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Alleged drug-use admission challenged

Photo by Hugh Osteen

Photo by Hugh Osteen

By Elaine Rackley

erackley@henryherald.com

A man who allegedly admitted to police that he had marijuana, saying, "That's how I make my money," has been bound over to Henry County Superior Court, accused of possession of marijuana with the intent to distribute.

An attorney for Cody Matthew Kinney, 21, of McDonough, vigorously challenged his arrest during a preliminary hearing, Monday, in Henry County Magistrate Court.

His arguments, however, failed to sway Magistrate Court Judge Robert Godwin.

Henry County Police Officer Anthony Militello told Judge Godwin he arrested Kinney after police responded to a call of two suspicious people behind a house in the 400 block of Fawn Meadow Lane. Militello also testified that he detected an odor of suspected marijuana.

Kinney was represented by Attorney Clay Davis, during the hearing. The incident took place Dec. 17, 2010. At the time of the incident, the men told police they were trying to repair a four wheeler in the woods, according to the officer.

"I observed a black hand gun on the ground and smelled the odor of marijuana," said Militello.

The officer said he asked Kinney had he been smoking marijuana. "He answered, 'Yes.'" Police found a pipe, suspected marijuana in baggies, and some empty baggies.

"The handgun turned out to be a BB gun ... he threw something in the woods," continued Militello. The officer said he questioned Kinney about what was inside the bag that was found on him. "He replied, 'That's how I make my money,'" Militello testified.

Attorney Davis questioned the officer, asking if he had asked permission to "pat down" his client. "You did not read him his Miranda Rights, did you?" the attorney asked.

The officer responded that Kinney was "very cooperative."

The attorney then asked if police found any large amounts of cash, or any cash at all.

"No," replied the officer.

"You could have stopped the search and got a search warrant?" continued Davis.

"The first pat down was [because] I saw a weapon," said Militello. "He stated to me that he had recently smoked marijuana."

"When you said you smelled marijuana, was it while you were walking into the woods ... You did not actually see him smoking?" asked Davis.

Militello responded, "No."

At the conclusion of the hearing, Davis asked that his client's charges be changed to a misdemeanor, rather than remain a felony.

Judge Godwin rejected the request, and bound the case over to Superior Court. Kinney was released from the Henry County Jail Dec. 20, and remains free on a $3,000 bond.

Police informed Judge Godwin that the unidentified man who was found with Kinney, a year ago, was never charged in the incident.