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High court says raid with chopper was not coercive

ALBUQUERQUE, N.M. — State Supreme Court upholds seizure of 14 pot plants in Taos area

An Army helicopter hovering overhead, officers armed with semiautomatic weapons and a fleet of law enforcement vehicles didn’t constitute illegal coercion when a 72-year-old man gave permission for a search of his Taos County home, the state Supreme Court has ruled.

That means a guilty plea by Norman Davis, now 78, for possession of marijuana apparently will stand.

The State Police operation that resulted in Davis’ arrest – dubbed “Yerba Buena 2006” – was seeking pot plantations, and it included personnel from the Game and Fish Department, the National Guard and a regional drug enforcement task force. Two Army helicopters were used.

The raid on Davis’ house took place after a spotter in one of the helicopters observed “vegetation” in Davis’ greenhouse and plants behind his home. The raid netted 14 marijuana plants, which Davis said were for personal use.

Davis was charged with possession of 8 ounces or more of marijuana, a fourth-degree felony, and possession of drug paraphernalia.

Davis’ public defenders lawyers argued in court filings that the helicopter surveillance of his house violated the federal and state constitutions and that his consent to the search was not voluntary.

But as the Supreme Court noted in its decision last week, Davis did in fact sign a consent form allowing the search of his house, after some hesitation.

One of the responding officers told him police would obtain a search warrant within about 30 minutes if Davis refused. “Well, I guess I don’t really have any options here, do I?” Davis said before signing the form, according to audio from the officer’s belt recorder that is cited in court records.

When first asked, he said. “I’m not really thrilled with you searching my house” and “I don’t know if I should do this.”

Davis had gotten out of bed after being bothered by the noise of the helicopter hovering as low as 50 feet over his house, the Supreme Court decision says. Five or six law enforcement vehicles and about that many ground officers showed up along with the chopper.

Davis couldn’t be reached for comment Tuesday. In 2011, he told the Journal the case was about more than constitutional search-and-seizure questions.

“It’s like a big, stupid mistake,” he said. “Hundreds and billions of dollars are being spent to put people in jail for growing a harmless weed.”

In 2007, Davis entered a guilty plea, conditioned on the outcome of an appeal, to one count of possession of a controlled substance. His motion to suppress evidence from the police raid had been denied at the trial court level. Davis was placed on one year’s unsupervised probation and then took the case to the state Court of Appeals.

‘State of war’

Before the case reached the Supreme Court, Davis got some sympathy as his motion to suppress the evidence moved through the courts.

The district judge who refused to throw out the evidence did find “merit to the claim that police swooped in as if they were in a state of war, searching for weapons or terrorist activity.”

District Judge John Paternoster of Taos found the search “just barely permissible,” according to the case narrative in state Court of Appeals records.

The Court of Appeals court ruled in Davis’ favor, and for throwing out the evidence found in the search. The appeals court asserted that Davis’ consent was “the product of duress and coercion or acquiescence.”

When police asked permission to search, Davis “was surrounded by numerous uniformed, armed law enforcement officers and several law enforcement vehicles while a helicopter hovered overhead,” the appellate court stated in its October 2011 opinion. The officers were “heavily armed, carrying both their service handguns and AR-15 semiautomatic weapons,” the decision noted.

The appeals court ruling also said that when an officer told Davis it would take only about 30 minutes to get a search warrant, Davis had reason to believe that “his refusal to consent was futile.”

But the Attorney General’s Office took the case to the Supreme Court, which in its June 13 ruling didn’t buy the argument that Davis was coerced by the heavy law enforcement presence.

No protest

In the opinion written by Chief Justice Petra Jimenez Maes, the high court said Davis can be heard on the officer’s belt recording saying “sure” and “all right” when asked about a search. “Nothing in the record indicates that (Davis) ever firmly objected to or protested” the officer’s request to search, the opinion says.

Also, the Supreme Court noted, Davis was never seized and was allowed to move about the property. When the officer told Davis police would get a search warrant if Davis didn’t give consent, the officer was merely providing a “reasonable explanation of the process an officer would follow,” the opinion says.

Also, the conversation between Davis and the officer lasted nine minutes and was “calm and slow,” Maes wrote.

The officers on the scene established a perimeter and there was no evidence they acted unprofessionally or unholstered weapons, the opinion says. “Accordingly, the mere presence of armed officers was not enough to create coercion,” the high court found.

“While the Court of Appeals placed great significance on the presence of the police helicopter, the State argues, and we agree, that there is no evidence that the helicopter influenced (Davis’) consent,” the opinion says. “In fact, the only testimony on record regarding Defendant’s feelings about the helicopter was that he was bothered by the noise and had to get out of bed.”

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