CONVICTION FROM DRUG BUST AT HOTEL VOIDED BY APPEALS COURT

Waukesha -- The state appeals court Wednesday chided officers from the
county's Metropolitan Drug Enforcement Unit and the Brookfield Police
Department for "flagrant misconduct" in connection with a 1994 drug bust at
a Brookfield hotel.

In overturning the conviction of Luis Bermudez, who was convicted of
possession of cocaine with intent to deliver, the appeals court said the
officers illegally entered Bermudez's hotel room and "improperly surprised,
frightened, or confused" Bermudez's wife, Lisa, into giving them permission
to search the room.

The search came after police had put the hotel room under surveillance and
later followed Luis Bermudez, stopping him for a traffic violation. In the
process, they found drugs in his car. Officers returned to his room,
ostensibly to inform his wife he had been arrested.

But the court said it is clear that the officers went to the room with the
intent to search it.

"It is disingenuous for the officers involved to testify that their only
purpose in going to the motel room was to inform Lisa that her husband had
been arrested. Six officers are not required for such a task," the court
said. "As revealed by their subsequent actions, the officers had an
ulterior motive."

According to court records:

Police had been watching a suite at the Best Western Midway Hotel occupied
by Bermudez, his wife, their four children, a baby sitter and two other
relatives after an employee called to report suspicious activity.

When Bermudez and a friend left the hotel to go to the grocery store,
police stopped him for a traffic violation and discovered marijuana and a
gun in his car. Bermudez was arrested.

A few minutes later, at least six officers and a hotel security guard went
to the room to tell Lisa Bermudez of her husband's arrest.

While there was conflicting testimony over how the officers got into the
room, the appeals court ruled that the officers entered the room illegally.
According to the decision, two of the officers and a security guard said
the door to the room was open as they approached. The security guard,
however, admitted he was carrying a motel pass key as he approached the
room.

Lisa Bermudez said that the door was closed and that when she came out of
the bathroom, the officers were already in the room.

She initially told the officers she did not want the room searched because
she had "personal items" in the room, but later consented to the search,
the appeals ruling says.

During the search, officers found cocaine and drug paraphernalia, according
to court records.

While the court ruled Lisa Bermudez gave the officers consent to search the
room, it said the evidence should have been suppressed because "the
totality of the circumstances surrounding the police misconduct -- the
pretextual traffic stop following the room surveillance, the pretextual
reason for approaching Lisa, the illegal entry into the motel room and the
number of officers involved in the encounter of the room -- combine to
convince us that this search violated Bermudez's Fourth Amendment
protections," the court said.

The court noted, however, that the officers did not use "any deception or
trickery to obtain Lisa's consent."

Craig Mastantuono, a state public defender who represented Bermudez, called
the ruling "a wonderful victory."

"When the court makes a ruling like this, they are saying that the
Constitution is still important," he said.

"I think it says that when you violate somebody's rights under the
Constitution, you break the law. It says you don't have free rein as a law
enforcement officer to break the law."

But Mastantuono called the ruling a "hollow victory" for his client, who
pleaded guilty based on the evidence against him.

"(Bermudez) spent almost two years in prison and was shipped to Texas as
part of all of this and it was all for naught," he said.

His client has since been released, he said.

Mastantuono said the ruling sends a strong message to the police officers.

But Brookfield police Lt. Thomas Hudock defended the officers.

"In looking at the officers' reports, I see nothing remarkable in terms of
problems with the incident," Hudock said. "My assessment is that (the
ruling) is a matter of interpretation as to the voluntariness of the
consent."

Hudock said the officers reports "are all consistent."

District Attorney Paul Bucher said: "We're disappointed in the opinion, but
there's nothing remotely in there that comes to the level of misconduct.

"This isn't a case where they kicked the door in and threw everybody on the
floor and ransacked the place. They found that the officers didn't force
anyone or trick anyone or do any of that. What they found was that the
(hotel room) door was closed."

Bucher said he had not decided whether he would appeal the case to the
state Supreme Court.

Checked-by: (Joel W. Johnson)