Thanks to his attorney, Casey saw a glimmer of hope-that small, twinkling light that only a good attorney can bring to the darkness of a case like this. From this glimmer a case strategy was born that might ultimately work to free Casey. It was daring and would cost Casey time as he waited out the appeal, but he knew as well as I did that it was the only real shot he had.
The crack in the state’s case was not in its assumption that Casey was a marijuana grower, packager and seller. The state was absolutely correct in these assumptions and the evidence more than proved it. It was in how the state came to that evidence that the case tottered on an unsteady foundation. It was my job to probe that crack in trial, exploit it, put it on record and then convince an appellate court of what I had not been able to convince Judge Orton Powell of during a pretrial motion to suppress the evidence in the case.
The seed of the prosecution of Harold Casey was planted on a Tuesday in mid-December when Casey walked into a Home Depot in Lancaster and made a number of mundane purchases that included three lightbulbs of the variety used in hydroponic farming. The man behind him in the checkout line happened to be an off-duty sheriff’s deputy about to purchase outdoor Christmas lights. The deputy recognized some of the artwork on Casey’s arms-most notably the skull with halo tattoo that is the emblematic signature of the Road Saints-and put two and two together. The off-duty man then dutifully followed Casey’s Harley as he rode to the ranch in nearby Pearblossom. This information was passed to the sheriff’s drug squad, which arranged for an unmarked helicopter to fly over the ranch with a thermal imaging camera. The subsequent photographs, detailing rich red heat blooms from the barn and Quonset hut, along with the statement of the deputy who saw Casey purchase hydroponic lights, were submitted in an affidavit to a judge. The next morning Casey was rousted from sleep on the couch by deputies with a signed search warrant.
In an earlier hearing I argued that all evidence against Casey should be excluded because the probable cause for the search constituted an invasion of Casey’s right to privacy. Using an individual’s commonplace purchases at a hardware store as a springboard to conduct a further invasion of privacy through surveillance on the ground and in the air and by thermal imaging would surely be viewed as excessive by the framers of the Constitution.
Judge Powell rejected my argument and the case moved toward trial or disposition by plea agreement. In the meantime new information came to light that would bolster Casey’s appeal of a conviction. Analysis of the photographs taken during the flyover of Casey’s house and the focal specifications of the thermal camera used by the deputies indicated the helicopter was flying no more than two hundred feet off the ground when the photographs were taken. The U.S. Supreme Court has held that a law enforcement observation flight over a suspect’s property does not violate an individual’s right to privacy so long as the aircraft is in public airspace. I had Raul Levin, my investigator, check with the Federal Aviation Administration. Casey’s ranch was located beneath no airport flight pattern. The floor for public airspace above the ranch was a thousand feet. The deputies had clearly invaded Casey’s privacy while gathering the probable cause to raid the ranch.
My job now was to take the case to trial and elicit testimony from the deputies and pilot as to the altitude they were flying when they went over the ranch. If they told the truth, I had them. If they lied, I had them. I don’t relish the idea of embarrassing law enforcement officers in open court, but my hope was that they would lie. If a jury sees a cop lie on the witness stand, then the case might as well end right there. You don’t have to appeal a not-guilty verdict. The state has no comebacks from a not-guilty verdict.
Either way, I was confident I had a winner. We just had to get to trial and there was only one thing holding us back. That was what I needed to talk to Casey about before the judge took the bench and called the case.
My client sauntered over to the corner of the pen and didn’t offer a hello. I didn’t, either. He