PORT TOWNSEND — Superior Court Judge Craddock D. Verser has issued an oral ruling to suppress evidence gathered by the Olympic Peninsula Narcotics Enforcement Team, or OPNET, during an October 2009 raid.
According to the clerk’s minutes, Verser said OPNET trespassed on Steve Fager’s property, and he granted a motion by Michael Haas, who is representing the 55-year-old Sequim man, to suppress evidence collected then.
Haas hopes to see the bench ruling in Jefferson County Court on Wednesday lead to a dismissal of charges against his client, who is accused of an illegal marijuana grow operation.
“The judge made it clear that he was going to disallow the evidence against my client,” Haas said.
“Once this happens, he will have no option but to dismiss the case because all the evidence collected will have been gutted.”
A representative of OPNET said the agency most likely would appeal Verser’s suppression of the evidence and that the case would continue to trial.
Haas said Verser asked him to prepare findings of fact and law for a written ruling that will be issued at a later date.
“We don’t have a court date yet,” Haas said.
Verser will return to the bench Jan. 2 and will retire Jan. 11.
Haas said he intends to submit his findings during that period so Verser can make a final ruling on the suppression and possibly dismiss the case before leaving office.
“There is a possibility that both sides could accept the suppression of evidence, which would end the case,” said OPNET spokesman Jason Viada.
“But I think it’s likely that the state will approach the Court of Appeals Division 1 with a request to reverse Judge Verser’s decision.”
That action would extend the process, and the case then would be heard by Verser’s successor, Keith Harper.
Haas 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 Fager’s home on Glendale Drive in Sequim and medical marijuana cooperative in Discovery Bay.
Steve Fager and his younger brother, Tim Fager, 54, are charged with possession of marijuana with intent to manufacture or deliver in Jefferson County.
Steve Fager also is charged with possession of more than 40 grams of marijuana in Clallam County.
The matter would be tried in Jefferson County because the grow operation in question was located in Discovery Bay.
Haas’ motion asked the court to dismiss all charges and suppress all evidence allegedly illegally obtained — which includes 93 marijuana plants — and includes a contention that law enforcement recklessly executed the search warrant.
Haas said any decision also would be applied to Tim Fager, a Discovery Bay area resident who is represented by Jim Dixon of Seattle, since the cases have been joined.
Haas claims that OPNET detectives planted evidence, trespassed and used a convicted sex offender as a paid informant to net his client on drug charges.
Clallam County Deputy Prosecutor Lewis Schrawyer said OPNET, which is made up of law enforcement officers from across the North Olympic Peninsula, acted within its charter.
In August, Schrawyer told the Peninsula Daily News that four deputies testified that they picked up at least 11 “nose hits” from the property, and “we have no proof that there was a legal marijuana cooperative.”
A “nose hit,” according to Schrawyer, results from the distinctive smell of marijuana growing operations that can be discerned by a trained narcotics detective.
Haas said testimony presented during the hearing stated that the odor of marijuana in a closed grow operation can be detected from 30 or 40 feet but was not possible from the 100-yard distance from which OPNET claims to have been when detecting the smell.
While the arrest precedes his tenure with OPNET, Viada said the agency acted appropriately.
“The American system of justice has due process, and this ruling is only one step in the process,” Viada said.
“This case is still open, and it will continue.”
Jefferson County Reporter Charlie Bermant can be reached at 360-385-2335 or at charlie.bermant@peninsuladailynews.com.