CASE IS A LESSON IN SEARCH WARRANTS
Pair's Marijuana Charges Dropped
The Fourth Amendment to the U.S. Constitution guarantees citizens protection against unreasonable search and seizure at the hands of the government, and it was a violation of this right that led to the recent dismissal of a high-profile medical marijuana case in Larimer County.
A District Court judge recently ruled the search of James and Lisa Masters' home, which netted 39 live pot plants and was the basis of the case against them, was illegal because the officer who filed the affidavit for the search warrant walked through the home without consent and before obtaining a warrant.
Search warrants are a check on the power of law enforcement, said District Court Judge Terence Gilmore, and the officer requesting the warrant must show there is probable cause to believe a crime has been committed and include what relevant evidence of the crime will be found in the home, why it is believed the evidence is there and where that evidence will be found.
The Masterses' attorney also took issue with the detective, who reportedly never mentioned in the affidavit that the couple told officers they were medical marijuana patients.
There is an inherent trust that the officer submitting the request will include all evidence in the affidavit, Gilmore said, not just the evidence that supports the alleged crime.
"The officer should present all of the evidence on both sides," he said.
There are three conditions under which law enforcement may enter a person's home without first obtaining a warrant signed by a judge, said Assistant District Attorney Cliff Riedel: with the consent of the resident, in urgent situations -- such as the belief a kidnap victim may be in a residence and in imminent danger -- and in the case of a medical or other type of emergency. If an officer is in a home with consent of the resident and sees evidence of the crime, that evidence can be seized, Riedel said.
The irony of the Masterses' case, Riedel said, is that a warrant wasn't needed because James Masters showed other officers the marijuana. The search warrant could have been written based on what other officers observed, he said. "They tried to do exactly what the courts wanted them to do," Riedel said. "There was no evil intent ... they weren't trying to circumvent the law."
Lt. Craig Dodd, who heads the Larimer County Drug Task Force, said he's not spoken with prosecutors about the case, nor has he reviewed Chief District Court Judge James Hiatt's ruling and could not yet comment on the case.
Once he has done that, Dodd said he'd decide what, if any, steps to take, including reviewing whether additional training is needed.
"I'm going to look into it to see if there's anything we can improve on," he said. If a search warrant has been granted, residents cannot deny access to law enforcement, nor should they try to interfere with the search, said Bob Rand, a Fort Collins defense attorney.
However, residents do have the right to refuse access to their home if law enforcement does not have a warrant, Rand said. Residents should be very clear they do not consent to the search if law enforcement enters their residence without their consent.
As with all aspects of law enforcement, searches and writing affidavit warrants are the subject of ongoing training.
That training is vital, said Larimer County sheriff's Sgt. Joe Shellhammer, not only because an illegal search could get evidence tossed out, but because people have the right to be protected against illegal searches.
"You've got to do things right," he said. "If we're going to search, I have to be 100 percent positive."
If he is unsure whether there's enough evidence for a search, Shellhammer said, he'll run it past the District Attorney's Office.
"The judges here are real sticklers," he said. "They ask you a ton of questions, and you have to be able to answer those questions."
^^^ That last line.... I wish this were the case everywhere.