PORTSMOUTH, N.H. (AP) – A judge cleared a Maine man of a drug possession charge, saying the police search of his home was “an outrageous violation of constitutional rights.”

Portsmouth District Court Judge Sharon DeVries dismissed the marijuana possession charge on Tuesday for Joshua Eastman of Portland, 20.

Police went to an apartment early Jan. 29 after receiving two noise complaints from neighbors who indicated the occupants were minors without adult supervision.

For the next 30 minutes, police stood outside the front door and heard what sounded like juveniles talking about drugs and alcohol, according to affidavits filed by the state objecting to the a defense lawyer’s motion to suppress evidence.

After knocking twice and announcing their intention to enter if no one answered, police said they kicked open the door and found Eastman, six people ranging in age from 15 to 19, and an unidentified parent passed out on a mattress.

One of the officers pointed his revolver at Eastman’s head while he lay on the floor, then used a chokehold while demanding to know where the marijuana was, according to the defense’s motion. Eastman failed to respond to the question and police searched the apartment and found a gram of marijuana in a closet. They arrested Eastman.

In its objection, the state argued that the warrantless search was justified.

“In this case, the officer was responding to a noise complaint and could hear people whom he believed to be minors talking about drugs and alcohol, glass bottles and banging, and playing music in the dwelling … exigent circumstances existed because of the high likelihood that evidence would be destroyed,” the state said in its arguments. “The officer’s belief that minors were consuming illegal substances and the likelihood of danger to their health and safety only added to the exigency.”

After the ruling, public defender Ted Lothstein said police had plenty of time to obtain a search warrant, but made no significant effort to do so.

“Judge DeVries ruled that the right to privacy in ones home was the determining factor in this case, and we feel her decision was the right one under the circumstances,” he said.

Police Capt. Bill Irving said he understood why DeVries made her ruling.

“The preference is always to get a warrant, but in the time it takes to obtain one the evidence could be destroyed and the individuals involved could be gone,” he said.

AP-ES-07-02-03 1558EDT



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