SEARCH TESTIMONY AT ODDS

3 Officers Said To Enter Home Without Warrant

An internal affairs investigator testified yesterday that at least three
Lexington police officers entered, without a search warrant, a home where
they suspected there were drugs.

It was a direct contradiction to February testimony in which officers Kevin
Metcalf and Matt Evans firmly said that "absolutely no one" entered the
home before they received the warrant.

Yesterday's testimony in Fayette Circuit Court was at a hearing on a motion
by John T. Marshall to suppress evidence used to support drug charges
against him.

Marshall was arrested in March 2003 after police responded to a burglar
alarm at his Lexington home and said they saw marijuana and other items.
Marshall said data from that alarm system showed that police were in his
house before they had a warrant.

In February, Evans and Metcalf testified that they "guarded the front and
back door to make sure no one entered the residence."

Asked during yesterday's hearing in Fayette Circuit Court whether he had
been dishonest earlier, Evans said: "No, I was not. I've never been dishonest."

But Evans conceded that he "had been mistaken."

Sgt. Melissa Sedlaczek testified that Sgt. Edward Hart, Detective Sean Ray
and Detective Kevin Robinson entered Marshall's home.

Until yesterday, there had been no testimony, documentation or mention of
the three officers Sedlaczek said entered the house.

Sedlaczek said that failing to list the three officers who entered the home
was, if anything, "insufficient paperwork." But she said it was not an
illegal search.

Fayette Circuit Judge Thomas L. Clark was puzzled by the discrepancy.

"Evans was absolutely just adamant that no one, absolutely no one else had
entered that house until some time later," Clark said. "Now we hear
testimony that all the king's men were in there."

According to court records, officers Evans and Metcalf arrived at
Marshall's home, 848 Bryan Avenue, at 9:25 p.m. on Feb. 27, 2003, after a
burglar alarm sounded.

Evans, who is now a narcotics detective, and Metcalf reported that they
entered in search of suspects and came across drugs, drug paraphernalia, a
gun and $10,600, all in "plain view."

Both men said they had only been in the house for about 10 minutes.

In February, Lexington attorney Derek Gordon filed a motion to suppress
evidence, contending that police had no warrant for a house search while
Marshall, 56, was on vacation.

So, Gordon said, he pulled the file on Marshall's ADT security system,
hoping to discover just how long police had been inside.

The system, he said, was able to determine when "particular doors in
Marshall's home were opened, and also several of the rooms in the home were
equipped with motion detectors."

Sedlaczek compared dispatch records with ADT's home security report during
her investigation. She said she also interviewed several officers.

That night, the alarm sounded at 9:16 p.m. indicating that Marshall's home
had been entered through the rear door. ADT called the residence, but there
was no answer. ADT called police a minute later, Gordon said. The motion
detectors had not been triggered.

The first hit on the motion detectors was at 9:37 p.m., which is about the
time Evans and Metcalf entered the home, Sedlaczek said.

The officers cleared the scene looking for suspects, then called Hart,
their supervisor, "because of what they had seen."

Sedlaczek said Hart arrived at the scene at 9:36 p.m. and asked the
officers to "take him inside to see what they had seen," and "they stood in
the kitchen and talked."

At some point, Hart called the narcotics team, and Sedlaczek said he took
about 13 photographs. Hart told Sedlaczek he couldn't estimate how long he
was in the house.

Clark asked for clarification.

"I don't understand that," Clark told Sedlaczek. "They testified that they
had only been in there 10 minutes."

Assistant Commonwealth's Attorney Traci Caneer asked Evans to explain
because the internal affairs' investigation had "revealed some
inconsistencies with earlier testimony."

Time, he said, has gotten the best of him, and he still does not remember
other officers going inside. However, he said he remembered Ray telling him
later that he went inside.

Clark asked Evans to name the items he saw in plain view. Evans said he
first noticed the closed circuit security system, then a "roach," or
partial marijuana cigarette; a gun in a holster; marijuana residue on a
dresser; a marijuana pipe; and a bowl with marijuana in it.

"You remember those items extremely well, but you can't seem to remember
any of the officers who entered," Gordon said.

During the search, police said they seized 26 items, including a digital
scale, a green plate with possible cocaine residue, bags of marijuana,
several guns and ammunition.

Marshall was arrested March 20, 2003, and charged with trafficking in a
controlled substance within 1,000 yards of a school, possession of drug
paraphernalia and possession of a handgun by a felon. He paid 10 percent of
a $50,000 bond and was released the next day.

Court records show Marshall no longer faces the trafficking and weapons
charges.

Clark is scheduled to decide whether to suppress the evidence May 28.

"I would be very surprised if he ruled against us," Gordon said after
yesterday's hearing.