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InvisibleveggieM

Registered: 07/25/04
Posts: 17,538
Collier growhouse cases thrown out because officers searched homes illegally [FL]
    #8595795 - 07/04/08 07:19 PM (15 years, 10 months ago)

Collier growhouse cases thrown out because officers searched homes illegally
July 4, 2008 - naplesnews.com

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 Elio Estupiñan Guerra’s statements to deputies.

“This case involved a clear violation of Mr. Guerra’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.

Estupiñan Guerra, 46, of 3680 16th Ave. S.E., was charged with trafficking in marijuana between 25 and 2,000 pounds and possession of marijuana. His sister, Odalys Padron, 41, of 3660 16th Ave. S.E., was charged with the same marijuana trafficking charge, possession of narcotic paraphernalia and marijuana cultivation. Her husband, Miguel Angel Padron, 44, was charged with marijuana cultivation.

Estupiñan Guerra and Odalys Padron 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. Miguel Padron faced five years in a state prison.

The cases began disintegrating when Hill filed two motions to suppress evidence against Estupiñan Guerra, arguing that three deputies arrived at 3680 16th Ave. S.W., 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 Estupiñan Guerra, 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 Estupiñan Guerra 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 Estupiñan Guerra’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, Odalys Padron, from marijuana trafficking to cultivation.

McGowan’s motion argued that Odalys Padron was handcuffed and placed in a deputy’s car while deputies searched her brother’s home.

When Deputy Jesus Alonso questioned Padron, 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 Mrs. Padron 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 Odalys Padron 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 Odalys Padron 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.

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