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Man pleads guilty to pot operation in North Douglas

Plea deal calls for Scott Eberhardt to serve a max of 60 days

Posted: March 30, 2012 - 12:06am
Scott Eberhardt pleaded guilty to a reduced misdemeanor charge of attempted fourth-degree misconduct involving a controlled substance in Juneau Superior Court on Thursday. Juneau Police seized a total of 181 marijuana plants growing at an apartment he rented.  Michael Penn/Juneau Empire
Michael Penn/Juneau Empire
Scott Eberhardt pleaded guilty to a reduced misdemeanor charge of attempted fourth-degree misconduct involving a controlled substance in Juneau Superior Court on Thursday. Juneau Police seized a total of 181 marijuana plants growing at an apartment he rented.

The Juneau man accused of running a large marijuana grow operation in the basement of his North Douglas home changed his plea to guilty Thursday in Juneau Superior Court.

Originally charged with a felony, Scott William Eberhardt, 27, pleaded guilty to a reduced misdemeanor charge of attempted fourth-degree misconduct involving a controlled substance.

District Attorney David Brower said in an interview the felony charge was reduced to a misdemeanor because problems arose with the search warrant, and in response to that, Eberhardt’s attorney Julie Willoughby filed a motion to suppress evidence.

Brower said he couldn’t tell if the state would “win that motion or not,” and made the determination making a plea deal was a better resolution than potentially losing the entire case.

Prosecutors say the case against Eberhardt began on Dec. 14 when a local real estate agent called the Juneau Police Department to report finding a large marijuana grow operation in a residence she was showing in the 5000 block of North Douglas Highway, according to an affidavit filed by the district attorney’s office in December of last year.

The affidavit states the agent told police she saw a crack in a newly sheetrocked area of the basement, looked through and saw marijuana plants. She took pictures of them with her cell phone and showed them to police, the document states.

The agent said Eberhardt was renting the apartment at the time, which was confirmed by JPD, the affidavit states.

A search warrant was executed that evening and a total of 181 marijuana plants were seized, the affidavit says. The Juneau Police Department said in an earlier release the 181 plants had an estimated street value of about $200,000.

Eberhardt was arrested that night and charged with fourth-degree misconduct involving a controlled substance. That’s a class ‘C’ felony that can carry up to five years in prison and a $50,000 fine.

He was indicted by a grand jury on that charge about a week after his arrest, and he pleaded not guilty during his arraignment on Dec. 29.

But, there were two problems with the issuance of the search warrant, Willoughby argues in her motion.

First, the police relied “solely on hearsay information” to obtain the search warrant, Willoughby wrote. She cited both state and federal law that says police are required to corroborate information presented by a citizen informant — in this case, the real estate agent — in order to establish the citizen’s credibility before a search warrant can be issued.

And that corroboration did not happen in this case despite photographic evidence, Willoughby argued.

“The photos on (the real estate agent’s) cell phone are not corroboration of her hearsay claims as her claims as to when and where the photos were taken are also hearsay,” Willoughby wrote. “Nor was the fact that the police confirmed that Mr. Eberhardt was the tenant of the apartment sufficient to establish corroboration of the hearsay claims of criminal activity.”

The second issue with the search warrant, Willoughby argued, was the state failed to establish probable cause that a crime was being committed.

Willoughby explains before a search warrant can be issued, the state must establish probable cause that a crime has been committed. In this case, the police asserted that the crime being committed was fourth-degree misconduct involving a controlled substance, which occurs when an individual possesses 25 or more marijuana plants.

But in this case, police did not present evidence to support a conclusion that 25 or more plants were in the residence, Willoughby argues.

“Here the information presented to the magistrate (who issued the search warrant) was that a bad photograph on a cell phone taken through the crack in a wall showed an undetermined number of marijuana plants in a room, with the officer testifying that he estimated the number of plants that he could see to be between twenty and thirty. No other evidence of the number of plants was presented to the issuing magistrate. The officer’s estimate based on a review of a bad photograph as to the number of plants visible in the photograph is not sufficient to establish probable cause to believe that crime had been committed,” Willoughby wrote.

Eberhardt agreed to the plea deal, which in addition to reducing the charge also calls for a cap of 60 days of jail time. That means 60 days is the maximum prison sentence Eberhardt could serve for the offense, and that also means Eberhardt could serve less than the 60 day ceiling.

Without the plea deal, the maximum penalty Eberhardt could have faced for the class ‘A’ misdemeanor is one year in prison and a $10,000 fine.

The other terms of plea deal (restitution, fines, probation, etc.) remain open at this point, both attorneys said.

Willoughby, who appeared for the change of plea hearing by phone from Ketchikan, told Judge Louis Menendez she intends to file a sentencing memo with her sentencing recommendations in the near future.

Menendez scheduled a sentencing hearing for May 10.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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