Medical marijuana conviction against Frank Marzano tossed due to illegal search

Back in July, attorney Rob Corry told us about a case involving Frank Marzano, a medical marijuana grower who was convicted in 2007 after his crop was discovered during an unrelated search for a wanted fugitive.

Today, Corry reveals that the criminal charges have been dismissed. Find out why below:

Three years ago, authorities showed up at Marzano's Loveland home in search of a fugitive named Randall Zandstra, who was suspected of holing up there. They obtained permission to search by way of a letter from Anthony Dugasz, whose late mother had owned the house -- but they didn't get clearance from Marzano, holder of a lease allowing him to be there. In the Colorado Court of Appeals ruling in the Frank Marzano case, the lease proved key. An excerpt:

Upon entering the home, officers found defendant, who answered in the affirmative that he had a lease or other arrangement with Ms. Dugasz to be on the property. The existence of such an arrangement without Mr. Dugasz's knowledge was certainly possible, given his limited knowledge of the property. At this point, the police should have obtained consent from defendant to continue searching the house or obtained a search warrant if he refused.

In oral argument, the People conceded that they relied exclusively on the consent of Mr. Dugasz for the warrantless search. However, a third party does not have the authority to consent to a search simply by virtue of his ownership of the property... Defendant confirmed to police officers that he had a lease or other arrangement with Ms. Dugasz to occupy the property, and it is undisputed that he never expressly gave authorities consent to search. The People, therefore, had the burden to show that he was an occupant without permission, a burden which they did not meet. Accordingly, the initial search was unlawful because it was conducted without consent from the present occupant...

Did the illegality of the search mean the marijuana that led to Marzano's distribution and cultivation conviction should have been considered inadmissible? In a word, "yes." Here's the explanation:

Because probable cause for the search warrant was based upon the officers' discovery of a large marijuana growing operation in the house during an illegal initial search, the search warrant was also invalid...

We therefore conclude that there was not valid consent to the initial search and that all evidence found during the initial search and pursuant to the subsequent warrant must be suppressed. Accordingly, the trial court erred in denying suppression of the evidence.

In speaking about the initial ruling back in July, Corry said, "Judges are usually right. But this time, with all due respect, the trial court got it wrong. And that's why we have appellate courts -- to correct errors and guarantee people's constitutional rights."

For Corry, and for Marzano, the situation worked out just as he outlined.

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts