You Smelled What--Um, Probably Not

An Alaskan State Trooper claims to be able sniff out marijuana grow operations all by himself, that is without the assistance of a trained dog.  A US District Court Judge is dubious.  Here's Lisa Demer's story in the Anchorage Dailly News:

"An Alaska trooper's reported ability to sniff out marijuana grow operations from hundreds of feet away is under attack in federal court.   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.'  [Attorney Butler] 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. '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.

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.

[Trooper Young] 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[.]

____________________________________

As a lawyer in and out of courtrooms over the years I listened to a lot of incredible testimony by police officers purporting to possess various forms of "expertise," for instance the ability to adjudge with accuracy "speeding" from perspectives that seems improbable.  Or situations in which police officers with no specialized training offered expert opinions on collisions that did not witness.  Usually this testimony was accepted into evidence as almost sacrosanct.   You can't imagine how much imagination goes into law enforcement affidavits supporting search and seizures.  Well, maybe now you can.

I'll tell you what--if this was a State Court Judge who had to stand for election or reelection I doubt that the same result would have followed.  I can count on one hand the Judges that I've known over the years who would have had the courage to toss this evidence and still stand for election knowing he or she had just pissed off local law enforcement.