POLICE ENTRY RULED NOT JUSTIFIED

Court Says Failure To Obtain Warrant Doomed Drug Case; Marijuana In The Window

Marijuana plants in the window of a Queen Anne's County house might have
led police outside to suspect that the resident committed a crime, but they
did not justify police entry without a warrant, the Maryland Court of
Appeals ruled yesterday.

In a unanimous decision, the state's highest court reversed a Court of
Special Appeals ruling that upheld the drug-manufacturing conviction of a
45-year-old Church Hill woman in Queen Anne's County Circuit Court.
Marijuana plants seized from her home were used as evidence in her prosecution.

The Court of Special Appeals had ruled that the search and seizure were
legal under state law, which says that police may enter a private dwelling
without a warrant when they can see from outside that a crime is being
committed within.

But the Court of Appeals said yesterday that no urgent circumstances, such
as a belief that a burglary had occurred or that injured persons or
suspects might be inside the premises, necessitated immediate entry,

"Although the police officers acknowledged that they had probable cause and
that the courthouse was no more than 15 minutes away, they provided no
basis for failing to get a warrant except that it was necessary to secure
the premises," the court said in a 20-page opinion.

Since her conviction in February last year, Marion F. Dunnuck, now 47, has
been serving a two-year sentence at the Maryland Correctional Institution
for Women in Jessup, according to deputy state public defender Nancy S.
Forster, who appealed Dunnuck's case.

"What this means is that [Dunnuck] is entitled to a new trial," said
Forster. "But for all intents and purposes, there's no evidence against
her. It should have been suppressed." Forster said she'll try to get her
client released immediately.

In June 1999, the Queen Anne's County Sheriff's Department received an
anonymous telephone call reporting that marijuana plants could be seen in a
window of a house in the 100 block of Flat Iron Road in Church Hill. A
detective and deputy drove to the house and saw what they believed to be
marijuana in a birdcage in a side window, court documents show.

While at the property, the deputy was told by a supervisor that if anyone
was home, the police should try to obtain consent to search the house.
Otherwise, they should get a search warrant.

The house was empty, but the officers called for backup units to wait
outside the house for a resident to return, according to the court documents.

After Dunnuck returned, the documents show, officers knocked on her front
door and told her they were the Queen Anne's County Drug Task Force and
needed to come in. Dunnuck told them to "hold on a minute."

The deputy said that he then saw the plants in the window move, which
prompted officers to kick at the door, according to the court records.
There was conflicting testimony as to whether Dunnuck opened the door or
the police forced their way in.

Gary E. Bair, chief of criminal appeals for the Maryland attorney general's
office, said that yesterday's decision clarifies the circumstances under
which police can execute searches without warrants and predicted it would
have an impact on police work.

"It will encourage them to get a warrant," Bair said, "if it's at all
questionable about if there is a true emergency."