Ruling against search stands

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By David Giuliani

A drug search that led to charges against Las Vegas resident Kenneth Ulibarri has been deemed illegal.

But that does little good for Ulibarri, who served two years in prison because of the charges.

On Aug. 19, the state Supreme Court let stand a Court of Appeals ruling in July that found the search illegal.

The Court of Appeals had overturned a decision by local District Judge Abigail Aragon allowing drug evidence in the state’s case against Ulibarri, 32.

In March 2007, Ulibarri lived with his grandfather, Joe Roybal, the owner of a house at 296 Montezuma Route.

Members of a regional drug task force had already arrested Ulibarri and his girlfriend when they decided to search Ulibarri’s house, armed with a warrant.

According to the Court of Appeals, the lead officer knew that no one targeted in the investigation was in the house at the time.

The officers knocked and announced their presence. They heard no reply. So after waiting 10 to 12 seconds, the lead officer ordered his team to break a window as a distraction and force entry into the door using a battering ram.

As the door swung inward, it hit Roybal, 79, causing him to fall to the ground. He was sent to the hospital for reported injuries to his head and hip.

Roybal testified that he was in his recliner watching TV when he heard a light knock on the door. He said he got up and tried to answer it when it opened and he was struck in the head, causing him to go temporarily unconscious.

Officers testified that it was customary to wait 10 to 12 seconds after knocking and announcing. But the appeals court pointed to different decisions that showed that the allowable time varied. In a bigger house such as Roybal’s, the officers should have waited longer than 10 to 12 seconds, the court determined.

The court said the officers should consider the time of day of the search, the size of the dwelling and the identity of the occupants likely to be in it. The court determined that there was no evidence that the officers considered any of these facts, instead relying on an inflexible 10- to 12-second rule.

“Roybal’s home was needlessly damaged; Roybal was unnecessarily injured,” the court stated in its opinion.

Inside Roybal’s home, the officers said they found crack cocaine on top of a washer in one of the bathrooms, which is near the bedroom where Ulibarri and his girlfriend stayed. They said the house was being used to sell both heroin and crack.

District Attorney Richard Flores said he respected the Court of Appeals’ decision, but he said Aragon heard all of the evidence and was in the best position to evaluate the circumstances of the case.

He noted that an officer testified that the task force waited 10 to 12 seconds before entering, but he said Roybal stated that it was between 30 seconds and a minute before the officers came in.

“The Court of Appeals opinion now states that the time before entry was made was insufficient,” Flores said in an e-mail. “The problem is, in my opinion, that they don’t say what amount of time is sufficient. Instead, the ruling states that each case will be viewed individually and that such factors such as the size of the dwelling must be taken into consideration.”

The DA said no one should ignore the fact that officers found drugs in Ulibarri’s bedroom.

Ulibarri’s attorney, Joe Romero, said in a July interview that the appeals court’s opinion vindicated his client’s constitutional rights.

“We are a country of laws, and obviously, the police are not above the law,” the attorney said. “Any delay in Mr. Roybal coming to the door was the result of both his advanced age and the fact that the police chose to execute the search warrant at approximately 10 o’clock at night.”