APPEALS COURT RULES MARIJUANA SEARCH WAS LEGAL

Police acted properly in getting permission to search the home of a couple
eventually convicted of growing marijuana in it, a state appeals court
ruled Tuesday.

The dispute boiled down to whether three police officers or the couple, who
said the marijuana was used for medicinal purposes to relieve chronic back
pain, told the truth about events leading up to the search. William and
Judith Foucault contended the search of their rural Kewaunee home was
allowed only after officers threatened to get a search warrant and ``tear
the house apart,'' thus it was involuntary and illegal, court records said.

But the 3rd District Court of Appeals said the officers' version of events
was more credible and any threats were made after Foucault incriminated
himself, giving officers probable cause to arrest him and get a search
warrant.

According to court records, officers went to the Foucaults' home in
December 1995 after receiving information the couple had received equipment
for growing marijuana from a ``targeted'' manufacturer that drug
enforcement agents had been tracking.

Foucault, now 39, was outside the home when three officers arrived and
began asking him questions about a suspected marijuana growing operation,
court records said.

Foucault eventually admitted to growing marijuana plants and gave officers
consent to search the house, leading to the seizure of 17 plants and some
drug paraphernalia, court records said.

The couple was charged in January 1996 with manufacturing marijuana.

In seeking to have the evidence tossed out, Foucault testified he
originally denied growing marijuana when approached by the officers and he
only made the admissions after police told him he would be arrested, the
officers would get a search warrant and then they would tear the house
apart, court records said.

The officers testified that shortly after Foucault was confronted, he
admitted he was growing marijuana and voluntarily allowed the officers to
do a search.

The officers said that before the search began, Foucault called his
attorney and then he asked the officers to leave.

The officers said they called prosecutors, who advised that Foucault had
made incriminating statements to justify an arrest, and at that point the
officers threatened to arrest him and secure a search warrant, court
records said.

The three-judge appeals court said Kewaunee County Circuit Judge Dennis
Mleziva properly refused to throw out the evidence.

The judge determined the officers' version of events was more credible and
acknowledged that Foucault ``certainly felt pressure from the police, but
what the officers did here was not illegal or an improper police practice
but was within their authority.''

Steve Miller, the couple's attorney, said the Foucaults grew the marijuana
in their basement and Judith Foucault, now 53, used it to relieve chronic
back pain that was well documented.

``She had been addicted to various prescription drugs and she found
something that worked for her,'' he said. ``There was no evidence of
dealing it or it being given to anyone.''

The Foucaults caught the attention of authorities because they bought
something from a mail-order catalog from a company being watched by the
federal Drug Enforcement Agency, who tipped off local police, the attorney
said.

In a plea bargain, the Foucaults each pleaded no contest to one count of
manufacturing fewer than 10 plants of marijuana and were sentenced to
probation, court records said.