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Fayette defendant wants pot plants purged from evidence

| Tuesday, Feb. 12, 2013, 12:01 a.m.

A Fayette County man accused of growing 377 marijuana plants in his house wants the plants tossed from evidence.

Charles Alan Smith, 52, is charged with manufacturing marijuana, possession and possession of drug paraphernalia at his former home at 17 W. Berkeley St. in Uniontown.

A city code enforcement officer, Mark Pasquale, found the suspected marijuana plants when he went to the house April 26 to investigate complaints of code violations.

City and state police who executed a search warrant found the 377 plants and 20 pounds of processed marijuana that District Attorney Jack Heneks said had a street value of $610,000.

Smith, who according to court records has moved to 596 Smithfield-Masontown Road in Smithfield, is now seeking to have the plants excluded from evidence.

Defense attorney Patrick Kenneth Nightingale of Pittsburgh claims in a pretrial motion that Smith was duped into letting police into the house.

Smith, Nightingale contends, gave Pasquale permission to search the house for building code violations. It was only after Smith gave that consent, Nightingale wrote, that police obtained the search warrant and accompanied Pasquale into the house, where they discovered the plants.

“Defendant's consent was not knowing, intelligent and/or voluntary as Officer Pasquale used the ruse of investigating a building code violation in order to gain access for himself and Patrolman (Eric) Hanula to conduct a narcotics investigation,” Nightingale wrote.

Nightingale cited a 1992 case in which the courts found that “consent is not voluntary if obtained via deception.”

Smith, who according to court records is a Navy veteran who served in Desert Storm, rejected a plea offer in December that would have sent him to prison for the mandatory minimum sentence of five years.

A hearing date on the suppression motion has not been set because Nightingale missed the deadline to file pretrial motions.

Nightingale wants a judge to allow the late filing on the grounds that he missed the deadline only because up until the rejected plea offer in December, efforts had been ongoing “to resolve this matter via an amicable agreement.”

Smith is free on $100,000 bond.

Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or lzemba@tribweb.com.

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