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Friday, January 23, 2009

Ind. Decisions - "Methamphetamine cases may be in jeopardy"

A very interesting story today by Keith Rhoades in the Martinsville Reporter-Times. The situation:

In February 2008, Indiana State Police investigators suspected that drugs were being sold from a home at 6385 Big Hurricane Hill Road. Because of the home’s location, ISP said they couldn’t conduct surveillance without being discovered. As a part of its investigation, the ISP requested that a phone tap be authorized by the court. The tap was approved by Morgan County Superior Court III Judge Jane Craney. Information from the tap and other sources led to the arrests of 10 people.
The story:
The arrests of 10 people on drug charges may be in jeopardy after one of their defense lawyers challenged the court’s procedure in obtaining a wiretap that led to the arrests.

Indiana State Police used a wire tap law that was enacted in 2007 to gather evidence leading to the arrests of 10 people, including Ted Thompson, 38, Indianapolis, who is charged with seven counts of dealing in cocaine or a narcotic drug. The February 2008 investigation was the first time that this law was used to procure a wire tap.

The status of the case may come down to the Indiana State Supreme Court deciding if a rule it enacted in 1991 under the old wire tap law, is still valid under the new law. The new law does not include the provision from 1991, but Thompson’s attorney, Jeffrey Baldwin, argues that it must still be followed because it wasn’t stricken from the record. Until the matter is decided, the seven remaining cases are on hold and two cases that have already ended with guilty pleas may have to be reopened.

Trial Rule 25 states, in part, that before a warrant, issued by a sitting judge, for a wire tap can be done, the warrant must be sent to the Indiana Court of Appeals for review. The court will review the evidence that led to the warrant being issued and decide if the phone tap can proceed.

During a hearing Thursday morning in Morgan County Superior Court III, deputy prosecutor Louis Ransdell argued the rule was put in effect in 1991 because the old law, which had been used three times in 17 years, did not have the safeguards to protect the public’s right to privacy.

Ransdell was presenting the state’s side in the case against Thompson. According to the Indiana State Police, the agency which conducted the investigation, Thompson was a major distributor of methamphetamine. He along with nine others were charged with A and B felony drug dealing charges in February, 2008.

According to Ransdell, the trial rule provided a way to protect the public against unwarranted wire tapping. Ransdell said the new law, enacted in 2007 by the state’s legislature and containing the safeguards, made the trial rule unnecessary.

Ransdell told Judge Jane Craney that when the warrant was requested in March, the prosecutor’s office did not know about the rule. He said the solution, if need be, is to have the same evidence that Judge Craney used to authorize the wire tap sent to the appeals court and have a judge determine if the wire tap was legal.

Judge Craney agreed that when researching the new law that authorizes wire tapping, the trial rule was never discovered. The judge said that since Morgan County was the first to use the new law, there was a lot of work done by the state to make sure the law was followed.

Thompson’s attorney Baldwin, argued that because the rule was not followed, the evidence generated from the wire tap must be suppressed and not allowed into court. Baldwin said that while there is no state case law on the matter because it is a new law, there is federal case law. That law, he said, requires the evidence be suppressed. The state did not follow Trial Rule 25 so it violated the law, he said.

Baldwin also took issue with what he called problems with the state’s handling of some evidence. As examples, he cited five alleged purchases of meth that were made by a confidential informant used by the state police. Only four show up on the list as being processed by the ISP laboratory.

“Where is the two ounces of meth?” he asked. Baldwin said a weapon seized by the ISP was also not listed. Baldwin also said he was unhappy with what he called “misstatements” in the probable cause affidavit by the ISP about his client’s criminal past.

Ransdell said those items were listed in the probable cause affidavit and there was no problem with them.

Thompson’s trial was scheduled to begin Feb. 2. That date has been cancelled and his trial date has not yet been rescheduled.

Posted by Marcia Oddi on January 23, 2009 11:27 AM
Posted to Ind. Trial Ct. Decisions