A WISE REVERSAL

If your house is on fire and a firefighter spots what he thinks might be
marijuana in one of the rooms, is it wrong for police to seize it to use as
evidence?

A Superior Court judge thought so in dismissing drug charges against a
Windsor man, and the state Supreme Court upheld the lower court in an appeal
taken by prosecutors.

In a highly unusual move earlier this year, the high court agreed to
reconsider its action and, last Wednesday, reversed itself. In a 5-2
decision, the justices held the seizure was legal and the man should be tried.

Patrick Eady's home in Windsor caught fire in 1995. A firefighter was making
his way through the interior when, in a bedroom, he saw an open cigar box
containing what he believed was marijuana. He notified a police officer at
the scene who confiscated the box. Mr. Eady was arrested on drug charges.

In lower court, Mr. Eady's lawyer argued the box should not have been
removed without a warrant. The judge agreed and then dismissed the case for
lack of evidence. Hearing the case on appeal last year, the Supreme Court
sided with the lower court. Second thoughts must have registered, for at the
state's request, justices agreed to reconsider the case, an action that
produced the reversal.

There is no question the firefighter and police officer were in the home
lawfully. However, some legal experts expressed concern the turnabout
weakened constitutional guarantees against unlawful search and seizure, a
belief Justice Robert I. Berdon expressed in his dissent.

Justice Berdon drew an extreme inference from the reversal, contending it
would send a message to police that "if you are lawfully present in a
citizen's home, you may seize anything you can see, even if you have neither
a warrant nor a reasonable belief that the item is contraband."

While the firefighter was not certain the substance was marijuana, nor was
he equipped to make on-the-spot verification, he did have strong suspicions
that certainly justified alerting the police officer outside. Didn't his
thinking come under the standard of "reasonable belief"?

To ignore the presence of what his instincts told him could be an illegal
substance could be likened to turning one's back on lawbreaking. Should he
have ignored a red-stained knife because he suspected, but wasn't truly
sure, it was blood?