A search of a Challis couple’s apartment that found marijuana and methamphetamine was ruled unconstitutional by Judge Stevan Thompson.

The judge granted a defense motion to suppress evidence found in that search and he vacated the trials of the husband and wife on felony drug charges.

Justin and Angela Green are still scheduled to stand trial this month on perjury charges. The perjury charge alleges that the Greens failed to disclose real property as an asset on a financial disclosure form when they asked the county to provide a public defender to represent them on the drug charges.

In September Judge Thompson denied defense attorney Allen Browning’s motion to suppress evidence from the search but reversed himself a month later. As a result, the Greens’ drug trials have been taken off the court calendar. Custer County Prosecuting Attorney Justin Oleson is considering an appeal of the ruling.

In reversing his ruling, Judge Thompson said his initial decision was based on the mistaken conclusion that a condition of pretrial release for Justin Green on a DUI charge included searches of his person and property.

“It was not valid,” the judge said. “I’m going to reverse my decision and grant the defense motion to suppress” evidence from the search. The search last March of the Greens’ apartment was not based on the probable cause of officers smelling marijuana smoke but on an invalid condition of pretrial release, Thompson said.

Evidence found with a search warrant issued after officers entered the apartment and found marijuana in a cursory search was fruit of the “poisonous tree,” because the initial entry into the Greens’ apartment was unlawful, Thompson said. The court erred when it said searches of the apartment were allowed as a condition of Justin Green’s pretrial release on the DUI charge. Urinalysis tests to determine whether he’d been drinking were valid, but not a search of the apartment, according to the judge.

The prosecution argued there was probable cause to search the apartment based on an odor of marijuana. Judge Thompson initially agreed and ruled the search valid. After reviewing case law, Thompson reconsidered and reversed his decision last month. A search of person’s property who was on pretrial release in another case was ruled unconstitutional, he said. Idaho Supreme Court justices ruled a probation officer should have asked for consent prior to searching a defendant’s property and evidence found in that search was suppressed.

Prior case law places restrictions on police searches of probationers, Thompson said, and a person on pretrial release is different. They are presumed innocent because they haven’t been convicted. They retain their constitutional rights, which includes protection from unreasonable searches and seizures. Thompson said he believes the condition of pretrial release for Justin Green that allowed searches of his house was unlawful, but not the random urine testing for drugs or alcohol.

Oleson argued that the smell of marijuana established probable cause for searching the Green’s apartment. He also noted that in the DUI case, for which Justin Green was on pretrial release, there was an accident and officers found methamphetamine and marijuana. So there was valid reason for the pretrial release conditions of random tests and warrantless searches beyond the probable cause of smelling marijuana during the search. The officers went to the Greens’ apartment to check on Justin Green after he claimed on a couple of occasions that he could not urinate for random drug testing. Marijuana was in plain sight during a cursory search of the apartment and that, along with the odor, was enough to get warrants for a more detailed search, which officers did.

Attorney Browning disagreed with Oleson’s argument, noting that officers could not smell the marijuana until they opened a second door at the bottom of a stairway that led to the apartment. The officers entered the outside door into a semi-public breezeway at the bottom of the stairs, Browning said. It was only after opening the second door to the private apartment that they smelled the marijuana and went upstairs to search. Judge Thompson said he was under the impression at the September hearing that the second door into the private apartment was at the top of the stairs, not the bottom.

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