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Despite error, evidence not suppressed in drug case

By CHRISTINE L. PRATT Staff Writer Published: April 8, 2017 5:00 AM

MILLERSBURG -- What admittedly was a typographical error in a search warrant was just that, according to a Holmes County judge, who, after reviewing the evidence and hearing testimony, said the error was not enough to suppress evidence seized during the subsequent search.

Charles M. Bucher Sr., 62, of 13027 Township Road 511, Big Prairie, recently was indicted by a Holmes County grand jury on related criminal charges. He has pleaded not guilty in Holmes County Common Pleas Court to illegal manufacture of drugs, illegal cultivation of marijuana and possession of hashish.

Bucher's charges originated with a July aerial eradication effort, which led investigators to the door of his home. There they saw marijuana growing outside the house and, in plain view, evidence of illegal activity inside the house, according to Holmes County Sheriff's Sgt. Tim Stryker, who prepared an affidavit and search warrant, which was signed by Holmes County Juvenile/Probate Judge Tom Lee.

During the search, conducted while Bucher was on vacation, officers found 31 marijuana plants, several baggies of marijuana, containers of hash and evidence Bucher was extracting the THC from marijuana to create hash. They also found a loaded rifle, which was seized, in the residence, according to the Sheriff's Office.

And, while the house they searched was the one identified by officers in the air and on the ground, Stryker testified, the address and description of the residence were incorrect on first reference in the search warrant document, the core of which was copied and pasted electronically from a prior warrant.

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In a written motion to suppress filed Feb. 8, Bucher's attorney Dan Kaufman argued the inconsistency, although remedied in the second paragraph and beyond, because the incorrect address is attached to the probable cause, officers were not legally permitted to search Bucher's Big Prairie residence. "The only thing that is particular about this warrant is that it is particularly vague and clearly overbroad. One proofread through on this warrant would have let the drafter know that it is defective," according to the motion, which continues, "But, instead of proofreading it, it was rushed out the same day to be signed by a judge, who probably had too much going on at the time, and too many other things pressing him for time.

"So he signs it, assuming the officer that sent it to him, had made certain it was correct. It was not," according to the motion.

In a written response to the motion, Holmes County Assistant Prosecutor F. Christopher Oehl said a request to exclude evidence from the search "because of one typographic or clerical error" lacks legal precedence.

At a March 16 hearing on the matter, Stryker, a 17-year veteran admitted he failed to properly proofread the search warrant, but said it was Bucher's residence, to which he had been prior to seeking the warrant, he intended to search. It was the same address included in all but the first paragraph of the warrant, the property he described, under oath, to Lee and the same address he connected, via several databases to Bucher.

He said he did not notice at the time the address of a previously searched property, unrelated to the Bucher case, was inadvertently duplicated on the document.

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In a March 23 ruling, Judge Robert Rinfret notes Bucher did not dispute the probable cause to search the residence, based on the aerial observations and those made from the ground.

He summarizes the only question before the court is whether the "one paragraph which mistakenly lists the wrong address sufficient to suppress the evidence."

Subsequently, and after reviewing the written motions, Stryker's testimony, the documents in question and case law on the matter, Rinfret opines, "The court finds that the typographical error by the officer is not sufficiently unconstitutional to suppress the evidence."

Consequently, all evidence seized during the search may be used in a jury trial, which is set to begin on May 8.

Bucher, free on 10 percent of a $25,000 bond, faces up to 15 years in prison for the offenses, two of which include a firearm specification.

The charges stem from a July 25 search of Bucher's home, which was prompted by aerial observation of marijuana plants growing on his property.

During the search, conducted while Bucher was on vacation, officers found 31 marijuana plants, several baggies of marijuana, containers of hash and evidence Bucher was extracting the THC from marijuana to create hash. They also found a loaded rifle, which was seized, in the residence, according to court documents.

Reporter Christine Pratt can be reached at 330-674-5676 or cpratt@the-daily-record.com.


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