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September 23, 2018

Illegal Search Ruling Brings Fine, Not Prison In Phoenix Drug Case


OSWEGO, NY – Howard Middleton could have gone to prison for a long time for growing marijuana in his Phoenix home. Instead, he pleaded guilty to a violation, paid a fine and walked out of court because a judge ruled police did not have the right to search his home.

Howard Middleton

Howard Middleton

Middleton, 23, was arrested Jan. 11 after police discovered more than 100 fully grown marijuana plants in his home. He was indicted March 18 on one count of second-degree criminal possession of marijuana and one count of unlawfully growing cannabis.

Oswego County District Attorney Donald Dodd explained that Middleton pleaded guilty Oct. 16 to one violation count of unlawful possession of marijuana. He was sentenced to a $100 fine and a $95 court surcharge.

“His plea flowed from the court’s decision to grant a request to suppress evidence,” Dodd explained.

Police originally visited Middleton’s home at 139 Huntley Road in the town of Schroeppel after receiving tips that a man they were searching for on a warrant may have been there.

Middleton allowed police to enter his home, where police saw a marijuana plant in a white bucket in his kitchen. Police then asked Middleton to open a locked door to another room, where they discovered the marijuana growing operation.

Middleton’s attorney, Paul Carey, filed a motion to suppress both the drug evidence and oral statements that his client gave police. Carey’s motion included several requests, including:

  • A motion for the court to review grand jury minutes to determine if the grand jury process was defective
  • A motion to dismiss the charges on the grounds that the evidence was insufficient
  • A motion to suppress the drug evidence
  • A motion to suppress oral and written statements

Dodd said that his office objected to the motion, citing a “plain view exception” to the rules for search. He explained that if police have a reason to be somewhere and see something illegal, like drugs, in plain view, they don’t have to leave to obtain a warrant.

Oswego County Court Judge Walter Hafner Jr., denied Carey’s first two motions, ruling that the grand jury process was “proper in all respects” and that the evidence was sufficient.

A joint suppression hearing was held in August to determine whether the drug evidence and statements would be allowed. Three officers testified for the prosecution during the hearing to the events that resulted in Middleton’s arrest.

By letter Aug. 18, Carey notified the judge that he wouldn’t be calling witnesses because he believed the people did not meet the burden to show “the legality of the warrantless search” of Middleton’s residence.

In a lengthy written decision, Hafner said that once Middleton told police he did not know the person that they were seeking, the people needed to prove that the officer had a “founded suspicion that criminal activity was afoot” to ask permission to enter his home.

The DA’s office argued that the officer’s threat of obtaining a search warrant did not negate the fact that Middleton consented to the search.

“The fact that those threats were made is a factor for the court to consider,” Hafner wrote.

“No court would have legally issued a search warrant based on unreliable and non-specific information possessed by (the officer) at the time he threatened to obtain a search warrant if the defendant did not consent to the entry of his residence,” Hafner said.

“The people failed to meet the burden of proof that the defendant’s search to his residence was made voluntarily,” he added. Hafner ruled that all evidence and statements were suppressed on the basis that they were the “derivative product of the illegal search.”

Dodd says that whether a search warrant would have been granted is not the issue. He explained that the fact that police had a reason to be there and Middleton allowed officers entry should have been the only consideration.

Once inside, Dodd said he maintains that the plain view exception ultimately negated the original reason police were there once they saw marijuana out in the open.

“That gave police the proper basis to search without a warrant,” Dodd said. “The good judge says otherwise. … We still had an indictment but we had no evidence to prove the indictment. The decision took away our proof so we basically found something that he would plead guilty to.”

Though disappointed with the outcome of the case, Dodd said there was one positive.

“The Phoenix police department took a lot of dope off the street,” Dodd said.

At the time of Middleton‘s arrest, Phoenix Police Chief Rod Carr said that each plant would yield one-half to three-quarters of a pound of marijuana. He said that the street value of one pound of marijuana is approximately $1,500 to $2,000.

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