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Toss evidence, drug case lawyers say

Search of Searcy County property was beyond scope of warrant, they argue by Dale Ellis | April 30, 2021 at 3:30 a.m.

Attorneys for a Searcy County man accused in a federal indictment of drug trafficking presented arguments Thursday attempting to suppress evidence collected during a search of his property that the attorneys maintain was obtained improperly.

Jeffrey Rogers, 64, of Marshall was arrested Jan. 19, 2019, by Searcy County deputies when he walked into the sheriff's office to surrender. A search of his property at 378 Rattlesnake Dr. just east of Marshall had turned up narcotics, drug paraphernalia and numerous firearms.

Rogers' attorneys, Erin Cassinelli and Michael Kaiser of Little Rock, argued Thursday before U.S. District Judge James M. Moody that officers had exceeded the scope of the search warrant and that the search warrant itself was invalid. They asked that all evidence obtained as a result be excluded from evidence.

Cassinelli and Kaiser maintained that Lt. Billy Cordell of the Searcy County sheriff's office had requested the search warrant based on two trash pulls from Rogers' property that did not establish sufficient probable cause to seek the search warrant.

Cassinelli also contended that the search warrant did not include the curtilage of the property -- the areas, vehicles, outbuildings, etc. that surrounded the actual dwelling -- and as such rendered the search warrant invalid.

A comparison of the search warrant affidavit sent to the issuing judge showed that when the signed warrant was faxed back to the sheriff's office, the font was enlarged, which cut off a portion of the language describing the property's outbuildings when compared with the original.

Although Cordell said the property curtilage was included in the original search warrant affidavit, Cassinelli said the truncated copy of the warrant that was faxed back to the Searcy County sheriff's office with the enlarged font was the copy that was filed with the Searcy C0unty Circuit Court clerk and as such, constituted the official copy of the search warrant that the investigating officers conducting the search were legally bound to observe.

"This is the search warrant that was filed with the clerk," Cassinelli said. "This is the official record, this is what gave the authority."

Cassinelli said she understood what Cordell's intent was when he sent the affidavit seeking the warrant but she insisted that his intent was impossible to determine from the document that was returned.

"That is not what was submitted to the clerk," she said.

"I'm not sure how to resolve this issue short of bringing the judge in to testify," Moody said.

Cassinelli also questioned Cordell's experience and the truthfulness of his assertions on the witness stand that a number of people in Marshall had gone to him asking him to do something about the activity at Rogers' home. He said that being one of six law enforcement officers in a county of just 9,000 people made him known to many residents who, he said, often approached him with tips regarding illegal activities.

"It's pretty common for people to mention [Rogers'] name in regard to activity around his house, or suspected activity," Cordell said, in response to a question from Assistant U.S. Attorney Kristin Bryant.

"As it relates to what?" Bryant asked.

"As it relates to narcotics," Cordell replied.

"Narcotics trafficking?" Bryant asked.

"Yes," Cordell said.

"Specifically at his home?" Bryant asked.

"Yes," Cordell said.

Cordell said after conducting surveillance on Rogers' property he did two "trash pulls" from the property, going to the home with an empty trash truck at the day and time trash was normally collected, placing the trash in the back of the truck and taking it to a secure location to be searched.

On two occasions, Nov. 29, 2018, and Jan. 3, 2019, according to the search warrant affidavit, Cordell collected trash from Rogers' home to be searched, collecting 15 bags on the first occasion and five on the second.

According to the affidavit, officers found one small baggie at each trash pull, each containing methamphetamine residue. On the first trash pull, he said, officers also found a small baggie containing suspected marijuana and on the second, two aluminum soft drink cans that had been modified to smoke marijuana.

Under further questioning by Cassinelli, Cordell said the Searcy County sheriff's office had not kept any records of complaints called into the department regarding Rogers, saying the department had only upgraded within the past year or two to computerization of its operations. He said before that no records were kept.

"In 2019?" asked Cassinelli, incredulously.

Rogers testified that his home is not visible to any of his neighbors, making it unlikely that anyone on Rattlesnake Drive would have complained about comings and goings from his property. Bryant said that although the tips Cordell received regarding Rogers may not have been documented, rulings from the 8th U.S. Circuit Court of Appeals conclusively established that the search warrant was legal.

She said the lack of computerization and documentation in a rural area like Searcy County could not be held up to standards in more populated counties as evidence that the search was illegal.

"I think that's just different from what we're used to," she said.

Moody said he will issue a ruling in the matter soon. Attorneys familiar with the proceedings said the ruling could come in the next week or two.

Rogers and two co-defendants, Kenneth Harris and Tonya Hughes, are scheduled to go to trial July 12. Moody said a separate motion to sever Rogers' case from his two co-defendants was premature and may be filed at a later time.

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