ATTLEBORO — A marijuana distribution case against a North Attleboro man has been dismissed after the state Appeals Court ruled a search warrants police obtained failed to establish probable cause of any illegal cultivation on the property.
An Attleboro District Court judge dismissed the case against Michael Alves, 44, of 35 Indian Trail, two weeks ago at the request of prosecutors based on the Appeals Court ruling.
The case went to the Appeals Court after the Bristol County district attorney’s office appealed a 2021 ruling by Attleboro District Court Judge Edmond Mathers throwing out evidence seized by police.
The evidence includes 63 marijuana plants between 3 and 5 feet tall, six pounds of marijuana in plastic bags and other containers, and lighting and growing equipment, according to court records.
The evidence was seized in October 2019 after police obtained two search warrants, one for a helicopter to conduct a “thermal imaging” of an unattached garage on the property and one to search the structure.
Alves was summoned to court at the time and always maintained his innocence.
The raid came after a tip from North Attleboro Electric Department workers who noticed Alves’ electric usage for the garage was 15 to 20 times higher than the usual residential usage and that Alves always paid his bill late and in cash, according to court records.
Workers inspecting a nearby transformer, which had exploded a year earlier, noticed the odor of marijuana coming from the garage. The windows of the garage were boarded up and there was a security camera, according to court records.
Alves’ lawyer, Kenneth Van Colen of Fall River, challenged the search warrants and argued evidence seized by the police should be suppressed.
Van Colen also argued that information police received about two years earlier that the garage was leased by a welder should have been included in the affidavit to obtain the search warrants to explain the high electrical usage, according to court records.
Prosecutors had argued in their brief that even if the possible exculpatory information was included, the police still had probable cause for the search warrants.
Van Colen also argued that merely smelling marijuana is not enough to establish evidence of illegal cultivation and that Detective Sgt. Richard McQuade, who wrote the affidavits, did not provide any independent corroboration of any illegal activity.
McQuade is now the police chief.
In 2016, it became legal in the state for adults to grow up to 12 marijuana plants.
Prosecutors argued there was probable cause based on the suspicious circumstances of the electrical usage, boarded-up garage windows, the odor of marijuana, the security camera and the cash payments by the defendant.
However, in a ruling issued last month, a panel of three Appeals Court judges wrote the circumstances may be suspicious but agreed with Van Colen and Mathers regarding the lack of probable cause.
“Although these facts may be relevant to the analysis, we are unpersuaded that they, without more, established a probable cause that any marijuana cultivation here was unlawful,” the panel wrote.
When it reached Wednesday, Alves declined in an email to comment on the advice of his lawyer.
But in a court filing, he claimed he “was deprived of his due process rights due to the prosecution’s deliberate withholding of exculpatory evidence.”
Alves also said he was prejudiced by the police “presenting half-truths to a clerk magistrate” to obtain search warrants to tear his home and barn apart and “essentially ruin (his) life.”
Alves has retained a Randolph lawyer, John Pavlos, who said Wednesday his client plans to file a lawsuit against the town and police.
The suit, Pavlos said, would likely include claims of malicious prosecution, intentional infliction of emotional distress and civil rights violations.
Van Colen and McQuade did not immediately return messages from The Sun Chronicle.
David Linton may be reached at 508-236-0338.