Search warrant on Foley a sorry fishing expedition

By: JIM TRAGESER - Staff Writer | Saturday, September 23, 2006 4:54 PM PDT ∞

There are fishing expeditions and then there are fishing expeditions. But the San Diego District Attorney's Office's request for a blood sample of San Diego Charger Steve Foley to see if he was on steroids the night he was shot in Poway by an off-duty Coronado police officer is a fishing expedition with neither bait nor conscience.

Last week, the North County Times reported that DA investigator Dan Nordell had sworn out an affidavit requesting a search warrant to test Foley's blood to see if he was on steroids or any other illegal drugs. Nordell admitted in his affidavit that "there is no specific information that Steve Foley was using performance enhancing drugs or other controlled substances" but made the request anyway. And a judge granted it.

So much for the Fourth Amendment's prohibition on unreasonable searches and seizures.

A pesky nuisance, to be sure, the Constitution. The Fourth Amendment reads, in case Mr. Nordell and the judge involved somehow missed it: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It's pretty hard to find "probable cause" in Nordell's affidavit. Nor does he come close to "particularly describing" the specific drugs to be tested for.

In place of probable cause, Nordell offered the argument that Foley's behavior that night and in previous alleged confrontations with other police officers raise the question of whether Foley might have been under the influence of some unnamed substance or other. Possibly steroids.

Let the record show that not only has Foley never been convicted for any of these alleged standoffs, he's never even been charged.

And yet Nordell found a judge to flout the Fourth Amendment anyway.

Worse, all of Nordell's arguments in favor of the search warrant ride on the scientifically questionable theory of "roid rage" ---- in which steroid users allegedly become violent under its influence. But "roid rage" is neither accepted medical diagnosis nor widely accepted theory (as a search of scientific publications on Google Scholar illustrated).

Look, if Steve Foley was driving drunk, he deserves to be punished.

But even if Foley is guilty, we don't shoot drunk drivers in the street. And the behavior of Officer Aaron Mansker that night also raises questions. Mansker was off duty, in civilian clothing and his own, private car. Serious questions about whether Foley and his companion knew Mansker was really a police officer remain to be answered.

If it's actually "truth" we're after here, and if we're going to investigate Foley's medical condition that night, let's be reasonable and broaden the search to include Mansker. After all, it was Mansker who brandished a gun that night. It was Mansker who fired the shots that hit Foley.

That kind of aggression certainly raises the question of whether Mansker was on steroids, doesn't it?

I ask only partly in sarcasm.

Because if we're going by the standard of proof used in issuing the search warrant on Foley's blood, any question on Mansker's condition that night ought to be fair game as well.

Contact staff writer Jim Trageser at (760) 631-6628 or jtrageser@nctimes.com.

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