[420 Girl]

After hearing arguments for more than an hour Wednesday, Judge Peter Estrada said he would decide by Nov. 12 whether to toss out evidence in two grow house cases.

Justin Gaines, attorney for Nelson Rodriguez, questioned Sgt. Jamie Casey, who is in charge of evidence for the Highlands County Sheriff's Office.

The marijuana seized in 77 grow house cases is so badly decomposed, and so imbued with mold and fungus, that it has become a Level 3 biohazard, Casey told the court. Defense attorneys could only see it if they don protective suits and breathing apparatuses.

Gaines asked the judge to acquit Nelson Rodriguez on the trafficking charge. Rodriguez is also charged with possession of marijuana and stealing electricity from Progress Energy.

Since the defense can't examine and weigh the evidence, his client's Sixth Amendment rights have been violated, Gaines contended.

Not so, said David Ward, who argued for the state. Officers previously weighed, photographed and videotaped the evidence, and marijuana samples are still available to be tested by a crime lab.

"It may be able to be weighed," Casey offered.

"But it is mixed with other marijuana?" asked Irwin Lichter, a Miami attorney who is representing Rodriguez's wife, Elizabeth, who was also arrested.

Ward called Det. John Singha to the stand, who testified that the marijuana was weighed after the Rodriquez couple was arrested.

More than 10 officers were at the scene, and they confiscated 258 pounds from four rooms of the Rodriguez house, Singha said. That was clearly more than the 25 pounds which is needed to charge a defendant with trafficking, Ward told the judge.

Singha said the raid on the Lake Placid home was documented with photos, videos and paper records. Samples of marijuana have been bagged and sent to the state crime lab, and those samples can be independently tested to determine if they are marijuana.

What the marijuana weighs today is irrelevant, argued Ward. The proper question: what did it weigh at the time of the arrest? If the marijuana had been dried a year ago, it would have weighed less today, Ward argued.

Even if it had been kept in the best of conditions, Ward said, it still would have changed weight. If the live plants had remained in the soil, they would have grown. If the state had seized a truckload of bananas, there would have been no way to keep them in the same condition.

"That's why we photograph. That's why we test," Ward pointed out.

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