
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: MONDAY, March 5, 1990                   TAG: 9003052344
SECTION: VIRGINIA                    PAGE: B3   EDITION: EVENING 
SOURCE: Press
DATELINE: RICHMOND                                 LENGTH: Medium

APPEALS PANEL UPHOLDS SEARCH OF RADIO STATION

Lynchburg officials did not violate a radio station owner's civil rights when they conducted a search and seized about 10 boxes of business documents, a divided federal appeals panel ruled today.

The 2-1 decision by the 4th U.S. Circuit Court of Appeals cleared the city of Lynchburg, Commonwealth's Attorney William G. Petty and city police officer R.D. Viar of any wrongdoing in the March 1986 search of the offices of WLVA.

The documents were seized after radio station owner Robert Pachaly Jr. was indicted on two counts of larceny from the state, one count of larceny from an individual and one count of assault with a motor vehicle. Pachaly, who was arrested at the time of the search, was convicted only on the assault charge.

Before the trial, Pachaly's lawyers argued that the search exceeded the scope of the search warrant and was nothing more than a "fishing expedition" for evidence of crimes that had not been contemplated, the appeals court said. However, the trial court found the search to be reasonable and denied the motion to suppress the evidence.

Pachaly appealed, contending that the city, Petty and Viar conducted an unreasonable and excessive search. U.S. District Judge Jackson L. Kiser ruled against Pachaly, and the federal appeals court upheld Kiser's decision.

"There is no evidence that the city pursued an impermissible policy of issuing and executing illegal search warrants or routinely conducted searches beyond the authorization of the single warrant herein," Judge Donald S. Russell wrote.

Pachaly said Viar acted unreasonably by bringing a SWAT team to the station, searching furniture and looking behind wall coverings. But the courts disagreed.

"A government official performing a discretionary function does so clothed with qualified immunity shielding him from civil liability as long as his actions do not violate clearly established tenets of constitutional law," Russell wrote.

Pachaly also argued that Petty was merely trying to find narcotics or other evidence of criminal activity not contemplated when the warrant was issued.

"Petty counters by asserting that his participation in the search was for the legitimate purpose of obtaining evidence to prosecute the indictment," Russell said. "We find no evidence ... to suggest to the contrary."

by CNB