Dave Roepke, Published June 06 2010
Charges dropped in pot casePolice illegally searched a Fargo hotel room late last year, a Cass County judge ruled, leading a marijuana-dealing case to be dropped last month against an Oregon man accused of having nearly 10 pounds of pot.
In an order dated May 26, Cass County District Court Judge Wickham Corwin dismissed a possession of marijuana with intent to deliver charge filed Dec. 7 against Jerry Alan Selness, 52, of Springfield, Ore. The charge is a Class B felony.
Police and prosecutors said while it happens on occasion, it’s uncommon for a police search to be suppressed in Cass County.
“I rarely hear of it,” said Sgt. Mark Lykken, a Fargo police spokesman.
Corwin agreed with the argument from Selness in a pre-trial motion that he did not voluntarily give police consent to search his hotel room at Motel 6.
Officers said they got the OK from Selness to enter his room, but Selness contended he did not freely consent to the search and that his repeated requests to speak with police in the hallway were rebuffed.
Police tried to pressure Selness into consenting to a search by saying they would get a warrant otherwise. Selness eventually stepped back from the door, and the police entered.
Jesse Lange, the defense attorney, said that consent can’t be freely offered when a suspect is told a search will happen either way.
“It’s not really much of a choice,” Lange said.
When the officers did get inside Selness’ room, he admitted he had a pipe and some marijuana. After the room search, police say they found 9.8 pounds of pot in Selness’ vehicle in the parking lot, a search that came after a police dog alerted to the suspected presence of drugs inside it.
But the drugs allegedly seized from the vehicle can not be used as evidence, the judge ruled, because that search stemmed from the illegal entry into the room.
Prosecutors haven’t yet decided whether to appeal Corwin’s decision to the North Dakota Supreme Court, said Gary Euren, an assistant Cass County state’s attorney.
Euren, who primarily handles drug cases, said he would not comment on the case while the appeal is still being considered.
Fargo police get training annually on search-and-seizure protections and are told to avoid coercion when trying to get consent for a search, Lykken said.
“We really should just be asking them if we can come in,” Lykken said.
If consent isn’t given but probable cause may exist for a search, officers apply with a judge for a warrant. While waiting for a search warrant, police can secure access to the scene. Cops shouldn’t say they will get a search warrant, Lykken said, because they can only ask a judge for one.
“We don’t know if we’ll get it,” he said.
Lykken said the officer who testified in the March 31 motion hearing, Zach Messmer, didn’t recall if he said police would apply for a warrant if they weren’t given permission to enter or if he said they’d get one.
“I can’t say if he did anything right or wrong,” he said.
Readers can reach Forum reporter Dave Roepke at (701) 241-5535