By Stephen Nohlgren, Times Staff Writer
In Print: Wednesday, March 21, 2012
LARGO — Amid allegations that narcotics deputies trespassed and lied to gather evidence, the Pinellas-Pasco State Attorney’s Office announced Tuesday that it is dismissing charges against an accused St. Petersburg marijuana grower and will reconsider dozens of similar cases.
The dropped case was against David Cole, 60, who said he was growing pot in his shed to treat his multiple sclerosis symptoms.
His attorneys were scheduled Tuesday to grill a key deputy under oath about possible misconduct within the narcotics unit. But that opportunity evaporated along with the case.
"Information came to light Friday that calls into question the veracity of those involved in making that case to the point where I believe the right thing to do is to have that case dismissed,” Pinellas County Sheriff Bob Gualtieri said on Tuesday.
Gualtieri would not give more details because his internal affairs office is now investigating how the Cole case and others stemming from the two-year surveillance of a Largo hydroponics store were handled.
Sworn search warrant applications by deputies Paul Giovannoni and Michael Sciarrino — the lead detectives in the grow house cases — said they could smell indoor pot farms from public sidewalks and neighbors’ yards. But defense attorneys think that the two deputies and at least one supervisor trespassed to get their information, which is illegal.
Neither Gualtieri nor Beverly Andringa, executive assistant state attorney, could pinpoint Tuesday how many grow house cases are in jeopardy, saying only that they number in the dozens.
"We need to look at them all,” Gualtieri said. "Because the information we have goes to general veracity. Once there is that allegation, then it touches anything that certain people may have touched.”
Giovannoni and Sciarrino declined to comment.
Cole said he was relieved to have the charges dropped. He was caught with 87 plants at varying stages of growth and acknowledges that medical marijuana is illegal in Florida. He had no criminal history in Florida and says his attorney advised that he probably could have plea bargained for nothing more than probation as punishment.
But when he heard the deputies might have trespassed and lied about it, Cole said, he told his attorney to reject any plea bargain and use his case to pressure the Sheriff’s Office for answers. He was particularly angered by concrete blocks stacked in stair-step fashion on his neighbor’s property next to his fence. Cole thinks officers might have put them there to vault his fence.
"We have to make sure that the people we employ for our protection acted appropriately,” Cole said Tuesday. "That’s more important to me than what happens to me.”
Cole’s case is where Tuesday’s canceled deposition of former narcotics deputy Kyle Alston came in.
Alston had already been deposed in February, in a Tarpon Springs grow house case. Defense lawyer Newt Hudson asked if Alston had ever seen Sciarrino and Giovannoni "climb over fences,” shorthand for trespassing.
Alston refused to answer.
Hudson is now trying to use this refusal, along with other information, to have his Tarpon Springs client’s search warrant thrown out, killing any prosecution.
Hudson also alerted other grow house lawyers, some of whom are sharing information and call themselves the Scent of Justice Gang in mocking reference to the marijuana sniffing.
Clearwater lawyer Douglas deVlaming scheduled Alston to give testimony in Cole’s case on Tuesday, this time with a judge standing by to rule on whether Alston had to answer questions.
"We believe Kyle Alston was going to come in and testify to the truth . . . that these guys were jumping fences,” deVlaming said Tuesday. "And I also believe Kyle Alston has told that to internal affairs.”
Alston declined to comment.
DeVlaming applauded the sheriff and the state attorney for re-evaluating all the grow house prosecutions but said defense lawyers will continue to subpoena Alston for testimony in other cases as long as any charges are pending.
DeVlaming also said State Attorney Bernie McCabe should convene a grand jury to examine the grow house cases, or federal prosecutors should weigh in.
"We want to have confidence that we can trust police officers,” deVlaming said, "and quite frankly, dropping cases and throwing a few underlings under the bus isn’t going to cut it with us.”
Gualtieri estimated it would take about three weeks to complete an internal affairs investigation.
"I met with my captain this morning. We are trying get it done fairly, but also as quickly as possible,” Gualtieri said. "I don’t want a rush to judgment.”
Besides re-evaluating pending grow house cases, both he and Andringa said they will also examine investigative techniques on cases recently resolved through plea bargains or convictions.
"Many (cases) may be involved before it is all said and done.” Gaultieri said. "Many may go.”
Information about alleged trespassing surfaced in the last few weeks, he said. Cole’s case was one of several under scrutiny when deVlaming subpoenaed Alston for deposition.
The timing of Tuesday’s scheduled deposition accelerated the decision to drop Cole’s charges, Gualtieri said.
"Depending on what questions are asked in deposition it could frustrate our investigation because (defense lawyers) don’t know what we know,” Gualtieri said. "They don’t know where we are going and what we need to do. That could cause information to get out and affect other witnesses in this investigation.”
That argument is not swaying defense attorneys to back off.
Clearwater lawyer Bjorn Brunvand said he will seek an expedited deposition in the next few days of Alston, Gualtieri and a Progress Energy Florida employee who helped officers find out how much power grow house suspects were using.
"I would not be surprised if the same thing happened in my case,” Brunvand said, referring to charges against Cole being dropped.
Largo lawyer John Trevena said complaints against the grow house deputies date back to 2008. One client was caught with 93 plants and sentenced to three years in prison after a detective secured a search warrant by stating that he could smell marijuana from a sidewalk.
Trevena said he had a National Weather Service meteorologist ready to testify that the wind was blowing away from the detective that night, but nobody in the court system would listen.
He will also seek depositions if his clients’ cases aren’t resolved, Trevena said. "I am not going to let my clients’ futures rely on (the sheriff’s) investigation. I am going to conduct my own investigation.”
Stephen Nohlgren can be reached at (727) 893-8442 or [email protected].