Michael Hickenbottom of Uniontown, the father of Michael Ellerbe, the 12-year-old boy who was shot to death by state police five years ago, is seeking to have his criminal trial on charges of drug possession moved out of Fayette County.
On Friday, Hickenbottom's attorney, Jeremy J. Davis, filed a motion seeking a change of venue, claiming the jury pool would be tainted because of publicity surrounding the recent verdict awarding his client $28 million in a civil rights lawsuit in connection with his son's death.
Hickenbottom, 35, faces charges of marijuana possession and possession with intent to deliver.
Davis is challenging Hickenbottom's arrest in February 2007 after a search by probation/parole officers James Williams and John Warman, who did not have a warrant.
Hickenbottom was free on bail but facing pending drug charges last year when two probation officers searched him at a Connellsville Street convenience store.
As a condition of that bail, authorities are permitted to search his person, property and residence without a warrant.
Uniontown police said they found several individually wrapped plastic bags of marijuana throughout Hickenbottom's home, clothing and car.
Davis is petitioning the court to suppress the statements of Williams and Warman because the officers "did not have reasonable suspicion to conduct a search" of Hickenbottom; nor did he consent to a search.
Hickenbottom was ordered to stand trial after a preliminary hearing before Bullskin Township District Judge Robert Breakiron.
Davis is arguing that newspaper articles covering the Ellerbe case have made Hickenbottom "a known figure in the community and have painted (him) in an improper light." The motion further argues that the Ellerbe case received a large amount of news coverage, leading to the community becoming "biased" against Hickenbottom partly because of the amount of the monetary award.
Davis is also trying to suppress the drug charges because of what he claims was a "warrantless search."
Ellerbe was shot to death by a state police trooper on Christmas Eve in 2002 as he ran from a stolen vehicle in Uniontown's East End.
The federal jury discounted Trooper Samuel Nassan and Cpl. Juan Curry's contention that Nassan shot Ellerbe because he thought the boy shot Curry. The officers said Curry's gun fired accidentally as he was scaling a fence.
After Fayette County District Attorney Nancy Vernon declined to file criminal charges against the officers, Hickenbottom pursued a civil case, resulting in the $28 million judgment.
Attorneys representing Ellerbe's estate are seeking payment by state police of $1 million in legal fees above the jury award; state attorneys, however, are trying to persuade a judge to dismiss the $28 million judgment.
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