The effort to suppress evidence in one of the drug-related cases filed against Nicholas Tomei has failed.
Baxter County Circuit Court Judge Gordon Webb announced in open court Thursday that he will deny the motion to suppress evidence in a case filed against Tomei after a search of a residence on Wade Street shared by Tomei and Kaitlyn Johnston turned up a quantity of drugs. The suppression motion had been filed by Tomei’s attorney, Mark Cooper.
Judge Webb said before making his decision, he had reviewed all of the material submitted by the defense, including a review of a U.S. Supreme Court decision in a Georgia case which Cooper cited in his written motion to suppress.
Cooper told KTLO News that he was considering an appeal of the ruling and would be discussing options with his client.
Tomei currently has three active cases in which he is charged with various drug-related offenses.
In a hearing January 4th, the search of Tomei’s residence at 191 Wade Street in Mountain Home was attacked as flawed by Cooper. In that hearing, Cooper argued that Tomei had not given his permission for the search that allegedly turned up 62 grams of methamphetamine. The state, represented by Deputy Prosecuting Attorney Chris Carter, argued that Tomei’s permission was not necessary. He said that Johnson was on probation at the time of the search and that she had signed a document permitting “warrantless searches” which is required for those going on probation.
The search in which the methamphetamine and a significant amount of cash were found was initiated as a compliance visit by parole and probation officers, assisted by a number of other law-enforcement officers.
According to testimony during the early January hearing, the home in which Tomei and Johnston lived had been under active surveillance by officers because of suspected drug activity.
Officers indicated that after the compliance visit was initiated, they saw methamphetamine in “plain sight” in a toolbox in the garage. The drug was in a drawer that was partially open, according to testimony given during the early January hearing. Once the drug was found, Tomei was arrested.
The officers testified that Tomei had acknowledged that the methamphetamine was his — allegedly saying at one point, “you’ve got all I have”.
After the methamphetamine was found, officers did obtain a search warrant “in an abundance of caution,” according to testimony during the hearing.
Cooper argued that actions taken before the warrant was obtained violated Tomei’s constitutional protection against unreasonable search and seizures. He told the court that while Tomei and Johnston shared the house as co-tenants, and Johnston had signed a document giving officers permission to make warrantless searches, Tomei controlled the garage area of the home and he had not given his consent for that area to be searched.
Cooper told the court that officers had “bootstrapped” onto a compliance home visit that allowed the warrantless search.
Tomei was jailed after the hearing based on allegations that he had violated the terms and conditions of his bond posted in a number of drug cases against him. In addition to new charges, the court was also told that Tomei had tested positive for illegal drug use. The positive drug test triggered a bond revocation and Tomei remains in the Baxter County jail with no bond set.
Tomei was to go to trial during the week of January 30th in the case stemming from the Wade Street search, but Cooper was granted a continuance until late February.
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