High court rulings against police searches worry prosecutors

Monday, Oct. 20, 1997 | 10:42 a.m.

The Nevada District Attorneys' Association wants the high court to reconsider the ruling, arguing it ignores more than a decade of federal case law on legal searches.

The case was a drug-trafficking conviction against Ruben Barrios-Lomeli. An informant had arranged for Lomeli to bring four ounces of methamphetamine to the Wal-Mart parking lot in Carson City two years ago. TriNet officers arrested Lomeli and then searched his car despite his protests but found the drugs.

District Judge Mike Fondi ruled officers had probable cause for the warrantless search. The Supreme Court in August upheld Lomeli's arrest but threw out his conviction, saying officers should have gotten a warrant before the search.

Carson District Attorney Noel Waters sought a rehearing on grounds the ruling imposes a new standard for a warrantless search, such as the immediate danger that evidence would be destroyed. And if no warrant is obtained within an hour, the vehicle must be released, he said.

"What do you think would happen if we let it go?" Waters said. "A police officer can arrest a person for probable cause. This seems to say a car has more rights than a person."

Washoe District Attorney Dick Gammick, president of the DA's association, said the case dramatically changes the rules police officers have been trained to follow, and gives vehicles the same level of constitutional protection that homes and people enjoy.

Until now, he added that when a car is stopped and its occupants arrested, officers have always had the right to search for contraband and look for anything that might endanger their safety.

"This changes the direction for everything we have taught thousands of police officers in this state," he said. "I'm sure there are hundreds of cases in this state at risk right now."

And Gammick said the ruling is contrary to U.S. Supreme Court cases including Michigan vs. Thomas which says police have the right to search a vehicle once probable cause is established and that "justification to conduct a warrantless search of a car stopped on the road does not vanish once the car has been immobilized." It adds that police don't have to prove there are pressing circumstances for such a search.

But state Public Defender Steve McGuire, whose office won the ruling, said the opinion simply enforces the constitutional requirement that police get a warrant when they have probable cause to search.

"The police have a preference for not going through all of that rigmarole," he said. "I don't see this as that big a change."

"I see this as continuing the tradition we started over 200 years ago when we said we want freedom from unreasonable searches and seizures," McGuire added.

The Lomeli case isn't the only case prosecutors are concerned about.

Clark County is appealing a similar ruling in State vs. Harnish which threw out evidence from a vehicle search.

Gammick said a similar ruling threw out the conviction of Jordan Rice in March because officers searched his backpack after arresting him for carrying a concealed weapon. The backpack contained drugs but officers said they searched it to protect their own safety after finding the gun on Rice. The court ruled they should have gotten a warrant first.