SEARCH FOR POT CROPS STARTS AT SMALL STORE

Lawyers Cry Foul When Deputies Focus on a Legal Hydroponic Garden
Shop to Hunt Marijuana Growers

LARGO - Last fall, a white Chevy truck pulled into the parking lot of
a hydroponic gardening shop on Ulmerton Road.

A man went in, purchased some supplies and drove off.

Someone was watching.

Detectives with the Pinellas County Sheriff's Office, watching via a
camera mounted on a pole nearby, recorded the Chevy's license plate
number, checked motor vehicle records to identify the owner, and soon
showed up at his home in Seminole.

Allen Underwood is one of dozens of Pinellas residents investigated
by deputies over the past two years on suspicion of cultivating marijuana.

A part-time handyman with only a misdemeanor driving infraction on
his record, Underwood made his way onto detectives' radar for one
reason: He shopped at Simply Hydroponics.

For more than two years, Pinellas deputies have watched customers of
Simply Hydroponics through the surreptitiously placed camera.

The Pinellas County Sheriff's Office defends its spying on Simply
Hydroponics, saying it is a known fact that indoor marijuana growers
frequent hydroponic shops.

The St. Petersburg Times reviewed 450 search warrants filed in
Pinellas between Jan. 1, 2010, and Sept. 15, 2011, and found 39
warrants that began with surveillance at Simply Hydroponics.

The outcome of those cases tends to support the Sheriff's Office
defense of the tactic: In each of the 39 cases, detectives found
either some marijuana or marijuana plants in the homes they searched.

"It tells me where there's smoke, there's fire. They're on to
something," said Pinellas Sheriff Bob Gualtieri.

But the surveillance of Simply Hydroponics, while legal, has riled
the owners of the business as well as local defense attorneys who say
citizens are being unfairly watched and investigated.

"It's wrong, completely wrong, that a law enforcement agency will
target what is, on its face, a legitimate business and target the
customers of that business simply because they show up on camera
going into a store where it's legal to shop," said attorney John
Trevena of Largo, who is representing some of the defendants.

The surveillance isn't the only tool being used by Pinellas sheriff's
investigators that is raising questions. Allen Underwood's attorney
claims Pinellas deputies trespassed on his client's property and
destroyed evidence. Several other attorneys say they believe deputies
lied when they told judges they can smell growing marijuana - in one
case, just a single plant - from outside a house.

Detectives saw a vehicle belonging to John Ray at Simply Hydroponics
in March 2009, according to an affidavit. More than a year later, on
May 25, 2010, they showed up at Ray's St. Petersburg home and asked
if he was growing marijuana.

Ray said he wasn't. Ray said the deputies asked to search his home. He refused.

Later, in a search warrant affidavit, detectives wrote that after Ray
closed the door, they smelled growing marijuana and heard "the
distinct sound of foliage being broken" - though experts consulted by
the Times said marijuana plants are pliable and would only make a
sound similar to a tomato plant being broken.

Law enforcement officers are permitted to enter a home without a
warrant if they believe evidence is being destroyed. Ray said
deputies broke through his iron gate and were outside his front door
when he opened it.

"I didn't even get it halfway open and they were dragging me out,"
recalled Ray, who told the Times he didn't shop at Simply Hydroponics.

Ray said he spent the next eight or nine hours handcuffed in his
courtyard while deputies went to a judge to get a warrant, then
searched his home. They found one plant - a plant Ray said he
believes was left in his garage months earlier when a relative moved
out. He said he didn't know it was there.

The experience, he said, still upsets him.

"I lay in bed sometimes, scared, thinking about what they can get
away with," Ray said. "You think you're living in America, you're
safe. You're not. They can do whatever they want. They're above the law."

Hydroponics utilizes water and nutrients, but no soil. It is used to
grow many types of plants, but it's popular with marijuana
cultivators, especially in built-out Pinellas County, where indoor
operations are growers' only option.

Sheriff Gualtieri says that watching customers of Simply Hydroponics
is a successful investigative technique when combined with other
information such as tips, prior intelligence, a suspect's criminal
history - and common sense.

"There are some businesses in this county that, while they are
selling a product that could be used for legal purposes, it is
notorious to be used for illegal purposes ... ," he said. "Our
experience tells us that people involved in grow houses do buy
materials at hydroponics shops."

