High-profile drug bust unravels: Appeals court tosses Hadley police warrant used for South Hadley home search
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SOUTH HADLEY - Can't touch this. So finds the Massachusetts Appeals Court, in a case involving one of the biggest pot busts here in decades.
The conviction of a South Hadley man on drug and firearms charges last year has been reversed because of an unjustified search warrant executed by Hadley police and issued by an assistant clerk magistrate.
Meanwhile, the whereabouts of a missing set of dishes, record albums and a Beatles figurine remain a mystery.
The Northwestern district attorney's office, which handled the appeal for the commonwealth, conceded to the court that an initial search warrant should never have been issued to police who entered the home of Stephen and Diane Opalenik at 5 Bach Lane in South Hadley on March 13, 2008.
"In this instance, I did not see anything other than an invalid search warrant," said Assistant District Attorney Judith Ellen Pietras, who in a four-page memorandum asked the Appeals Court vacate the verdicts against Stephen Opalenik. The court concurred.
See related documents in the case:
--The search warrant
--The Hadley police report
"Maybe there was a hunch, but it certainly didn't rise to the level of probable cause," said Hadley attorney David Mintz, who represented Opalenik in Hampshire Superior Court, but not in his appeal. "It really was an intrusive leap, I think, for them to get into the house.
He added, "There is something about the sanctity of the home that the SJC and Appeals Court really pay attention to."
Hadley incident
At the time of their search, police had been looking for a set of dishes and other items that had allegedly gone missing from an unoccupied farmhouse at 425 River Road in Hadley.
The Opaleniks had been questioned by Hadley patrol officers at the River Road home three days earlier after family members with connections to the property discovered the couple leaving the abandoned house. The Opaleniks say they were looking at the property with the idea of buying and renovating it for resale.
"We said, 'Let's take a peek,'" recalled Opalenik in an interview. "It was a very lackadaisical meandering of the place. The way it was set up was somebody died and the place was left to nothing. That was my impression of the place."
A Hadley police report states that the victims at the scene, Tom and Bill Tudryn, were not sure if they wanted the Opaleniks arrested, because nothing had been taken from the home - and because the house had been vacant for years. The police report suggests the Opaleniks entered the home. It notes the presence of carpentry tools and a sledgehammer in the rear of an open hatchback belonging to the Opaleniks and a pile of antique items stacked up near a rear kitchen door of the house.
The Opaleniks were let go after questioning but police told them they could be summoned on criminal charges, including malicious destruction of property and possession of a burglarious instrument.
South Hadley search
After securing a search warrant, Hadley police went to the Opaleniks' South Hadley home three days later to look for the items reported missing from the River Road home. While there, police found evidence of marijuana cultivation. They then obtained a second search warrant and discovered a large-scale hydroponic marijuana-growing operation in the basement of a locked outbuilding in the backyard.
State police, along with Hadley and South Hadley police, were involved with the searches. They seized two unsecured shotguns, about 500 marijuana plants and sophisticated cultivation equipment. One state trooper estimated the street value of the marijuana conservatively at $25,000, according to court records.
Despite all the leafy contraband seized, the DA's office and Appeals Court both determined there was no probable cause for the initial search warrant, which invalidated the second search warrant.
"Not only is there no probable cause to believe the defendant had stolen any items from the house on March 10, 2008, there is no nexus between any alleged stolen items and the target property of the search warrant," the Appeals Court ruled. "In fact, it is not even clear from the affidavit that the items had been stolen or when they had last been seen."
The court reversed judgment in favor of Stephen Opalenik, 51, who was found guilty a year ago on charges of possessing a Class D drug with intent to distribute and two counts of improperly storing a firearm. Opalenik had been sentenced to five years probation. He was fined $5,000, required to attend 480 hours of community service and attend group counseling. His wife was not charged with any crimes.
