The opinion of the court was delivered by: Judge Gregory L. Frost
This matter came on for a hearing this 4th day of May 2006 upon the Motion to Suppress Evidence (Doc. # 16) filed by Defendant on February 15, 2006, the Reply (Doc. # 22) filed by the Government on April 5, 2006, and upon the post-hearing briefs filed by the Defendant (Doc. #27) on May 15, 2006 and by the Government (Doc. # 28) on May 16, 2006. Defendant claims that the marijuana plants that form the basis of the charges filed against him should be suppressed because the seizure was the product of violations of Defendant's rights as guaranteed by the Fourth Amendment to the United States Constitution.
At the hearing, the Government called Jackie Keaton as its first witness. Mr. Keaton is an Ohio Department of Transportation pilot and has flown helicopters for thirty-two years. He assists the Ohio Bureau of Criminal Identification and Investigation in the ERAD program designed to identify and eradicate marijuana plants in Ohio counties. On July 13, 2004 Mr. Keaton was operating a helicopter in the Delaware County, Ohio area and a spotter, Dennis Lowe, was with him. Mr. Lowe is the main spotter for the ERAD program and is employed by the Ohio Bureau of Criminal Identification and Investigation. The two had flown together for more than ten years. Mr. Keaton testified that pursuant to Federal Aviation Regulations, Part 91, helicopters must fly at a minimum height of 300 feet in case of engine failure. At that height, if the helicopter experiences engine failure, the helicopter can auto-rotate and land safely. If a helicopter is operated lower than 300 feet, auto-rotation will not be effective, resulting in a crash landing. Mr. Keaton also testified that generally all aircraft are required to fly at 500 feet above any person, vessel, or structure, but helicopters are permitted to fly at lower altitudes so long as due regard is given to the safety of persons on the ground. Keaton estimated that the surveillance on July 13, 2004 was conducted at an altitude of generally 400 feet but not any lower than 300 feet because of safety concerns. Mr. Keaton conceded that they may have flown below 300 feet on one occasion that day.
The pilot testified that the spotter initially identified one marijuana plant on property northwest of Defendant's property. The ground crew was dispatched to the area and the plant was destroyed. More marijuana plants were spotted by Lowe in that general vicinity northwest of Defendant's property. The pilot indicated that he and the spotter noticed a vehicle trail leading from the location where the marijuana plants were found on the adjacent property to the Defendant's property. After that identification, the pilot then circled around and the spotter located more marijuana plants southwest of Defendant's property. Again, the pilot and the spotter observed more vehicle trails leading back to Defendant's property.
Based upon those observations, Mr. Keaton flew over Defendant's property and spotted marijuana plants on Defendant's property. They also spotted greenhouses on the property. It was at this time that the helicopter flew lower and possibly below 300 feet in order to observe what the spotter believed to be small marijuana plants growing in pots outside and adjacent to the greenhouses. Thereafter, the helicopter traveled to the other side of the road adjacent to Defendant's property, and the spotter identified marijuana plants in a swampy area near the river.
Mr. Keaton indicated that the helicopter was in the area circling over the properties for about one hour. During that time, the pilot believed that people on the ground would have been able to see and hear the helicopter. He also believed that the down draft from the helicopter rotor blades would have caused tree leaves and limbs to sway, especially when the helicopter was hovering. The helicopter received permission to land on some private property in the vicinity, and the ground crew were then directed onto Defendant's property. The ground crew did not enter onto Defendant's property until after the helicopter spotter identified marijuana plants were identified on Defendant's property by the helicopter spotter.
Dennis Lowe, the spotter in the helicopter, was called as a witness. He testified that he was employed as a special agent with the Ohio Bureau of Criminal Identification and Investigation for nine years and as a police officer for more than twenty years. Since 1992 Officer Lowe has been assigned in the summer months to work as a spotter in a helicopter for the marijuana eradication program. He was initially trained to work with the National Guard in eradication programs. He was taught how to look for the plant and structures, as well as different things in nature that would not typically be there. Between July and October of every year, Officer Lowe flies every day except weekends to spot marijuana. He does not use binoculars because of the constant movement of the aircraft.
