Court tosses pot conviction

MAT-SU — A state appellate court has thrown out a Willow woman’s conviction for growing marijuana, saying that the officers who investigated the grow operation shouldn’t have driven up her driveway after midnight to see if they could smell the pot plants.

The case against Margaret A. Kelley dates back to June 30, 2009, when Sgt. Rob Langendorfer and Investigator Kyle Young, both officers with the Alaska State Troopers’ Mat-Su Narcotics Team, drove up her driveway at Mile 85.5, Parks Highway at 12:30 a.m.

“The troopers made no effort to contact the occupants of the residence. Instead, they rolled down the windows of their patrol car and sniffed the air,” writes Alaska Appeals Court Judge Marjorie Allard.

Young and Langendorfer were acting on an anonymous tip. They also got hold of Kelley’s power records — a relatively typical move for marijuana investigations, as increased power usage can indicate the homeowner is running energy-intensive grow lights — but found them to be “unremarkable,” according to Allard’s opinion.

Based on the tip and the smell, the Mat-Su Narcotics Team got a warrant, searched the home and found a growing operation.

Kelley objected early on to the late night sniff, but Superior Court Judge Gregory Heath found that the law allows investigators to use the generally accepted public access routes to a home, in this case the driveway.

“A way of ingress or egress does not cease to exist after a certain time of night,” Heath wrote, as quoted in Allard’s opinion.

After Heath convicted her in a bench trial in 2010, Kelley appealed the case. In 2013, the U.S. Supreme Court ruled in a case that, Allard wrote, has direct bearing on Kelley’s case. In Florida v. Jardines, police were found to have overstepped when, without trying to talk to a homeowner or asking permission, they brought a drug-sniffing dog up onto the person’s porch.

Justice Antonin Scalia wrote in the majority opinion in that case that, “to find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.”

Allard writes that in some ways the case differs from Kelley’s.

“The case before us involves a trooper sniff, not a dog sniff,” Allard’s statement says. “And the troopers stayed in their car rather than stepping onto the porch.”

But in the Jardines decisions, both Scalia and justices holding a dissenting opinion found that there are “clear temporal limits on the implied license for public access to a private residence,” according to Allard’s opinion.

Courts in places as varied as Washington state and Kentucky have found similar restrictions on night investigative visits from police.

“The state has articulated no reason to justify the troopers’ decision to conduct this investigation after midnight instead of during the day, when the investigation would have accorded with the conduct of a respectful citizen and well-settled law,” Allard writes.

She concluded her decision saying that the investigators “were not in a place where they had a legal right to be” when they sniffed the marijuana outside Kelley’s house. She tossed out the search warrant, thus destroying the case.

Appeals court judge Robert Coats, who retired as the Kelley case was wending its way through the appeals process, wrote a dissent to Allard’s opinion.

According to Coats, the case law barring investigators from conducting unannounced investigations in the middle of the night on private property is an attempt on the part of the judiciary to curtail “furtive actions” in which police in other jurisdictions have snuck past “no trespassing” signs wearing camouflage to plant cameras in people’s bushes.

“There was no furtive activity in this case. The officers drove their patrol car up Kelley’s driveway, presumably with the headlights on, stayed only a few minutes, and did not get out of the car,” Coats writes.

He said that plenty of people who aren’t troopers feel free to do similar things in people’s driveways.

“This type of approach is unremarkable. Certainly, newspapers are routinely delivered at night in this way, as might be advertisements, telephone books, or political material,” the judge writes.

He says the rules Allard lays out are too strict.

“In my view, the opinion of the court is not supported by any authority and runs the risk of creating uncertainty about the ability of the police to investigate crime other than during daytime hours,” Coats writes.

Contact Andrew Wellner at andrew.wellner@frontiersman.com.