In a Gazette story last year, Opalenik took responsibility for the pot-growing operation and said he "wasn't thrilled to break laws." He said he began cultivating the drug as a way to pay bills after knee and shoulder injuries made it impossible for him to work steadily as a roofer.
"I was strictly looking at it as business," he said at the time.
Search for answers
Mintz described the Appeals Court decision as a "huge, huge victory" for the Opaleniks. Diane Opalenik is now seeking a financial settlement from the town of Hadley for the "illegal intrusion of my home by Hadley police based on a fabricated search warrant," according to a Jan. 21 letter to Hadley Town Administrator David Nixon.
"We believe there was a conspiracy between all parties to fabricate this thing and get over here," Stephen Opalenik said. He described the latest ruling as "the right decision considering everything that went down."
A Hadley police affidavit for the invalidated search warrant states that they received a broadcast from the Massachusetts State Police in Lee on the evening of March 10, 2008, involving an investigation into a similar breaking and entering in which antiques and old jewelry were taken. "There was also mention of a female suspect involved with the Lee case," the affidavit states.
The Opaleniks filed a public records request with the state police seeking a record of that broadcast and incident. State police were not able to find any such record after an initial review, according to the agency's written response.
"We have nothing left to go on," Stephen Opalenik said, of his attempts to verify the state police broadcast.
Nixon said he's forwarded the Opaleniks' settlement demand letter to the town's legal counsel and insurance company and expressed surprise at the Appeals Court decision.
For the past several months, the Opaleniks have persistently demanded from both Hadley and South Hadley police internal affairs records regarding the case, but have received little to no documentation. Last year, they filed a complaint with Hadley officials alleging a police conspiracy and demanded an internal inquiry.
At the request of town officials, Hadley Police Chief Dennis J. Hukowicz investigated the Opaleniks' claims, which he found to be "unfounded and not sustained," according to an Oct. 6, 2009, letter to town officials.
South Hadley Police Chief David LaBrie said his department was contacted as a courtesy by Hadley police when they planned to execute a search warrant in his jurisdiction.
"It's standard police procedure," said LaBrie, who has turned over correspondence from the Opaleniks to the Northwestern District Attorney's office.
"Certainly, if there was going to be an internal investigation of what we did, we wouldn't be the ones doing it," he said.
Dan Crowley can be reached at dcrowley@gazettenet.com.
Comments
This guy is guilty and got
This guy is guilty and got off a on a technicality. Hopefully this is reported to the Mass DOR and the IRS for income tax evasion. It is highly unlikely that he reported the illegal income from is drug business on his taxes.
Taxes paid
Court look into the guys income history, he's never skipped a year since he was sixteen.
No money
Court found no money was made. They found that the evidence showed that it was a start up operation.
It wasn't ruled a technicality. It was more apparent to the court that it was a fabricated search warrant. Besides he did a year of time and paid fines already.
Agree!
Common People, what is the matter with you? What this guy is doing is WRONG! He admits it, even feels bad he's doing it. drugs and guns did you read that part? People are screaming and police are trying to rid our society of drugs. Also what a crock the excuse they gave for going in the abandon house. If your interested in buying it, find out who owns and inquire. Sounds like this guy has no respect for the law or other peoples property. Oh and very Nice house by the way.
The abandoned house
The house was abandoned because the owner died in 1991 with no heirs. So who does he contact?
police conspiracy is wrong
Fabricating search warrants to get into somebodies home is wrong. This is not the end. And the house he owns he built in 1983 from a salvaged Ice barn that once stood on Cabot street in Holyoke. Not bad for salvaged lumber. One thing is for certain; the last election that I witnessed the majority ruled legalization for pot. Even Sheriff Garvey and five other Sheriffs agree that we should loosen the reigns on pot, but we all agree that unwarranted searches are more criminal than a pot grower.
No,
In the last election pot was not "legalized", possessing small amounts was decriminalized. What this man had was not a small amount nor did he just start up. If he had to sell it because he had no money to pay his bills, where did he get the tens of thousands of dollars to purchase the equipment to grow it?
