Search and Seizure: New Jersey Police Looking for Marijuana Growers Must Have Warrant to See Utility Records, Appeals Court Holds 8/5/05

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In a decision that went under the radar when it was issued in late May, the New Jersey Court of Appeals has blocked law enforcement there from examining power company records in an effort to catch indoor marijuana growers without a search warrant. The state of New Jersey has appealed, and the case is headed for the state Supreme Court. In the meantime, the state Supreme Court has issued a temporary order staying the appellate court decision and 31-year-old Keith Domicz, the man convicted in the case in lower court, remains in prison, two years into a 10-year sentence.

The case began when New Jersey State Police Marijuana Eradication Unit investigators subpoenaed the United Parcel Service delivery records from a Pennsylvania shop that sold the high-powered lights used in indoor gardening. Domicz was on the list. Police reviewed his criminal history, and a 1995 marijuana possession arrest increased their suspicions, so they used another subpoena to get his power usage records from Atlantic City Electric. (They also subpoenaed the records of two nearby homes for comparison purposes; the unknowing residents were not suspected of anything.) His power records showed a spike soon after the lights arrived, police said. They then scanned Domicz' home with a thermal imaging scanner -- again without a warrant -- but found nothing significant.

Subpoenas are issued by grand juries at the request of prosecutors, while judges issue search warrants. A search warrant requires probable cause that a crime has been committed, while a subpoena requires little more than a persuasive prosecutor.

Police then conducted a "knock and talk," where they simply knock on the door and ask the suspect questions. Police claim Domicz invited them in and consented to a search. Domicz argued in court that police told him they had a search warrant and forced him to sign a consent form without allowing him to read it.

In its blunt May ruling, the appellate court strongly suggested in believed Domicz' version of events, but saved its real scorn for the warrantless searches and the trial judge who allowed them to stand. Domicz' motion to have the evidence thrown out should have been granted "because the police entry into defendant's home and the search of his home violated the United States and New Jersey constitutions," the appeals court held. "The warrantless thermal-imaging scan of defendant's home constituted an unreasonable search. The warrantless seizure of defendant's electric bills was illegal. Defendant's consent to search his home was not voluntarily and knowingly made."

The court ordered Domicz' conviction reversed, his motion for suppression of the evidence granted, and a new hearing on the issue of Domicz' consent to the search, including whether previous police misconduct in the searches would require even the fruits of a consent search to be suppressed. Lastly, the court directed "that a different judge be assigned to conduct all future proceedings" in the case.

If the ruling is upheld, New Jersey law enforcement will have to convince a judge there is enough evidence a crime is being committed to get him to approve a search warrant for utility and other records. The ruling would also throw into doubt any convictions based on warrantless thermal imaging scanning done by police before the Supreme Court outlawed that practice in 2001.

"I was basically a normal citizen, except for the marijuana part," Domicz, a former roofer, told the Philadelphia Inquirer from his prison cell this week. "I worked and paid taxes and all that good stuff." He was pleased with the ruling, even though the stay meant he was staying put for the time being. "I think my case will help a lot of people," Domicz said. "It's going to force police to change their investigative measures, which means they'll have to follow the law."

It's not just the New Jersey appeals court Domicz has behind him -- his mom is there, too. She told the Inquirer marijuana ought to be legalized. "Pot is like this big tragedy," she said. "What's the big deal? Really? Who was hurt? No one but my son."

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Issue #398 -- 8/5/05

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Feature: Marc Emery Busted -- Canada's Leading Marijuana Activist Facing Life in American Prison Over Seed Sales | Feature: The Methamphetamine Epidemic -- Less Than Meets the Eye | Feature: Prison Protest Aiming for DC in Eight Days | Weekly: This Week's Corrupt Cops Stories | Patriot Act: House Reauthorization Includes New "Narcoterrorism" Offense | Patriot Act: Sold as Fighting Terrorists, Act is Used in Marijuana-Smuggling Investigation | Search and Seizure: New Jersey Police Looking for Marijuana Growers Must Have Warrant to See Utility Records, Appeals Court Holds | Treatment: Congress Lifts 30-Patient Limit for Buprenorphine Treatment | Marijuana: Denver SAFER Initiative Headed for November Ballot | New Zealand: Parliament Reclassifies Speed and Ecstasy, Stiffer Penalties Coming | Treatment: New Web Site Provides Resources on Opiate Agonist Therapy | Weekly: This Week in History | Job Opportunity: Prevention Point Pittsburgh | Weekly: The Reformer's Calendar

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