COLLIER GROWHOUSE CASES THROWN OUT, OFFICERS SEARCHED ILLEGALLY

The marijuana evaporated -- literally -- and what was once a large
drug trafficking case involving two Golden Gate Estates growhouses
was reduced to a cultivation charge after marijuana plants dried up.

As a result, 78 marijuana plants in one case ended up weighing less
than a pound.

And when defense attorneys proved that Collier County sheriff's
investigators hadn't gotten consent to search the premises, the
evidence was suppressed by a judge.

Another defense attorney was successful in getting charges dropped in
another growhouse case when she filed motions to suppress evidence
and her client's statements by arguing that investigators searched
the home without a search warrant.

In the end, the State Attorney's Office recently dropped three growhouse cases.

"What they did was, they searched this house without a search warrant
and then went to get a search warrant to conduct a search they
already had done," Collier Circuit Judge Fred Hardt said on June 26,
when he granted suppression motions by defense attorneys Donald Day
and John McGowan. "... I hate to say it, but I think the whole thing
was botched from the very beginning."

Assistant State Attorney James Chandler then dropped the charges.

It wasn't the first suppression of drug evidence involving moist
marijuana that ended up weighing far less when dry.

Only a week earlier, defense attorney Michelle Hill came to court
prepared to have her client enter a plea in return for probation, but
Hardt rejected the plea bargain.

Hill was shocked when Assistant State Attorney James Chandler then
dropped the case, telling the judge there were hurdles he just
couldn't get around that Hill raised in motions to suppress evidence
and [redacted]'s statements to deputies.

"This case involved a clear violation of Mr. [redacted]'s Fourth
Amendment rights and the state did the right thing by abandoning the
prosecution," Hill said this week.

Sheriff's deputies involved in the cases couldn't be reached for
comment about the evidence problems. Without evidence to proceed to
trial, the prosecution was left without a case.

One of the problems occurs when detectives weigh the plants seized
from homes -- dirt, vines and all.

In this case, investigators seized 122 marijuana plants from
neighboring 16th Avenue Southeast growhouses. They placed the value
at $132,000.

[redacted], was charged with trafficking in marijuana between 25 and
2,000 pounds and possession of marijuana. His sister, [redacted], was
charged with the same marijuana trafficking charge, possession of
narcotic paraphernalia and marijuana cultivation. Her husband,
[redacted] was charged with marijuana cultivation.

[redacted] faced up to 30 years in a state prison for the
first-degree felony, with a mandatory minimum of three years and a
$50,000 fine. [redacted] faced five years in a state prison.

The cases began disintegrating when Hill filed two motions to
suppress evidence against [redacted], arguing that three deputies
arrived at [redacted], and continually knocked on the door until
someone answered. Deputies call it a knock-and-talk, a tactic law
enforcement uses as a way around obtaining a search warrant from a
judge by getting the homeowner's consent to search.

Investigator Stephen Gaydash then spoke with [redacted], Hill's
motion says, telling him he smelled marijuana, prompting him to
search the home without a warrant or consent.

Deputies called a vice narcotics investigator and asked him to go
before a judge for a search warrant. But that investigator never went
to the home with the warrant and, instead, went to his office to
prepare arrest reports against the suspects.

So [redacted] never saw a search warrant, Hill argued, and couldn't
have agreed to it. She called the warrantless search unlawful and
asked that evidence and [redacted]'s statements be suppressed,
meaning the prosecutor couldn't use them to prove his case.

In another similar motion citing a warrantless search, she argued
that deputies searched before obtaining a warrant, calling it a
"security sweep conducted for officer safety" in their affidavit to
obtain the warrant from a judge.

Hill pointed out that affidavit to obtain the search warrant was
"under the guise of officer safety," but there were no facts to
support they were in danger, which was required in the affidavit to
obtain the warrant.

The day Hill's client's case was dropped, Chandler reduced the top
charge against Day's client, [redacted] from marijuana trafficking to
cultivation.

McGowan's motion argued that [redacted] was handcuffed and placed in
a deputy's car while deputies searched her brother's home.

When Deputy Jesus Alonso questioned [redacted], translating for
investigators, she admitted she also was growing marijuana in her
home, took deputies there, and provided the key for the locked room
with marijuana plants. McGowan argued that she was coerced and didn't
freely consent.

"After the search was conducted, law enforcement officers instructed
[redacted] to sign a consent to search form, which was written in
English," McGowan's motion says. "At no time did the law enforcement
officers obtain a warrant to search the defendant's residence."

They seized marijuana plants, cooling units, transformers, lights and
other items used in growhouse operations.

Authorities say many growhouse operations involve Cubans who are
paying off $10,000 human trafficking fees to get here. They're paid
to tend plants in homes that are under other Cubans' names.

Day's motion to dismiss the case points out that the booking sheets
said the marijuana weighed 92 pounds, listed as 412.16 grams. That
metric amount shows the 92 pounds was a typo because 412.16 grams is
0.9 pounds.

When the Florida Department of Law Enforcement weighed the dried
marijuana, Day pointed out, it weighed 10 times less: .09 pounds, or
41.6 grams.

During a roughly two-hour hearing last week, Day questioned sheriff's
investigator Keith Blake Jr., assigned to the Drug Enforcement
Administration Task Force, about how marijuana was weighed by the
Sheriff's Office.

"It's almost 10 times the weight of what the Florida Department of
Law Enforcement says," Day said.

Blake admitted that what's in sheriff's reports usually can be cut in
half to get the FDLE amount.

"It dries out," Blake testified.

Day also argued that deputies acted illegally by unlawfully taking
[redacted] into custody, so there is a presumption there was no
consent to search, making it invalid.

Prosecutor Chandler argued that deputies followed procedure, obtained
consent to search, and that there was nothing illegal or improper.

But judge Hardt interjected, pointing out the woman was detained and
not free to leave, adding, "I didn't hear any reason why they put her
in handcuffs and held her in the back of a patrol car."

Chandler paused, then said they detained her for officer safety.

"Where was that in the record?" Hardt asked.

Chandler admitted it wasn't, but said, "I can tell the court it was
for officer safety."

"How do you know that? You weren't there," Hardt said. "... Why
couldn't they have held her and said, 'Just wait here ma'am,'?"

Hardt ruled [redacted] couldn't have reasonably believed she was free
to leave or could refuse consent because she saw deputies search and
had been handcuffed and held in a car.