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Too-hasty forced entry by police ruins pot evidence, judge decides

After dark on May 17, Wichita narcotics officers stood on the porch at 144 S. Chautauqua and yelled, “Police officers with a search warrant.”
A second or two later, the officers used a battering ram to smash through a locked door at the home of Steven Holland Gerber, 40. They seized 106 marijuana plants growing in the basement, several pounds of processed marijuana and a small amount of cocaine.
But a federal judge has ruled that none of the evidence can be used in court because police didn’t give Gerber enough time to open up. Evidence showed the suspect was headed for the door.
U.S. District Judge Sam Crow said in his ruling that a delay of only a second or two before forcibly entering the house was “unreasonable conduct by the police officers … and amounts to a violation of the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures.”
The ruling came after Gerber’s attorney asked that the evidence be suppressed on grounds of an illegal search and seizure. The case, still pending, never has been tried because Crow suppressed the evidence.
U.S. Attorney Ben Burgess had no comment on the ruling and said he had not decided whether to appeal. He has until the end of October to decide.

Wichita Police Lt. Mike McKenna, public information officer, said he couldn’t comment on pending litigation.
In general, McKenna said, the supervising officer on a drug bust decides whether to break down a door. After officers knock and identify themselves, the time lapse before breaking in depends on the case, he said. Officers usually make a quick entry, he said, if they think the defendant could be armed and dangerous or could try to destroy the evidence.
“At this time, I don’t feel that there is a need for change in the police policy,” McKenna said.
In Gerber’s case, police provided no evidence that they knew the defendant had weapons or that he would try to destroy evidence, Crow said in his ruling.
Dan Monnat, who represents Gerber, called the decision wise.
“It protects both the citizen and the police,” he said. If people don’t have time to answer the door, he said, they might try to defend themselves against what they think is a break-in.
Also, Monnat said, “Just because you have a search warrant, that doesn’t give you a license to unnecessarily destroy property.”
Otto Privette, Drug Enforcement Administration spokesman in Wichita, said he was disappointed by the ruling – the first of its kind that he can recall in his 19 years in the business. The DEA was not involved in the case.
DEA agents knock and announce their presence and give the defendant a “reasonable amount of time” to answer the door before forcing entry, Privette said. The amount of time depends on the situation, he said.

By Jennifer Benjamin