LIHUE — The case against a Kilauea dentist accused of shooting and wounding a neighbor’s dog was weakened when a motion to suppress evidence was granted on Thursday in 5th Circuit Court.
Michael Ray Furgeson, 66, is preparing for trial on Dec. 8 on charges surrounding the March 14 shooting of Lola, a 10-year-old golden retriever that belonged to his neighbor, Catherine Curtis. Evidence to show Furgeson may have committed the shooting was suppressed after problems with the execution of a search warrant were challenged by the defense.
“There were a number of missteps in the process,” Chief Judge Randal Valenciano said.
Michael Soong, Fergusen’s attorney, presented his motion that officers of the Kauai Police Department acted outside of the warrant in searching his residence and seizing property as evidence.
The problem is based on the initial information used in obtaining the warrant.
Scott Sims of Pegasus Veterinary Clinic in Kilauea performed the surgery to remove a .22 caliber bullet from Lola. He had told police initially he believed the dog was shot by a pellet gun. The projectile traveled eight inches from the left shoulder blade to the elbow without leaving much blood and no damage to vital organs.
It was only after surgery and removing a bullet that he contacted police again to tell them it appeared to be a .22 caliber. By that time, police had already executed a warrant to search for a pellet gun and pellet ammunition.
Detectives then collected the bullet to match it with a .22 caliber rifle and a spent shell casing taken from Furgeson’s residence. The evidence led to a grand jury indictment against Furgeson on May 14, with charges of first-degree cruelty to animals, second-degree reckless endangering, third-degree promotion of a detrimental drug and carrying or use of a firearm in the commission of a separate felony.
County Deputy Prosecuting Attorney Sally Tobin said the police, in learning the correct information about what type of weapon was used in the commission of the crime, acted within the scope of the warrant by collecting the .22 caliber rifle and ammunition and all other weapons. They also took marijuana and window screens that showed evidence that a gun had fired bullets or pellets through them.
“They saw an air rifle, but it was a BB gun and not a pellet gun that was what they were searching for,” Tobin said.
Valenciano said the correct action would have been to stop the search and to seek a corrected warrant and return. There was also no information about other evidence taken that was outside the scope of the warrant to determine expectations of privacy or if the plain view exception could be applied in this case.
The doctrine addresses warrantless seizure for use as evidence when in plain view during a legal search when the officer has probable cause to believe that it was used in a crime.
The only other exception would be if police made a determination that leaving firearms with the defendant presented a public safety issue.
The search went outside the scope of the warrant, Valenciano said.
The court ruled that six items, including a bag of marijuana, would not be allowed to be introduced as evidence. The court did allow the screens to be kept as evidence and how they would be used would be determined according to rules of evidence in pretrial hearings.
“The evidence that was recovered during the execution of the warrant was suppressed and the .22 and ammo may not be used in trial,” Soong said. “The state can proceed to trial with whatever other evidence they have left.”