Questionable evidence obtained by Hailey police in a felony marijuana case has led to dismissal of the charge as part of a plea agreement.
The Blaine County Prosecuting Attorney's Office acknowledged Wednesday that the agreement reached in the case against 35-year-old David P. Marks was favorable to the defendant because evidence obtained by Hailey police may have been disallowed had the case proceeded to trial.
"When reviewing Mr. Marks' case, it appeared likely that some of the evidence may have been suppressed, given the officers' entrance to the house without a search warrant," Deputy Prosecuting Attorney Matt Fredback said.
Defense attorney Andrew Parnes had expressed his intention to challenge the evidence before trial, but Marks instead accepted the plea agreement, which Parnes also acknowledged was favorable to his client.
"I think basically that the search of the house was probably unconstitutional," Parnes said. "He didn't invite them in—they followed him in."
The case was settled Monday in Blaine County 5th District Court when Marks pleaded guilty to misdemeanor possession of drug paraphernalia. In exchange for his guilty plea, a felony charge of possession of marijuana in excess of three ounces was dismissed, as was a second misdemeanor charge of possession of a controlled substance.
The case against Marks started on Aug. 1 when three Hailey police officers showed up at Marks' home on Aspen Drive with an arrest warrant for someone who no longer lived at the home. Officer Charles Cox wrote in a probable-cause affidavit that when Marks answered the door, there was a "strong odor of burnt marijuana coming from inside the residence."
Cox wrote that Marks initially denied smoking marijuana but admitted to it after further questioning from police.
"I then asked David if he would give me his pipe and marijuana," Cox wrote in the affidavit. "David voluntarily agreed to give me the items and then started walking into the house. I went to follow David and he turned around and asked if I could stay by the front door. I told David I would like to follow him because I did not want him to destroy anything while he was in the back of the residence. David then turned and walked down the hallway, allowing me to follow him."
Cox wrote that a search of the home yielded 6.426 ounces of marijuana, an unprescribed Alprazolam tablet and various pipes and items used for smoking marijuana.
A criminal complaint against Marks describes the paraphernalia as "a small glass pipe, a large glass bong and a Volcano marijuana burner and Volcano bag."
At Monday's court hearing, Marks admitted the paraphernalia was his and was sentenced by Judge Robert J. Elgee to six months unsupervised probation. He was further ordered to pay a fine, restitution and court costs totaling $587.50, to provide 100 hours of community service and to undergo drug counseling.
Marks was also given a withheld judgment, which means the conviction can be removed from his record if he successfully completes probation.
In sentencing, Elgee followed the recommendations of the prosecuting attorney's office. Otherwise, in accordance with the plea agreement, Marks would have been allowed to withdraw his plea of guilt.
Terry Smith: tsmith@mtexpress.com
David P. Marks
