Ruling Drug Search Illegal, Court Reverses Guilty Plea

A state appellate court has reversed the guilty plea of an alleged San Clemente drug dealer arrested for carrying six small plastic bags of methamphetamine.

In a decision released Thursday, the three-judge panel said Orange County sheriff’s deputies misled the woman when they told her a warrant was unnecessary to search a backpack in which the drugs were found.

The woman, Rachel Calkins, was arrested in January 1994 and charged with two counts of narcotics possession.

At her trial, her attorney asked Superior Court Judge Eileen C. Moore not to admit into evidence drugs seized from her backpack and drug paraphernalia taken from her apartment in a second search.

When Moore refused to suppress the evidence, Calkins pleaded guilty and was placed on probation for three years.

Her lawyer, Patrick DuNah of San Diego, appealed, and the 4th District Court of Appeal agreed with his argument that the judge should not have admitted the seized articles into evidence.

The opinion, written by Justice David G. Sills, noted that two sheriff’s deputies went to the woman’s apartment after a citizens’ group reported that “drugs were being sold from a specific apartment.”

As Calkins left her apartment carrying a leather jacket and a backpack, one of the officers asked her if she could search the backpack. Calkins asked the deputies if they needed a search warrant and was told no, according to the opinion. The deputies later found the drugs hidden in a thermos, and the paraphernalia in a subsequent search of the apartment.

“There is no affirmative duty for officers to first advise individuals of their right to refuse permission to search before asking for their consent,” Sills wrote. “But they do have a duty to answer truthfully when asked if a warrant is required prior to a search.”

Sills said the judgment was being reversed because “the fruits of the two searches were the sole evidence against Calkins.”