(This is a copy of the original story on the AJC site.)
Reprinted with the permission of the Atlanta Journal and the Atlanta Constitution.

[The Atlanta Journal-Constitution: 1.8.2000]

Throwing out evidence in case
against Terrell's kin called fair

By Bill Rankin
and Jack Warner
Atlanta Journal-Constitution Staff Writers

With the public howling for justice in the horrific torture killing of 5-year-old Terrell Peterson, Fulton County prosecutors contend that a judge's ruling has gutted their case against the alleged killers.

But attorneys and legal scholars Friday said Fulton County Judge Bensonetta Tipton Lane is on solid legal ground in ruling that a dark leather belt, cut phone cord and panty hose found at Terrell's apartment cannot be used at trial.

Police say these items were used to beat and bind Terrell. Prosecutors have considered them essential pieces of evidence in the death penalty cases against Terrell's grandmother, Pharina Peterson, and his aunt, Teri Lynn Peterson.

"Any death penalty case puts a lot of pressure on a judge," said Melvin Gutterman, an Emory University criminal law professor. "Rulings like this fly in the face of the public's want for what they consider justice. But to overturn such a ruling would be tantamount to taking out the Fourth Amendment."

Terrell weighed just 29 pounds at his death. He had suffered so much abuse and neglect that doctors could not determine exactly how he died. The case was made public as a result of a court petition by The Atlanta Journal-Constitution.

A lawsuit has been filed on Terrell's behalf against the state Department of Family and Children Services, accusing the agency of failing to take action on numerous reports of his abuse.

On Jan. 15, 1998, hours after the boy's death, Atlanta Police Det. R.B. Griffie entered the Petersons' apartment without a search warrant and, after having them photographed, collected the belt, cord and pantyhose as evidence.

"It appears that Judge Lane's holding has considerable support in the case law, not only in the state Supreme Court but also in the federal appellate courts, including the U.S. Supreme Court," said Don Samuel, an Atlanta lawyer who has written books on key decisions in criminal cases.

"The point is this: Unless it is a 'drop dead' emergency, the police always get a warrant before they go into a house," he said.

Fulton County District Attorney Paul Howard declined comment Friday. On Thursday, he said the search was justified and that he has appealed Lane's decision to the Georgia Supreme Court.

The Fourth Amendment grants citizens absolute protection against "unreasonable searches and seizures." This principle is drummed into every peace officer before the badges and uniforms are handed out.

The rules police are taught to use are fairly simple: Do not enter a private residence without a warrant unless you have the resident's permission, preferably written; and do not enter unless you have clearly articulable probable cause to believe that an emergency exists requiring your immediate entry.

In legal terms, this is called an "exigent circumstance," and the courts have generally ruled this applies when police encounter someone inside who is in imminent danger or believe evidence will be destroyed before a warrant can be obtained.

To get a search warrant, an officer fills out a standard form setting forth his probable cause to believe evidence of a crime exists in a particular place. He must also give an idea of what he is looking for. The request must be approved by a magistrate.

"It's an easy thing to get a search warrant," said Michael Mears, a death penalty attorney with the Georgia Indigent DeÂfense Council.

"Why run the risk of tainting a search when you can get a warrant? The problem comes when the police just cut corners and act in a lawless manner, even for all the right reasons."

Atlanta lawyer Bruce Harvey, who filed the motion to suppress the evidence on behalf of client Teri Lynn Peterson, predicted that Lane's ruling would be upheld on appeal.

"If anybody out there thinks the Constitution is a technicality," he added, "they should be living in another country without it."

Harvey's co-counsel, David Wolfe, said there was no emergency at the time of Griffie's search. "The apartment was secured by law enforcement and if he believed he had probably cause to search that residence, the law required him to get a warrant," he said. "That's elementary."

Lane also excluded three handwritten notes. One note, allegedly written by Pharina Peterson, said of Terrell, "He gets a bowl of oatmeal for breakfast, lunch he gets grits and dinner he gets grits. His hands are always tied." Police say the pantyhose were used to keep Terrell tied to a banister in the apartment.

During a brief hearing Friday, Lane delayed the start of Pharina Peterson's trial, originally set for Jan. 27, until April 6.

If the Georgia Supreme Court hears the pretrial appeal, the trial will be delayed further.

Gwinnett County District Attorney Danny Porter said suppression rulings by trial judges are difficult for prosecutors to overturn on appeal because courts give great deference to their rulings.

Without commenting specifically on the Peterson case, Porter said prosecutors are often confronted with possibly tainted evidence.

"It's one of the dilemmas we always face, having to present the case as it was given to us," he said. "Sometimes you just can't make a silk purse out of a sow's ear."