POLICE RAID IN DURHAM RULED UNCONSTITUTIONAL

DURHAM - A high-profile Durham police raid of an apartment complex in
February was unconstitutional, and the actions of some officers amounted to
"tortious or criminal conduct," Superior Court Judge Orlando Hudson ruled
Wednesday after viewing television news footage of the search.

Hudson's ruling came in connection with a request by the Public Defender's
Office that Durham television station WTVD be required to turn over
unedited tapes made at the scene of the raid.

The station voluntarily turned over the tapes in an attempt to head off the
order. However, Hudson viewed the tapes, took testimony and proceeded with
his order.

Hudson's order jeopardizes the criminal cases against at least six people
charged in the Feb. 15-16 raid on the apartments at 1835 Cheek Road. It
bolsters the public defender's efforts to have criminal charges dismissed
on constitutional grounds in other court venues.

It could also help others pursue civil claims against the police or the
television station.

Hudson's order said the "presence of the media on the property of residents
without their consent would amount to tortious conduct" -- conduct for
which a civil action may be brought.

Hudson did not specify what actions of officials he viewed as possible
criminal conduct.

Durham Public Defender Bob Brown focused on questions of constitutional
violations. "If you find people committing crime, you should arrest them,"
Brown said. "But you don't have the right to do a wholesale search of a
neighborhood. It's unconstitutional."

An internal investigation by the police, conducted at the request of the
Durham NAACP, found no misconduct on the part of officers, although it did
recommend some minor procedural changes.

Police officials conducted an "exhaustive investigation" and did not find
any policy or procedural violations or violations of state law, interim
Police Chief Steve Chalmers said in an April 4 report to City Manager
Marcia Conner.

Arnetta J. Herring, an attorney for the Police Department, said the footage
of a WTVD cameraman at the scene wouldn't change the conclusion of the
investigation. "I didn't see any constitutional violation, and the order is
a judge's opinion," she said Wednesday. "They [officers] did a fine job. I
saw nothing on here that would say anything illegal happened."

Hudson had a different interpretation, based on testimony from police
officials, residents and Mayor Bill Bell, and on viewing the WTVD footage.
It showed officers breaking open doors, frisking residents and lifting
cushions off chairs and sofas.

"Here the Durham police have executed seven search warrants for specific
residences, but attempted to increase the scope of these warrants ... to a
general warrant to search all individuals in the housing complex," Hudson
wrote in the 13-page order. "These actions violated the constitutional
rights of all the residents 'to be free from searches derived from search
warrants based on less than probable cause.' "

More than 100 Durham officers, two National Guard helicopters, 10 State
Bureau of Investigation agents and other law enforcement agents
participated in the two-night operation. Officers seized heroin, crack and
powder cocaine, marijuana and prescription narcotics, and two pistols.

The raid, which was witnessed by Chalmers, Bell and the WTVD cameraman,
included searches of several apartments, foot patrols of the complex and
license checkpoints. Police made 35 arrests on 36 felony charges, 20
outstanding warrants, 65 traffic citations and two charges of driving while
impaired.

The raid sparked complaints from residents and visitors. Brown and
Assistant Public Defender Scott Holmes represented as many as 12 of the
people charged and asked Hudson to order WTVD to turn over all its footage
of the raid.

Brown contends that his clients' rights were violated because of the
cameraman's presence and wants the charges dismissed. Despite WTVD's effort
to invoke the state's shield law, which limits the circumstances under
which the news media can be compelled to testify, Hudson's order Wednesday
required the television station to turn over the tape.

Jonathan Buchan, an attorney for WTVD, gave the tapes to Brown on Wednesday.

"Because providing this videotape to Mr. Brown moots this issue before the
court regarding the reporter's qualified privilege, we respectfully submit
that there is no longer any need for the court to enter any additional
order at all in this case," Buchan wrote.

On Wednesday, Curtis Gatewood, president of the local NAACP chapter, said
that Hudson's order is "a step towards justice" but noted that civil
actions could be pursued against police.

"This certainly is a ruling in the best interest of justice for everyone
because we cannot allow this precedent to go unchallenged," he said. "The
ruling is a step towards justice, and we see it as a partial victory."