The attorney for a former Watertown town councilor accused of running a pot-growing operation claims the search of his client's warehouse was illegal because the search warrant was obtained by using false statements.

In documents filed at the federal court in Boston, attorney Kevin Mahoney argues that certain details used in the affidavit filed by Joseph Connors, a drug investigator with the Waltham Police Department, were untrue and were included to ensure that the search warrant would be approved by a judge.

Waltham Police received a tip from a Framingham drug investigator about an indoor marijuana growing operation in the city. When police went to investigate, they could not see or smell any evidence of marijuana in the building.

In the affidavit of probable cause for a search, police noted security cameras by the doors, that the windows were covered and large industrial fans on the roof as signs that a marijuana growing operation inside the building at 269 Lexington St. in Waltham. Mahoney noted that the tip said the warehouse was at 267 Lexington St.

Police then watched the cars coming to and from the warehouse, and looked for any drug records for the registered drivers. One motorist, John Carmargo, had outstanding cocaine trafficking and marijuana possession charges, was seen leaving with a paper bag. He was pulled over and had an ounce of marijuana in the bag, according to court documents.

After interviewing Carmargo, Waltham Police and DEA agents and/or the Drug Task Force raided the warehouse, and found marijuana plants in the basement, according to court documents.

The Appeal

Mahoney cited several details for his claim of an illegal search including the alleged use of aluminum foil on windows to prevent the odor of the marijuana from escaping the building. In an affidavit, Bailey said he never had aluminum foil or anything that could be mistaken for it on his windows.

The statement about the aluminum foil, Mahoney contends, was made to explain the reason why there was no odor of marijuana coming from the building.

“Without the ‘observation’ of the aluminum foil covered windows, as well as prewarrant observations of the interior of the building, there would have been insufficient facts from which the magistrate who issued the October 19th search warrant would have found the requisite probable cause,” Mahoney writes in the appeal.

Also, Mahoney said Carmargo’s statement that he did not see plants when he was on the main floor of the building means there was no reason to cover the windows to block view, light or odors from the building.

In addition, Mahoney said Connors left some of Carmargo’s testimony out police documents. When he was interviewed, Carmargo said he got the marijuana from Bailey in return for repairing a DVR machine. He added that Bailey got the drugs from a “contact,” and he did not know whether or not Bailey had any more marijuana at the warehouse, Mahoney wrote.

Mahoney also contends that police failed to include Carmago's statement about Bailey's use of the warehouse. Carmargo told police he believed that Bailey was going to use the warehouse space to open a flower shop and a recording studio, Mahoney wrote. He added that Bailey had inherited money so he did not sell the marijuana to support himself.

“Though Carmargo's statement undercut probable cause, he deliberately included only those portions of Carmargo's statements in his affidavit that bolstered the likelihood that the magistrate would find the necessary probable cause,” Mahoney wrote.

The court will hold a hearing on the appeal, but the date has not been set.