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State v. Hart

Court of Appeals of Ohio, Fifth District, Tuscarawas

May 31, 2017

STATE OF OHIO Plaintiff-Appellee
v.
JAMES A. HART Defendant-Appellant

         Criminal appeal from the Tuscarawas County Court of Common Pleas, Case No. 2015CR120304

          For Plaintiff-Appellee MICHAEL J. ERNEST Assistant Prosecuting Attorney

          For Defendant-Appellant MARK A. PERLAKY Public Defender's Office

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, J.

          OPINION

          GWIN, P.J.

         {¶1} Defendant-appellant James A. Hart ["Hart"] appeals the August 15, 2016 and September 20, 2016 Judgment Entries of the Tuscarawas County Court of Common Pleas overruling his motion to suppress.

         Facts and Procedural History

         {¶2} On December 7, 2015, Hart was indicted on one count of Possession of Marijuana, a felony of the third degree. On May 31, 2016, Hart filed a Motion to Suppress Evidence. The following evidence was adduced during the hearing on Hart's motion to suppress.

         {¶3} On August 6, 2015, Agent Kim Nusser from the Ohio Bureau of Criminal Investigation along with Tuscarawas County Sheriffs deputies engaged in a marijuana eradication program in Tuscarawas County Ohio. Agent Nusser testified that he was a passenger in a helicopter that flew over Hart's home, and in doing so, he spotted what looked like marijuana growing near the back of his home.

         {¶4} Agent Nusser testified that he is trained in spotting marijuana from a helicopter. Agent Nusser described seeing marijuana plans sitting in close proximity to Hart's home. Although he could not recall the exact altitude on the day in question, Agent Nusser testified that the helicopter generally flies at an altitude between 700 and 1, 000 feet. (T. at 16). Agent Nusser informed deputies on the ground that he had observed the suspected marijuana. Agent Nusser was aided by a GPS-like device, which gave him the coordinates of the location. The device did not provide a view of the property or identify the owner of the property in question. Agent Nusser used these coordinates to direct agents on the ground to the nearest cross street. From these observations and the direction of Agent Nusser, Detective Jeff Moore and Lieutenant Brian Alford of the Tuscarawas County Sheriffs Office went to Hart's home.

         {¶5} Deputy Moore stated that he met with Hart upon his arrival and found him to be very forthcoming (T. at 51). Detective Moore testified that Hart asked why the helicopter was present at his property, and Moore indicated that it was because marijuana had been spotted at the location. According to Deputy Moore, Hart stated, "I have marijuana growing at the back of the property. Come on back. I'll show you." (T. at 51). Deputy Moore stated that he and Hart then walked to the back of the property where they observed various marijuana plants growing (T. at 51- 52). Deputy Moore testified that Hart voluntarily took him to the back of the property (T. at 52). Deputy Moore stated that neither he nor Deputy Alford or any other officer had a weapon drawn or out at this time. (T. at 92). As a result of Hart taking the deputies to the back of the property, the deputies then sought and obtained a search warrant for the inside of the Hart's home. Upon cross-examination, Detective Moore noted that approximately 30 agents were present at Hart's home on the date in question. (T. at 57). Detective Moore also testified that even though Hart was very forthcoming in showing officers what was growing outside his home, Hart denied entrance into the inside of his home. Detective Moore was positive that Hart gave his consent and voluntarily showed him and Deputy Alford where the plants were located. (T. at 58).

         {¶6} Lieutenant Brian Alford testified that he was in uniform and arrived in a marked sheriff's cruiser. Lieutenant Alford explained to Hart why he was there, along with Detective Sergeant Jeff Moore, conversing with him while the helicopter circled above. Alford testified that he was following Hart around the property, and although Alford could not recall what Hart said as he was walking around, he testified Hart was very accommodating and friendly. Lieutenant Alford did recall Hart stating that he was growing marijuana for his own personal use. (T. at 38).

         {¶7} Hart testified that he was out running errands and was returning home when he saw a helicopter circling around his property above the trees surrounding his home. He further testified that Detective Moore and Lieutenant Alford pulled into his driveway and came up to the bushes near his home. Several unmarked police cars, along with uniformed officers carrying firearms were spread around his property at the time. Hart testified that no permission was given to search the property, nor was permission asked.

         {¶8} Hart further testified that he was not rude with officers, but that he absolutely did not feel that he could refuse permission to the officers to be on his property. Upon cross-examination, Hart indicated that he was not talking with the officers, but was on the phone to "NORMAL[1]" regarding his legal rights in the situation. Hart testified that he did not say anything when asked by officers if he knew why they were there, as he chose to walk away instead. Hart testified that he was followed by officers onto the property as he did so. Hart testified regarding his anxiety and helplessness about being surrounding by officers carrying firearms that day.

         {¶9} In a Judgment Entry dated August 15, 2016, the trial court overruled Hart's Motion to Suppress Evidence. Hart filed a motion for more specific findings of fact, specifically requesting whether the initial helicopter flyover of Hart's property was lawful, whether technology used by law enforcement to locate the property was generally available for public use, and what specific facts the Court used in finding that Hart consented to the search of his property. The trial court granted the motion. On September 20, 2016, the trial court issued a Judgment Entry finding ...


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