Locked locker leads cops into Fourth Amendment twilight zone

by J.L. Smith

Oral Wendell Triplett isn't a name you probably associate with the front lines of the Fourth Amendment's protection against unlawful search and seizure.

He's a convicted felon who, as you'll see, hadn't exactly gotten the hang of rehabilitation. By some measures, he's a lowly cur. I'll bet many law-abiding citizens would just as soon the Constitution not apply to him at all.

On Dec. 28, 2002, Triplett was living in an apartment at 4550 W. Sahara Ave. when two Metro officers arrived to answer a domestic disturbance call. Triplett wasn't prepared to meet cops, so he ran. He was caught a short time later carrying drug paraphernalia.

The moment was routine for the officers, who regularly deal with sparring spouses and small-time dope users. It's a scene in which the average citizen, if he were to sit in judgment, might lock up the felon with no questions asked.

The responding officers contacted Metro's Problem Solving Unit, which arrived shortly and sorted out the domestic disturbance. Triplett was questioned separately while other cops tried to get someone to answer the door of the apartment. There was no answer until Triplett was enlisted to persuade the bashful to cooperate.

The officers were given consent to search the apartment for drugs, and once inside they found a locked metal locker in a closet.

In the understated words of U.S. Magistrate Judge Robert Johnston, "It is unclear from the testimony of the officers and the evidence presented what occurred from this point forward."

Man, is it ever.

What I think the judge really meant to say was, Abbott and Costello's "Who's on First?" routine was Shakespeare compared to the, ahem, conflicting testimony of officers Erik Dockery, Chris Baughman, Sean Beck, and Edward Ericson. At the risk of giving away too much of our story, the judge's comment came in response to a motion to suppress filed for free on Triplett's behalf by defense attorneys David Chesnoff and Richard Schonfeld - motions which rarely prevail.

In the officers' attempt to solve a problem at the scene of the low-rent domestic disturbance sprinkled with drug use and starring an ex-felon, they wandered into the Fourth Amendment twilight zone.

In short, they had permission to enter and search the apartment, but not sufficient waiver to open the locked locker, which contained ammunition and a sawed-off shotgun. The police compounded their problems by remembering the incident so differently.

Was the locker moved from the closet? Was it opened? Was there a light in the closet?

Yes. No. Uh, maybe.

Was the ammunition in a box? A bag?

Would you believe loose?

Theoretically, their problems might have been solved by producing the lock and locker. They weren't saved. Although the cops had a camera, no pictures of the locker were taken.

In testimony, it was learned one officer contacted a senior detective to discuss the original search of the apartment and subsequent search of the locker. The answer he received was mixed. The veteran said the original search was legal, but a second waiver was needed to search the locker. It was clear to the judge from testimony that the locker was moved prior to Triplett giving his go-ahead.

It was the sort of procedural flub that's understandable given the chaos present at a domestic disturbance.

Then it gets worse.

Johnston wrote, "Second, the Court finds the conflicting testimony of the officers so disparate and unbelievable that the Court finds that a search occurred before the second consent by Triplett. The inability of the officers to testify with even a modicum of consistency regarding the physical characteristics of the locked locker, as well as the contraband that was allegedly visible inside, leads the court to conclude that no attempt was made to get consent prior to forced entry of the locker.

Finally, the failure of the officers to retain the locker, or at a minimum photographs of it, causes the Court to conclude that inappropriate conduct occurred."

In other words, officers, you've got some explaining to do. The evidence suppression was granted.

Oral Wendell Triplett walked out of court with his constitutional rights intact.

John L. Smith's column appears Fridays in the Nevada Appeal. E-mail him at Smith@reviewjournal.com or call (702) 383-0295.