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Pot growing case tossed Appeals Court: Police manufactured evidence

Jessica Cuffman • Oct 2, 2013 at 4:20 PM

Now, a felony marijuana case built on their entry that followed will be thrown out, Ottawa County prosecutor Mark Mulligan said.

Ottawa County Drug Task Force agents charged Scott Stacey, 43, with cultivation of marijuana and other charges after kicking in his back door and searching his home, discovering 119 plants, weapons and a full grow operation in his basement.

In October 2011, Agent Don St. Clair and Detective Doug St. Clair went to Stacey’s home to attempt a “knock and talk” after receiving a tip he was selling pounds of marijuana, according to a police report.

When they arrived, Stacey’s sister, Kalyn Stacey, 26, ran from the front of the house to the back, and deputies followed her through two gates and onto a back porch where she went inside.

The detectives smelled raw marijuana and saw several plants through a basement window, then called prosecutors about obtaining a warrant to search the home.

But while they were calling, they checked back through the window and saw the plants missing.

Fearful evidence was being destroyed, they kicked in the door, yelled for people to come out of the basement and detained the Staceys when they came upstairs.

Scott Stacey’s hands and face were covered with potting soil, according to the police report.

After doing a protective sweep of the basement and seeing the grow operation, detectives obtained the warrant to search and seized the plants and weapons.

After Stacey was indicted, his attorneys attempted to suppress the evidence from the house, arguing detectives weren’t permitted to go to the back door because it was part of his property that was protected from illegal search and seizure under the Fourth Amendment.

At first, the courts ruled in favor of the state, after hearing testimony from the detectives that they saw the marijuana from the back porch after looking through the window.

But the court revisited the case after an expert decoded video surveillance recorded on Stacey’s own system that showed a different set of circumstances — ones that directly contradicted what detectives told the court.

“The court accepted the officers’ testimony that once on the porch they smelled the raw marijuana,” the Ohio Sixth District Court of Appeals noted in an opinion issued Friday. “The court noted, however, that the video showed that after that, one of the officers stepped off the deck and kneeled on the ground to look in a basement window.”

Officers also used a flashlight to look inside and moved a trash can to get a better view — outside the purview of what would have been legal search and seizure, according to court documents.

The set of facts the detectives used to justify kicking in the door without a warrant were manufactured, and therefore, unlawful, according to the appeals court ruling, which upheld the Ottawa County Common Pleas ruling to throw out the evidence obtained during the search that followed.

“We cannot go forward with the criminal case,” Mulligan said Monday. It’s likely the court will dismiss the case of its own accord, he said.

Kayln Stacey, however, pleaded guilty to possession of drugs and obstructing official business in June 2012, and she was placed on two years diversion.

If she serves the time successfully, her guilty plea will be withdrawn and her record wiped clean.

Law enforcement officers called the grow operation one of the most sophisticated setups they’d ever seen at the time of the arrests.

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