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Judge mulls legality of warrant in bust

Updated: June 1, 2014 6:45AM



Will County Circuit Court Judge Bennett Braun said Tuesday that he needs more time to consider whether there was enough probable cause for police to execute a search warrant at a Shorewood woman’s home that led to charges of misdemeanor marijuana possession.

Angela Kirking, 46, of Shorewood, was charged with possession of less than 10 grams of marijuana and possession of drug paraphernalia on Sept. 17 after a search of her home.

Her attorney, Jeff Tomczak, the former Will County State’s Attorney and the county’s former chief narcotics prosecutor, wants the case thrown out because of the way the search warrant was obtained.

According to court records, the Drug Enforcement Agency began its investigation of Kirking after an agent observed her shopping at Midwest Hydroganics indoor gardening store in Crest Hill.

The agent suggested in the search warrant complaint that a stakeout at the store can turn up customers suspected of growing marijuana.

Tomczak said he’s never heard of this investigative tactic in which a customer shopping legally became a suspect for drug cultivation.

Tomczak said agents also based their search warrant by finding what appeared to be marijuana stems in Kirking’s trash, but he said stems are excluded in the definition of marijuana.

He said agents also saw that Kirking’s electric bill was higher than her neighbor’s. Tomczak said Braun at an April 4 hearing for Kirking said his own electric bill is higher than his neighbors.

Tomczak said he’s recently learned of other arrests going back two years that stemmed from stakeouts at Midwest Hydroganics.

The owner of the store, Joseph Vota, said he was not aware that a DEA agent was staking out his store, but he’s not surprised.

“This is nothing new,” Vota said.

He said he’s heard of stakeouts at other gardening stores for decades.

Vota’s store has been in Crest Hill for 10 years and he said he’s received a lot of support from the community and from around the world after media attention in Kirking’s case.

“I feel that the federal government can spend our money more wisely and efficiently than by harassing people for nonviolent crimes,” Vota said.

He said he’s never had a problem with local officials or local police and is supported by them, as well.

Ed Yohnka, spokesman for the American Civil Liberties Union, concurs.

He said it must have taken a significant amount of resources to stake out the store in order to enforce marijuana laws, which he thinks is a misplaced priority for law enforcement.

“It really costs us as a society,” Yohnka said.

Kirking was charged with possession of drug paraphernalia and misdemeanor possession of 9.3 grams of marijuana. Police also found books about growing marijuana and several scales at Kirking’s home.

On Tuesday, Bennett said he would be happy to recuse himself because he said he had been discussing the case and seeking advice from another judge before both of them realized that judge was the one who issued the search warrant.

He asked Tomczak and Assistant State’s Attorney John Rickmon if they wanted him to assign the case to another judge, but both attorneys said they had no objection to Bennett remaining on the case.

Bennett said he’ll issue his decision about Tomczak’s motion to suppress the evidence and will inform both attorneys of his decision in writing before Kirking’s next court date of June 24.

He also ruled that Kirking, an artist, can leave the state to create and sell her art at festivals while the case is pending.



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