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Highlands Today

More Evidence Inventory Woes

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By GARY PINNELL

Highlands Today

Published: September 17, 2008

SEBRING - On Oct. 30, 2007, Highlands County Sheriff's deputies knocked on the door of Nelson Rodriguez, 549 Washington Place, in the middle-class Leisure Lakes subdivision west of Lake June In Winter.

It was a grow house raid. Inside, the detectives found 120 plants.

"The odor of live marijuana plants was overwhelming," wrote Det. Ernest Gelinas, the arresting officer, in his report. "The majority of the residence was turned into an active indoor marijuana grow operation... The exact weight of the plants was unknown at the time, but it was clearly in excess of 25 pounds."

Investigators arrested Rodriquez, who was charged with the grand theft of more than $10,000 worth of electricity, possession of drug paraphernalia, and trafficking, since he possessed more than 25 pounds of marijuana.

In the past two years, deputies have busted more than 75 grow houses, arresting more than 100 defendants, seizing thousands of plants, grow lights, air conditioners, and other evidence. The evidence room in the sheriff's office was quickly overwhelmed, so Sheriff Susan Benton rented storage trailers.

But now, despite all that evidence, the trafficking charge of the Rodriguez case may be in jeopardy, said Assistant State Attorney Steve Houchin.

This is the latest fallout from the growing evidence inventory predicament. A hearing has been scheduled for Sept. 24, and District Judge Peter Estrada must decide whether to dismiss the case against Rodriguez. If prosecutors lose that one, a floodgate could open, and other cases could also be dismissed.

It goes back to a report Benton released in April. A team had inventoried the evidence room, and determined 33 inventory items were missing.

Some marijuana couldn't be inventoried at all. "Sixteen cannabis evidence items were unable to be weighed or individually accounted for due to advanced spoilage," the report said. "Due to decay, the cannabis items, along with their packaging and labels, have merged into a compost-like state."

However, Benton's report predicted: "NO criminal prosecutions will have to be abandoned due to the issues identified by this audit."

"I have a lot of problems with those grow house cases," Houchin said Friday. "The evidence has been destroyed, it's been co-mingled, and that sort of thing. On all the grow house cases."

At 1:30 p.m. Sept. 24, Estrada will rule on a motion by Justin Gaines, Rodriguez's lawyer, to throw out count three of his case: trafficking in cannabis.

In an Aug. 27 motion, Gaines, whose office is in Polk County, wrote that he phoned Sgt. Jamie Casey, who informed the attorney that the cannabis in the Rodriguez case, "was improperly stored. As a result, the cannabis mildewed, creating a biohazard to anyone inside the storage facility."

Gaines "was advised that we would be denied access to said facility due to the foregoing dangers and problems and would unable to identify which of the alleged cannabis was seized from the defendant."

"I don't think the entire case is dismissed," said Michael Durham, attorney for the sheriff. "Trafficking is dependant on the weight."

However, Durham said, the officers can show photos and video tapes, and they can testify about what they found.

He also doesn't believe the grand theft case would be thrown out, because the state can still prove that Rodriguez stole electricity.

An attempt to contact attorney Gaines by telephone on Tuesday was unsuccessful.

Gary Pinnell can be reached at gpinnell@highlandstoday.com or 863 386-5828

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