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Marijuana case shines a new light on privacy August 2, 2005 -
Without warrants, police used utility records and a house heat scan to convict a S. Jersey marijuana grower. His rights appeal has gone to the state's high court.
Keith Domicz bought a grow light from a Pennsylvania store that specializes in indoor gardening.
The next thing he knew, five police detectives showed up at his Gloucester County home. Inside, investigators found more than 100 marijuana plants.
Today, Domicz sits in a South Jersey prison.
But he is not your garden-variety convicted marijuana grower. He is at the center of a high-stakes legal battle that pits police powers against privacy rights.
The case - pending before the state Supreme Court - poses a number of interesting legal questions. Chief among them is whether police detectives should be able to examine household utility records without a warrant, as they did in Domicz's case.
Higher-than-average electricity use can indicate the use of high-watt lights to grow marijuana. Requiring a warrant for utility records would hinder investigations, authorities say.
But in a blistering May 23 opinion that stunned the law enforcement community, a state appeals court said investigators had illegally obtained Domicz's electric records and overturned his conviction. The state Attorney General's Office is fighting the ruling, and the state high court has granted a stay.
The case has reignited questions about whether police should be able to monitor what people buy, especially if the purchase is legal, and how many resources police should devote to marijuana investigations in the post-9/11 age.
Domicz, a 31-year-old roofer from Williamstown, seems an unlikely crusader of legal rights, even to him.
"I was basically a normal citizen, except for the marijuana part," he said a bit sheepishly. "I worked and paid taxes and all that good stuff."
Domicz has served more than two years of his 10-year sentence. In an interview last week at a medium-security prison in Cumberland County, he explained how police detectives found their way to his doorstep five years ago.
In early 2000, Domicz mail-ordered a 1,000-watt light bulb and accompanying equipment for about $800 from Hydrofarm-East in Bristol Borough. Unbeknownst to him, investigators with the New Jersey State Police Marijuana Eradication Unit subpoenaed a United Parcel Service list of people who received packages from Hydrofarm, according to court records.
"These aren't just regular lightbulbs that you run up to Home Depot to buy," State Police Sgt. Dennis Donovan said. "There are not too many companies that sell these type of lights. If you are living in New Jersey and you want to grow weed, you go to Bristol."
Donovan said roughly 85 percent of the people who bought these lights grew marijuana.
"Companies sell this stuff with a wink and nod, and say: 'Hey, you could grow good tomatoes with this,' " he said in a phone interview last week.
Peter Wardenburg, vice president of Hydrofarm, disagreed, saying that "thousands and thousands" of people use his company's products to grow vegetables, orchids and herbs commercially and recreationally.
Domicz's name aroused suspicion because he had been charged with marijuana possession in 1995, investigators said. So they obtained his power records after serving Atlantic City Electric, formerly Conectiv, with a subpoena.
Investigators also used a subpoena to obtain the electric-use records of two homes they believed were comparable to Domicz's.
"It's an absolute violation of privacy," said William Buckman, one of Domicz's attorneys. "Suddenly they are investigating somebody, so they decide to pull your records so they can make a comparison?"
Betty Kennedy, spokeswoman for Atlantic City Electric, said the company considered customers' records confidential but would abide by a legal order.
A subpoena is authorized by a grand jury at a prosecutor's request, while a warrant is issued by a judge. To get a warrant, prosecutors must prove that there is substantial evidence of a crime, a legal standard known as probable cause.
Donovan, who runs the marijuana unit, said electricity use in Domicz's home spiked soon after he bought the grow light - an assertion Domicz denies.
After examining Domicz's utility records, detectives conducted a thermal-imaging scan of his home, looking for heat from grow lights. When that revealed nothing significant, investigators visited for a "knock and talk."
From there, the stories diverge. Investigators say Domicz invited them inside because it was raining and then signed a consent-to-search form. Domicz says investigators told him that they had a search warrant and later forced him to sign a consent form without allowing him to read it.
Regardless, the appeals court ruled that the search was tainted by illegal police activity: the warrantless review of Domicz's utility records and the warrantless thermal scan.
If the ruling is upheld, police in New Jersey no longer will be able to obtain utility records without a warrant, even though the state Supreme Court ruled in June that police can review bank records without a warrant. The appeals court found that "there is a legitimate expectation of privacy in electrical usage records."
And all thermal scans performed by police without a warrant before 2001 would be subject to scrutiny from defense attorneys.
In June 2001, the U.S. Supreme Court ruled that police need a search warrant before performing thermal scans on people's homes. In Domicz's case, the appeals court ruled that investigators should have known that the U.S. Supreme Court would ban warrantless thermal scans of homes when they turned the device on Domicz's residence about a year earlier.
"A detective in the state police is supposed to be able to see into the future? It's preposterous," said Donovan, who said that he and his detectives had done everything legally in the Domicz investigation.
Domicz and his family said they felt vindicated by the appellate ruling.
"I think my case will help a lot of people," Domicz said. "It's going to force police to change their investigative measures, which means they'll have to follow the law."
Domicz's mother, Ronnie Parker, said she believed that marijuana should be legalized. The drug, she said, is harmless compared with cigarettes and alcohol.
"Pot is like this big tragedy," she said. "What's the big deal?... Really? Who was hurt? No one but my son."
Donovan said that marijuana was a dangerous criminal enterprise and that the plant was increasingly grown with more THC, the chemical that produces a high.
"These marijuana growers are not these dopey Cheech and Chong types," Donovan said. "They are not the benevolent stoner you went to high school with."