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When a search warrant is justified is at issue

Conte, police consider appealing court's suppression of evidence

By Milton J. Valencia TELEGRAM & GAZETTE STAFF


WORCESTER-
It's common in drug cases for investigators to search motor vehicles they believe were used in illegal drug transactions. The searches routinely turn up crack cocaine and marijuana, cash and guns.

But a state Appeals Court's suppression of heroin and marijuana found in the 2002 search of a car by police officers carrying a search warrant raises questions of what stands as probable cause and justification for searches.

The defense lawyer has said the ruling will make it harder for law enforcement officials to obtain warrants, without knowledge or justified suspicion that drugs will be in the car.

District Attorney John J. Conte and Police Chief Gary J. Gemme stand by the search and are considering appealing the ruling to the state Supreme Judicial Court. The search warrant had been approved by a judicial officer based on just cause, they maintain.

"This is the process we encourage," Mr. Conte said. "We encourage police officers to obtain search warrants on reasonable grounds, and that's what they did."

At issue is the Appeals Court's recent ruling upholding a lower court's suppression of evidence seized from a suspect's car. In that ruling, Superior Court Judge Peter W. Agnes threw out evidence found in a 2002 raid of a man's home and his car, including heroin, marijuana, cocaine and $16,000 in cash believed to be proceeds from the drug trade.

According to court records, Aaron T. Wade of Worcester was the target of the drug investigation, and vice squad officers allegedly witnessed him dealing cocaine to a confidential informant. Police maintain they saw Mr. Wade twice drive a Ford Explorer to a site and sell cocaine. Both times, he left from and returned to his apartment at 15 Liberty St.

Based on an affidavit by Vice Squad Officer Larry T. Williams, police obtained a search warrant for Mr. Wade's apartment and the Explorer. No drugs were found in the apartment. Heroin, marijuana and $300 cash were found in the Explorer. During a subsequent search of Mr. Wade's girlfriend's home, police found cocaine and more than $16,000 in cash. He was charged with 11 counts of dealing drugs.

Judge Agnes dismissed all of the evidence against Mr. Williams, ruling the search warrants for the Liberty Street apartment and the Explorer were granted without probable cause. He also accused officers of violating Mr. Wade's rights by searching his girlfriend's home, and at one point questioned a police sergeant's testimony in the case.

Nevertheless, the suppression of the evidence found in the Explorer was the only part of the judge's 25-page decision that was appealed, with Assistant District Attorney Robert J. Bender arguing there was reasonable belief that drugs were in the car and that the search warrant was justified, based on Mr. Wade's use of it in his drug transactions.

Mr. Conte and Chief Gemme stressed their belief that the warrant was based on just cause. Chief Gemme called for the district attorney to appeal the case. Mr. Conte said his office may appeal but still is considering the ruling. He said that his prosecutor, Mr. Bender, has not been available to discuss the decision.

Still, Mr. Conte noted that the ruling was split among the Appeals Court's three judges, and that there was a "strong" dissenting opinion that would give credence to an appeal.

"This is a narrow decision in a narrow area," the district attorney said. "If everything is in place, they sign the warrant. Everything was in place."

Two of the Appeals Court's three judges ruled that, for there to be just cause to search the car, the officers should have pinpointed when they believed drugs would be inside the vehicle. Also, the officers never stated when the warrant would be served. The judges noted that the warrant was executed four days after it was approved, and five days after the last drug deal they allegedly witnessed.

"Nor did the affidavit establish that the defendant routinely carried an inventory of drugs ready for delivery," the judges ruled. "If anything, the events described implied that the defendant's practice was to complete only one transaction at a time, leaving to meet his buyer from 15 Liberty Street … and returning to 15 Liberty Street immediately thereafter."

The judge's comments were based strictly on the decision to suppress evidence found in the car, the only aspect of Judge Agnes's decision that was appealed.

The Appeals Court also decided that there was no evidence indicating Mr. Wade kept the drugs in the car. The judges recommended that a proper use of a search warrant would have been an "anticipatory" warrant, in which they would pinpoint when the alleged dealer would be arriving at a certain point and at what time. Those details would be specified in the warrant to make it justifiable, the judges said.

But Mr. Conte argued that, in this case, providing that information would have revealed the police officers' confidential informant, which he described as morally and ethically wrong.

Chief Gemme added that state law allows seven days for officers to execute a search warrant after it is granted. He said police investigations and raids are based on procedures in accordance with state law, such as the seven-day rule.

"Decisions based like this, we believe, are inconsistent with the law," the chief said. "It makes it much more difficult for a police officer to make a decision out there."

He gave credit to the vice squad officers, arguing they conducted a sound investigation and secured a search warrant. He said officers had just cause to arrest Mr. Wade and search his vehicle after witnessing him selling to an informant, but waited, he said, to protect the informant and, following procedure, to secure a search warrant.

"Probable cause was based on two prior occasions" of drug dealing, according to Mr. Conte. "He used the car to sell drugs."
 
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