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| Florida Growhouse Conviction Overturned |
See: Florida Grow House, Florida Grow House Defense Attorney, Florida Growhouse, Grow House, Growhouse, Terry, search warrant
Our friend wrote:
"Appellant Robert Joseph Valerio
appealed the district court's denial of his motion to suppress evidence
that led to his arrest for growing marijuana. The central issue presented
in the appeal was whether Terry v. Ohio authorized
law enforcement officers to effectuate an investigative seizure of Mr.
Valerio nearly one week after last observing him do anything suspicious. The Eleventh Circuit held that because the
constitutional authority to make a Terry stop is dependent upon the
exigencies associated with on-the-spot observations of the officer on the
beat, the officers' seizure here was not authorized by the Fourth
Amendment."
"Mr. Valerio became the target of
an investigation of the Drug Enforcement Administration (DEA) on July 27,
2011, after he visited Green Touch Hydroponics, a retail store selling
hydroponic gardening equipment. Special Agent David Lee Hibbs of the DEA
was conducting surveillance at Green Touch under the view that people who
purchased hydroponic equipment were likely to be involved in growing
marijuana. While conducting surveillance, Agent Hibbs saw a black
Chevrolet truck enter the parking lot in the back of the store. He noticed
that the truck had no license plate and that it backed into a parking
space, which he surmised was an attempt to conceal the truck's missing
license plate. Agent Hibbs watched the driver, later confirmed to be Mr.
Valerio, walk into the store and return about fifteen to twenty minutes
later with a white plastic shopping bag."
"Agent Hibbs followed Mr. Valerio
as he drove out of the parking lot and noted that Mr. Valerio kept looking
at his rearview mirror, which Agent Hibbs interpreted as nervousness at
the prospect of being followed by law enforcement. Eventually, Mr. Valerio
pulled over to the side of the road and walked towards the rear of the
vehicle holding what appeared to Agent Hibbs to be a license plate. As
Agent Hibbs was traveling past Mr. Valerio's truck, he could not see what
Mr. Valerio did with the object in his hands."
"Agent Hibbs next encountered Mr.
Valerio approximately two weeks later on August 17, when he was again
conducting surveillance at Green Touch. He observed Mr. Valerio drive the
same black truck into the parking lot without a license plate, back into a
spot, and enter the store. Mr. Valerio left the store after about twenty
minutes and drove away but shortly thereafter stopped at a 7–11 parking
lot. Another investigating agent observed that the truck had a license
plate affixed to it when it left the 7–11 parking lot. The DEA agents
followed Mr. Valerio to a warehouse in Deerfield Beach , which the agents thought was
suitable for a marijuana grow operation. Once there, the agents saw Mr.
Valerio park near bay 15 of the warehouse and walk toward the warehouse
building but did not see where he went or witness anything else of note."
"The next night, August 18, DEA
agents conducted surveillance of the area around bay 15 of the warehouse
and observed lights emanating from a door in the area of bay 15, though
they could not be sure which specific door. Nearly a week later on August
24, the Broward County Sheriff's Office brought a K–9 to the warehouse to
sniff for drugs. The K–9 sniffed all of the doors on the side of the
warehouse where bay 15 was located but only alerted to bay 14. Based on
this information, investigating agents obtained a search warrant for bay
14, which they served that same day. Rather than corroborating their
previous suspicions of Mr. Valerio, their search failed to uncover any new
evidence that Mr. Valerio was running a marijuana grow operation out of
one of the bays. They discovered that both bay 14 and the adjoining bay 13
were owned by Jeremy Staska, who operated a recording studio there. Mr. Staska told the investigating officers
that bands regularly recorded in the studio until late at night, which
explained the lights coming from underneath the bay door on the night of
August 18. He also estimated that a third of the bands that used his
studio smoked marijuana while recording. When shown a picture of Mr.
Valerio, Mr. Staska told the officers that Mr. Valerio was friends with a
mechanic who worked at the warehouse and that it was possible that he
rented a bay on the other side of the warehouse."
"After failing to find any
evidence that Mr. Valerio was involved in a marijuana grow operation from
the search of bays 13 and 14 and the K–9's failure to alert to the
presence of drugs in bay 15, Broward
County Sherriff's Office Detective Scott Ambrose directed DEA Special
Agent Joseph Ahearn and Detective Joseph Lopez to go to Mr. Valerio's home
to attempt a voluntary citizen encounter, in hopes of obtaining useful
evidence based on Mr. Valerio's cooperation. The agents drove to Mr.
