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http://missoulian.com/news/local/article_9af2a502-f089-11e0-819c-001cc4c03286.html
In August 2010, city, county and federal law enforcement officers, accompanied by a National Guard helicopter hovering overhead, cut a chain on a locked gate and raided a marijuana grow operation in an open-air greenhouse near Potomac.
The dramatic action yielded two felony drug charges against the property owner, Nathan Kyle Smith. The nearly 80 plants in the greenhouse and a garage were destroyed.
Only one problem - the grow operation was legal, said Craig Shannon, Smith's attorney.
Shortly after the raid began, a call to the state Department of Public Health and Human Services verified that a man renting the property from Smith was registered to grow up to 300 plants, according to court documents.
At which point, agents should have backed off, according to a recent ruling from Missoula County District Judge Karen Townsend.
"The officers were required to stop the search upon discovery" of that registration, she wrote. Any information or items found after that point during the raid were inadmissible as evidence, she ruled.
Deputy Missoula County Attorney Andrew Paul dropped the charges against Smith. "I couldn't (proceed) because my evidence was suppressed by the court's order," Paul said Thursday.
***
The greenhouse came to the attention of law enforcement after it was spotted from the air on Aug. 16, 2010, by an Army National Guard helicopter pilot on a training mission, according to charging documents filed by Paul.
Two days later, about 10 law enforcement officers equipped with a search warrant checked out the property and the buildings on it. The greenhouse sported a laminated piece of paper listing 20 medical marijuana patient card numbers along with the name of the caregiver, later identified by Smith as his renter.
An on-the-spot check with the state Department of Health and Human Services, which administers Montana's medical marijuana program, elicited the information that the man was a caregiver for 50 patients. Under the rules of the state medical marijuana law in effect at the time, that would have allowed him to grow up to 300 plants.
And that's where the search should have ended - at least under the terms of that particular search warrant, Shannon successfully contended.
"Rather than take a short break in order to contact the court to apply for a subsequent warrant, Mr. Paul, ignoring the information received from the DPHHS and ignoring the notices posted by (the renter), gave the order to invade Mr. Smith's property on the basis of the warrant which he then knew to have been issued on incomplete information," Shannon wrote.
The best course of action, Paul said in his response to Shannon's motion, would have been to let a jury sort it all out.
***
Paul said Thursday he remained skeptical of Smith's contention that he had rented out the property - there was no written lease - and had nothing to do with the grow operation.
It's frustrating, he said, "to see what I considered to be a guilty person to go free and not be held accountable."
Smith's guilt or innocence was never at issue in the case at hand, Shannon said.
"The bottom line is that really what the court was dealing with was whether the search was legal," he said. "... The law goes both ways."
Reporter Gwen Florio can be reached at 523-5268,[email protected] or on CopsAndCourts.com.
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Copyright 2011 missoulian.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
.
In August 2010, city, county and federal law enforcement officers, accompanied by a National Guard helicopter hovering overhead, cut a chain on a locked gate and raided a marijuana grow operation in an open-air greenhouse near Potomac.
The dramatic action yielded two felony drug charges against the property owner, Nathan Kyle Smith. The nearly 80 plants in the greenhouse and a garage were destroyed.
Only one problem - the grow operation was legal, said Craig Shannon, Smith's attorney.
Shortly after the raid began, a call to the state Department of Public Health and Human Services verified that a man renting the property from Smith was registered to grow up to 300 plants, according to court documents.
At which point, agents should have backed off, according to a recent ruling from Missoula County District Judge Karen Townsend.
"The officers were required to stop the search upon discovery" of that registration, she wrote. Any information or items found after that point during the raid were inadmissible as evidence, she ruled.
Deputy Missoula County Attorney Andrew Paul dropped the charges against Smith. "I couldn't (proceed) because my evidence was suppressed by the court's order," Paul said Thursday.
***
The greenhouse came to the attention of law enforcement after it was spotted from the air on Aug. 16, 2010, by an Army National Guard helicopter pilot on a training mission, according to charging documents filed by Paul.
Two days later, about 10 law enforcement officers equipped with a search warrant checked out the property and the buildings on it. The greenhouse sported a laminated piece of paper listing 20 medical marijuana patient card numbers along with the name of the caregiver, later identified by Smith as his renter.
An on-the-spot check with the state Department of Health and Human Services, which administers Montana's medical marijuana program, elicited the information that the man was a caregiver for 50 patients. Under the rules of the state medical marijuana law in effect at the time, that would have allowed him to grow up to 300 plants.
And that's where the search should have ended - at least under the terms of that particular search warrant, Shannon successfully contended.
"Rather than take a short break in order to contact the court to apply for a subsequent warrant, Mr. Paul, ignoring the information received from the DPHHS and ignoring the notices posted by (the renter), gave the order to invade Mr. Smith's property on the basis of the warrant which he then knew to have been issued on incomplete information," Shannon wrote.
The best course of action, Paul said in his response to Shannon's motion, would have been to let a jury sort it all out.
***
Paul said Thursday he remained skeptical of Smith's contention that he had rented out the property - there was no written lease - and had nothing to do with the grow operation.
It's frustrating, he said, "to see what I considered to be a guilty person to go free and not be held accountable."
Smith's guilt or innocence was never at issue in the case at hand, Shannon said.
"The bottom line is that really what the court was dealing with was whether the search was legal," he said. "... The law goes both ways."
Reporter Gwen Florio can be reached at 523-5268,[email protected] or on CopsAndCourts.com.
.
Copyright 2011 missoulian.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
.