The witness confirmed that on July 13, 2004 he initially saw one marijuana plant in a field and then spotted several marijuana plants in another area northwest of Defendant's house. As a result of finding those plants, the helicopter search was expanded and more marijuana plants and containers were identified by Lowe in an area southwest of Defendant's property. Vehicle trails from both the northwest area and the southwest area led to the Defendant's property. The helicopter followed the trails to Defendant's property and marijuana plants were observed by Lowe on Defendant's property. Greenhouses used for growing plants were identified on Defendant's property, as well as a four-wheel vehicle that was consistent with the type of vehicle that would leave tracks seen leading to the two other areas off of Defendant's property. After identifying marijuana plants on Defendant's property, the spotter then observed marijuana plants across the roadway from Defendant's property in a swampy area.
The officer testified that he believed that the helicopter was flying at an altitude of between 400 and 500 feet. When questioned as to how he could spot marijuana plants from that height, Officer Lowe indicated that it is typically not the plant itself but a combination of identifiers such as disturbed earth around the base of the plants, the shape and color of the plants, and sometimes containers in which young plants are grown.
Detective John Radabaugh of the Delaware Police Department testified that he was advised by the spotter, Dennis Lowe, that marijuana plants had been observed on Defendant's property. Detective Radabaugh and several other law enforcement personnel then proceeded to Defendant's property. The officers walked onto the premises and observed marijuana growing in containers on the bus and van parked on the property, in plastic containers hanging from the trees, in the ground, in the greenhouses, and in containers outside one greenhouse. The officers also observed a four-wheel all-terrain vehicle equipped with a spraying attachment, hoses leading to various parts of the property, and fertilizer. The ground crew collected and photographed all of the marijuana plants and the paraphernalia believed to be used to grow the plants. The officers also went across the road from Defendant's property into a swampy area and identified and collected more marijuana plants growing in that area.
During the initial one and one-half hours that the officers were on Defendant's property, neither Defendant nor any other residents were at the property. Detective Radabaugh testified that during that period of time the officers collected the marijuana plants on the property to prevent destruction of the evidence. Thereafter, an affidavit for a search warrant was prepared and submitted to Judge Krueger of the Delaware County Common Pleas Court. Judge Krueger issued a search warrant for the search of the residence, garage, and other outbuildings. Officers eventually searched the residence and other buildings on the property pursuant to the search warrant. A total of approximately four hours elapsed from the time the officers entered onto the property until the search of the buildings and the residence occurred.
In all, a total of 2,437 marijuana plants were confiscated: 744 marijuana plants from the trail on the back of Defendant's property; 649plants from the yard behind the house; 57 plants from the rear of the detached garage; 22 plants from a tall shrub area on the property; and 769 marijuana plants from the greenhouse area on the property. According to Detective Radabaugh, the greenhouses were open and the interior of the greenhouses were readily observable when standing outside of the greenhouses. Marijuana plants were collected from the greenhouses before the search warrant was obtained. After receiving the search warrant, an additional 342 plants were found in the detached garage. Paperwork and firearms were recovered from inside the Defendant's house. The parties stipulated that the marijuana plants found in the fields northwest, southwest, and across the roadway from Defendant's property were not located on property owned or leased by Defendant or any member of Defendant's family.
Eric Griffin, a detective with the Delaware Sheriff's Office, also testified on behalf of the Government. As a member of the ground crew he went onto Defendant's property after they had been alerted to marijuana on the property. He testified that all plants collected before the search warrant was obtained were in plain view. Detective Griffin did observe a deck and hot tub in the back of the house but he did not testify that marijuana plants were confiscated from that area.
Patricia Ann Downing, a neighbor of Defendant, testified on behalf of Defendant. She is a nurse working in the Columbus, Ohio area. She works at night and is at home during the daytime. She testified that on July 13, 2004 a helicopter woke her up and that she observed the aircraft flying in the vicinity of her home. She indicated that the helicopter was loud and appeared to be flying lower than the helicopter medical flights she occasionally would see flying over the residence.
Defendant then called as an expert witness Scott Noll, who is a technical consultant for SEA, a firm that provides expertise to litigants and attorneys. Mr. Noll's area of expertise generally involves forensic investigations relating to traffic accident reconstruction and specifically the area of human perception and visual acuity. The expert testified that from the experiments and calculations that he performed, he did not believe a person flying over 100 feet above ...