COURT: DRUG BUST EVIDENCE OBTAINED ILLEGALLY

When Toby Smith answered a knock on the door of his Grand Junction home
last year and saw a police officer who asked him about drugs, he passed out.

Smith almost immediately regained consciousness, and two officers who were
acting on a tip about drug activity followed him inside.

When the officers asked about his health, he responded that he was "going
to prison," and turned over a small amount of marijuana and some drug
paraphernalia, according to the Colorado Supreme Court.

Justices today upheld a district judge's ruling that the evidence was
obtained as the result of an illegal search, essentially dismissing charges
including drug possession and child abuse. The child abuse count stemmed
from the fact that a child was in the house and may have had access to the
drugs, prosecutor Brian Flynn said.

Mesa County District Judge Nicholas Massaro had ruled that the officers'
entry into Smith's home was illegal because they did not have a warrant. He
also ruled that the officers' entry was not allowed under an
emergency-response exception to a constitutional amendment prohibiting
unreasonable search and seizure of private property.

Prosecutors appealed, saying the officers properly entered the home under
that exception, but a majority of Supreme Court justices disagreed, ruling
that there was no immediate crisis that justified a warrantless entry into
Smith's home.

Flynn said Monday that one of the officers and Smith's wife had to help
Smith to a chair inside the house.

"One of the reasons I appealed it was because I think the officers acted
reasonably," Flynn said. "One of my concerns was that it would send a
message to officers that they couldn't follow somebody and try to help them
for fear it would be called an illegal search."

The ruling said the officers did not call an ambulance, and that Smith's
wife could have called for help later, if needed.

In a dissenting opinion, Justice Nathan Coats said officers should be
expected to check on the well-being of a person who loses consciousness in
their presence.

"I would applaud rather than condemn the officers' conduct in this case,"
Coats wrote.

He said if the officers had simply walked away or waited outside the house
to see if Smith would return, it could have amounted to dereliction of duty.

"While dismissal of the relatively minor crimes at issue here may seem
insignificant, the majority's rule of decision is one that should send a
shudder through anyone who might want and expect similar assistance," he wrote.