A marijuana-sniffing Alaska State Trooper -- human, not canine -- has been leashed by a U.S. District Court judge.
In a ruling handed down Friday, Judge John Sedwick of the U.S. District Court for Alaska said no reasonable jurist can believe the word of Trooper Kyle S. Young, who claims that he can find Matanuska-Susitna Valley marijuana-grow operations by driving around and sniffing the air like some sort of "Dog: The Bounty Hunter" in a trooper stetson.
Sedwick subsequently tossed out evidence that had been obtained against Trace and Jennifer Thoms of Wasilla after troopers served a search warrant at their home. The warrant was based on testimony from Young that he had smelled dope wafting from an indoor growing operation on their property, and further, that he had traced the scent directly to their home even though between his location and the alleged grow operation was "a large section of forest and a two-story residence on a hill."
Vik Chaobal, who is representing Jennifer Thoms, and Rex Butler, who is representing Trace Thoms, together challenged the validity of the search by petitioning the court for a Franks hearing, during which a judge determines whether or not a police officer made false statements in order to obtain a warrant.
Defendants or their attorneys across the country, in various types of legal cases, occasionally petition judges for Franks hearings, but those requests are typically denied, according to Chaobal. Why? Because they call into question the honesty and integrity of police officers and, by extension, police investigations.
Trooper's 'magic' nose knows where pot grows?
Troopers obtained authority to raid the Thomses' property after Young filed a sworn affidavit claiming that around 1:30 a.m. on Feb. 22, 2010, "I smelled a strong odor of cultivating marijuana while driving on West Scarlett Circle ... I immediately stopped my vehicle and checked the wind direction and noticed that I was downwind of the first residence on the right ..."
The Alaska growing season had ended six months before, and the temperature at the time was 29 degrees, so there was clearly nobody growing a field of marijuana outdoors in the vicinity. But Young claimed he still could smell marijuana. So he parked his vehicle, got out and walked along the roadway, sniffing the air.
This revealed, according to his affidavit, "a strong odor of cultivating or recently harvested marijuana." Young followed the smell upwind toward the Thomses' home.
"I could not see any structure upwind of the suspect residence, and it appears that there is a pond or swamp behind the residence, and no other nearby structures (upwind) that could have been the source of the odor," his sworn statement said.
Based on all of this, Young began an investigation. He consulted maps to determine who owned the house where he claims he smelled the marijuana and discovered it belonged to the Thomses. He ran a background check and found that in 2005 Trace had been convicted of misconduct involving a controlled substance for growing marijuana.
Young contacted the Matanuska Electric Association and discovered that the Thomses had an electric bill of $788 per month -- way out of line with the area norm of about $176 per month.
Sedwick's ruling noted that at this point, in order to obtain a search warrant against the Thomses, Young testified he was confident that he'd sniffed out the marijuana grow, coming from the Thomses' home, and that the "skunky" smell could not have come from the pond or any other place.
Young backed up his assertion with a section of the affidavit titled "marijuana grow data" that recounts Young's catalog of "smell cases," according to Judge Sedwick.
Young apparently had busted other grow operations based on evidence and testimony to his sense of smell.
In his opinion, Sedwick expresses some serious skepticism about the human drug-sniffing capabilities that troopers had used to obtain search warrants.
"The data is presented as a study and purports to indicate that over 96 percent of the time when an officer smells marijuana on the outside air, there is more than four ounces of marijuana present," the judge writes. "The presentation is statistically flawed, but ultimately irrelevant to the present motion."
Sedwick was referring to the Franks hearing motion filed by Butler and Chaobal. The attorneys argued that a lower court judge should never have granted a search warrant in the first place because Young was making things up.
Chaobal found an expert witness -- Dr. David Doty, director of the Smell and Taste Center at the University of Pennsylvania School of Medicine -- to testify that it would have taken a magic smell to get from the Thomses' home to where Young claimed to catch the scent of marijuana on the street in Wasilla.
