PORT TOWNSEND — Charges against a Sequim man and his Discovery Bay brother, who were accused of running an illegal marijuana growing operation, have been formally dismissed in a Jefferson County court after the prosecution’s evidence in the case was suppressed.
Steve Fager, 55, of Sequim, and his younger brother, Tim Fager, 54, of Discovery Bay had been charged with possession of marijuana with intent to manufacture or deliver in Jefferson County, as well as with defrauding a public utility through allegedly diverting electrical power from Jefferson County Public Utility District.
Steve Fager also was charged with possession of more than 40 grams of marijuana in Clallam County.
All charges were dismissed Wednesday because the evidence for a search warrant of the Discovery Bay property was suppressed.
Jefferson County Superior Court Judge Craddock D. Verser, who retired as of Friday, signed findings that declared that OPNET had shown “a reckless disregard for the truth.”
Clallam County Prosecuting Attorney Deb Kelly said on Friday that the decision to file an appeal with the state Court of Appeals “is under consideration,” and Clallam County Sheriff Bill Benedict and Capt. Ron Cameron, commander of OPNET, both said they support an appeal.
In December, Verser issued an oral ruling to suppress evidence gathered by the Olympic Peninsula Narcotics Enforcement Team, or OPNET, during an October 2009 raid.
He instructed defense attorneys to assemble a finding of fact, which was submitted in court on Wednesday, Verser then dismissed the case.
Said James Dixon, attorney for Tim Fager: “I’m very happy the court was able to make this finding.
“The judge didn’t have an agenda and ruled in our favor in the primary issue, which was that OPNET could not have smelled marijuana from 1,000 feet away,”
The warrant searching the Fagers’ property was based on “nose hits,” the detectable odor of marijuana that was noticed by the officers who were not on the property at the time.
The defense presented Dr. James Woodford as an expert witness, who testified that it would have been impossible for the officers to smell the marijuana at those locations.
Lewis Schrawyer, deputy prosecuting attorney for Clallam County who was prosecuting the case for Clallam County, said that Verser’s ruling was flawed.
“He didn’t apply the right legal standard for ‘nose hits’ and accepted the analysis of an expert witness that was incorrect,” Schrawyer said.
“He was also incorrect in ruling that OPNET violated any sense of privacy, since there is no expectation of privacy in a commercial building.”
The ruling said that OPNET officers trespassed on the property but said that this “plays no role in the court’s ruling on the suppression motion.”
Schrawyer said that OPNET detectives were not on Fager’s property when they gathered the ‘nose hits’ so there was no trespass.
“I’m disappointed in the judge’s ruling,” said Clallam County Sheriff Bill Benedict.
“I think the judge is mistaken, and we’re studying the options at this time. An appeal may well be forthcoming.”
“The fact is they were growing commercial quantities of marijuana and they were stealing power from Jefferson PUD,” Benedict said.
Said Cameron: “We stand behind our folks. We’ve worked with the officers for a long time.
Dixon prepared the findings, which is a digest of Verser’s oral ruling. Prior to the document’s entry into court records Verser approved the interpretation “apart from one or two small changes,” Dixon said.
“The court finds that the primary justification for obtaining the thermal imagery warrant was the officer’s claim that they could smell the marijuana from various locations around the property,” the court document said.
“Because the court finds that these assertions were made with a reckless disregard for the truth, they must be stricken from the affidavit in support of the warrant.
“When this is done . . . any evidence flowing from the issuance of that warrant must be suppressed.”
Michael Haas, who represented Steven Fager, filed a motion in November 2011 requesting that drug charges against Fager be dropped and alleging that OPNET officers abused the law in gathering evidence from Steven Fager’s home on Glendale Drive in Sequim and medical marijuana cooperative in Discovery Bay.
Haas’ motion asked the court to dismiss all charges and suppress all evidence allegedly illegally obtained — which included 93 marijuana plants.
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Jefferson County Reporter Charlie Bermant can be reached at 360-385-2335 or at charlie.bermant@peninsuladailynews.com.
Managing Editor/News Leah Leach contributed to this report.