Pubdate: Fri, 17 Sep 2004
Source: Watertown Daily Times (NY)
Copyright: 2004 Watertown Daily Times
Contact:  http://www.wdt.net
Details: http://www.mapinc.org/media/792
Author: Ed Perkins
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/raids.htm (Drug Raids)
Bookmark: http://www.mapinc.org/topics/border+patrol
Bookmark: http://www.mapinc.org/topics/helicopter
Bookmark: http://www.mapinc.org/topics/homeland+security

DISMISSING POT CASE, JUDGE BLASTS SEARCHERS

A judge dismissed a marijuana-growing case against Terrence M. Sutton
in the interest of justice while blasting the U.S. Border Patrol and
local police for a "warrantless" search that "traumatized" Mr.
Sutton's wife and 8-year-old daughter.

Jefferson county Court Judge Kim H. Martusewicz repeatedly referred to
the "occupation" by federal agents and police of the Sutton modular
home and property at Route 1 in the town of Alexandria.  The judge
ruled that the Aug. 28, 2003, raid violated the U.S. and state
constitutions.

The decision is prompting the U.S. Border Patrol to address
"procedural errors" made, including how better to coordinate with
other agencies, said Ed R. Duda, deputy director of the Border
Patrol's Buffalo sector, which covers an area from Buffalo to
Ogdensburg. "It's not going to happen again," said Mr. Duda, who first
learned of the decision Thursday.

Agents are allowed to go onto property without a warrant within 25
miles of the border but only while patrolling, he said. That does not
include homes. He said agents, who are dedicated to protecting
communities from drugs, may get a little too eager. But he added that
the raid took about $50,000 worth of marijuana off the streets.

The search reportedly netted 35 marijuana plants potted in 28 5-gallon
pails interspersed in the brush.  It also allegedly turned up a Nike
shoe box containing marijuana seeds.  Mr. Sutton was subsequently
charged with first-degree criminal possession of marijuana and growing
cannabis by an unlicensed person.

The Accused man was fired from his job in maintenance at the Thousand
Islands Region of the state Department of Parks, Recreation and
Historic Preservation.  He has since found other employment.

His wife, Krystal Sutton, was fired from her job with he Victims
Assistance Center of Jefferson County.

Their daughter Brittany had nightmares after the raid, fearing her
mother and father would be taken away, Mrs. Sutton said,  The girl,
who was separated from her mother during the raid, is over nightmares
now, but it took a while, the mother said.

Mrs. Sutton said Judge Martusewicz's decision is a big with off their
shoulders. "I'm just glad it's over," Mrs. Sutton said.

Mr. Sutton's attorney, James R. McGraw, asked that evidence in the
case be suppressed and that charges be dismissed in the interest  of
justice.  Judge Martusewicz granted the requests.

Jefferson County District Attorney Cindy F. Intschert, whose office
heads the Metro-Jeff Drug Task Force. which was also involved in the
Sutton raid, said her office is reviewing the case to see if an appeal
of Judge Martusewicz's ruling is appropriate.

Judge Martusewicz's decision outlines testimony from a hearing held
July 18. He noted that it appeared Border Patrol agents were sometimes
operating independently of local law enforcement officers on the
scene, and the federal agents took action or directed action when the
local officers were not yet prepared.

The 10:15 a.m. raid took place when Mrs. Sutton, who was pregnant, was
getting ready to go on a bicycle ride with Brittany, then 8 years old.
Mrs. Sutton had just returned home from her job. She asked Brittany to
get a cell phone from the family car so they could take the phone with
them.

Brittany returned to the house excited and told her mother that a
helicopter was in the yard.  Although first dismissing what Brittany
said, Mrs. Sutton went outside and saw a gray, unidentified helicopter
hovering near tree-top level.  It was low enough that she could see
two people inside, and the pilot was wearing a green uniform and headgear.

The helicopter circled and then flew away.  The mother and child went
briefly back into their home and then, as they went out the side door
of the house to go on their bike ride, five police vehicles "swarmed"
into the Sutton gravel drive, according to the ruling.

