ATTORNEYS SAY PRE-NUP AGREEMENT NIXES HOME SEARCH
IN COUPLE'S DRUG CASE

Attorneys for a former employee of the Athens County Prosecutor's
office and her husband, who are facing felony drug charges, have filed
some creative defense motions on their behalf.

One motion questions whether a Washington County Sheriff's deputy
knows marijuana when he sees it. Another argues that the wife could
not grant permission to police to search the couple's home, because a
pre-nuptial agreement puts its ownership solely in her husband's name.
Yet another suggests that the severity of marijuana cultivation
charges should be based, not on the weight of marijuana plants
allegedly found at their home, but on their weight after they are
cleaned of seeds and stems, and dried out as if for sale.

Constance "Connie" Zwahlen and her husband Hans Zwahlen were arrested
in Atlanta in October, after returning from a trip to Switzerland.
Authorities searched them and allegedly found marijuana and marijuana
seeds.

The two had already been under investigation locally by a multi-county
crime task force. Officers from area police agencies searched the
couple's Long Run Road property and allegedly found marijuana growing
there.

Connie Zwahlen was a secretary for Athens County Prosecutor C. David
Warren, who fired her after her arrest.

In Athens County, Hans Zwahlen is charged with cultivating marijuana,
and Connie is charged with complicity to cultivation and multiple
counts of drug trafficking.

The two have different attorneys, though Common Pleas Judge Michael
Ward recently granted a motion to join the two cases.

Hans Zwahlen's attorney, K. Robert Toy, has filed numerous motions on
his client's behalf, including one suggesting that the severity of the
cultivation charge may have to be lowered, once the "approximately 50
ragged marijuana plants" allegedly found at Zwahlen's home are cleaned
and dried.

Toy maintains that in passing laws against marijuana, Ohio legislators
never "contemplated the definition of marihuana to be anything other
than dried marihuana, when considering the weight of the substance."

The severity of a cultivation charge ranges from a minor misdemeanor
for under 100 grams, up to a second-degree felony for 20,000 grams.
Hans Zwahlen's case file does not yet show the level of offense he's
facing.

Toy acknowledged that case law indicates the state has no obligation
to clean and dry marijuana to determine its selling weight. But, he
offered, "the defense will do the work of separation and weighing the
material in its dried form," to obtain a weight that can be used in
charging his client.

Toy has also challenged the qualifications of a Washington County
Sheriff's deputy to identify marijuana, and asked Ward to allow him to
bring in his own expert.

The attorney noted that Officer Roger Doak, who identified a bag of
"green stems and green leaves" as marijuana, "is not a chemist, does
not work for the Bureau of Criminal Identification, nor does he have
any type of degree that would qualify him as an expert."

Both Toy and Connnie Zwahlen's attorney, Steven Story, have challenged
the search of the Zwahlens' home. Task force members apparently
traveled to Atlanta and got Connie Zwahlen's verbal permission to search.

Toy has alleged in a suppression motion that task force officers had
plenty of time to get a search warrant while the Zwahlens were in
custody in Atlanta. However, Toy wrote, "rather than spend five
minutes trying to obtain a search warrant from a judge, the police
chose to enter upon the land of Hans Zwahlen without a search warrant."

The attorney added that Hans Zwahlen never consented to the search,
and officers "never bothered to try to obtain a written consent...
Again, this would have taken 30 seconds."

While police "may believe they had the oral consent of Connie
Zwahlen," this was not legally sufficient to allow the search,
according to Toy.

This is because the Zwahlens have a pre-nuptial agreement, which puts
solely in Hans Zwahlen's name the property where he lived before his
marriage. In addition, Toy argues that Connie Zwahlen's permission to
search was obtained under duress - a point also maintained by her
attorney, Story, in a separate motion.

Story has filed his own motion to suppress evidence seized in the
search of the home, and also to suppress all or parts of a confession
Connie Zwahlen made to authorities in Atlanta. She allegedly confessed
to giving prescription painkiller pills to an Athens man, and to
illegal activity involving marijuana.

Story argued that the confession about the painkillers should be
suppressed, because the state has no independent evidence to back it
up. For example, the state has not obtained corroborating testimony
from the man who allegedly got the pills, has no eyewitness to the
exchange, and has never recovered the pills to establish whether
they're illegal drugs.

Story contended that Connie Zwahlen's confession regarding marijuana
is not admissible because it "was given under duress and coercion."

In support of this claim, Story noted that Connie Zwahlen was seized
by officers, given a body cavity search, and kept apart from her
husband, in the presence of two to three officers.

When she told officers she could not grant permission to search the
Athens County residence because of the pre-nuptial agreement, Story's
motion claims, they "continued to pressure (her) to sign the
consent-to-search form."

Based on the pre-nup, he added, the home was "owned solely by Hans
Zwahlen," giving his wife no authority to permit a search there.