SEARCH WARRANT MISTAKE HELPS REVERSE 2 WOMEN'S DRUG CONVICTIONS

Before search, police realized warrant listed wrong apartment -- they
arrested women after raiding unit across hall instead

When police charged into the building with a battering ram, their
search warrant authorized them to smash open the door of Apartment D
at the top of the stairs, where Jerry Lechner was still asleep.

"That would have scared me a little bit -- somebody knocks down your
door," Lechner said, recalling the early-morning encounter three years
ago in Cary.

Luckily for Lechner -- and his door -- the Illinois State Police
investigator in charge realized it was Apartment C, across the hall,
where an informant had bought cocaine. So they broke down that door
instead, arresting two women, who later were sentenced to 8 years in
state prison on drug dealing charges.

The search uncovered about $90,000 worth of cocaine and marijuana,
according to news reports. But in a recent ruling that underscores the
precise protocols police must follow in such cases, the Illinois 2nd
District Appellate Court overturned the convictions of Lisa Urbina,
30, and Alex Fahey, 21.

They remain at the state prison in Decatur while prosecutors file an
appeal with the Illinois State Supreme Court, said McHenry County
State's Atty. Louis Bianchi.

Even if the Supreme Court sides with the defendants, it's unlikely
they'll leave custody any time soon. Also convicted on related federal
charges, the two women could be transferred from state to federal
custody, a defense lawyer said.

But the victory is still an important one that emphasizes a suspect's
rights when it comes to police searches, said assistant appellate
defender Arianne Stein.

"If there's any sort of ambiguity in a warrant, the officer is not
able to use his discretion," said Stein, Urbina's lawyer in the
appeal. "The officers are not able to make that decision on their own."

The officer in charge should have gone back to the judge, Stein
said.

Stein said Special Agent Daniel Thomas of the state's North Central
Narcotics Task Force knew that the letter of the apartment was wrong
on the warrant -- a crucial reason for the Appellate Court's ruling,
she said.

Thomas filled out the affidavit for a search warrant with a "D"
instead of a "C" based on what an informant had told him, said the
Appellate Court ruling. But the same informant had told him that the
apartment was at the top of the stairs and to the left in the
two-story, four-unit apartment building.

The officer had "no doubt" that Apartment C was where the drug dealing
was happening, the ruling said.

Prosecutors argued that going back to the judge would have caused a
delay that might have allowed the defendants to destroy evidence. And
McHenry County Circuit Judge Sharon Prather dismissed the defendant's
claims about an improper search.

But last month's Appellate Court ruling spells out what police should
have done: "Thomas should have contacted the judge who had authorized
the search warrant, informed the judge of the ambiguity, requested
instructions regarding any necessary change, and subject to the
judge's approval, amended the search warrant."

State police spokesman Sgt. Juan Valenzuela declined to comment on the
case but said police are trained on all court rulings that affect how
they do their jobs.

It's rare, but not unheard of, for search warrants to have mistakes,
said Northwestern University law professor Al Alschuler, who agreed
with the Appellate Court's ruling.

In 2003, for example, Chicago police raided the home of a 73-year-old
widow whose address was mistakenly listed on their warrant. "I asked
them, 'What did I do?' And they told me to get out of the way because
they were looking for drugs," the shaken woman told the Tribune at the
time.

In cases where police find what they are looking for despite a flawed
search warrant, Alschuler said courts generally have allowed the
searches and evidence to stand provided it's the judge's mistake and
the arresting police officer is unaware of the problem.

But if the officer recognizes a mistake, courts have said the
obligation is to correct it before a search. "The easy answer to why
that is [is] because the Constitution of the United States says so,"
Alschuler said, citing the 4th Amendment, which protects against
"unreasonable searches and seizures."

A police search can be invasive, so it's crucial to have safeguards,
the law professor said. "They really do rip the place apart,"
Alschuler said. "People hide drugs in all kinds of places. These
searches are big deals."