JUDGE: DRUG SEARCH EVIDENCE VALID

MANKATO -- A United States District Court judge has ruled evidence from a
2007 drug search can be used against a Mankato man facing a federal
firearms charge. The federal charge of being a felon in possession of
firearms was filed against Marcus Devon Smith, 30, in May. After his
arrest on Nov. 4, 2007, Smith was charged with felony drug possession and
firearm possession in Blue Earth County. Those charges were dismissed
after the case was shifted to federal court.

About nine ounces of cocaine and three handguns were found in Smith's
apartment in the 1200 block of Eastport Drive the day of his arrest, the
Minnesota River Valley Drug Task Force reported. Agents with the task
force searched the apartment after receiving a tip that Smith had a large
amount of crack cocaine and was packaging it.

Smith had challenged the search after questions were raised about the
information provided by the informant, and how that information was used
by agents to make a request for a search warrant. About two months after a
motion to dismiss the search evidence was filed in Blue Earth County,
Smith was taken into federal custody and the federal firearms charge was
filed. No drug charges have been filed in federal court.

Kasius Benson, Smith's attorney, also filed a motion in federal court
saying the evidence from the search should not be used during a trial.
Benson argued that drug agents didn't tell the Blue Earth County judge
that Smith had been in an argument with the informant the night before the
informant went to police.

Another witness also testified that the informant, a female, admitted that
she hadn't been at Smith's house the day she claimed drugs were there. The
witness, who had been with the informant when she spoke to an agent, also
said the informant admitted to lying to police, and that the agent offered
to get the informant's license back if she assisted police.

For those reasons, the search warrant shouldn't be valid and the evidence
gathered couldn't be used during trial, Benson argued in his motions.

He also said the search warrant request should have included information
about the informant's criminal record and recent disagreement's with
Smith. Those issues might have caused the judge to question the
informant's credibility, Benson said.

United States District Court Judge John Tunheim disagreed in his order
denying Benson's motion to dismiss the evidence.

Tunheim said, even if the agent left key information out of the search
warrant request, negligence or a mistake can't invalidate a search
warrant.

"Here, the omitted information is not clearly critical to the probable
cause determination," Tunheim said in the order. "(The informant) offered
personal knowledge and firsthand observations of Smith's criminal activity
to (the agent) on the same day that (the informant) said she saw Smith
packaging cocaine for distribution."

Federal prosecutors have not said why the drug charges were dropped when
the case was moved to federal court. The federal firearm possession charge
was filed because the handguns found had been, "shipped or transported
into Minnesota through interstate commerce," the federal complaint said.