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Sheriff Must Explain Why County Kept Seized Property Criminal Case Flawed, But County Using Civil Law To Keep Cash, Truck In Pot Case

Sat., Dec. 21, 1996

Pend Oreille County Sheriff Doug Malby has been ordered to explain in court why he didn’t obey a judge’s order to return property seized in a drug raid.

Malby said this week he hadn’t heard about Superior Court Judge Fred Stewart’s Dec. 12 order directing him to appear in court on Jan. 9 - one day before Stewart retires. Malby speculated that the judge may have been misled.

“Maybe he thought it was evidence we were holding instead of seized property,” the sheriff said. “Sometimes a judge doesn’t get all the information he needs, especially when it’s from a person who wants to get his property back.”

Stewart scheduled the Jan. 9 contempt-of-court hearing against Malby after Paul W. Bash complained the Sheriff’s Department refused to honor the judge’s Oct. 10 order to return property seized in a drug raid.

Malby believes Stewart’s order was improper, but said he will obey if the judge insists.

Stewart could not be reached for comment.

Malby said the disputed property - $1,900 cash, a 1977 pickup truck and several lesser items - is not being held as part of the aborted criminal case against Bash. Instead, the Sheriff’s Department is trying to confiscate the items under a civil law that says property may be forfeited if it was involved in drug trafficking.

The distinction is the same as the one that allowed O.J. Simpson to be sued in civil court for damages in a murder for which he was acquitted in criminal court.

Sheriff’s deputies and other officers in the Pend Oreille County Drug Task Force went past a locked gate and a “no trespassing” sign to get to Bash’s rural home near Ione on June 25. The officers didn’t have a search warrant when they accosted Bash and insisted they had to follow him inside the house to keep an eye on him while he called his lawyer.

Once inside, court documents indicate, the officers smelled marijuana and spotted some marijuana leaves. Deputy Sheriff Steve Groom called District Court Judge Chuck Baechler and got a search warrant over the telephone. Then officers found 30 pounds of marijuana leaves and some indoor growing equipment.

Bash was charged with manufacturing a controlled substance, but the prosecutor’s office moved to dismiss the charge Sept. 19. A prior state Appeals Court case indicated officers violated Bash’s “expectation of privacy” when they ignored the locked gate and “no trespassing” sign, Prosecutor Tom Metzger said.

He said the Bash case and the Appeals Court case from Tacoma are “so identical that it’s frightening.” The decision set a solid precedent because the state Supreme Court refused to review it.

Malby said his officers acted in good faith, but weren’t required to obtain the “99 percent” proof the prosecutor’s office may have wanted.

“If I’ve got 51 percent, I’ll take care of the crime,” Malby said. “I may not win the case in court, but I’ll put a stop to it.

“They can say whatever they want to about it (the Bash case), but the fact of the matter is that marijuana was taken out of that residence. The crime occurred.”

Court records show Bash, 45, was convicted in December 1993 of manufacturing a controlled substance. He was arrested earlier that year when deputies found about 400 marijuana plants in a building on his 64 acres of timberland near the Blue Slide Resort.

Bash attempted to back out of the plea bargain that resulted in his conviction, but was sentenced to 90 days in jail and $5,210 in fines and fees.

Since 1990, when state law authorized police to seize and auction drug-related property, public records show the Pend Oreille County Sheriff’s Department has collected $68,498. The department gets to keep 90 percent of the money for enforcement of drug laws, and the state gets 10 percent.

The law does not require a criminal conviction if the property was seized during an arrest or a search with a warrant. Property also may be taken if police have “probable cause” to believe the items were used or were intended to be used in illegal drug trafficking. The burden of proof is on the property owner.

Although Stewart already has ordered Bash’s property returned, the normal procedure in Pend Oreille County calls for a hearing before Deputy Sheriff Rick Jamison.

State law allows the hearings to be transferred to a judge. If Bash sought a transfer, his case probably would go to District Court Judge Chuck Baechler - not Superior Court Judge Stewart - because the property apparently is worth less than $25,000.

Malby said Bash’s hearing before Jamison is still pending because of postponements Bash and his Newport attorney, Dennis Scott, requested.

“It’s kind of irritating that an attorney will ask for a continuance and then go into Superior Court for something like that (contempt hearing against the sheriff),” Malby said.

Neither Bash nor Scott could be reached for comment.

, DataTimes

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