Home Security System Cited to Challenge Search

POLICE SAY DRUGS FOUND ON BURGLARY CALL

An accused drug dealer is using his own home security system and
motion detectors to question how police searched his home while he was
out of town.

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

Police went to Marshall's home in February 2003 after a burglar alarm
sounded. They said they entered in search of suspects and came across
drugs, drug paraphernalia and $10,600, all in "plain view."

But "the house may have been searched prior to them receiving the
search warrant," Gordon said.

In court records, officers Matt Evans and Kevin Metcalf reported that
they went to Marshall's home at 848 Bryan Avenue at 9:25 p.m. on Feb.
27, 2003.

Evans said in the search warrant that he noticed the back door had
been kicked in. Then, Evans and Metcalf "cleared the residence looking
for possible burglary suspects."

While checking one of the bedrooms, Evans said, he noticed "a glass
marijuana pipe with burnt marijuana residue in plain view on the
dresser," as well as "a large glass marijuana 'bong' in plain view on
a shelf above the bedroom closet." There was also a handgun lying on
the headboard of the bed, Evans said.

The bedroom closet also housed a large gun safe and two fireproof
safes, Evans said. After securing the residence, he started the
application for the search warrant.

The warrant doesn't say what time Evans concluded his search for
suspects, but he signed and dated the document at 11:55 p.m. The
warrant was signed by Fayette District Judge Pamela Goodwine.

Police said they seized 26 items, including a digital scale, a green
plate with possible cocaine residue, bags of marijuana, a 12-gauge
shotgun, a NORINCO MAK-90, two Rugers, nine other 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.

Gordon argues that, had police just been looking in the six-room home
for a burglary suspect, it would have taken about 10 minutes.

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."

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.

About the same time, Gordon said, Tara Rodriguez, a neighbor, observed
a man dressed in dark clothing lingering behind Marshall's home. That
man, she said, was carrying "what appeared to be a long, black
flashlight, similar to one that the police utilize."

Rodriguez said that man left the back of the home and met with another
person in a white vehicle which appeared to be an unmarked police cruiser.

The police, Gordon said, arrived to investigate the call about 9:37
p.m. ADT was informed that the officers arrived at 9:42 p.m. Police
then searched the small, single-story home until 10:47 p.m., Gordon
said.

Fayette Circuit Judge Thomas L. Clark is scheduled to make a ruling
Friday on the motion to suppress evidence.

If Marshall thinks he has been wronged by the officers, he could file
a complaint, said Lexington Police Lt. Jeff Lewis, of internal affairs.

As far as Lewis knows, Marshall has not done so. If he did, department
policy would not allow the police to investigate before a court has
decided the case, Lewis said.