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Marijuana plants allowed to remain as evidence against Smithfield man

| Thursday, Nov. 7, 2013, 12:01 a.m.

A Fayette County man accused of growing 377 marijuana plants lost a bid to have the plants tossed as evidence.

Charles Alan Smith, 53, of Smithfield 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, 2012, to investigate complaints of building 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.

In a pretrial motion, defense attorney Patrick Kenneth Nightingale sought to have plants suppressed as evidence, claiming Smith was duped into consenting to a search. Nightingale claimed Pasquale used the ruse of a code violation to conduct a narcotics investigation with police.

In an opinion and order issued Tuesday, President Judge John F. Wagner Jr. denied the motion. Wagner said Pasquale was doing his job when he went to the house to investigate complaints of “filth and unsanitary living conditions.”

Wagner noted that when Smith gave Pasquale permission to enter the house, Smith “did not attempt to limit the scope of the area of the search before doing so.”

Pasquale had searched the basement and first floor before he found the plants in an upstairs room, according to prosecutors.

Wagner said that although Uniontown fire Chief Chuck Coldren and a police officer waited outside while Pasquale conducted the search, there was no evidence they forced Smith to agree to the search.

“The mere presence of the police officer, seated in a clearly marked police vehicle at the curb, does not give rise to coercion,” Wagner wrote.

The fire chief and police officer were acting within their “delineated duties” when they went with Pasquale “because of complaints made by neighbors about trash and other conditions which were making defendant's home dirty, unsanitary and probably unsafe, even for defendant,” Wagner wrote.

Once Pasquale found the alleged marijuana, Wagner wrote, he was “within permissible constitutional parameters” to make an arrest and to relay his findings to the police officer waiting outside.

Court records indicate Miller in December rejected a plea offer that called for a sentence of five to 10 years in prison. He is free on $100,000 bond, pending trial.

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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