Evidence seized in a June raid in Jamestown has been ruled inadmissible in court due to an insufficient search warrant application.

According to a ruling issued Tuesday by Chautauqua County Court Judge David Foley, a warrant issued for the June 2017 raid that resulted in the arrest of Jeremy Gross and Kimberly Fred was not based on sufficient probable cause. The evidence seized due to the warrant’s execution is being suppressed and will be inadmissible in court.

District Attorney Patrick Swanson said Jamestown Police Department has very few cases where evidence is found to be inadmissible in this manner. Swanson said his office will most likely offer some guidance on the issue to help keep it from happening again.

“They do a good job down there,” he said. “They have a lot going on. Once in a while, one will slip through the cracks.”

The warrant was issued by the Jamestown City Court at the request of Det. Jeremy Maggio of the Jamestown Police Department. In the decision, it states that “no prosecutoial misconduct or other error” rendered the grand jury proceedings defective, so there was no wrongdoing by the Chautauqua County District Attorney’s Office.

In June 2017, Gross and Fred were charged after search warrants were executed at 21 Hazzard St. and 57 Colfax St. Gross, 35, and Fred, 34, were apprehended in the Hazzard Street residence. In both apartments, about 10 grams of methamphetamine, as well as doses of LSD, drug paraphernalia, cash and an illegal stun gun were seized.

Gross was charged with third- and seventh-degree criminal possession of a controlled substance, second-degree criminal use of drug paraphernalia and third-degree criminal possession of a weapon. Fred was charged with fifth-degree criminal possession of a controlled substance and second-degree criminal use of drug paraphernalia.

Both are being represented by the Public Defender’s Office.

The judge’s decision states that the application for the warrant was based upon information supplied to the Jamestown Police Department by a confidential informant. However, there was no indication that “Detective Maggio or any other police officer independently verified the information supplied to the detective from the confidential informant.”

Instead, the reliability of the informant was attested to by a statement in the search warrant application, which stated that “Detective Maggio and other members of the Jamestown Metro Task Force have utilized information provided by the (confidential informant) multiple times in the past and have found the information to be reliable and accurate.”

No transcript of the testimony of the confidential informant or of testimony taken by Judge John LaMancuso, the City Court judge who reviewed the search warrant application, is said to exist.

Citing several cases, Foley pointed out one in particular that had language that mirrored the Fred-Gross search warrant application. In the People v. Kaifetz, the language was similar in the search warrant application and a decision to uphold the warrant was ultimately reversed by the Appellate Division Third Department.

According to Foley’s decision, there was a failure to establish the informant’s reliability such as how often the informant gave information and what the result of the information was, or that the information was independently verified by the police.

The defendant’s motion for disclosure of the grand jury proceedings and dismissal of the indictment was denied. The defense requested the disclosure of the grand jury minutes and the dismissal on the grounds that the evidence before the grand jury was “legally insufficient to support the charges or any lesser offenses that were included.”

According to court records, both Gross and Fred are tentatively scheduled to go to trial on July 10.

Harry Snellings, Jamestown police chief, said he could not comment directly on Foley’s ruling because he had not read it yet but said it is the judge who decides probable cause once an application for a search warrant is submitted by officers. He said probable cause can be based on testimony by officers or the combination of officers and confidential informants.

“There is an application process that we follow,” Snellings said. “It has been the same since Judge Foley was the District Attorney. We do not confer with the DA’s office on every search warrant as it is not necessary. Regardless of the number of people that are involved in the application process, the final determination is made by a judge.

“On occasion a court may disagree with a decision made by another. It’s our system.”