COURT REJECTS ARREST BY HELPFUL OFFICERS

Statewire

MADISON, Wis. (AP) -- Police who entered a man' s house to close the
windows violated his constitutional protection by using marijuana house
plants as evidence to arrest him, an appellate court decided.

The man had not invited officers to protect his property and they did not
have a warrant when visiting the home in a low-crime neighborhood on a
sunny day when rain was unlikely, the court' s judges said Thursday.

The opinion by the 4th District Court of Appeals overturns the drug
conviction of Terry Marshall, 41. He was sentenced to three years in prison
and was sent to Oshkosh Correctional Institution.

Soldiers Grove Police Chief Jerry Moran and Crawford County sheriff' s
deputy Gary George said they entered Marshall' s Soldiers Grove house in
1997 to lock doors and close windows because he was in jail on a disorderly
conduct charge.

George said he found more than 10 marijuana plants in a second-story bedroom.

Circuit Judge Michael Kirchman of Prairie du Chien said Moran and George
did not need a warrant because they were locking the home in an emergency
and the plants were in plain view.

The appellate court denied there was an emergency, saying the officers
violated the Fourth Amendment by using the plants as evidence.

" The police admitted that Soldiers Grove is a low-crime area where people
leave their doors unlocked and that there was no reasonable risk that
someone could have gotten into Marshall' s house through the upstairs
window, " appellate Judge Pat Roggensack wrote.

" It was by all accounts a pleasant April day with no indication of
imminent rain, " Roggensack said.

Most people would not approve the police behavior, she said.

" Certainly the average citizen would not consider it reasonable ... for
officers to enter any house or apartment where they observed open windows
and unlocked doors, " she said.

Copyright 1998 Associated Press.

Checked-by: Pat Dolan