JUDGE REFUSES TO REHEAR DRUG CASE

A federal judge Thursday rejected a prosecutor's bid to rehear testimony in
a drug case where a magistrate has ruled the search warrant was faulty and
suppressed evidence seized under it.

"That's somewhat unprecedented, is it not?" U.S. District Judge James Jarvis
asked Assistant U.S. Attorney Hugh Ward about his request.

Ward -- who is appealing U.S. Magistrate Robert P. Murrian's ruling in
connection with the search of a Unicoi County man's home that turned up guns
and marijuana -- replied that maybe Jarvis should make it a precedent.

The issue is important because Ward has indicated that without the evidence
seized in the Sept. 14, 1998, search of 49-year-old Lyle B. Shelton's farm,
the government doesn't have a case.

Jarvis, however, said that he'd handle the appeal in the customary way in
which a judge hears argument from lawyers on both sides and considers the
court record. That includes photographs, a videotape and a court transcript
of the nearly eight-hour hearing Murrian held.

When Ward tried to enter evidence developed recently Jarvis cut him off,
saying, "New evidence? New evidence? No."

"Yes," Ward replied, indicating that it was.

Jarvis responded, "No, I'm not going to rehear the case. You've got one bite
at the apple just like the defendant has one bite at the apple."

Murrian ruled last month that statements made to obtain the search warrant
for Shelton's property were false and made either intentionally or with
reckless disregard for the truth.

Specifically. Murrian found that the marijuana patch located by a Tennessee
Highway Patrol helicopter pilot wasn't actually on Shelton's property --
though the search warrant apparently indicates it was. He also held that
someone in the air could not have seen a path, leading from Shelton's front
yard to the marijuana, because of heavy foliage.

THP officers and a Unicoi County deputy testified earlier that the THP pilot
saw the marijuana and saw a path leading from it. In the subsequent search
of Shelton's home, officers found what they believed to be marijuana as well
as two guns.

Shelton, a convicted felon who was already on parole, can't possess a
firearm.

His attorney, Gregory P. Isaacs, successfully argued in July that there was
no path from Shelton's yard to the patch -- which is just across his
property line -- and if there was, the area is so overgrown that no one 600
to 800 feet in the air could have seen it.

"There was no proof of a patch from the front yard to the marijuana patch,"
he said Thursday.

Isaacs said there was a path to the patch about 100 feet down the road from
Shelton's property, and that may have been what the pilot saw.

He also contended officers had targeted Shelton and were looking for some
connection between the marijuana and Shelton. He said that the Unicoi County
Sheriff's Department requested the flight of the area where Shelton lives.

"Maybe it was serendipity, I don't know," he said sarcastically.

After hearing testimony and studying photos and videos taken this year of
the site, Murrian agreed.

"(Shelton) was under suspicion for growing marijuana all along," he wrote.
"The officers needed some connection between the patch that they discovered
and (Shelton's) premises. The connection they chose was the alleged path or
trail, but I find it simply did not exist."

Ward countered that Isaacs' expert in the case, private investigator Charles
Brown, had no experience locating marijuana from the air and visited the
site two years after the raid when the alleged trail had become overgrown.

He said Brown "is a nice guy" but wasn't on the scene then, and the officers
were.

"I mean how do you dismiss that and say in the report and recommendation
that. ... Charles Brown's opinion is accredited over the sworn testimony of
these officers?" Ward asked.

Jarvis said he would take the matter under advisement and issue a ruling
later.