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9th District appellate court reverses marijuana grow conviction
TRACEY BLAIR
Legal News Reporter
Published: June 12, 2019
A Summit County trial court erred by holding there was probable cause to issue a search warrant at the home of a man suspected in a marijuana grow operation, the 9th District Court of Appeals ruled recently.
Nathan L. Henderson was sentenced to two years community control after pleading no contest to an amended charge of illegal cultivation of marijuana, a third-degree felony.
Henderson and his co-defendant “S.H.-H.” filed a joint motion to suppress, which the trial court denied after a hearing.
Cuyahoga Falls police Det. Daniel Quior and the Summit County Drug Unit received information that Henderson drove a red minivan and was growing marijuana at 1262 Welsh Ave.
According to case summary, Quior began an investigation. During surveillance, he twice saw Henderson at the home – once when he entered the house without knocking and once in the back driveway of the home.
Quior discovered Henderson had two arrests for trafficking drugs – one for marijuana and one for cocaine – plus convictions for drug possession.
The detective testified there were also indicators of a marijuana grow operation, such as the fact that no trash was ever placed out front for pickup and high levels of electricity usage.
After subpoenaing the homes electricity-usage records and three comparable houses in the area, the detective saw that electricity usage at S.H.-H’s home spiked to an “extremely high” number in May 2016 – higher than would account for air conditioners or space heaters.
Quior then secured a search warrant for thermal imaging of the home. Quior, two helicopter pilots and Detective Jerry Antonucci of the Ohio State Highway Patrol Aviation Unit conducted a thermal flyover of the neighborhood.
After obtaining a search warrant of Henderson’s house, each suspect was charged with a second-degree felony charge of illegal cultivation of marijuana and possession of marijuana, a third-degree felony.
On appeal, Henderson made the following arguments under his assignment of error stating the trial court improperly allowed the search warrant based on the totality of the circumstances:
• Quior overstepped his bounds by inferring the electricity usage at the home was “significantly higher” than comparable properties, rather than waiting for a judge’s authority to draw such an inference.
• Quior misrepresented the source of his information as being anonymous when the source was actually a known informant.
• The thermal imaging search warrant affidavit did not establish probable cause, and the information provided by the informant should have been reviewed under the standard for anonymous sources.
• The detective falsely stated in his affidavit supporting a house search that the thermal imaging scan “revealed a strong heat signature emitting from the basement area of the address that was not consistent with the surrounding houses.”
• The search warrant affidavit for the house did not establish probable cause.
The appellate court voted 2-1 to reverse the conviction and remand the case.
Ninth District Judge Thomas Teodosio noted in his majority opinion that a no contest plea does not prevent a defendant from claiming on appeal that a trial court erred in ruling on a pretrial motion to suppress evidence.
Judge Teodosio then addressed each of Henderson’s concerns.
First, the appellate panel determined the detective’s conclusion that the electricity usage at 1262 Welsh Avenue was “significantly higher” than at comparable properties was relevant to determine probable cause and did not cross the line between permissible police interpretation and usurping the judge’s function.
Next, the panel found the detective did not intend to be deceptive when listing the informant as anonymous.
“Instead, his testimony demonstrated that he actually believed ‘anonymous’ was a true and accurate classification of the informant,” Judge Teodosio said in his opinion.
In addition, under Ohio law, anonymous informants are less reliable than known informants, so identifying the source as a known informant would have strengthened the detective’s search warrant affidavit and benefited Henderson rather than the state, he added.
“Therefore, we find no merit in Mr. Henderson’s challenge to the veracity of the search warrant affidavit for thermal imaging,” Judge Teodosio wrote.
However, the panel determined the “bare bones” search warrant affidavit was insufficient to establish probable cause in the case.
“The affidavit contains nothing to connect any possible criminal activity to the residence or anyone with it, only providing an anonymous source’s conclusion that 1262 Welsh Avenue contains an indoor marijuana grow operation,” Judge Teodosio stated.
“… Nothing in the affidavit identifies who is allegedly cultivating marijuana in the house or indicates if that person has a criminal record. Moreover, even when considering the allegation of electricity usage as significantly higher at 1262 Welsh Avenue than at some comparable properties, no reference to any additional, independent police corroboration of the anonymous tip is included in the affidavit.”
Next, the panel examined whether the evidence obtained while executing the thermal imaging search warrant still should have been suppressed under the “good faith exception” established in United States v. Leon, a 1984 case which held evidence not supported by probable cause will not be suppressed if an officer relied on the decision of a detached and neutral magistrate.
Again, the appellate court found Quior’s affidavit failed to contain sufficient facts for the issuing judge to conclude that probable cause existed to conduct a thermal imaging scan at the home.
“At best, one can ascertain from this affidavit what Mr. Henderson looks like, where he lives, what vehicle he drives, the name of the man renting the house, and how much electricity the house has used in the past year,” Judge Teodosio added.
“… We recognize that an illegal marijuana grow operation was indeed ultimately discovered in Mr. Henderson’s basement, but we simply cannot ignore the fatal deficiencies permeating the two search warrant affidavits presented to the issuing judge in this case.”
Appellate Judge Jennifer Hensal concurred, while Judge Donna Carr dissented.
In a dissenting opinion, Judge Carr wrote that she would affirm the trial court’s judgment because Henderson’s challenge regarding the anonymous tip does not relate to the sufficiency of the warrant for thermal imaging.
The case is cited State v. Henderson, 2019-Ohio-1974.