UPSTAIRS-DOWNSTAIRS DISPUTE OVERTURNS DRUG CONVICTION

WAUSAU, Wis. (AP) -- A man' s conviction for possessing marijuana has been
overturned on appeal because prosecutors never responded to his argument
that police illegally searched his upstairs apartment.

The warrant was for the downstairs apartment' s address, not the upstairs
one, Thomas A. Smith contended in his appeal.

" The state has done nothing" in response to the argument, the 3rd District
Court of Appeals said Tuesday in reversing Smith' s misdemeanor conviction.

Gene Linehan, Smith' s attorney, said the ruling was a victory for people "
who believe very strongly in their constitutional rights."

Individual rights regarding search and seizure have been " drastically
eroded" under the guise of drug investigations and more people need to
stand up for their rights, he said.

According to court records, police searched Smith' s apartment Feb. 6,
1996, and found evidence of marijuana and marijuana paraphernalia.

The search warrant was for 1038 S. 7th Ave. in Wausau, but Smith lived
upstairs, at 1038 1/2 S. 7th Ave., court records said.

Smith, 47, contended the search violated his constitutional rights against
unlawful search and seizure because the warrant was not precise enough in
listing his specific address, thus police went further than the warrant
allowed.

Marathon County Circuit Judge Greg Grau denied Smith' s request to throw
out the drug evidence as unlawfully obtained.

Grau ruled the request for the warrant adequately explained that officers
sought to search the entire house, which included both the upper and lower
apartment.

The son of Smith' s live-in girlfriend lived in the lower apartment, court
records said.

Smith, who was fined $250 for the drug conviction, appealed Grau' s ruling
regarding the warrant.

However, the Marathon County district attorney' s office never responded to
Smith' s arguments, leaving the appeals court no alternative but to reverse
the conviction without ruling on whether the police search was proper.

" A troubling part of this case is the state' s failure to file a brief in
response to Smith' s arguments, " Appeals Judge R. Thomas Cane wrote. "
This court even extended the time for the state to file its response brief.
... Also, failure to file a response tacitly concedes that the trial court
erred."

Assistant District Attorney Ken Heimerman, who prosecuted Smith, said he
did not have time to do the paperwork.

" I had numerous other cases that were going, and I was not able to meet
(the appeals court' s) time limits, " he said.