U.S. Border Patrol Agent Andrew Fair confronted Mrs. Sutton and
demanded, "Where do you think you're going?"

The agent snatched the cell phone out of Brittany's hands and went
inside the residence with other agents.

Members of the state police Community Narcotics Enforcement Team,
CNET, the Metro-Jeff Drug Task Force and two other Border Patrol
agents with the search dog Ricky were also involved in the raid.  But
Agent Fair was the first person to confront Mrs. Sutton and enter the
Sutton home.

"At that time, Mrs. Sutton was hysterical and eight-year-old Brittany
was crying and the family dog was barking," Judge Martusewicz said in
the decision.

No one had permission to search or, at that time, a warrant.
Nevertheless, officers went through the Sutton home room by room,
looking into cupboards, opening drawers, rifling through closets and
looking under beds.

Mrs. Sutton repeatedly asked who they were and why they were in her
house. Only after agents occupied the house for some time did one tell
her they were searching for contraband.

At one point, an officer kicked open a box containing a new Remington
rifle and demanded to know if it was loaded.  Mrs. Sutton told the
officer it was her husband's new turkey hunting gun and was not
completely assembled.

Judge Martusewicz's ruling says Mrs. Sutton did not Give permission to
search.  So a police detective used a laptop computer to type an
application for a search warrant.  Mrs. Sutton did give her OK for the
officer to use an

electrical outlet for the laptop, although police testified it was
done by battery power on the deck of the Sutton home.

Alexandria Town Justice Louis Perry signed the warrant shortly after
noon. The papers arrived at the property about 12:22 p.m., More than
two hours after the raid began.

"The methodical, deliberate and coordinated lawless entry and
subsequent warrantless search and seizure at the Sutton home and yard
by a ten member force of federal, state, county, and city law
enforcement agents shocks the conscience of this court," Judge
Martusewicz said in his decision.  "The blatant and overwhelming
violations of the applicable federal and state constitutional
provisions involved and the misleading and false testimony of the
government's witnesses in this case are inexcusable," he said.

While some agents and police were entering the Sutton home, other
federal agents and the dog Ricky were going onto the Sutton's 5-acre
lot from the rear along Route 12, crossing a fence line and posted
signs as they did. The agents were being guided by an agent in a helicopter.

Marijuana plants were found, and there was a garden hose that
"spider-webbed" through the back yard to water them, according to
testimony cited by the judge.

Planning for the raid began after a Vermont Army Guard Recognizance
Aerial Unit involved in drug eradication discovered suspected
marijuana plants 20 days earlier, on Aug. 8, 2003, and gave the GPS
coordinates to the Border Patrol.  A Metro-Jeff Drug Task force member
was also contacted.

Even activities of the helicopter flight the day of the raid drew the
judge's attention and whether it was flying below "navigable airspace"
of 500 feet.  Even if it was above 500 feet, the judge ruled, the
observation of marijuana plants did not justify immediate entry
without a warrant.

Agent Fair maintained the entry into Mrs. Sutton's home was for
"exigent circumstances" and, when questioned further, "officer
safety," according to the judge, who disagreed.

"There was absolutely no evidence of any threat to the safety or the
welfare of anyone," Judge Martusewicz' decision says.

The judge said Mrs. Sutton was questioned and isolated on the back
deck of the home while Brittany was put in front of the television in
the family room.  Mrs. Sutton asked to call her mother to pick up the
child, who was "quite upset with the occupation of her home."  A
detective made the call.

Mr. Sutton arrived, assisted in identifying and removing plants and
admitted, in writing, that he had been growing marijuana on his
property and that his wife did not know, according to the decision.

No arrests were made that day.  No weapons were seized.  There was no
evidence of illegal border activity.  Mr. Sutton was charged Sept. 9
with the marijuana counts.

Judge Martusewicz said dismissing the case would enhance respect for
the law by requiring agents to obey state and federal
constitutions.

"The citizens of this area of the state have a right to demand the
compliance by its government officials especially during the present
time when there is a heightened presence of federal agents in our
border area as a result of stepped up homeland security activities,"
Judge Martusewicz said.
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MAP posted-by: Larry Seguin