HIGH COURT OVERTURNS DRUG CASE

Lincoln - Drug-sniffing dogs cannot be used by police outside an
apartment without reasonable suspicion that a crime has been
committed, the Nebraska Supreme Court ruled Friday.

The ruling extends the legal umbrella of the Fourth Amendment - the
right to be secure against unreasonable searches and seizures - to
outside the four walls of an apartment.

"I think this is a major win for Fourth Amendment protections," said
Glenn Shapiro, an Omaha attorney who represented the apartment dweller
in the case.

In 1997, police took a drug dog to an apartment hallway based on a tip
from an anonymous caller. The high court said the search violated the
U.S. Constitution because apartment dwellers have a legitimate
expectation of privacy in the hallways immediately outside their doors.

And, the court said, police must have reasonable suspicion that a
crime has taken place. An anonymous call is not enough to warrant such
action.

"The Fourth Amendment embodies the centuries-old principle of respect
for the privacy of the home," Judge Lindsey Miller-Lerman wrote for
the majority.

"Under the federal and Nebraska Constitutions, a canine sniff for
illegal drugs conducted at the threshold of a dwelling detects
information regarding the contents inside the home, and an individual
has a legitimate expectation of privacy inside the home even as to
these unworthy contents," Miller-Lerman wrote.

The ruling overturned the drug convictions of Eddie R. Ortiz Jr., an
Omaha man who was sentenced in June 1998 to three to five years in
prison for possession of cocaine with intent to deliver and two to
three years in prison for possession of marijuana with intent to deliver.

The drugs seized from Ortiz's apartment were "the fruits of an
unconstitutional search." As such, they should not have been admitted
as evidence in his case, the court said.

Shapiro said it was unlikely that Douglas County would subject Ortiz
to a second trial because all of the county's evidence was deemed
inadmissible with the ruling.

Ron Moravec, an assistant attorney general who represented the state
in the appeal, could not be reached.

Ortiz lived in an apartment on South 70th Street.

In August 1997, a person called Omaha police and said Ortiz had been
distributing cocaine from his apartment for a year.

Police then went to Ortiz's apartment with a drug dog named Pogo. The
dog sniffed outside the apartment and gave indications that drugs were
inside. Police then obtained a "no-knock" search warrant.

Inside the apartment, police found a quarter-ounce of cocaine, 4
ounces of marijuana, $6,300 in a kitchen drawer and $11,000 in a
freezer. Police also found a notebook containing records of drug
transactions.

Ortiz, who was not home at the time of the search, turned himself in
about a week later.

In its ruling, the court said police did not have reasonable suspicion
to use a drug dog outside Ortiz's apartment based on one telephone
call.

"This information . . . was an uncorroborated allegation from an
anonymous source whose reliability was unknown to police,"
Miller-Lerman wrote.

"The officers did not conduct a meaningful investigation," she
added.

In a concurring opinion, Judge William Connolly said he agreed with
the ruling but disagreed with the legal conclusions.

Connolly said he would extend the protection of privacy outside the
threshold of a home to include protection against warrantless searches
in almost all situations and regardless of whether reasonable
suspicion exists or not.

In Connolly's opinion, police should have obtained a warrant before
bringing the drug dog to the apartment building.

"Due to the heightened expectation of privacy one has in his or her
dwelling, I would apply the standard principle that absent only a few
narrowly prescribed . . . circumstances, the search of a dwelling must
be made pursuant to a warrant based on probable cause," Connolly wrote.