Valerio's home but did not knock on his door and ask to speak with him, as
instructed. Instead, they waited across the street until he emerged from
his house and entered his truck, which was parked in his driveway. At that
point, the officers blocked his exit from the driveway with their vehicle
and Agent Ahearn got out of his vehicle and approached Mr. Valerio, with
his gun drawn and pointed in the direction of Mr. Valerio, ordering him in
a loud voice to get out of his truck. Agent Ahearn was dressed in street
clothes but had on a bulletproof vest, with a black placard reading Police
over his clothes. When Mr. Valerio stepped out of his truck, Agent Ahearn
holstered his gun and immediately conducted a full-body pat-down search of
Mr. Valerio's person and escorted him to the front of his truck. Detective
Lopez then asked Mr. Valerio if he operated any warehouses in the area.
Mr. Valerio initially stated that he did not. But following further
questioning, Mr. Valerio admitted to growing marijuana inside bays 15 and
16 at the Deerfield Beach
warehouse."
"On appeal, the Eleventh Circuit
noted that the government had conceded that this was not a voluntary
encounter and that the parties had agreed that, at minimum, the officers'
encounter with Mr. Valerio in his driveway constituted a seizure subject
to Fourth Amendment scrutiny. The
question, then, was whether the officers' stop-and-frisk of Mr. Valerio,
one week after they had last observed him engage in any suspicious
activity, was constitutional under the Fourth Amendment principles
articulated in Terry."
"The Court stated that the
investigative stop contemplated by Terry – a brief, investigatory stop
when the officer has a reasonable, articulable suspicion that criminal
activity is afoot– is not a policing
tool that can be constitutionally deployed in any context in which law
enforcement has reasonable suspicion that an individual is involved in
criminal activity. Rather, it may be used only within the rubric of police
conduct addressed in Terry, for which the timing and circumstances
surrounding the investigative stop matter. Terry stops, the Court held,
are thus limited to situations where officers are required to take swift
action predicated upon the on-the-spot observations of the officer on the
beat."
"The Court found that the timing
of and circumstances surrounding the officers' seizure of Mr. Valerio in
this case placed it well outside of the Terry exception to the probable
cause requirement. The stop here was not responsive to the development of
suspicion within a dynamic or urgent law enforcement environment., the
Court found. Rather, the officers went
to Mr. Valerio's home nearly a week after they had last observed him do anything.
Given this delay and the complete absence of any contemporaneous observations
of Mr. Valerio that would necessitate swift law enforcement action, the
Court stated that the underlying purposes behind Terry 's exception to the
probable cause requirement were in no way present when the officers seized
Mr. Valerio. The Court wrote that the opportunity to Terry stop a suspect,
a law enforcement power justified by and limited to the exigent
circumstances of the moment, cannot be put in the bank and saved for use
on a rainy day, long after any claimed exigency has expired. Thus, the
seizure of Mr. Valerio did not qualify for the Terry exception to the Fourth
Amendment's probable cause rule. Instead, the passage of time between Mr.
Valerio's suspicious activity and the officers' seizure of him made it
entirely practicable for law enforcement officers to proceed with their
investigation in a manner consistent with the default requirements of the
Fourth Amendment, which only allow for a seizure upon a warrant or probable
cause accompanied by well-defined exigent circumstances. Moreover, no
exigency emerged from the simple observation that Mr. Valerio had exited
his house and entered his truck. The Court concluded that as the government
did not contend that its officers had probable cause that Mr. Valerio was
involved in criminal activity at the time they seized him, the seizure of
Mr. Valerio was unconstitutional under the circumstances discussed above."
"The Court also noted that by
failing to make the argument below that the evidence was obtained through
voluntary consent and that the taint of the Fourth Amendment violation has
been sufficiently purged, the government had waived any such argument
before the court of appeals."
Source: http://www.ca11.uscourts.gov/opinions/ops/201212235.pdf
See: Florida Grow House, Florida Grow House Defense Attorney, Florida Growhouse, Grow House, Growhouse, Terry, search warrant
