Judge Gordon Webb has denied a motion to suppress evidence in the drug-related case of Joshua Dower of Mountain Home based on arguments presented during a hearing in Baxter County Circuit Court last month.The 35-year-old Dower is facing charges of possessing drugs and drug paraphernalia, theft of property and criminal conspiracy. He is on Thursday’s court docket.
Dower was arrested early this year after law officers executed a search warrant on a building in rural Mountain Home said to house American Auto and Diesel — a business allegedly owned by Dower.
Dower’s attorney, Norman Wilber of Mountain Home, argued during the hearing last month the search warrant was defective and a violation of Dower’s constitutional rights for a number of reasons. He asked evidence obtained in the search be suppressed.
He said, for example, the officers had surpassed the authority of the warrant, information presented to a judge to obtain the warrant was “stale” and all of the contraband found in the building was either owned by someone else or found in areas of the building outside Dower’s exclusive control.
According to the probable cause affidavit, the warrant was obtained after a lengthy investigation in which a number of controlled drug buys were set up by law officers and made from Dean Thompson, who is reported to have worked at the business.
Wilber said the affidavit used to obtain the search warrant states four drug buys were made from Thompson and none of the buys directly involved Dower and only the buy on February 2nd was actually made at the shop building.
When officers went to the building in March, they found it locked and had to use force to gain entry.
They located Dower and Clay Cotter in the building. When Cotter was searched, officers allegedly found methamphetamine and slightly more than $7,400 in cash. A search of the room where Cotter was found sleeping turned up methamphetamine, along with digital scales described as the type commonly used to weigh the drug, according to the probable cause affidavit.
A drug dog was brought to the building and alerted on a red toolbox near the entrance of the shop with the name Dean Thompson written on the top. The box was searched, and more than 31 grams of methamphetamine was reportedly found.
Officers also found numerous all terrain vehicles and motorcycles, one of which was found to have been stolen in Fulton County. Wilber argued during the hearing last month the warrant had been issued allowing officers to search for drugs and drug paraphernalia, not ATV’s and motorcycles. He said while the items were in plain site at the shop, they were not contraband in and of themselves as drugs would be and should not have been subject to search.
Judge Webb wrote the search warrant gave officers the right to enter the shop building and, once inside, the ATV’s and other items were subject to search because they appeared to be “suspicious property.” He continued that, in his opinion, an examination of the vehicles and parts in the building was valid under the “Plain View Doctrine.”
In the probable cause affidavit, an investigator wrote it was his belief that the building was being used as a “chop shop” and a front for laundering money from illegal drug sales.
The officers reported there were no automobiles of any kind in the building, no paperwork, key boards, sales counters, cash registers, sales invoices or any other indications that automotive work was actually done in the structure. Wilber produced several invoices he contended showed that mechanical work had been done for a number of customers at American Auto and Diesel to counter the officers’ assessment it was only a front. He said the paperwork was scattered on the floor and could easily have been examined by the officers.
While there is no mention of illegal items tied back to Dower, the probable cause affidavit does indicate in the opinion of the investigators writing the affidavit, Dower, Cotter and Thompson were all involved in alleged illegal activity taking place in the building.
Fourteenth Judicial District Prosecuting Attorney David Ethredge told the court during the hearing even if everything the defense contended was true, Dower was a probationer with a waiver on file permitting warrantless searches by law enforcement at any time. He said the warrant was obtained as an extra precaution in case forced entry to the building was necessary.
Judge Webb wrote the affidavit gave enough evidence to allow a judge to issue the warrant in the believe that methamphetamine, paraphernalia and other evidence of illegal drugs were present at the shop building.
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