Warrant for Pot Bust Obtained With Faulty Evidence

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By Mary Callahan, The Press Democrat
Source: Press Democrat

Phone calls from someone who grows pot and a high electric bill aren't sufficient evidence to search a home for marijuana plants, a state appellate court has ruled. A three-judge panel of the 1st District Court of Appeal ruled that three Sonoma County judges erred when they approved search warrants based on such limited evidence.
"This was not a close case," the court said in a unanimous decision issued this week.

The ruling means that Sonoma County resident Richard G. Hight probably will not have to go to jail, even though 92 marijuana plants were found in his barn near Sonoma three years ago.

Hight pleaded guilty to marijuana cultivation charges after the search warrant was upheld by a Superior Court judge. He was sentenced to nine months in jail, which was stayed pending appeal.

Hight's attorney, Richard Ingram, says law enforcement routinely uses skimpy evidence related to power usage to justify searching the homes of people they think might be growing marijuana.

But District Attorney Mike Mullins called the case "an aberration," adding that only 11 felony cases were thrown out last year because of problems related to faulty search warrants.

"That's total," he said. "Eleven, out of over a thousand."

The facts in Hight's case start with the 1998 arrest of a woman found to be growing 318 pot plants in her basement, according to court records. The woman, Rachel Kristine, had been arrested and convicted for growing marijuana five years earlier.

Drug agents focused on Hight after his number appeared in Kristine's phone records. Agents also obtained Hight's PG&E records, which they contended showed he used more power than several of his neighbors on Cavedale Road, suggesting he might be using "grow lights" for a garden.

In obtaining a warrant from Judge Allan Hardcastle authorizing the use of thermal imaging to try to detect heat from the house, investigators said Hight's electrical use was double that of his neighbors and that Kristine had called him five times in a single month.

Both statements were false, according to the Court of Appeal. A single call lasting less than two minutes had been placed from Kristine's home. The calculation of Hight's power use also was incorrect.

But even had those mistakes not been made, the court said there was insufficient evidence to justify a search. Notably lacking was "information to provide a substantial basis to conclude the warrant would uncover evidence of crime."

After the thermal imaging proved inconclusive, Ingram said Judge Robert Dale signed a search warrant for Hight's home, and 92 plants were found in his barn.

When Ingram challenged the warrant used to find them, a third judge, Robert Boyd, ruled against him.

Complete Title: Court: Warrants for Pot Bust Obtained With Faulty Evidence

You can reach Staff Writer Mary Callahan at: mcallahan@pressdemocrat.com

Source: Press Democrat, The (CA)
Author: Mary Callahan, The Press Democrat
Published: March 2, 2001
Copyright: 2001 The Press Democrat
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