JUDGE DENIES REQUEST TO THROW OUT EVIDENCE FROM DRUG BUST

A Dallas judge Tuesday rejected a request to throw out evidence collected
in a drug bust, despite testimony by a prosecutor last month that
contradicted three different police versions of the arrest of a
twice-convicted felon last summer.

Visiting Judge Webb Biard denied a defense motion on behalf of Jonathan "El
Diablo" Vargas that argued that four Dallas police officers lied in reports
and under oath to cover up an illegal drug bust.

Judge Biard's ruling, which was filed without comment, places the issue
before a Dallas County jury next month at Mr. Vargas' trial.

If convicted, Mr. Vargas would face 25 years to life in prison because of
two previous felony convictions for drug possession and burglary.

Mr. Vargas' allegations against the four officers surfaced during a hearing
last month, when assistant district attorney Liva Liu's testimony differed
from two previous police versions of the Aug. 16 arrest.

The testimony prompted defense attorney Eric Smenner to ask Judge Biard to
throw out the evidence collected in the three felony charges against his
client.

The defense attorney said police raided and ransacked the apartment where
his client was arrested without a search warrant as part of a vendetta.

Mr. Smenner and prosecutor Tim Gallagher declined to comment until the
outcome of Mr. Vargas' trial.

Deputy Chief Ron Waldrop, a Dallas police spokesman, also would not comment
Tuesday on the allegations nor confirm that Mr. Smenner had filed a formal
complaint with the department's internal affairs division on behalf of Mr.
Vargas.

The complaint alleged misconduct by the four central operations division
patrol officers: Officer Philip Musgrove, Senior Cpl. Sheldon Smythe,
Officer David Beideck and Senior Cpl. Paul Park.

Chief Waldrop said department policy bars the four officers from commenting
on Mr. Vargas' allegations. The officers have amassed more than 120
commendations and have no major disciplinary actions against them.

According to police reports and testimony by three of the officers, Mr.
Vargas was arrested on three counts of drug possession after they saw him
smoking marijuana through an apartment's open doorway and he invited them in.

But Mr. Smenner argued last month that Ms. Liu's testimony bolstered his
client's allegation that the four officers raided and ransacked the
apartment in the 4900 block of Live Oak Street in Old East Dallas on a
"personal vendetta," not legitimate police work.

Ms. Liu told the judge that during an interview Nov. 30, Cpl. Smythe or
Officer Beideck told her the four officers went to the apartment complex
because of a domestic violence incident involving Mr. Vargas' girlfriend.

Ms. Liu passed the officer's remarks on to Mr. Smenner the same day, under
the rules that require prosecutors to turn over potential evidence to the
defense.

But during their testimony Dec. 1, both officers denied making such a
statement to the prosecutor.

Mr. Smenner said Ms. Liu's testimony also shored up statements by Mr.
Vargas' neighbors and the apartment complex's owner that contrasted sharply
with police accounts.

In the arrest report and drug seizure affidavits filed by Cpl. Smythe, and
in testimony by Officer Musgrove during a September hearing, the officers
were dispatched to the apartments on a drug call.

After Dallas police communications records showed no squad cars were sent
to the apartments that night, Mr. Smenner said, Officer Musgrove changed
his testimony.

Cpl. Smythe testified that he made a mistake on the report and took
responsibility for the entry error. Officer Musgrove testified he was
assigned to desk duty a few days before the arrest and received an
anonymous phone tip from a woman who told him drugs were being sold at the
apartment.