Judge Kevin Fine's Rejection of Drug Search Warrant Gets Rejected

District Judge Kevin Fine has been a unique jurist since taking the bench after his 2008 election -- challenging Texas's enforcement of the death penalty, saying a woman couldn't have been raped because she was "on top" and tossing out a jury's murder conviction because the defense didn't call a possibly exonerating witness.

He's at it again: He threw out a search warrant in a crack case because it wasn't specific enough. That happens occasionally, even in prosecutor-loving Harris County, but an appeals court has firmly rejected Fine's ruling, saying the omissions were trivial.

The case involved an alleged Third Ward crack house busted last year.

To get a search warrant, a Houston police officer swore in an affidavit that a reliable informant told him drugs were being sold out of a house in the 4200 block of Eppes; the officer gave the informant money to go buy some.

The informant was out of the officer's sight for about two minutes, but came back with a rock of crack.

The informant told the officer he had stood at the front door, given the money and watched a man enter the house and get the drugs. The man then told the informant to come back later.

Endorsing objections by the defense, Fine ruled that the magistrate who signed the search warrant did not have sufficient evidence to believe there were more drugs to be found in the house.

Fine said the time the tip was received had not been specified, the officers lost sight of the informant so the buy was not "controlled," and just because the guy at the house said to come back didn't mean he was offering to sell more drugs to the informant.

The 14th Court of Appeals didn't take well to Fine's nit-picking.

"Considering all the facts in the affidavit along with reasonable inferences from those facts," the appellate panel ruled, "we conclude that there was a fair probability that additional illegal drugs continued to be stored and sold at the residence just as the original tip indicated."

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