Malicious prosecution?
I just looked into malicious prosectution. This guys got a malicious prosecution case. They indicted him without probable cause, then convict him without the real facts, and he wins the case based on no prbable cause. That's a malicious prosecution. Thay didn't have all their ducks lined up in a row. No investigation about control of the guns or whose pot it really was. State has to prove beyond a reasonable doubt, it's not the defendants responsibilty to prove inocence. Wow! Now comes the plaintiff! $$$$$$$$$$$$$$$$
Not Guilty
I'll tell ya what you don't know and what the State could not prove and did not prove guilt beyond reasonable doubt. This operation wasn't his to begin with, he just supplied the building. In fact if you read between the lines of his statements, it was a community grow op for people who had illness's. He didn't make a dime on pot. He's broke. He dosn't even smoke the stuff. And by the way, as a result of the Courts finding, the cops have to return the equipment undamaged. Tens of thousands of dollars, is that what that equipment is worth. Is that $20,000.00 or $30,000.00. Nor did he just start up; then why did the police report it that way? Based on their findings that's what they said to the prosecutor, are they lying. It's not up to the defendant to prove his innocence, it's up to the state to prove his guilt by investigation before indictment. They did not. They also screwed up on the gun charges. His wife had control of the firearms, she has a legal FID card. At the time it was expired, but that's not a criminal charge as opposed to without one, she just needs to renew it. Good luck with the second amendment issue.
Not guilty?
No, he was not found not guilty, the evidence was thrown out because of a faulty search warrant.
Read the police incident report online
it states that the cops found nothing in the Opalenik vehicle at the abandoned house owned by the Tudrns, and the Tudryns themselves admitted that nothing was taken and the house had been vacant for so many years. They then let them leave, with nothing of the Tudryns. There was no hard evidence to arrest, otherwise, they would have. So how is it in the following days, the Tudryns then say, that they store things in the abandoned house like a thousand dollars worth of china and that they're missing, huh. The thousand dollar question that the DA and the Appeals court got right is, when was the china taken by the Opaleniks? Answer that Houdini based on aaaaall the evidence within that incident report on March 10, 2008, and you will have a probable cause...... otherwise the officer's probable cause is considered, fabricated, GET IT ! Timely nexus, it's over your head.
It's obvious that your not quite intuned
like the cop who fabricated the affidavit for the search warrant. It was NOT considered a faulty search warrant, it was based on no investigation and fabrication. What don't you get about LAW! Faulty would be something like forgot to put something down or a mistake. The DA and the court ruled that there was no probable cause, meaning, the story is fabricated. The warrant as it stands was used for an improper purpose. The DA doesn't support dirty evidence. Evidence was given in the most favorable light to the State and it failed miserably. It is applied law that improper purpose can be infered from lack of probable cause. As it now stands the trial never occurred, motion to suppress evidence is granted. No pot, no guns, no evidence of criminality, NOTHING, except the evidence prior to the entrance to the home and the trial, an unlawful home invasion based on no probable cause. Further, his wife was never charged with anything, do you understand what that means. It was her home too! She's listed on the warrant with no probable cause. That means $$$$$$$$$$$$$. One more thing. I found out that the Tudryn's uncle who left them 300 acres was the first cop of Hadley. It's no wonder how the whole thing went down. A thousand dollars worth of dishes stored in that abandoned house, right. Are they storing things worth thousands of dollars there now.
This what is wrong with
society today. The defendant got off due to an IMPROPER search warrant and you cheer him as a hero. He committed the crime even if he can no longer be prosecuted for it. He was not found not guilty as you had earlier stated, the case was dismissed because the evidence was ruled inadmissible. So is it your opinion that it is acceptable for you to commit a crime as long as you will not get caught?
