Donald Gould of Denham Springs, La.,
contacted the sheriff's office there, claiming Kelly Donald Gould "intended
to kill two judges and unidentified police officers and to destroy
telephone company transformers."

Checking further, authorities discovered Gould was a felon with a violent past.

Deputies went to Gould's mobile home with no search or arrest warrant but
were invited in by a roommate, who told them Gould was probably asleep "in
his bedroom. You are more than welcome to come in and check it out."

The deputies said they looked for him under the bed and in two closets,
where they found three rifles. They later found Gould hiding in the woods
and seized the weapons after they got him to sign a permission for the search.

The majority's decision in the case last week reversed a ruling by U.S.
District Judge James Brady that guns found in that sweep could not be used
as evidence because they were obtained illegally. Judge Charles Pickering
did not take part because he wasn't on the court when the case was submitted.

Dissenting justices argued the ruling creates another exception to
constitutional protections against unlawful search and seizure.

"I have no doubt that the deputy sheriffs believed they were acting
reasonably and with good intentions," Judges Harold DeMoss Jr. and Carl E.
Stewart wrote. "But the old adage warns us 'The road to hell is paved with
good intentions.' "

Judge E. Grady Jolly would have thrown out the evidence.

"The constitutionality of such searches must be assessed under a standard
of general reasonableness," he wrote.

In this case, he concluded, it was unreasonable to search Gould's bedroom
and closets. "It was used to justify the search of an open room in the
absence of the subject."

Mayfield said the court did limit where police might look, concluding the
officers "didn't look anywhere except where a person might be hiding, as
opposed to looking in a desk drawer."

He said he wasn't sure officers had the right to look in the closets once
they didn't see Gould because they had no warrant. He said Gould's roommate
may not be able to give such broad consent to search, although the roommate
could have given permission to search a common area such as the living room
or kitchen.

One factor that does make a difference is Gould gave consent to the search
after deputies arrested him, he said.

Bennett said it didn't matter if Gould gave permission because the deputies
had already spotted the weapons - legally - after the roommate gave them
permission to enter.

"Once police are legitimately in a place where they're authorized to be,
and there is some concern for their safety, then they can make cursory
inspections," she said. "It's not like pulling open dresser drawers.
They're looking solely for persons."

Several other appeals courts have ruled similarly, and Bennett said the
matter is merely one of common sense - officers spotting weapons in the
legitimate search of an individual.

The ruling could only apply in a few circumstances and has been
mischaracterized by some, she said. "It must be legitimate."

Aaron Condon, former prosecutor and professor emeritus of the University of
Mississippi School of Law, said he isn't surprised by the ruling since
deputies were engaged in a lawful search for a fugitive with probable cause
to arrest him. "They were looking at this residence where he was expected
to be," he said. "They looked in places he was expected to be hiding."

The defense could make a good argument the evidence should be thrown out,
he said, but "I can see if he was threatening to kill judges, the judges
might take a different view."