A judge said Friday that evidence seized and photographed inside the apartment building where Don and Umi Southworth lived could be used at trial, overruling a defense attorney's claims that police had no probable cause to enter the building.
Friday's hearing came days before the start of Don Southworth's murder trial, which is scheduled to begin Monday morning. Southworth is accused of fatally beating Umi Southworth with a tree branch on June 9, 2010.
At issue Friday was a statement police made in the application for the search warrant. The affidavit said co-workers of Umi Southworth had seen Don Southworth driving a van near the property line, close to where Umi Southworth's badly beaten body was later found under some brush. That statement turned out to be false — witnesses did not see Don Southworth driving near the property line. It was clarified when police talked to the co-workers later, Detective Bill Brislin said during testimony Friday in Fayette Circuit Court.
Without the witness account, defense attorneys said, police had no evidence linking Don Southworth to his wife's assault, so they had nothing to justify the search. The attorneys also said that the victim had not even been identified as Don Southworth's wife at the time.
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The statement "was deliberately put in there to imply that Southworth had his van up in the area where an unidentified, unresponsive individual was found," defense attorney Russell Baldani said.
"We believe that the search warrant and the affidavit in support of the search warrant does not establish probable cause to search anything," he said.
Prosecutor Lou Anna Red Corn disagreed, saying police had probable cause to search the apartment because Umi Southworth lived there.
"That in and of itself is probable cause," Red Corn said. "She lived there and was found in her own back yard."
Fayette Circuit Judge Kimberly Bunnell ruled that there was no evidence that police "intentionally, knowingly or even recklessly" used the witness statement in seeking the warrant. Bunnell said that the statement could not be used during the trial, but that none of the evidence seized during the search would be thrown out.
Defense attorneys had argued that evidence seized from the basement of the Southworths' residence should not be presented at trial because the basement contained laundry facilities and storage, and it was accessible to all tenants of the fourplex.
The search warrant also failed in that regard, they said. The warrant contained a description of the basement, but it did not say that police intended to search it.
In deciding in the prosecution's favor, Bunnell said the basement "is an extension of apartment two," where Don and Umi Southworth lived. "When they paid their rent, that included having access to that basement."
Not much of the evidence seized during the search was made known during the hearing. Brislin mentioned that an AT&T bill had been seized before Bunnell asked him not to read his entire list.
Brislin also said that, when police were using dogs to search Don Southworth's vehicle June 10, they found a black trash bag near the carport. Umi Southworth's purse was inside, as were other items that police had seen inside the apartment when conducting the initial search, he said.
Attorneys seemed most concerned with photos taken of the Southworths' washing machine in the basement.
When officers searched the basement in the early-morning hours of June 10, they found damp clothes inside the washing machine, including Don Southworth's work uniform, shoes, a pair of women's panties and a pair of pajama pants.
They ran forensic tests on the inside of the washer to test for the presence of blood. No blood was detected, so they did not seize any of the clothes or the washing machine, police said.
However, they took a photos of the washer, which had been set to the hottest setting.
That is significant because "the hotter the water, the more likely it is to destroy organic evidence," said Sgt. Allen Dobson, one of three officers who testified Friday.
Dobson said Umi Southworth suffered severe head wounds, and those wounds typically produce a lot of blood.
"We expected that whoever may have been at the scene may have gotten blood on them," Dobson said.
Baldani noted that police didn't take the clothes to have them "subjected to more sophisticated tests" to determine the presence of blood. No blood was found in the Southworths' apartment.