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Judge says trooper couldn't have sniffed out marijuana
MARIJUANA: Sedwick throws out evidence from Mat-Su pot bust.
By LISA DEMER
ldemer@adn.com
Published: April 24th, 2011 11:08 PM
Last Modified: April 24th, 2011 11:09 PM
An Alaska trooper's reported ability to sniff out marijuana grow operations from hundreds of feet away is under attack in federal court.
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By LISA DEMER
ldemer@adn.com
Published: April 24th, 2011 11:08 PM
Last Modified: April 24th, 2011 11:09 PM
An Alaska trooper's reported ability to sniff out marijuana grow operations from hundreds of feet away is under attack in federal court.
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In a ruling Friday, U.S. District Judge John Sedwick concluded the pot-smelling power of investigator Kyle Young wasn't supported by the facts in a Mat-Su marijuana case, and shouldn't have been used as justification for a search warrant.
As a result, Sedwick threw out the seized evidence -- including some 500 marijuana plants. Unless prosecutors appeal, the government's drug case against Trace Rae and Jennifer Anne Thoms of Wasilla is gutted.
"This time, the tables turned," defense lawyer Rex Butler, who represents Trace Thoms, said Sunday. "This is a huge case, especially for the Valley."
He said it carries implications for numerous cases that were based on trooper Young's reputed marijuana-detecting skill.
Young, who has more than 20 years with the troopers, maintains he did smell marijuana that day in February 2010.
As a result, Sedwick threw out the seized evidence -- including some 500 marijuana plants. Unless prosecutors appeal, the government's drug case against Trace Rae and Jennifer Anne Thoms of Wasilla is gutted.
"This time, the tables turned," defense lawyer Rex Butler, who represents Trace Thoms, said Sunday. "This is a huge case, especially for the Valley."
He said it carries implications for numerous cases that were based on trooper Young's reputed marijuana-detecting skill.
Young, who has more than 20 years with the troopers, maintains he did smell marijuana that day in February 2010.
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"It was fairly strong. Smelled it on the air. Smelled it downwind of that place," Young said in an interview Sunday. "For them to rule that I couldn't, to me that says they are saying I am lying or that I was mistaken. And neither was correct."
He estimated that he's investigated and seized between 100 to 150 Alaska marijuana grow operations since 1998 that he located by smell.
Trace and Jennifer Thoms each face three drug counts, including manufacturing marijuana, as well as a charge of money laundering conspiracy in which they are accused of disguising more than $1 million in marijuana proceeds. In addition, Jennifer Thoms separately faces 14 money laundering counts.
The indictment against them also seeks forfeiture of various properties including their home, nearly $100,000, five snowmachines, a Ford F-250, a GMC Yukon Denali, a Rolex gold watch, and a 14-karat diamond wedding ring set.
He estimated that he's investigated and seized between 100 to 150 Alaska marijuana grow operations since 1998 that he located by smell.
Trace and Jennifer Thoms each face three drug counts, including manufacturing marijuana, as well as a charge of money laundering conspiracy in which they are accused of disguising more than $1 million in marijuana proceeds. In addition, Jennifer Thoms separately faces 14 money laundering counts.
The indictment against them also seeks forfeiture of various properties including their home, nearly $100,000, five snowmachines, a Ford F-250, a GMC Yukon Denali, a Rolex gold watch, and a 14-karat diamond wedding ring set.
THE SMELL TEST
Young, who has advanced training in drug investigations, was assigned to the Alaska Bureau of Alcohol and Drug Enforcement in November 2000.
In his sworn statement supporting his request for a search warrant last year, Young wrote that he was driving on Scarlet Circle -- in a residential area -- around 1:20 a.m. on Feb. 22, 2010, when he smelled "a strong odor of cultivating marijuana."
He already had suspicions about a grow operation there, he said in the interview.
He stopped and determined he was downwind of the first house on the right and that's where the smell was coming from. He checked property records and found that it belonged to Trace and Jennifer Thoms, he wrote in his affidavit. He found that Trace Thoms had a criminal history, including a 2005 felony marijuana conviction. He checked electrical usage and found that the home had two accounts in Jennifer Thoms' name averaging nearly $800 in electricity a month. (Young said he later found out there were additional accounts in the name of businesses for snow plowing and painting, which wouldn't have used electricity.)
The same day, troopers searched the property and found what they call a sizable grow operation with budding plants in an outbuilding behind the house. Among the 500 plants, more than 200 were budding, which Young conceded was perhaps all he could smell, according to Sedwick's order.
Prosecutors argue that the fact so many marijuana plants were seized "would tend to establish the likelihood that there was a strong odor of marijuana present on that date."
A magistrate judge, John Roberts, in February held a hearing on the search and last month recommended against throwing out the evidence. But the ultimate decision was Sedwick's.
Young said Sunday he was unaware that Sedwick had ruled against the prosecution.
