The saga of an Alaska State Trooper with a keen sense of smell will trudge forward Monday in Anchorage when investigator Kyle S. Young takes the stand for a limited evidentiary hearing. Young busted a Matanuska-Susitna couple for growing marijuana back in 2010 after he said he smelled marijuana wafting from a Wasilla home.
But it turned out the large grow operation was about 450 feet from the road, where Young was when he reported first smelling the marijuana. It was also behind the couple's house and shielded by trees.
Since then, the involved parties have fought over evidence, but an Anchorage judge recently granted the accused pot farmers a chance to briefly question Young about a previously unknown "record of deceit."
Smelling marijuana from a football field away
On July 28, 2010, husband and wife Trace Thoms, 46, and Jennifer Thoms, 36, were arraigned in federal court in Anchorage on charges of conspiracy to grow marijuana, possession with intent to distribute it, maintaining a place to grow marijuana and conspiracy to launder more than $1 million in proceeds obtained from its sale. The federal indictment seeks the forfeiture of property the couple used during their alleged grow operation, including their home and vehicles.
The Thomses have fought the case tooth and nail, filing motions to suppress evidence and appealing the court’s rejections. U.S. prosecutors, in turn, have pushed for the case to move forward. A jury trial is set for Aug. 26 in Anchorage.
Before a jury decides whether to send the couple to prison -- Trace faces the possibility of life in prison while Jennifer could be locked up for 40 years -- a judge has granted them the chance to question trooper Young. The defense aims to prove that Young lied to obtain a search warrant and that there’s no way he could have smelled marijuana from more than a football field away.
In Alaska, if someone is caught with more than four ounces of marijuana, the offender can get up to five years prison time.
During the new "Franks hearing" -- when a judge determines whether or not a police officer made false statements to obtain a warrant -- the defense will present new evidence allegedly demonstrating Young’s “record of deceit.” Court records show that on at least three occasions, judges suppressed search warrants obtained by Young because information was omitted, there were deliberate misrepresentations or he failed to provide new information.
‘Look him in the eye’
Early in the case, the Thomses moved to suppress the evidence of the troopers’ search, and they requested a hearing to challenge the truth of Young’s olfactory abilities.
At the hearing, 10 witnesses testified, seven on behalf of the Thomses, including professor Richard Doty, director of smell and taste at the University Of Pennsylvania School Of Medicine. Three witnesses testified on behalf of the government: Young and two officers involved in the search.
The magistrate judge sided with the trooper and denied the Thomses’ motion to suppress the evidence: about 400 plants and two high-tech filtration systems found at the home. But the fight was far from over. The defense filed objections to the magistrate’s decision and District Court Judge John Sedwick reversed it, allowing the evidence be thrown out. Sedwick said that based on the evidence, it was simply impossible to believe Young had sniffed out the marijuana grow the way he claimed.
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. He sniffed the dope, they asserted, and even if he didn't, troopers had acted in "good faith" pursuing the case against the Thomses.
Judge Sedwick slapped down that argument.
'Implausibility of the officer's decision'
The defense’s victory didn’t stick, however. After being denied a hearing on Sedwick’s decision, prosecutors appealed to a higher court, the Ninth Circuit Court of Appeals.
Ultimately, the Ninth Circuit reversed Sedwick’s decision. It decided the district court made a mistake when it set aside the magistrate’s recommendation and ruled on the case without hearing the evidence on the motion itself. The higher court wrote:
Since the magistrate sees and hears the evidence, the district court is entitled to rely upon his recommendations when making its decision on the motion. If, however, the district court chooses to reject the recommendation of the magistrate, it must itself hear the testimony and see the evidence before deciding the motion.
Sedwick argued he had looked at all the evidence, and his decision would not change “simply because the court heard all the evidence over again.”
“The issue here does not turn on the demeanor of the witnesses,” he wrote, “but rather on the implausibility of the officer’s conclusion that he smelled the marijuana grow inside a sealed building at least 450 feet away, which was screened by forest vegetation and a hill with a house on it.”
Disagreeing, the Ninth Circuit Court argued it was a slap in Young’s face to make that decision and decline to hold a hearing. “Put another way, before a district court calls a police officer a liar, there is a strong presumption that the judge should look him in the eye first,” the court wrote.
So the pot palaver once again returned to Alaska’s district court. But in the meantime, Sedwick had retired, and the case was handed off to another judge. The Thomses' attorneys tried to reopen the entire Franks hearing but were denied.
After much back and forth, and the introduction of new case law, Judge John D. Roberts has granted a limited hearing.
Omissions and admissions
Anchorage attorney Rex Butler, Trace’s lawyer, argues the Thomses were not granted ample opportunity to prove trooper Young lied, in part, because they did not have evidence demonstrating Young’s “standing pattern of deceptive behavior.”
Before his retirement, Sedwick’s ruling noted that, in order to obtain a search warrant against the Thomses, Young testified he was confident that he’d sniffed out the grow operation, coming from the Thomses’ home, and that the “skunky” smell could not have come from a nearby pond or any other place. Young backed up his assertion with a section of the affidavit called “marijuana grow data” that recounts his catalog of “smell cases,” according to Judge Sedwick.
Young apparently had busted other grow operations at least partially based on his sense of smell.
Now, the defense says it has evidence showing Young's dishonesty in obtaining a string of search warrants.
In one instance, Palmer Judge Beverly Cutler “found that trooper Young deliberately omitted material information when applying for a search warrant. (The judge) suppressed the warrant because it ‘…was issued in violation of the due process requirement that an officer may not omit information in a search warrant in a deliberate attempt to mislead the judge reviewing the application for the warrant'," Butler wrote in an affidavit. The cases included three felony counts of possession of a schedule I or II drug, according to online court records.
The Department of Justice lists marijuana as a schedule I drug, lumped in with heroin, LSD and ecstasy.
In another case, Young obtained a search warrant based on an informant’s reports, which were hearsay, according to Butler's affidavit. After suppressing the warrant, Judge Gregory Heath “chastised” Young for hiding that detail, Butler wrote. The case included four felony counts, one for possession of more than 25 pot plants.
Contact Jerzy Shedlock at jerzy(at)alaskadispatch.com