Pubdate: Sun, 04 Dec 2011
Source: St. Petersburg Times (FL)
Copyright: 2011 St. Petersburg Times
Author: Rita Farlow


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."
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