William T. Gaut, a criminal justice consultant from Naples, said it
isn't improper to use "pole cams" as a covert surveillance method.
Seeing someone visit a garden shop does not establish probable cause
for a search warrant but can be combined with other information such
as unusually high power usage or tips from reliable sources, he said.

"The surveillance that you see on the pole cam, it can form one small
part of reasonable suspicion, but you can't act on it solely with no
other evidence. If you do that, now you're over the line and
infringing on constitutional rights," Gaut said.

Dawn Bednar, co-owner of Simply Hydroponics, said she "doesn't
appreciate the picture that's being painted" by detectives of her shop.

"They're not entitled to harass a business and customers for where
they shop. Everyone who visits a gun shop isn't a murderer," Bednar
said. "We're trying to help people grow pesticide-free food. That
isn't a crime."

Pinellas investigators, after identifying the store's customers and
finding their home addresses, generally would check out how much
electricity they were using. Markedly higher usage can indicate a
grow operation.

In most cases, detectives would then conduct "spot checks" at the
homes to look for signs of a grow operation, such as humming motors
and blacked-out windows. They also sniffed - to see if they could
smell marijuana wafting from the home.

If detectives believed marijuana was being grown, they wrote an
affidavit explaining their probable cause - the information that gave
them a reasonable belief a crime was being committed. That would be
presented to a judge, who would authorize or reject the search.

In nearly all of the Simply Hydroponics-related warrants, detectives
told Pinellas judges they could stand outside a home and smell
growing marijuana. But some experts say it is improbable, if not
impossible, for officers to smell marijuana growing inside a closed structure.

Dr. Richard Doty, the director of the Smell and Taste Center at the
University of Pennsylvania, has conducted experiments to test whether
people are able to smell marijuana from outside a home where plants
are being grown. Insulation and ventilation of the home, the maturity
of the plants and the distance between the nose and odor source can
affect that ability.

Young plants don't emit an odor, but if a person were growing
"hundreds" of mature plants in a structure that wasn't properly
sealed, it's "possible" an officer very close to the home would
notice the smell, Doty said.

James Woodford of Chattanooga, Tenn., an expert on the topic of
marijuana odor, said a large operation vented directly outdoors could
generate an occasional "whiff" of marijuana detectable up to 25 to 30
feet away.

In the case of Allen Underwood, the Seminole man deputies spotted at
Simply Hydroponics in 2010, detectives said they twice smelled
marijuana from a sidewalk that was 15 to 20 feet from his home.
Underwood's attorney, Jerry Theophilopoulos, says the sidewalk was
nearly 70 feet from the alleged grow room.

Law enforcement officers commonly use the smell of marijuana to
establish probable cause. "Many such claims defy common sense, even
though the courts routinely accept them as truth," Doty said.

Former Pinellas Sheriff's Office narcotics supervisor Capt. Robert
Alfonso, who retired in October, disagreed, saying growing marijuana
has a strong odor easily identified by professionals.

According to records, detectives found 10 mature marijuana plants and
about a dozen seedlings at Underwood's home. In June, Underwood, who
declined to comment for this story, was convicted of manufacturing
marijuana with the intent to distribute and sentenced to probation.

Theophilopoulos, Underwood's attorney, filed an internal affairs
complaint with the Sheriff's Office alleging impropriety by deputies,
including trespassing, dishonesty in their search warrant request and
erasure of Underwood's DVR hard drive, which was connected to a home
surveillance camera.

The recording was erased, Alfonso said, because it contained images
of undercover officers; a supervisor worried it might compromise
their safety. The DVR was not locked up as evidence should be,
Alfonso acknowledged. He said he "put out a directive to make sure
this never happens again and everything that's taken out of a
residence is treated as evidence."

In a court filing, the U.S. Attorney for the Middle District of
Florida admonished the Sheriff's Office for the erasure.

Theophilopoulos contends the recorder contained images showing
detectives trespassed on Underwood's property and were not at his
home when they said they were.

"It would have gone a long way to proving that the allegations sworn
to in the affidavit weren't true," he said.

Theophilopoulos and other attorneys interviewed by the Times said
they're convinced not only that the surveillance tactics are
overreaching, but also that some Pinellas narcotics detectives are
being untruthful in their search warrant affidavits.

"They're misleading the courts," Theophilopoulos said, "and it's intentional."