The Free Press, Mankato, MN

Local News

December 29, 2008

Judge: Drug search evidence valid

Will be used against Mankato man in court for federal firearms charge

By Dan Nienaber

MANKATO — A United States District Court judge has ruled evidence from a 2007 drug search can be used against a Mankato man facing a federal firearms charge.

The federal charge of being a felon in possession of firearms was filed against Marcus Devon Smith, 30, in May. After his arrest on Nov. 4, 2007, Smith was charged with felony drug possession and firearm possession in Blue Earth County. Those charges were dismissed after the case was shifted to federal court.

About nine ounces of cocaine and three handguns were found in Smith’s apartment in the 1200 block of Eastport Drive the day of his arrest, the Minnesota River Valley Drug Task Force reported. Agents with the task force searched the apartment after receiving a tip that Smith had a large amount of crack cocaine and was packaging it.

Smith had challenged the search after questions were raised about the information provided by the informant, and how that information was used by agents to make a request for a search warrant. About two months after a motion to dismiss the search evidence was filed in Blue Earth County, Smith was taken into federal custody and the federal firearms charge was filed. No drug charges have been filed in federal court.

Kasius Benson, Smith’s attorney, also filed a motion in federal court saying the evidence from the search should not be used during a trial. Benson argued that drug agents didn’t tell the Blue Earth County judge that Smith had been in an argument with the informant the night before the informant went to police.

Another witness also testified that the informant, a female, admitted that she hadn’t been at Smith’s house the day she claimed drugs were there. The witness, who had been with the informant when she spoke to an agent, also said the informant admitted to lying to police, and that the agent offered to get the informant’s license back if she assisted police.

For those reasons, the search warrant shouldn’t be valid and the evidence gathered couldn’t be used during trial, Benson argued in his motions.

He also said the search warrant request should have included information about the informant’s criminal record and recent disagreement’s with Smith. Those issues might have caused the judge to question the informant’s credibility, Benson said.

United States District Court Judge John Tunheim disagreed in his order denying Benson’s motion to dismiss the evidence.

Tunheim said, even if the agent left key information out of the search warrant request, negligence or a mistake can’t invalidate a search warrant.

“Here, the omitted information is not clearly critical to the probable cause determination,” Tunheim said in the order. “(The informant) offered personal knowledge and firsthand observations of Smith’s criminal activity to (the agent) on the same day that (the informant) said she saw Smith packaging cocaine for distribution.”

Federal prosecutors have not said why the drug charges were dropped when the case was moved to federal court. The federal firearm possession charge was filed because the handguns found had been, “shipped or transported into Minnesota through interstate commerce,” the federal complaint said.

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