Judge Dismisses Drug Case, Cites “Outrageous Conduct” By BCSO - WMBB News 13 - The Panhandle's News Leader

Judge Dismisses Drug Case, Cites “Outrageous Conduct” By BCSO

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Judge James Fensom, 14th Judicial Circuit Judge James Fensom, 14th Judicial Circuit
Lisa Anderson, Criminal Defense Attorney Lisa Anderson, Criminal Defense Attorney

A circuit judge dismissed a drug case against a Bay County man last week and, in doing so, issued a stinging rebuke of law enforcement's handling of the case.

Judge James Fensom of the 14th Judicial Circuit based his April 12 ruling on unlawful police conduct, destruction of evidence and violation of due process by the Bay County Sheriff's Office, according to court documents.

The case involved the August 2011 arrest of Jeffery Scott Gage, who was charged with having 13 pounds of marijuana mailed to his ex-wife's home and later hiding it in a storage shed.  In his ten page opinion, Judge Fensom wrote that the BCSO demonstrated "clear intent to mislead and deceive" and the agency's "outrageous conduct" offended the sense of justice and fairness.

Judge Fensom cited specific examples of how law enforcement acted in bad faith:

  • investigators illegally installed a GPS tracking device on Gage's vehicle without a warrant;
  • trespassed on Gage's property at least twice to change the batteries in the device;
  • tracked the defendant to a storage shed and searched it before obtaining a warrant;
  • failed to disclose use of the GPS to the State Attorney's Office or Gage's defense attorney for more than six months after the arrest; and,
  • destroyed the GPS data to cover up its illegal use.

Lisa Anderson, a criminal defense trial attorney who represented Gage, said she and her client were elated by Fensom's dismissal of the case, something that rarely happens.  "It's the most extreme sanction but it's the only sanction that could have satisfied in this circumstance," said Anderson.  "This order is loud and clear and it says that our judges won't stand for that... this kind of behavior is not okay."

Fensom called the BCSO's conduct "shocking" and said the agency conducted a "…calculated scheme to use improper means, and subsequently hide those means" in order to secure a conviction.

"Law enforcement knows what their bounds are and when we have circumstances where we have law enforcement stepping over the bounds to obtain a conviction or an arrest at all costs, we have a big problem," said Anderson.  "They have to operate within the same rules that everybody else has to operate under and when they break those rules, they're creating the kind of harm that they're trying to prevent in the first place."

Anderson said at least one of her previous cases might have included similar investigative tactics and plans to review the case file.  She worries that the Gage case was not an isolated incident.

"I wonder how many people are sitting in prison right now or on probation who were convicted as a result of these illegal law enforcement tactics," she said.  "When we're talking about the deprivation of somebody's constitutional rights, it's a question that has to be answered."

Sheriff Frank McKeithen declined to be interviewed for this story but released a written statement to News 13:

"I have read the judge's recitation of what he perceived the facts to be, and while we respectfully disagree with some of the conclusions reached, we do take his findings very seriously. In light of that fact, and regardless of our disagreement, we are evaluating our procedures and investigative techniques and will determine what changes, if any, we need to implement.  This evaluation is ongoing at the present time, but because of the sensitive nature of investigative techniques, we will not discuss these matters."

Greg Wilson, Chief Assistant State Attorney, said his office reviewed Judge Fensom's order and does not anticipate filing an appeal.

Anderson said she was satisfied that justice ultimately prevailed in the Gage case.  "We've got a judge sitting on the bench who's looking out for regular citizens and who is protecting the Constitution," she said.

Click on the link to view Judge Fensom's Order Granting Motion To Dismiss.