COURT SAYS 500 POUNDS OF POT NOT ACCEPTABLE EVIDENCE

DENVER -- Nearly 500 pounds of marijuana used to convict a man in
Topeka of a drug crime shouldn't have been used as evidence because a
trooper wasn't legally justified in detaining him for a search, an
appeals court ruled Tuesday.

The 2-1 ruling by the 10th U.S. Circuit Court of Appeals suppressed
the evidence.

"It will have to be dismissed -- there's no evidence (left)," said a
veteran drug prosecutor, speaking on condition of anonymity.

The marijuana was found in a motor home that defendant Robert Salzano
was driving when stopped by Kansas Highway Patrol Trooper John
Guerrero on Interstate 70. Guerrero said Salzano's motor home was
straying onto the shoulder.

Circuit Judge Mary Beck Briscoe, of Topeka, one of the three judges
assigned to Salzano's appeal, disagreed with her colleagues and said
the court should have upheld the conviction.

Salzano was indicted last year for possessing marijuana with the
intent to distribute. He was convicted in U.S. District Court and
sentenced to five years in prison.

U.S. District Court Senior Judge Dale E. Saffels denied his request to
suppress the marijuana evidence. Salzano claimed it was obtained as
the result of an unlawful seizure.

The appeals court ruled the seizure was illegal because a prosecutor
failed to prove that Guerrero had a reasonable suspicion of criminal
activity when he detained Salzano.

Guerrero stopped Salzano because the motor home he was driving was
straying onto the shoulder, the judges said.

The judges in the majority said none of six reasons Guerreo cited was
sufficient to justify detaining Salzano until a drug-sniffing dog
arrived for a search.

In a dissent, Briscoe said the majority judges disregarded "the
totality of circumstances."

"The evergreen odor, combined with Salzano's nervousness and his use
of an unusually expensive means for one person to travel across the
United States in the winter, were sufficient to establish reasonable
suspicion that he was transporting drugs," she concluded.

Authorities believed Salzano used evergreen to mask the marijuana's
odor.

Checked-by: "Rich O'Grady"