Court of Appeals of Ohio, Fifth District, Tuscarawas
appeal from the Tuscarawas County Court of Common Pleas, Case
Plaintiff-Appellee MICHAEL J. ERNEST Assistant Prosecuting
Defendant-Appellant MARK A. PERLAKY Public Defender's
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon.
Earle E. Wise, J.
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.
and Procedural History
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.
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.
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.
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).
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).
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.
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" 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.
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