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OGDEN — A case against an alleged drug suspect in Ogden has been dropped because of credibility issues involving the former police officer who made the arrest.
A defense attorney said he believes other criminal cases may also be dismissed because of illegal wiretaps.
Bobby Gilbert Martinez, 38, of South Ogden, was charged in December of 2013 with 11 first-degree felony drug-related crimes, including distribution and engaging in a pattern of unlawful activity.
The arrest was part of a larger investigation by the Weber-Metro Narcotics Strike Force into an alleged drug trafficking operation from Phoenix to Ogden. It was an investigation that also involved the use of wiretaps.
But defense attorney Randy Richards said the way former Ogden police officer Don Henry Johnson obtained the warrant for the wiretaps was done under false pretences.
In February, Richards filed a motion in court to have his client's charges dropped. Oddly, prosecutors did not file a response. Rather, without warning on Monday the Weber County Attorney's Office requested that the case against Martinez be dismissed.
In his motion, Richards noted that the warrant to arrest his client started with two alleged drug buys made using Johnson's phone in which he recorded the conversations. The phone and his home computer on which he allegedly stored the conversations, however, were allegedly lost when his house burned, leaving Johnson's word as the only evidence that the calls were made, Richards said.
(Affidavits say) that we've tried undercover officers, confidential informants, grand jury testimony, search warrants, wall stops, trash dumps, a list of about six or eight things they tried and failed, when basically they hadn't done any of those.
–Randy Richards, defense attorney
"Despite the fact it is unusual and arguably against department policy to store confidential phone calls on a home computer, the evidence of the destruction of the phone and computer is simply nonexistent," Richards argued in his motion.
Richards noted that Johnson's house had not "burned down" as he had claimed, but suffered mostly smoke and water damage during a fire that Richards and other believe Johnson started himself, the court motion states.
Johnson, 29, is currently facing criminal charges of his own. He was charged in January by the Davis County Attorney's Office with two counts of distribution or arranging to distribute drugs, a second-degree felony. Johnson was placed on extended leave by the department but resigned before the internal investigation was completed.
Richards believes drug cases that were filed against about a dozen other people because of illegal wiretaps will also be dismissed.
"There's still a lot of problem in the whole wiretap stuff. This is kind of unprecedented for Weber County, this many wiretaps," he said. "There are other ways to do (drug investigations) that don't compromise the privacy that I think all of us are entitled to enjoy under the Constitution."
Richards said he has shared information with other defense attorneys about the wiretap cases.
In order to get a judge to sign off on a wiretap, Richards said an officer has to show a necessity for one because all other options to get information have been tried.
"Because a wiretap is so much more invasive than a regular search warrant," he said. "A wiretap, it's a continuous thing. So hundreds of phone conversations, literally, and they never have to tell you they're doing it. And a lot of people have conversations on phones that they wouldn't want — you know, not illegal things, but personal things — you wouldn't want people listening in on. So because of that, it's a heightened standard.
"They basically made that (necessity) claim in all of these affidavits, and it's kind of a boiler plate deal. It says that we've tried undercover officers, confidential informants, grand jury testimony, search warrants, wall stops, trash dumps, a list of about six or eight things they tried and failed, when basically they hadn't done any of those."
Richards contends that most of the charges now in question were "based solely on conversations they had on the phone, and a very loose interpretation, by the way."
In one incident, two people talked about "coming over for coffee," he said, which police interpreted as a code for drugs.
A message left with the Weber County Attorney's Office on Tuesday was not immediately returned.
Johnson is scheduled to appear in court again on June 3.