Search warrant ruling applied in local hearing
Saturday, August 11, 2007
Circuit Judge Ben Lewis ruled Friday that the evidence against Dr. Reno R. Cova Jr., a 64-year-old Cape Girardeau physician charged with possession of controlled substances, should not be suppressed.
Steve Wilson, Cova's attorney, argued the evidence found during a Feb. 16 police search of Cova's residence was illegally obtained because the warrant violated his client's constitutional rights.
Judge Lewis and the U.S. Supreme Court disagreed.
Because police applied for the warrant on the basis that contraband would be on the premises at the time they executed the search, it is called an anticipatory warrant.
In a 2006 U.S. Supreme Court case, U.S. v. Grubbs, the court held those types of warrants are not a violation of the constitution.
They are a law enforcement device that Cape Girardeau County has used for over a decade, based on what other states have ruled, said Prosecuting Attorney Morley Swingle.
"We were delighted this past year when the U.S. Supreme Court ruled on it," Swingle said.
Under the Fourth Amendment, a search warrant must be based on probable cause or the "fair probability that contraband or evidence of a crime will be found in particular place."
With an anticipatory warrant, it doesn't matter whether the contraband exists at the time police obtain the warrant, so long as they reasonably believe it will be there when they perform the search.
Typically, the warrants are used in cases where a suspicious package is examined at the post office and found to contain illegal substances, said Swingle. Police will secure an anticipatory warrant for the residence of the recipient and wait for the package to be delivered before performing the search.
"In those cases, they [police] can make the arrest before he can turn around and resell," Swingle said.
Only two or three anticipatory warrants are used per year in Cape Girardeau County, Swingle said.
In Cova's case, Cape Girar-deau police narcotics officer Dan Seger testified he secured the warrant because a confidential informant told him he delivered crack cocaine to Cova on several occasions.
Under direct examination by assistant prosecuting attorney Angel Woodruff, Seger said he had been receiving information with regards to Cova's narcotics activities for several years.
According to the probable-cause affidavit written by Seger, he got numerous reports from people who told him Cova would provide pills to patients even if they were not ill. People said he regularly charged $75 per appointment, but to obtain pills, it was an additional $50 per visit.
Seger testified that on Feb. 16 he followed the informant to Cova's four-story residence at 40 Schonhoff Lane and sent him in, equipped with video and audio recording devices, to make the delivery.
Seger testified he entered the house when he saw the door open, because it had been arranged that the informant would signal him by leaving once the transaction was completed.
Led by the informant, police found crack cocaine and several pipes in Cova's home, according to Seger's testimony. Police arrested Cova and his girlfriend, Tina J. Farrow.
On cross-examination, Seger admitted that he didn't know it was the informant who'd opened the door. Wilson argued he couldn't have known the contraband was in Cova's possession at that time and that police were granted too much leeway in securing the warrant.
He requested that Lewis review the surveillance tape to clear up the confusion. After listening to Seger's testimony, Lewis decided viewing the tape was unnecessary and said he "didn't believe the search of Cova's residence offended the Constitution."
The next court date for Cova was set for Sept. 10.
Farrow, 34, of 2831 Hemlock St., Apt. B, pleaded guilty to one count of possession of controlled substances in March 2007, and was sentenced to four years in prison.
Fran Farrow, the mother of Cova's girlfriend, said she found the police reliance on the informant used to arrest Cova and her daughter to be unethical.
The informant had been busted for drug-related charges but agreed to cooperate with police to avoid prosecution, according to Seger.
"I feel like people like that [the informant] need to pay the price, too," Fran Farrow said.
Farrow said she wanted people to know Cova is a good man who devoted his practice and life to helping others, but got caught under a "very powerful addiction," for which he was undergoing treatment.
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