The question is
how would they have known he was committing a crime if they committed a crime to expose his so called criminal conduct. There's a crime by the cops prior to the finding of his so called criminal conduct. In fact his crime was not mens rea, the cops was. Even more, the cops conduct was evil intent, while his was not. The cops were conspiring to get into this guys house, that's evil, his leasing out his building was not. There's nothing evil about pot, but it is certainly evil when your an officer of the law that your suppose to uphold, and use it as a tool to get their way with people by breaking the law.
What's this hero crap!
Does somebody have to be a hero. He's no hero or the officers. That's EGO B.S. If he was the only one alive in the world and he smoked pot is that a crime? But he's not the only one in the world. So he's entitled under the U.S. Constitution as an inalienable right to have his own place of sovereignty where he is the only one in control of that domain and no other has a right to it. This is where he is the only one in the world, his home, his castle. That's what James Madison and Jefferson and all the others who laid down the law of the inalienable right. He's born here and he may have civil diferences and he is allowed that protection under the constitution of the U.S. That's what's the matter with society today, they can't leave peoples God given liberties alone. The cops in this situation think they're heros and try to portray themselves as. Quite frankly the founding fathers would have considered them as tyrants. Did you learn what they used to do to tyrants?
'Where was the crime
and by who's definition of a crime. A crime is when there is a victim, where is the victim in this circumstance. Without a victim there is no crime, that's substantive law, period. Who was harmed? Where's the evidence for damages? Now a violation of this mans rights to privacy have been breached under the law of consent by these officers. If it were according to the law of nature as it used to be, the officers would not have gotten past the front door. But we as a nation agreed to a civil society based on the strictest of civil liberties first and law of consent second. That's why we have the bill of rights. They are the first ten amendments to the constitution of consentual law under civil rights. In a society of constitutional consent, a violation of those laws is a very serious matter and these officers violated them. And in violation of those laws of civil liberty based on the law of nature as it was prior to law of consent, he had a natural right to keep them out of his privacy at all cost, including their life. But he did not do it that way because we all agree to the law of consent. Now, he and his wife and children all have damages caused by the unlawfulness of these officers. In a civil society the family is entitled to an award according to the damges under U.S.C 42, 1983 from many sources. What these officers did was a violation prior to the bill of rights and law of consent. They conducted themselves under natural law which was prior to Constitutional law of consent. Violatiion of those laws of consent have no consent by the courts.
You'll have to ask the officers
who violated this man and his wife's civil rights. Not everybody agrees with pot, but we all agree that to enter into a home umwarranted is a major violation of privacy. Pot is a cultural indifference. Like people who don't believe that booze is a good idea either, some do and some don't. Some are gay and some are not. Cigarettes or not. The fourth amendment law was founded when certain people of society had a different opinion about the laws they disobeyed. They weren't law breakers at heart, they were called dissidents of the law. They were law abiding good community people who did not agree with certain laws that interfered with their beliefs. It's said within the Holy Bible that it is good for you to have a little wine for the pains or troubles of the day. Who doesn't like a good beer at the end of a tough day. Well, some people can't handle booze but can tolerate pot as an alternative. The Bible says that you are allowed to sedate yourself by your choice. Freedom,liberty for the self will. It's not about the use, it's about the abuse. Don't abuse it, lightly use it. To be drunk or not to be drunk.
I was done posting
until I read this: "but we all agree that to enter into a home umwarranted is a major violation of privacy". So to have the cops enter the defendents home is a violation but to have the defendent enter the Tudryn's house is not? And do not use the house is abandoned issue because there is no way that they could have know that when they illeaglly entered the property.
Have a nice day!
The cops abused
their official capacity to the fullest extent. They're entrusted not to abuse their authority, but they did. As far as how could the Opaleniks could have known that the property was abandoned, well I thought about it. There are many factors that indicate if a house is abandoned. Try the outside electric meter. If there is no meter in the socket, then it's likely that the house is unoccupied and under the circumstances also likely abandoned. Vines growing into the house through a window as it shows in the photo, looks abandoned. Exterior of the house was not routinely kept up, looks abandoned. In I drove by that house many times on my way to Hatfield over the years, I do recall that house as having juniper bushes in the front that were as high as the roof top, covering the entire front of the house. That's another tell tail sign of abandondment, the unattended shrubery. Show what's your point. That the cops were justified in fabricating a warrant just to get even with the guy.
