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Judge throws out evidence in which officer claims to smell marijuana

Published Jan. 2, 2015

LARGO — A judge has thrown out the evidence in a drug possession case, saying there was insufficient proof a Largo police officer actually smelled the odor of marijuana he said was coming from a car.

It's the second time in a year that a judge has questioned a search in a drug case handled by Officer Michael Vegenski, and both cases involved the purported odor of marijuana.

In the newest case, Pinellas-Pasco Circuit Judge Timothy Peters granted a motion filed by Jordan Tawil, attorney for defendant John Craig Wallace, 24. The motion essentially asked Peters to throw out the evidence.

Tawil said he hopes the next step will be for prosecutors to drop the case. But if not, he plans to file a motion to dismiss it.

The Largo Police Department declined to comment.

In the recent case, Wallace and two friends were observed by officers on May 13 at a Hess gas station on Roosevelt Boulevard. Tawil said they were cleaning out a rental car, putting some of Wallace's belongings in plastic bins, and preparing to take the car back to the rental agency at Tampa International Airport.

Wallace drove the car onto Roosevelt Boulevard without stopping, a traffic violation. Peters said this gave officers a valid reason to stop the car.

But next officers searched the car. They found a Teddy Grahams container that contained cocaine and two other drugs, according to records. Wallace was charged with possession of cocaine, oxycodone and hydrocodone.

Because the Constitution bans "unreasonable searches and seizures," officers need to conduct such searches carefully. Peters' ruling says this search did not measure up.

Vegenski said he smelled the odor of burning marijuana coming from the vehicle. And another officer who came later agreed. However, a sergeant who stood right next to the car, which had an open window and open door, said he did not smell any. Wallace and a passenger also denied it. And no marijuana or paraphernalia was found in the car.

"It has not been established that there was any smell of marijuana," Peters wrote.

The marijuana smell wasn't the only issue. Vegenski said Wallace gave him permission to search the car, but Wallace denies it and no one else at the scene heard that conversation. Peters wrote that there was not sufficient evidence to show the police had properly obtained Wallace's consent to search the car.

Peters also noted that if Vegenski smelled marijuana, that would have given him probable cause to search the car without seeking permission. "There would be no need to ask for consent to search. In the arrest affidavit that Officer Vegenski signed under penalties of perjury a short time later there was no mention of this smell of marijuana," Peters wrote.

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Tawil said, "these guys abused their power and got caught … this is a clear abuse of discretion." He said the State Attorney's Office and Largo police need to investigate whether this case is part of a pattern of improper searches.

Previously, Wallace in 2008 was sentenced to a year in prison on drug-related charges. He is now enrolled in college, Tawil said.

In a different case earlier this year that did not involve Wallace, Peters ruled Vegenski was "not credible" when he said he searched a man because he detected "the heavy odor of marijuana." But in that case, other items recovered in a search of a hotel room remained in evidence, and the defendant pleaded guilty to a drug possession charge.

Contact Curtis Krueger at ckrueger@tampabay.com or (727) 892-8232. Follow @ckruegertimes.

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