Did Smithfield police lie about a confidential informant to raid a pot grow? A jury will decide.

PROVIDENCE – In 2017, Smithfield police searched Joseph Ricci's property, seized dozens of marijuana plants and charged him with possession with intent to distribute.

In requesting a search warrant, police swore under oath that they had a confidential informant who told them Ricci, a medical marijuana patient legally allowed to possess marijuana plants, was selling part of his grow.

Weeks later, the state attorney general's office moved to seize Ricci's property through civil forfeiture, contending it had been used to violate state drug laws.

But did Smithfield police fabricate having a confidential informant to establish probable cause for the search?

Ricci, 48, says they did, and that the resulting search violated his constitutional rights protected under the Fourth Amendment. Six years after the raid, his case was headed for a jury trial in federal court next week.

On Friday, the trial was postponed to at least February as U.S. District Judge Mary S. McElroy ordered the two sides into mediation to see if the dispute might be resolved first that way.

Under oath, police deny meeting with informant

In a pre-trial motion ruling in July, McElroy said there was a “strong” inference that police lied about the existence of a confidential informant to help establish probable cause for the search.

She noted that while one officer, Joseph M. Marcello, said in his affidavit supporting a search warrant that he “had received information from a confidential informant” that Ricci was cultivating large amounts of marijuana on his commercial property on Putnam Pike, that statement “was clearly false.” When put under oath during a deposition, Marcello “denied having any personal contact with an informant,” the judge wrote.

Further, wrote McElroy, “while Marcello said he knew that his [department] supervisor, defendant Michael Smith, had been the one to actually talk to the informant because Smith told him that he met with the informant, that was not accurate either, as Smith also denied under oath having personal contact with the informant.”

“What adds to the strength of the inference of fabrication, however,” wrote McElroy, “is the failure of the Smithfield police to find any written documentation, in the form of any notations or file entries or other memorialization, that anyone in the department had contact with the putative informant.”

“Fabrication of evidence cuts to the very heart of the integrity of criminal prosecutions,” McElroy wrote. “The allegation is serious. But however strong the inference is that the police simply made up the existence of an informant, it is still an inference only and not direct proof. Such a conclusion, if true, should be drawn by a jury, not by a court on motion for summary judgment.”

And so the case was headed for trial.

Neither Smithfield Police Chief Richard P. St. Sauveur Jr. nor Town Council President T. Michael Lawton returned phone messages asking for comment for this story.

Town Manager Randy R. Rossi, through his administrative assistant, declined to comment and referred all questions to the office of the town solicitor. Lawyer Ryan D. Stys, who is representing Smithfield in the case, also declined to comment.

Raid came about from unverified, confidential tip and thermal imaging

At the center of the case is a search Smithfield police conducted on Oct. 23, 2017, at Ricci’s property at 256 Putnam Pike, where he operated his business, Custom Construction Services, and also grew cannabis as a marijuana patient himself and as a "caregiver" for two other patients.

Ricci was following all the rules for growing marijuana, said his lawyer, Megan E. Sheehan, including staying within the limit of plants allowed and buying tracking tags for each plant as required by state regulation.

"The purpose of the medical marijuana program was to help people with debilitating conditions, and he was doing everything right,” said Sheehan. “He had the correct number of plant tags, correct number of plants, he was registering his location, he was following the regulations in all ways." The police's "whole stance revolved around this idea he was growing for the black market, and there is zero evidence of that."

According to Ricci's complaint, the Smithfield police received an unverified tip from a first-time confidential informant in September 2017 that Ricci was selling marijuana out of his grow.

The police began watching Ricci’s property and his movements. They secured a warrant to perform thermal-image scanning to gauge the heat radiating from the buildings on the property.

The imaging indicated Ricci was probably growing marijuana, but he contends there was no scientific way to determine whether he was growing more than allowed.

The police, swearing to the existence of a confidential informant, obtained a search warrant. Following the search, the police charged Ricci with possession with intent to deliver and possession of 1 to 5 kilograms of marijuana.

In announcing the arrest, the police said detectives seized 42 marijuana plants and individual bags of marijuana weighing in total more than 1 kilogram.

More: Accused of murder and confronting local drug dealers: His body was identified after 40 years

Drug charges were dismissed, but court battles continued

The drug charges were eventually dismissed. In May 2019 Ricci pleaded no contest to a misdemeanor charge of “visiting a common nuisance,” which Sheehan described as “essentially being at a property where there is drug activity occurring.”

Sheehan says Ricci, who lives in Woonsocket, may or may not have been over the possession limit. The actual weight of the confiscated marijuana, some of which was still "wet" and not yet useable, remains in dispute.

Meanwhile, weeks after the raid, the state attorney general's office moved to seize Ricci's commercial building, contending it had been used to violate state drug laws.

Ricci told The Journal in an interview that he pleaded to the misdemeanor because he wanted to put the whole episode behind him. He received a “filing,” meaning his record would be expunged if he remained law-abiding for a year.

Ricci says a different lawyer he had at the time told him they would tackle getting his property back and seek repayment for damages at that time. That legal battle is still dragging on in Superior Court. (The building has a lien attached to it until the case is settled, as does all his construction and marijuana growing equipment, which is still being held by Smithfield police.)

Sheehan says that because the police lied about having a confidential informant – and therefore never had probable cause for the search – the search was illegal and unconstitutional and Ricci's property should be returned to him and he should be paid for the damages the forfeiture caused.

“They shouldn’t have been there in the first place,” she said. “They fabricated information. Once a search warrant has a defect in it because of fabrication, it’s in violation of the Constitution. Anything coming out of that can’t be used as evidence.”

Contact Tom Mooney at: tmooney@providencejournal.com

This article originally appeared on The Providence Journal: Smithfield man says police fabricated informant to raid his pot plants