Young, who has advanced training in drug investigations, was assigned to the Alaska Bureau of Alcohol and Drug Enforcement in November 2000.
In his sworn statement supporting his request for a search warrant last year, Young wrote that he was driving on Scarlet Circle -- in a residential area -- around 1:20 a.m. on Feb. 22, 2010, when he smelled "a strong odor of cultivating marijuana."
He already had suspicions about a grow operation there, he said in the interview.
He stopped and determined he was downwind of the first house on the right and that's where the smell was coming from. He checked property records and found that it belonged to Trace and Jennifer Thoms, he wrote in his affidavit. He found that Trace Thoms had a criminal history, including a 2005 felony marijuana conviction. He checked electrical usage and found that the home had two accounts in Jennifer Thoms' name averaging nearly $800 in electricity a month. (Young said he later found out there were additional accounts in the name of businesses for snow plowing and painting, which wouldn't have used electricity.)
The same day, troopers searched the property and found what they call a sizable grow operation with budding plants in an outbuilding behind the house. Among the 500 plants, more than 200 were budding, which Young conceded was perhaps all he could smell, according to Sedwick's order.
Prosecutors argue that the fact so many marijuana plants were seized "would tend to establish the likelihood that there was a strong odor of marijuana present on that date."
A magistrate judge, John Roberts, in February held a hearing on the search and last month recommended against throwing out the evidence. But the ultimate decision was Sedwick's.
Young said Sunday he was unaware that Sedwick had ruled against the prosecution.
THE CHALLENGE
The outbuilding was at least 450 feet from the road, where Young said he smelled marijuana from inside his vehicle. The building has no windows. There are two doors, and two garage doors, which were insulated and sealed.
In between the building and the road was a wooded area and the couple's two-story residence, which was on a hill.
At the February hearing, Thoms testified his outbuilding was equipped with a large charcoal air filter designed to capture odor. A fan sucked out the air through the filtration system, which weighed about 100 pounds. Thoms testified that he bought new filters weekly and had a dedicated ladder against the building so he checked it "constantly," Sedwick wrote.
A smell expert hired by the defense doubted anyone could have smelled marijuana in that situation.
David Doty, director of the Smell and Taste Center at the University of Pennsylvania School of Medicine, "ultimately opined that there was a 'zero' probability that Young smelled marijuana as he claimed," Sedwick wrote.
The defense paid some $20,000 for the expert, which is more than most defendants could afford, Butler said.
Young questioned the reliability of the filter. But it couldn't be tested. Another trooper dropped the filter while trying to disassemble it, and it broke open.
For Young's assertion about smelling marijuana to be true, Sedwick wrote, a number of factors would have had to come together: a nonfunctional air filter, an air current that carried the odor up and over vegetation, then up or around the house, and then suddenly down to Young, a distance of 450 feet, all without losing the strong marijuana smell. And there is no evidence of those things, the judge wrote.
Searches based on bad information can still be legal if the officer operated in good faith. But that doesn't apply if the officer knowingly or recklessly included false information in seeking the search warrant, Sedwick wrote.
Young said that in the future, maybe two or three officers will need to confirm a smell of marijuana before a search so that no one has to rely on a single officer's word.
"That is exactly what you need to do," Butler said.
The outbuilding was at least 450 feet from the road, where Young said he smelled marijuana from inside his vehicle. The building has no windows. There are two doors, and two garage doors, which were insulated and sealed.
In between the building and the road was a wooded area and the couple's two-story residence, which was on a hill.
At the February hearing, Thoms testified his outbuilding was equipped with a large charcoal air filter designed to capture odor. A fan sucked out the air through the filtration system, which weighed about 100 pounds. Thoms testified that he bought new filters weekly and had a dedicated ladder against the building so he checked it "constantly," Sedwick wrote.
A smell expert hired by the defense doubted anyone could have smelled marijuana in that situation.
David Doty, director of the Smell and Taste Center at the University of Pennsylvania School of Medicine, "ultimately opined that there was a 'zero' probability that Young smelled marijuana as he claimed," Sedwick wrote.
The defense paid some $20,000 for the expert, which is more than most defendants could afford, Butler said.
Young questioned the reliability of the filter. But it couldn't be tested. Another trooper dropped the filter while trying to disassemble it, and it broke open.
For Young's assertion about smelling marijuana to be true, Sedwick wrote, a number of factors would have had to come together: a nonfunctional air filter, an air current that carried the odor up and over vegetation, then up or around the house, and then suddenly down to Young, a distance of 450 feet, all without losing the strong marijuana smell. And there is no evidence of those things, the judge wrote.
Searches based on bad information can still be legal if the officer operated in good faith. But that doesn't apply if the officer knowingly or recklessly included false information in seeking the search warrant, Sedwick wrote.
Young said that in the future, maybe two or three officers will need to confirm a smell of marijuana before a search so that no one has to rely on a single officer's word.
"That is exactly what you need to do," Butler said.
