APPEALS COURT REVIVES EVIDENCE IN MARIJUANA CASE

WAUSAU, Wis. - A divided state appeals court Wednesday ruled
that Dunn County law enforcement officials acted properly in
investigating illegal marijuana after unwittingly going into another
apartment than the one they originally searched.

In a 2-1 decision, the 3rd District Court of Appeals said a judge
erred by suppressing most evidence obtained in the probe.

According to court records, the investigation involved two apartments
upstairs of an old commercial building in rural Menomonie that had a
layout like a " catacomb, with rooms leading to other rooms."

The Dunn County Sheriff' s Department, with assistance from the West
Central Drug Task Force, had a search warrant for one apartment in
which they found five pounds of marijuana in a closet April 9, 1998.

Near the closet, the investigators unchained a lock on another door
and walked into what they thought was a storage room of the apartment
they had a warrant to search, court records said.

In a closet in that room, the officers found what they believed was a
marijuana growing operation consisting of nine withered plants. A
short time later, they realized they had entered a second apartment of
Kenneth H. Herrmann.

Herrmann made some incriminating statements about drugs and
investigators recovered about one ounce of marijuana from beneath a
couch after Herrmann told them where it was, court records said.

Officers asked Herrmann' s permission to search his apartment but he
refused. Investigators then obtained a search warrant and discovered
50 more marijuana plants and a " sophisticated" growing operation,
court records said.

Hermann was charged with unlawfully manufacturing marijuana.

Subsequently, Dunn County Circuit Judge William Stewart ordered that
all evidence except the nine marijuana plants found in the closet had
been illegally obtained in violation of Herrmann' s constitutional
right to be secure in his home.

The three-judge appeals court said the judge properly suppressed
Herrmann' s incriminating statements and the marijuana found under the
couch but there was " sufficient untainted evidence" to support the
search warrant later issued for Herrmann' s apartment.

The panel said it was reasonable for officers to unchain and enter the
door into what they mistakenly believed was just another room in the
apartment being legally searched.

In dissenting with that ruling, Judge Michael Hoover said the officers
should have known that proceeding beyond a locked door " would exceed
the scope of their lawful search."

" Under my analysis, the officers never would have entered Hermann' s
residence and would therefore not have been in a position to make any
observations upon which a warrant could be issued, " Hoover said.