JUDGE'S RULING BARS USE OF DRUG EVIDENCE

He Finds Officers Didn't Wait Long Enough Before Breaking Suspect's Door

Federal prosecutors cannot use cocaine and cash seized from a duplex as
evidence in a drug case because Racine County investigators did not wait
long enough after announcing themselves to break down the front door, a
judge's ruling made public Tuesday says.

U.S. District Judge Lynn Adelman ruled that more than 1 kilogram of cocaine
and about $108,000 discovered during the search could not be used as
evidence in the government's case against Miguel Angelo Espinoza, 19, who
was indicted in April on a cocaine trafficking charge. Investors also found
50 pounds of marijuana, according to court records.

Neither Assistant U.S. Attorney Mario Gonzales, who is prosecuting the
case, nor defense lawyer John Cabranes could be reached for comment Tuesday
evening. A Marquette University law school professor said, however, he was
not sure higher courts would buy Adelman's ruling.

In adopting the recommendation by U.S. Magistrate Judge Patricia J.
Gorence, Adelman said the five seconds officers waited between announcing
themselves and knocking down the door with a battering ram did not give the
occupants of the duplex a chance to respond to the officers voluntarily.

Officers generally are required to announce themselves before executing a
search warrant unless they have reason to believe doing so would pose
special risks to officers or to the preservation of evidence.

There is no specific time officers must wait after announcing themselves
before knocking down the door, Adelman said.

The 7th Circuit Court of Appeals held this year that a wait from five to 13
seconds after knocking and announcing was reasonable, he wrote.

"The court justified its ruling by noting that before entering the officers
had specific information that the defendant had a gun, that he was a
dangerous felon with a lengthy criminal record and that the quantity of
drugs possessed by the defendant was such that he could destroy them in a
short time," he wrote.

In the Espinoza case, however, "the officers had no information that the
individual was armed, dangerous or had a prior record, and they knew that
the quantity of marijuana in the residence was too large to be quickly
disposed."

Adelman rejected the government's argument that the evidence should be
admissible under the "inevitable discovery" doctrine that allows the use of
evidence seized in an unconstitutional search if the evidence would have
been seized legally if the constitutional violation had not occurred.

If evidence seized after knock-and-announce violations cannot be
suppressed, "it is hard to see how such violations will be deterred," the
judge wrote. "There would appear to be no other effective deterrent."

Marquette Law School Dean Howard Eisenberg said Tuesday that Adelman had a
"good argument" but that higher courts might disagree.

Rulings by those courts have been supportive of the admissibility of seized
evidence, particularly in drug cases, he said.

Relying on the theory of inevitable discovery is one way to get seized
items into evidence, and "certainly that's where the courts have been," he
said.

Adelman also rejected the government's argument that "common sense"
indicated that guns might be present in the home because drug dealers often
use guns to protect their merchandise and cash.

"Here, there was no indication that execution of the warrant posed special
risks to the officers' safety," Adelman wrote. "Further, at least nine
police officers were on the scene to ensure that the matter be handled safely."

In addition, officers believed they would find a large amount of marijuana
- - too much to dispose of quickly, Adelman said.

Eisenberg said the government's argument on that point was weak. If
officers truly believed that guns at the residence posed a danger to them,
they could have applied to a judge for a "no-knock" warrant that would have
allowed them to dispense with the "knock and announce" requirement, he said.

Adelman took heat last year for two rulings he made in favor of defendants
in habeas cases. In November, Adelman set aside the conviction of Felicia
A. Morgan, who killed a teenager for her leather coat in a highly
publicized 1992 "urban psychosis" case. Adelman ruled that her
constitutional rights had been violated.

Then in December, he set aside Kathleen A. Braun's 1976 homicide conviction
because Reserve Circuit Judge Max Raskin did not let a spectator watch the
trial. Adelman ruled that violated Braun's right to a public trial.

The state has declared that it will appeal both rulings.