The Akron Legal News

Appeal denied for man who grew marijuana in sunflower garden

JESSICA SHAMBAUGH
Special to the Legal News
Published: February 12, 2014

The 12th District Court of Appeals recently affirmed a man’s drug-related convictions after ruling that a police department may conduct aerial surveillance of an area without a search warrant.

John Harsh II argued before the court that the Madison County Court of Common Pleas improperly denied his motion to suppress evidence taken from his home because he argued it was improperly collected.

Case summary states that the Madison County Drug Task Force participated in a marijuana eradication operation in August 2012 as part of its work with the Ohio Bureau of Criminal Investigation.

During the operation, the department conducted aerial observations from a low-flying helicopter over certain areas of the county.

The purpose of the observations was to locate and identify illegal marijuana grows.

Agent Dwight Lee Aspacher of the bureau’s clandestine drug lab was assigned to be a “spotter.”

His job was to identify marijuana plants as the helicopter canvassed the area.

He testified that he had served in that role for more than a decade and had achieved a perfect record in positively identifying marijuana from the air.

After the helicopter departed from the Madison County airport, Aspacher said he noticed several marijuana plants growing within a sunflower garden behind a home on Rosedale-Plain City Road.

Believing that the property contained an illegal marijuana grow, Aspacher radioed for ground units to respond to the area.

Several officers went to Harsh’s home in response to the tip and Harsh signed a consent form allowing them to search the property.

They recovered about 38 marijuana plants growing nearby as well as several dried marijuana plants hanging in a nearby barn.

Harsh was charged with one count of possession of drugs as a third-degree felony. He filed a motion to suppress that evidence but the trial court denied that request.

He then pleaded no contest and was sentenced to one year of community control.

On direct appeal, Harsh argued that his motion to suppress was improperly denied.

“Initially, Harsh argues the trial court erred by denying his motion to suppress for it is ‘improper for the government to go around conducting low-flying aircraft spy missions’ without a search warrant,” Judge Stephen Powell wrote for the court.

The three-judge appellate panel maintained that the Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures.

It further found, however, that in several previous cases various courts have established that a police department may conduct helicopter surveillance in public airspace without a warrant.

“However, it is well-established that warrantless aerial observations such as the one here are constitutional. We see no reason to deviate from these long-standing principles,” Judge Powell stated.

Harsh continued to claim that his motion to suppress should have been granted because the officers conducted an “immediate raid” on his property without obtaining a search warrant or his consent.

In support, he argued that “the show of police force was well underway before any alleged consent was sought or obtained” and his consent was rendered invalid and involuntary.

Upon review, the appellate judges found that testimony from Aspacher and another agent conflicted with Harsh’s allegations.

Several of the officers testified that they approached the house and spoke to Harsh prior to approaching the marijuana.

One deputy detective explained that they made contact with Harsh and asked him if they could search the property.

He stated that Harsh consented and was not under threat at the time. He also denied blocking the driveway.

In contrast, Harsh stated that after hearing a helicopter overhead he looked outside and saw several cars pull in and block his driveway.

He said a large group of people then “jumped out” of those cars while wearing masks and carrying machetes and guns.

He testified that the group immediately approached his garden and started “jerking stuff up.”

Conflicting his own statements, Harsh testified that he did not know what the officers were doing because he could not see them behind the house.

Still, he stated that he was “freaking out,” and unsure what to do.

He claimed he signed the consent form only after an unnamed officer told him he “could sign the search or he could be put on the ground and handcuffed until they could get a search warrant and then they would rip my house apart.”

Finally, Harsh denied knowledge of the marijuana. He said he believed it was actually “horse weed or something.”

The appellate judges reviewed the trial court’s findings and determined that Harsh’s version of events was “extreme at best” and lacked credibility.

“In light of the foregoing, we find the trial court did not err by finding Harsh had freely and voluntarily consented to the search of the property, thus leading to the seizure of the marijuana,” Judge Powell wrote.

Rejecting Harsh’s claims, the judges affirmed the trial court’s judgment.

Presiding Judge Robert Hendrickson and Judge Robert Ringland joined Judge Powell to form the majority.

The case is cited State v. Harsh, 2014-Ohio-251.

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