NASHUA - Lull Farm owner David Orde was one of 49 dog owners whom Hollis police had to chase down last year, to serve notice of failure to renew their dog's license, Animal Control Officer Jane Belanger testified Tuesday.
The process, as Belanger described it, sounds like a lot of trouble for a violation that carries a maximum fine of $50, but police came up with something more at Orde's house: 16 potted marijuana plants, growing in the sunshine on the back deck.
Hillsborough County Superior Court Judge James Berry heard testimony Tuesday on how police came to find the marijuana, and now must decide whether police had any business going around to that side of Orde's house.
Orde, 54, and his son Andrew, 19, and their lawyers argue that the search of the property was illegal, and all of the evidence against them must be suppressed.
The Pot Debate
Orde admitted growing marijuana when confronted by police, Sgt. Richard Mello testified. There appears to be no dispute over the evidence that police seized, so Barry's ruling will effectively decide whether the Ordes can be convicted on felony marijuana growing charges.
Officer Angelo Corrado stumbled onto the pot after going to Orde's house to serve him with a complaint charging that Orde had failed to register his dog, Corrado testified. Corrado pulled into the drive, went up the brick walkway and knocked, he said.
Because there was a car parked in the drive and only the screen door was shut, Corrado assumed someone must be home, he said. When no one answered at the main door, he went around to the deck, thinking there must be a door there, too.
"My purpose was to try and talk to somebody, and get rid of this dog complaint," Corrado said.
Corrado typically gets 15 to 20 such complaints to serve each year, and the sooner he can deliver them, the sooner he can get back to more pressing police work.
"So you were hoping to disturb someone's peace if they were back there (on the deck)?" asked Orde's lawyer, Steven Maynard.
"No," Corrado answered, "That wasn't my intent. I just wanted to serve the dog complaint . . . . I was hoping to run into somebody on the back deck."
As it happened, no one was home. Orde is big on privacy, he testified, but not so much on security.
"I was born and brought up in Hollis. I've lived there 54 years. We never lock our house. I leave my keys in my truck," Orde said.
In summer, he leaves windows and doors open for the breeze, as he doesn't use air conditioning, he said.
Orde bought the house in 1984, and built the deck three years later, he said. He planted lilac bushes to shield it from the driveway, and has allowed undergrowth to flourish around the edges of his hilltop lot, from which he can see Wachusett Mountain, Grand Monadnock and, to the east, the Four Hills Landfill in Nashua.
Orde argued that few people ever come to the house uninvited, and those who do come invariably use the walkway to a door on the south side of the house.
"Not once in 25 years has a neighbor, a sales person, a Fed Ex driver or anything . . . no one has knocked on that door," Orde said, speaking about the door at the deck.
The Orde's lawyers argue Corrado had no right to walk around back when he got no answer at the main door.
Furthermore, based on state statutes governing dog licenses, they argue he had "no legal basis" to be there at all.
It costs $6.50 a year to license a dog in New Hampshire, Belanger testified ($9 if the dog isn't neutered or spayed), and the deadline for renewal is April 30. The town sends out reminders by mail earlier that month, she said.
Belanger said she reviews the rolls, and those who haven't renewed their license are referred to the town clerk, who has selectmen sign off on a "civil forfeiture" complaint, authorizing a $25 fine. State law allows a maximum fine of $50 if the town has to bring a dog owner to court to collect.
Belanger issued Orde a civil forfeiture notice on July 3, although selectmen didn't sign off on those notices until July 28, nearly two weeks later than state law requires, attorney William Christie noted, while questioning Belanger.
"So the warrant did not comply with the statutory process?" Christie asked.
"Correct," Belanger replied.
"And the civil forfeiture did not comply with the statutory process?" he asked.
"Correct," she answered.
Furthermore, Belanger acknowledged she herself had signed the complaint summoning Orde to court, though she is not a sworn police officer. She has worked as the town's animal control officer (a part-time job) since 1989, and the town has always done it that way, she said. She was trained to do it that way.
"So you were following orders?" Assistant County Attorney David Tencza asked.
"Yes," Belanger said.
This article appears in the March 13 2009 issue of New Hampshire Business Review