JUDGE RULES SEARCH UNCONSTITUTIONAL; DRUGS SEIZED THERE INADMISSIBLE

DURHAM -- A large amount of heroin, which could have brought a defendant at
least 20 years in prison and a $500,000 fine, was thrown out as evidence
Thursday because of what was called an illegal and unconstitutional search
by police.

Court officials said the ruling by Judge Kenneth C. Titus would allow the
suspect, Clinton Streeter, to avoid prosecution for allegedly trafficking
in more than 100 grams of heroin. The drugs were seized in June 2003 from
Streeter's residence at 3917 Townsend St.

Defense lawyer Bill Thomas argued successfully Thursday, however, that the
warrant police used to seize the heroin was "fatally defective," meaning
the drugs were "the fruit of an illegal search."

"The search was unconstitutional," he said. "Evidence seized in an
unconstitutional manner cannot be presented as evidence. The 4th Amendment
protects people in their homes from unreasonable searches."

The judge agreed.

"There is nothing, nothing in this warrant, that implicates the premises
whatsoever," Titus ruled, referring to Streeter's home on Townsend Street.
"It's just not enough. There was absolutely insufficient information to
support the issuance of a search warrant."

As a result, Titus said the heroin could not be used against Streeter.

Such elimination of evidence -- "suppression" as it is called in court --
is rare but not unprecedented. It happens when a judge is convinced that
officers stopped a car or searched a residence without sufficient reason,
or "probable cause," to do so.

In Streeter's case, Thomas contended that police did not put enough details
in an affidavit to obtain a search warrant in the first place.

"The affidavit presented to the magistrate contained no information to
support any contention that contraband or evidence would be located in [the
Townsend Street home]," Thomas wrote. "No informant alleged that drugs were
ever held or sold at the residence. The police observed no activity
whatsoever at the residence that would suggest that illegal activity was
occurring there. The affidavit merely presented a conjectural, conclusory
statement ... that evidence would be at the location. This is far less
information than is needed for a showing of probable cause."

In the affidavit, an officer wrote that "It is common for persons involved
in the sale of controlled substances to keep and store controlled
substances and proceeds from the sale of controlled substances at their
place of residence."

"This is pure conjecture," Thomas argued Thursday.

He said the N.C. Supreme Court has "explicitly denied that probable cause
for a search ... could be inferred from the fact that an occupant of the
residence was believed to be a drug dealer."

Similarly, the state Court of Appeals has ruled more than once that an
officer's conclusion that drugs sales are taking place in a particular
residence does not constitute probable cause, Thomas added.

Streeter could still be prosecuted for another 9.5 grams of heroin found in
his car, however, because Thomas lost his argument that police illegally
stopped Streeter's vehicle in June 2003.

"This evidence is the fruit of a traffic stop conducted without reasonable
suspicion," the lawyer wrote. "This traffic stop was conducted in response
to an uncorroborated tip by a confidential, and perhaps anonymous,
informant. There was no independently observed evidence of illegal conduct."

On that point, the judge disagreed, ruling that there was "nothing tainted"
about the traffic stop.

If convicted of having the 9.5 grams of heroin, Streeter could face a
minimum prison term of five years and 10 months, along with a $50,000 fine.