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Drug case tossed over illegal search September 11, 2005 - azdailysun.com
In most cases, if you build a fence around your property, mark it with "no trespassing" signs and have a guard dog, police can't come up to your front door -- unless they have a warrant or they're invited.
Duane Shepherd said that protection should apply to him, regardless of what police later found in his home.
And a Coconino County Superior Court judge has agreed, ruling Tuesday that agents with the Metro anti-narcotics task force illegally entered Shepherd's property to obtain probable cause for a search warrant.
The subsequent search uncovered guns with homemade silencers, 15 marijuana plants, 5 pounds of marijuana and chemicals and equipment used to make meth.
But all that evidence was thrown out just hours before Shepherd, 45, was scheduled to go to trial on a variety of drug-related charges.
Despite the case being dropped, Shepherd will remain in jail because he has two other pending cases in superior court.
TIP FROM INFORMANT
According to court documents, Metro agents received a tip from a confidential informant stating that the informant had heard that a man living on the 7400 block of Pony Trail was growing marijuana at his home.
Agents went to the home to do a "knock and talk" to test the veracity of the informant's information. They entered the man's fenced, signed property to get to the front door.
While at the front door, one agent stated he saw through a window that a green, leafy substance was in plain view in the living room. The agent also saw a broken marijuana pipe in a trash can on the front porch, and passing by a shed on the property, the agent stated he smelled the odor of marijuana coming from the shed.
Armed with that information, Metro wrote up a statement of probable cause for a search warrant. They were granted the search warrant and served it on the home. Shepherd was arrested later that day.
Shepherd's attorney, Lee Phillips, filed a motion requesting the evidence seized during the search be suppressed. He cited three arguments, according to court records:
1. Agents conducted the search without a warrant;
2. The warrant was obtained based on false, misleading or omitted facts or upon information that was the "fruit" of an earlier illegal search;
3. Agents were not lawfully at Shepherd's property when they allegedly saw/smelled evidence of criminal activity.
Prosecutors filed a response to Phillips motion to suppress, according to court records. In the prosecution's response, attorney's cited case law that showed courts do allow police officers to encroach on a person's property in order to gain access to the front door of a residence to speak to the owner.
Additionally, prosecutors stated in the response that Metro agents acted within the scope of the law in gaining and serving the search warrant, contesting Phillips' allegations.
Phillips said that the scheduled evidentiary hearing did not take place because prosecutors with the Coconino County Attorney's Office conceded that agents, in their initial action, were unlawfully on the property.
Roberta McVickers, deputy Coconino County attorney, said the officers acted in good faith. The officers felt they had a right to be there, and it's a gray area in the case law that could be argued either way with regard to accessing the front door to a home by traveling onto private property.
"It is intensely fact specific on a case-by-case basis," McVickers said.
Both parties agreed to the facts of the case, McVickers said. And Judge Danna Hendrix ruled in favor of the defense.
McVickers was quick to add that Tuesday's ruling doesn't mean that police can never come onto or enter your property. There are exceptions. For instance, police do not need warrants if they believe there is destruction of evidence, or get a report of calls for help.
PLEASED WITH RULING
Phillips said he was pleased with Tuesday's ruling.
"This flows from the original notion of the sanctity of the home," Phillips said.
He added that the country's founding fathers guaranteed in the Constitution not only the right of privacy in the home, but also on a person's property.
"In today's society, it's become commonplace for the public to assume they can come up to your front door -- a Girl Scout, the UPS man, even police," Phillips said. "But that stops when it's obvious that they're not invited. And that's the case here."
Shepherd's property was fenced, had "no trespassing" signs and a guard dog, and the mailbox was placed down the road, Phillips said.
"Despite all of those indications that Mr. Shepherd was asserting his right to privacy, police trespassed," Phillips said.
Police could have used any of several other methods to get in touch with Shepherd instead of trespassing onto his property, Phillips said. For instance, agents could have called, or they could have met Shepherd at where he works, or they could have waited outside the property line for him to come home, or they could have hollered from the street to request to speak with Shepherd had he been home.
"Hopefully, this will send a message to law enforcement that a citizen's right to privacy is something they should respect," Phillips said.
STILL IN JAIL
In the meantime, Shepherd will not be getting out of jail any time soon. He has two other cases pending in superior court.
The first case stems from a September 2004 incident off Leupp Road. Deputies with the Coconino County Sheriff's Office arrived in time to see a man shooting at a woman with a high-powered rifle. Deputies and the man began to shoot at one another before the man fled into a nearby house. He was persuaded out of the house hours later.
Shepherd was booked into the county jail and later indicted on charges of attempted murder, aggravated assault and being a prohibited possessor of a firearm.
The second case stems from a January 2005 investigation by a Page Police Department lieutenant. According to court documents, the lieutenant was approached by an inmate at the Coconino County Jail who said that a man had attempted to hire him to kill somebody.
The inmate stated to the lieutenant that the man told him that a person had informed on him about drug activity that led to his July 2004 arrest by Metro. He said he would pay the inmate by giving him a truck if he "handle it."
Shepherd was subsequently indicted on charges of solicitation to commit murder and conspiracy to commit murder.