CRIME AND JUSTICE: TAKEN TO TASK

Appellate justices uphold a ruling that police officers went too far in a
"knock-and-talk" drug search of a Portland home.

The six-person Marijuana Task Force says it contacts eight to 10 suspects a
week and finds evidence of growing marijuana at least half the time.

American Agriculture, a Portland business that sells indoor growing
equipment, sued the city in 1996 because the Marijuana Task Force routinely
followed customers home and confronted them about growing pot.

Since 1995, the Marijuana Task Force has been one of the Portland Police
Bureau's most effective tools in the War on Drugs. Its officers have
dismantled thousands of marijuana grows, seized hundreds of thousands in
drug-related assets, and routinely made life difficult for defense lawyers
who have vainly challenged search tactics ("Sniff and Grab," WW, Feb. 11,
1998).

Earlier this month, however, defense lawyers won a small victory in the
state Court of Appeals when a three-judge panel ruled in favor of a
defendant, Portlander Michael Powelson. Some say the decision is a signal
that the courts may not continue to look so favorably on task-force
techniques.

"I think this is the first step the courts are taking to cut back on what
law enforcement can do," says Michele Kohler, a defense lawyer.

In February 1996, during the Powelson investigation, task force members
performed a by-the-book "knock and talk," a technique where police simply
knock on the door of a suspect and try to talk their way inside without a
search warrant.

It's a technique the task force has been using routinely and without much
public notice for several years. But in January, knock and talk had its
first public scrutiny: The Marijuana Task Force tried to use it on
suspected pot grower Steven Dons before he shot and killed Officer Colleen
Waibel and wounded two others.

In the Powelson case, by contrast, everything went smoothly. Once inside
Powelson's home, police encountered some initial resistance to a search,
which isn't uncommon. But task force members are trained not to take no for
an answer. After 20 to 25 minutes of cajoling and threats (police told
Powelson they'd arrest him if he didn't let them look around), Powelson
backed down. He signed a form consenting to the search and led officers to
a closet where he was growing marijuana. With that, prosecutors thought
they had an open-and-shut case, just like scores of others before.

Powelson was charged with possession, manufacture and delivery of a
controlled substance. Powelson's defense attorney, Jenny Cooke, challenged
the search, arguing that police illegally obtained evidence against her
client.

Defense lawyers routinely submit such motions to suppress evidence, and
they're routinely denied. In this case, however, Multnomah County Circuit
Court Judge Linda Bergman agreed with Cooke. Without the evidence, the
Multnomah County district attorney had no case. The DA's office appealed.

On June 10, the state Court of Appeals issued an opinion upholding
Bergman's decision to throw out the case.

"Defendant testified that he did not feel in control of his own home," the
Appeals Court wrote, "that he was under the control of the officers and
that once the officers were inside the home he did not feel free to go or
to tell the officers to leave. Defendant testified that he would not have
consented to a search if he had not been informed that refusing would mean
he would go to jail."

Just as police aren't allowed to beat a confession out of a suspect,
they're not allowed to coerce him into permitting a search, either. The
appellate ruling clearly was a blow to the case against Powelson. The
question is whether it will apply to others.

"I think it's going to affect virtually all of the task-force cases," says
Cooke, whose caseload includes many accused marijuana growers.

Tim Sylwester, who heads the unit that handles criminal appeals at the
attorney general's office, disagrees. He says the officers had "probable
cause" to arrest Powelson even before they entered his house, but they
wanted to get his cooperation in a search. Oregon case law says an officer
is allowed to threaten to do something he's legally permitted to do. So in
this case, according to Sylwester, there was nothing wrong with threatening
to arrest Powelson.

"The Court [of Appeals] did not say that knock and talks are an invalid way
of doing police work," Sylwester says. "I don't think they criticized,
particularly, the way the officer handled this particular one or that the
officer did anything overtly wrong. The problem in this case is mostly the
record that was made."

In other words, Sylwester believes the only problem was with the deputy
district attorney, who didn't establish in the trial court that the
officers had a right to threaten Powelson with arrest.

It's too early to tell whether he's right. In any case, Pat Birmingham, a
Portland defense lawyer, sees the decision as a signal. "This is the first
time that I can remember in this type of case, a so-called knock and talk,
where the court looked at whether this consent issue was free and
voluntary," he says.

Birmingham says that knock and talks are, by definition, coercive. "It's an
intimidating thing to have an officer come [to your house] and not take no
for an answer," he says. "As a practical matter, that's why they do it.
Most trial court judges have been sort of ignoring that issue."

Michelle Burrows, a defense lawyer who handles drug-related forfeiture
cases, agrees. "The whole point of knock and talk is to avoid getting that
warrant, because it has been more susceptible to legal challenge than a
consent search," she says. "They shouldn't take shortcuts and screw with
people's rights."

Checked-by: (Joel W. Johnson)