January 19, 2006

Judge dismisses drug charges -
Evidence suppression leaves no case

Gary V. Murray, Worcester Telegram & Gazette (MA)

WORCESTER - Drug charges against a Liberty Street man have been dismissed at the request of prosecutors, who said the suppression of evidence against the suspect had left them without a case.

Judge Peter W. Agnes Jr. ruled in 2003 that heroin, marijuana and money seized by Worcester police on Sept. 16, 2002, from a sport utility vehicle owned by Aaron T. Wade of 15 Liberty St., could not be introduced into evidence at Mr. Wade's Worcester Superior Court trial.

The state Appeals Court upheld Judge Agnes' decision on Sept. 30, 2005. District Attorney John J. Conte's application to the state Supreme Judicial Court for further appellate review of the Appeals Court ruling was denied Nov. 30.

Judge John S. McCann dismissed drug charges against the 32-year-old Mr. Wade Tuesday at the request of Assistant District Attorney Eduardo O. Velazquez. In his written motion to drop the charges, the prosecutor said Judge Agnes' suppression of evidence and the Appeals Court's ruling affirming that suppression left him "without any independent evidence to present at trial."

In its Sept. 30 opinion, a divided Appeals Court found that Judge Agnes was correct when he concluded a police affidavit in support of a search warrant for Mr. Wade's Ford Explorer failed to establish probable cause to believe drugs or related items would be found in the vehicle at the time the warrant was issued or when it was executed four days later.

In their arguments against suppression, prosecutors pointed to evidence the Explorer was used by Mr. Wade in two prior drug sales to a confidential informant, the last of which took place two days before a clerk-magistrate issued the warrant.

The appellate court found there was nothing in the affidavit suggesting Mr. Wade used the vehicle to store narcotics or that he routinely carried an inventory of drugs in the Explorer ready to be sold. "If anything, the events described implied that the defendant's practice was to complete only one transaction at a time," Appeals Court Judge Cynthia J. Cohen wrote.

Mr. Wade's lawyer, Irwin Kwiat, predicted at the time of the Appeals Court decision the ruling would make it more difficult for police to get search warrants for vehicles in many drug investigations and bolster defense lawyers' chances for success in arguing motions to suppress.

Mr. Conte and Police Chief Gary J. Gemme took issue with the suppression, saying the vice squad affidavit in the case set out an adequate legal basis for the issuance of the search warrant.