Doctor: 'Zero' possibility trooper smelled stash
The Thomses, it was discovered after the search warrant was executed, did indeed have a grow operation behind their house. But it was in a sealed building outfitted with a carbon filtration system to cleanse outgoing air. Given that fact, and added to it the distance involved between the home and the road; the testimony of other witnesses; and the nature of smells themselves, "Doty ultimately opined that there was a 'zero' possibility that Young smelled marijuana as he claimed," Sedwick wrote in his opinion.
Yukon Tanner, a safety manager for Matanuska Electric Association involved in electricity theft investigations at 20 to 25 Valley marijuana grow operations, was another witness in the case.
Tanner was called to the Thomses to investigate the possibility of electricity theft there. According to court documents, he "did not smell marijuana on the Thomses' property until he entered one of the outbuildings, even though the door to the outbuilding was ajar," the judge wrote. Tanner, however, claimed he didn't have a very good nose.
Trooper William Welch, on the other hand, claimed to have a nose that would make a wine steward proud. Welch, according to the Sedwick ruling, "testified that he has detected the smell of marijuana from 'over a mile' away." The judge's opinion did not elaborate on how exactly the trooper would know the marijuana he was smelling was more than a mile away, but it did report that "on the day of the search, (Welch) did not smell marijuana as he approached the outbuildings at the Thomses' property. He did not smell marijuana at all until he 'entered the first building.'"
Much the same was true for Trooper Curtis Vik, who, like Tanner, claimed to have a weak nose.
"Vik testified that the furthest distance he has ever smelled marijuana from the source was 'a couple hundred yards,'" the opinion noted. "On the day of the search, he first smelled marijuana when he was '50 to 75 feet' away from the source."
Based on all of this evidence, Sedwick said, it was simply impossible to believe Young had sniffed out a marijuana grow in the way he claimed. The judge then outlined his problems with the magic smell:
To conclude that Young did smell marijuana from the road, while in his vehicle, would require the court to assume that Thomses' filtration system was either saturated or not functional; that the odor of marijuana left the outbuilding unfiltered and remained warm long enough to stay above the vegetation behind the Thomses' house; that it either traveled around the Thomses' two-story residence or stayed warm long enough to traverse above it (and) then suddenly dropped in the area Young claimed to smell marijauna and that it followed the described 450-foot course without dispersing beyond perceptible levels.
State attorneys requested that Sedwick allow evidence obtained after the search warrant had been executed at the Thomses' residence -- and the grow operation discovered -- by asserting that Trooper Young's nose was really, really good; that he sniffed the dope, and even if he didn't, troopers had acted in "good faith" in pursuing the case against the Thomses.
Judge Sedwick slapped down that argument.
...The good-faith exception does not apply to a situation 'when an affiant has knowingly or recklessly included false information in the affidavit,'" the judge wrote. "Even if the good-faith exception could apply where a defendant has satisfied his burden (of demonstrating an illegal search), it would not apply here ... 'a reasonably well-trained officer would have known that this particular search was illegal despite the (state) judges's authorization.'
Sedwick said he had no choice but "to suppress evidence seized under a warrant when an affiant has knowingly or recklessly included false information in the affidavit. Moreover, because the other search warrants were derived from execution of the invalid warrant, the evidence seized pursuant to the other search warrants must also be suppressed."
The ruling would appear to make it almost impossible to make a case against the Thomses, but Sedwick asked prosecutors to "promptly advise the court how (they) will proceed."
Unclear at this time is how the ruling questioning the integrity of human drug sniffing investigations conducted by the Alaska State Troopers might affect other cases that have already been prosecuted.
Attorneys familiar with the Thoms case said this does not appear to be the first time investigators obtained a search warrant based on evidence sniffed out by a trooper -- human, not canine.
Contact Craig Medred at craig(at)alaskadispatch.com