Court upholds conviction in marijuana case
A Pennsylvania appeals court has upheld the conviction and short jail term of a Tyrone man who was charged with conducting a marijuana grow operation at his home nearly five years ago.
The defendant, Norman J. Barony Jr., now 59, was sentenced by Blair County President Judge Elizabeth A. Doyle to spend one to 10 years in a state correctional institution after he was convicted of two counts of criminal conspiracy, possession with intent to distribute marijuana and possession of illegal drug paraphernalia.
One of the issues in the case involved a “trash pull” conducted in August 2011 by Pennsylvania State Police Trooper Charles W. Schaefer, a narcotics officer with more than 20 years’ experience.
Police suspected Barony was growing marijuana, and the trooper rode on a garbage truck to the Barony home on Pine Street to obtain the suspect’s trash bags.
This came after recorded telephone calls between a now-deceased police informant and Barony.
Schaefer found a marijuana stem and an empty box of a substance used to clean THC — the ingredient in marijuana that causes its psychological effects — from a person’s system in the trash bag.
Based on that evidence, the officer obtained a search warrant for the home.
Police found nine marijuana plants, marijuana seeds and growing paraphernalia in the home, the items that led to the criminal charges.
Barony, through his attorney Philip Masorti of State College, appealed his convictions to the Pennsylvania Superior Court, which late last month rejected the defense arguments.
The defense maintained the trash pull was an illegal invasion of privacy, that the search warrant, issued the day after the trash pull, was based on “stale” information and the confidential informant was unreliable.
Masorti also argued that Barony was denied the right to confront the informant, who died before Barony went to trial.
The trial of the case went through nine delays, and Barony was not convicted until Nov. 20, 2015.
A panel that included Superior Court President Judge Susan P. Gantman, President Judge Emeritus Kate Ford Elliott and Judge Carl A. Solano handed down a ruling contending Doyle’s opinion was “well-reasoned,” and the appeals court upheld Barony’s convictions and sentence.
Concerning the trash pull, the defense argued that Barony had an expectation of privacy, indicating his garbage that day was at the end of his Pine Street driveway.
Both Doyle and the Superior Court panel cited prior court decisions that indicated “the law is clear that putting trash out for collection is an act of abandonment that terminates Fourth Amendment protections (against illegal search and seizure). …”
It was pointed out other Pine Street property owners place their trash along the road and it was concluded Pine Street was not a private road, despite a sign that proclaimed “Private Drive.”
The public had access to the road, the opinion stated.
The court also upheld Doyle’s ruling that the information used in the search warrant was not stale.
The appeals court concluded that when it came to confronting the police informant, the defense could have done that during a pretrial suppression hearing — while the informant was still alive.
The defense chose not to call the informant at that time.
The case was argued before the Superior Court by Blair County Assistant District Attorney Derek Elensky.
Barony, at the sentencing hearing, was permitted to remain free on bond pending the outcome of his appeal.
The defense can request a review by the Pennsylvania Supreme Court.