Court rules against man in search warrant case

Tuesday, Sept. 20, 2005 | 9:37 a.m.

CARSON CITY -- A federal appeals court, in a 2-1 decision, has ruled that a Las Vegas police detective had "reasonable" cause to arrest a suspected drug dealer and gun runner, even though the man was not carrying any weapons or narcotics.

The 9th U.S. Circuit Court of Appeals on Monday struck down the appeal of Stephen Burrell, convicted of being an ex-felon in possession of a firearm. Burrell had sued Detectives Mike McIlroy, Glen C. Rector and Jeff Thorpe, claiming an illegal arrest and search of his apartment in February 1999.

Informants told McIlroy that Burrell traveled often to California to buy cocaine and bring it back to Las Vegas. And Burrell had just made a trip to California, the informants said.

Burrell had a lengthy history of arrests and was suspected of possession illegal weapons. Several months before he was arrested for wounding his girlfriend.

Rector was dispatched to watch Burrell at his apartment while other detectives got a search warrant. Burrell left the apartment and traveled to a second apartment. Detective Rector followed, stopped him in his car and "forcibly removed him from the car at gunpoint," said the court. He was handcuffed and read his rights. He was arrested for being under the influence of drugs. A search never uncovered any weapons or drugs on him.

The detective and Burrell then returned to Burrell's apartment. But the search warrant had not arrived yet. Burrell refused to allow officers to search that apartment but allowed the police officers to wait inside the entrance until they received the search warrant.

When the warrant arrived, officers searched the apartment and found a shotgun and cocaine. He was convicted of the gun violation.

Burrell sued, claiming illegal arrest and illegal search of the apartment.

The majority decision written by Judge Consuelo Callahan said there was no reason not to believe that Burrell was carrying a gun. Callahan said, "There was no reason to think that the gun in the bedroom was the only firearm that Burrell possessed."

The decision, upholding the decision of U.S. District Judge Kent Dawson, said "a reasonable officer in Detective Rector's position could have believed there was probable cause to arrest Burrell and to use force in doing so."

Judge James Oakes wrote a dissent, saying the detectives violated Burrell's constitutional right with the warrantless arrest without probable cause. Burrell was ordered out of his car at gunpoint, forced face-down on the ground, handcuffed and placed in a police car while his vehicle was searched.

Oakes said it was clear that Burrell was arrested without probable cause. There is nothing in the arrest report or in court records "that indicates that the officers had particularized information that Burrell was personally armed at the time of the seizure by Detective Rector and prior to the search," where the gun was discovered.

Oakes said the pre-trial summary judgment in favor of Rector should be voided and the case returned to U.S. District Court for further hearings.