WINNEMUCCA - Judge Michael Montero filed his order denying a motion to suppress evidence in the case of Garth Foster. Foster was arrested March 17 by the Nevada Highway Patrol for transporting a controlled substance.
According to Foster's court file document, Montero stated that the defendant's claim of moving into the number two lane in front of a semi-truck and trailer did not violate the law was ruled unpersuasive. Montero said that Trooper Wiley Lund, who was traveling behind Foster, deemed Foster's move unsafe according to Lund's experience and training. During testimony at the suppression hearing, Lund stated that Foster's move in front of the semi was only two to two and one-half vehicle lengths ahead of the semi and should have been at least seven car lengths for the speed being traveled.
The second issue brought involved the defendant's claim that law enforcement officers had created a situation forcing the defendant to commit a traffic violation. A video shown during the suppression hearing depicts Foster driving in the number one lane with Lund behind him and a pickup in front of Foster. Lund testified at the suppression hearing that he was in communication with the driver of the pickup who was also a law enforcement officer. Lund stated that he told the officer to "back off." Montero ruled this argument unpersuasive as he stated that the pickup moved over to the right lane before Foster did, allowing Foster to continue driving in the number one lane.
The third argument by the defendant was that the search warrant was not valid because the statement that a police dog is "certified" is not enough to establish reliability. Trooper Timothy Raabe had arrived at the vehicle stop with his dog for an external check for drugs. Montero reported that the Nevada Supreme Court has not addressed the issue of dog certification but that the Tenth Court of Appeals has ruled that a dog's certification constitutes reliability.
The final argument in behalf of the defendant was that an omission of information to the magistrate from whom the search warrant is being sought violates Fourth Amendment rights. Montero referred to Point v. State 102 Nev.143, 150 (1986) which reads "omission in and of itself does not void the warrant." Montero notated that knowingly false statements or reckless regard does void the warrant but that the defendant did not claim that false statements had been made in order to procure the search warrant.
Foster's sentencing has been set for Nov. 14 at 10:30 a.m.
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