You are absolutely correct
but the issue is not about entering the Tudryns property unwarranted. They did just that, they entered upon it illegally. They were caught red handed on the premises and should have been consequently punished for that. But the officers incident report establishes that the property was under abandonment, which the Tudryns agreed to by saying that the building had been vacant for so many years which lessens the degree of the circumstances for the intent of felonious criminal activity. Under common law there were no postings on the abandoned property and it then becomes questionable as to whether or not the Tudryns are entitled to the law for not making an attempt to keep out intruders, such as the Opaleniks. (Funny how the property is now posted. Psychologically that in itself says a lot.) It should have been at the most according to law, a trespass violation. Hypothetically speaking, even if the Opaleniks were caught at a home, breaking and entering that was occupied on a daily basis and were caught in the daytime without firearms and nothing was found missing and nothing was in the vehicle of the Opaleniks. Under the law you cannot charge them with theft, intent maybe. And based on that presumption you most certainly cannot get a warrant to search their residence, even if you find in the following days that something is missing. Because you can't say for certain that they took it. You have to catch them with it. Now comes the million dollar question. The Tudryns say days later that there is something missing. Well, the Opaleniks didn't have it obviously and maybe the Tudryns are just saying that for other reasons. Could one of those other reasons be for insurance claims? One would have to see if a police inventory was applied for. Under the law you have to have a stolen property inventory report in order to make an insurance claim. The idea of stating days later by the Tudryns that something is missing starts to sound very suspicious considering the circumstances. There's ideas swirling, obviously. Because, under the circumstances the cops should have thought that to have nothing taken from an empty house on one day and later they believe that there is something missing just doesn't sound right. There's reasonable doubt at that point. But for the cops, mysteriously they don't doubt the Tudryns. Why? Because they're friends of the Hadley cops who have an ulterior motive with South Hadley cops. And the cops then point the finger at the Opaleniks without granting them equal opportunity of the law without evidence that they took the items, nor was there any evidence that link the items to the place to be searched, then use a non neutral magistrate Nancy Flavin, and the court still finds in favor for the Opaleniks. The court additionally stated that there's not even evidence that the items were stolen, period. Proof of their existence is in doubt according to the courts finding. Upon the preponderance of the events and evidence and what was found at the Opalenik home was conspiratorial. There are affirmative links to that fact, just as he and his wife claim. They were set up. The motive, means and opportunity are the factors of a complete crime. South Hadley has knowledge that Opalenik maybe growing pot. Link 1)As normally practiced by neighboring police departments, Hadley cops inquire with South Hadley cops to check out the Opaleniks. Link 2)South Hadley cops need Hadley cops assistance. They both start communicating. Link 3)Luckily for the Hadley cops they have a friend in the Tudryns. Why? Because their Great Uncle was the first constable of Hadley. China missing days later with no probable cause spells; CONSPIRACY.
THE END
Six Cops for Dishes
LaBrie says that they were only giving Hadley Police courtesy assistance.
There were five cruisers racing down the road, three cops of South Hadley with three cops of Hadley and a State Trooper who showed up at the door and raided the joint. They went straight for the outbuilding where the pot was located. Sounds more like pot than chinaware.
Fourth Amendment violation
It's my understanding that there were two properties involed.
The stuff was found at 4 Bach lane not 5 Bach lane. The warrant was strictly for 5 Bach Lane.
They didn't have a warrant for 4 Bach lane, but went in against Mr. Opalenik's rights to stop them. It was a flagrant violation of Opalenik's civil and constitutional rights.
Hukowicz again...
Bye-Bye Dennis!!