Even though law enforcement officers could smell marijuana from outside the residence of James Gilbert and knew he had served three years in federal prison on drug charges, they failed to legally obtain a warrant to search his residence, the suspect's lawyer says.
Derrick Lopez, Gilbert's attorney, filed a motion in East Fork Justice Court to suppress the 50 pounds of marijuana plants that officers seized when they raided Gilbert's residence Oct. 5.
The marijuana has a street value of $400,000, according to reports.
Lopez said the officers failed to investigate whether Gilbert and housemate Teresa Jo Ortega, 43, had a lawful right to grow marijuana.
The suspects had been issued permits by the Nevada Department of Agriculture for medical marijuana.
"The fact that a person possesses a medical marijuana permit does not alone constitute probable cause to search a person or their property," Lopez wrote in his motion.
"The search warrant was issued without probable cause to believe evidence of a crime would be found at the residence."
Gilbert, 42, and Ortega, 43, were arrested after an early-morning raid at their Kathy Way residence.
Officers confiscated 11 plants including one that was 6 feet high and 20 feet wide. They estimated the yield at 50 pounds.
Gilbert's prior record includes a 1997 arrest in Barstow, Calif., after officers found 1,184 marijuana plants. He served three years in federal prison.
The search warrant was obtained after a probation officer knocked on the door looking for a suspect and could smell the marijuana from the sidewalk.
"The odor of growing marijuana does not rise above mere suspicion," Lopez wrote in his motion filed Monday. "A failure to investigate whether the occupants had a lawful right to grow marijuana constitutes a reckless indifference to the truth."
East Fork Justice Jim EnEarl set a hearing for Nov. 22 to hear arguments on the motion.