COLUMBUS, Ohio -- A Dayton case is going to the Ohio Supreme Court is scheduled to hear a case Tuesday, Oct. 14 to decide if a warrantless search is constitutional if a police officer sees drug activity from a neighbor's yard.

The issue at hand is from October 2004, when Dayton police set up night surveillance of a suspected drug house in the 1600 block of Westona Drive.  The surveillance was set up after two informants alerted police to drug activity, according to court documents.

During that watch, police saw a passenger get out of a van, entering and leaving the house within three minutes. 

Police used a "knock and advise," a procedure in which officers ask for a consent to search after advising a resident that suspected drug activity has been reported at the home.  Eight officers surrounded the house to watch for fleeing occupants or evidence thrown out windows or doors.

The officers knocked and Kevin Peterson answered the door. While officers were talking to Peterson, officer David heard someone running through the house. From his position in the side yard, he could see a person run down the basement steps with a glass container through a basement window.

House then ran to the front of the home and announced he was entering to prevent destruction of evidence, going in without a warrant or Peterson's consent.

Illegal drugs were found, and a warrant was issued, after which more drugs were found.

In Montgomery County court, Peterson sought to have the evidence thrown out, but was denied by Judge A.J. Wagner

Peterson got five years in prison after pleading no contest to two counts of crack cocaine possession.

He appealed the decision, and the Ohio 2nd District Court of Appeals ruled that Wagner should have suppressed the evidence.

Montgomery County prosecutors then appealed to the Ohio Supreme Court.

Prosecutors argue that because of prior complaints and suspicious activity, the officers had grounds to conduct a "knock and advise."  Under prior court decisions, police are not precluded from noticing and acting on evidence of illegal conduct in a private residence without a warrant when the evidence is in "plain sight" from where the officer has a legal right to be, prosecutors argue.

According to prosecutors, the officer had a legal right to be in the neighbor's yard because the "knock and advise" procedure was warranted.  Defense attorneys say police had no right to trespass so that the inside of the home was visible more so than it would be to a passerby.