Judge upholds marijuana search

By Nick Gevock - 10/03/2008

Sutton-Day

A judge this week ruled that the search of a rural home near Dillon discovered to have a marijuana growing operation was legally conducted.

District Judge Loren Tucker said state and local agents were within their authority to search the mobile home where Scott Day and Summer Sutton Day were living after smelling marijuana during a visit to serve a search warrant.

"Defendants knew that unannounced visitors often came to their front door," Tucker said in court records. "That fact is not consistent with an expectation that no one will come to the front door unannounced." Tucker denied a motion by Jon Moog, a state public defender representing the Days, to have the evidence gathered during a search and seizure at the home thrown out. Moog could not be reached for comment Friday.

Beaverhead County Attorney Jed Fitch praised the decision, saying it would help law officers and prosecutors in future drug investigations.

"If we lost in this issue, I feel that it would really hinder law enforcement's ability to enforce the law in a search," he said.

The case has received a great deal of publicity because Day and Sutton Day have claimed the marijuana was for medical purposes. He was born with a degenerative disease that impeded his physical growth and caused a great deal of pain. He said the marijuana helped ease that, relax his muscles and cope with anxiety, among other benefits. She also has illnesses that she uses marijuana to cope with.

Day died last month at the age of 34 after battling the disease all his life. He was facing a handful of felony drug charges, including production, possession and intent to distribute marijuana.

Summer Day was charged with the same crimes, which are still pending.

But medical marijuana advocates from around the state have been lobbying Fitch to drop the charges against Summer Day. Advocates have argued she has suffered enough and should not be prosecuted for producing marijuana that she and Scott Day used to alleviate the pain of a number of ailments.

Neither Day nor Sutton Day had the permit required under Montana's medical marijuana law at the time of the search. They did get the needed permit after the seizure of the plants and were allowed by Tucker to keep using the drug during the case.

State agents with the Southwest Montana Drug Task Force had obtained a warrant to search the couple's mobile home just north of Dillon and were serving it Feb. 1. An agent "immediately smelled an overpowering odor of marijuana" as Sutton Day opened the door, court records said.

Agents searched the home and found 96 marijuana plants in a growing operation.

But Moog had argued that the search was illegal because the property was posted with no trespassing signs and officers had come right to the door of the home.

Tucker, however, cited numerous other cases in which searches on rural homes were upheld in court.

The officer's were acting reasonably by coming to the door to serve a warrant and were justified in searching the home once they smelled the marijuana.

"There is no reasonable basis to conclude that defendants would object to the presence of ambulance personnel, mail men or other persons on legitimate business," he said. "The officers were present for legitimate business of serving a warrant required by the court." Fitch said it was important that the county not lose the search and seizure issue. He is reviewing Sutton Day's case on the medical marijuana issue.

"This case is important and completely separate and detached from medical marijuana issues," he said. "It has to do with establishing a bad precedent for searches and I didn't want to lose that." Reporter Nick Gevock may be reached at nick.gevock@mtstandard.com.