District Court judge rules out evidence in ‘magic odor’ case

ANCHORAGE — Defense attorneys for a pair of Alaska marijuana growers in a case many refer to as the “magic odor” case were successful late last month in getting the government’s key evidence kept out of federal court.

This is the second time evidence found during a February 2010 raid on a Wasilla property has been kept out of court. The evidence includes about 500 live marijuana plants found during raid led by Alaska State Troopers on the property where Trace and Jennifer Thoms have their home.

The first suppression order gave the case its nickname when U.S. District Court Judge John Sedwick ruled that a search warrant should not have been granted to a trooper who swore he smelled a commercial weed growing operation from his car, while on a road 450 feet away and over a hill from a warehouse that contained marijuana plants and a sophisticated growing operation that had an air-filtration system.

The latest ruling doesn’t mention the “magic odor” arguments that were hard fought in two special hearings in the Anchorage federal courthouse and at the Ninth Circuit Court of Appeals where the government continued to defend the search warrant.

The new ruling instead focuses on the limits to the search and the language of the warrant itself. The ruling is from U.S. District Court Judge Ralph Beistline, the second U.S. District Court judge to preside over the complicated case that so far has lasted nearly four years. Judge Beistline has ruled troopers extended their search beyond what should have been allowed under the warrant, which described the Thoms’ home and one building near the home, but not two additional buildings further back from the road on the property.

“A lot of people have large parcels of land and there could be buildings that are not part of the house,” said Vikram Chaobal, Jennifer Anne Thoms’ lawyer in the case. “Search warrants are not meant to be open-ended or meant to give license to the government to search anything.”

Federal prosecutors have not yet decided whether to appeal the ruling as they did last time by defending the warrant at the Ninth Circuit.

Assistant U.S. Attorney Stephan Collins said in an email this week the government has 30 days to appeal. (Judge Beistline’s order was signed Sept. 20.) Collins was out of town prior to press time and his email was brief. He said Justice Department attorneys in Washington, D.C. will make the decision on whether to appeal the warrant.

Chaobal said the ruling from Beistline’s order appears solid, but he also said that about the previous “magic odor” ruling, which the government actively fought against.

Anchorage defense attorney Rex Butler represents Trace Thoms, the other half of the husband-and-wife pot farming operation. Butler told the Anchorage Press this second motion on limits to the search warrant relied heavily on Trooper Kyle Young’s use of the word “curtilage” to describe the area to be searched while applying for a search warrant.

“The search warrant was restricted to the house and its immediate surroundings,” Butler said. “[Trooper] Young wanted the curtilage because Young pointed to the family home and said that was where the odor was coming from — Young wanted the curtilage so Young got the curtilage and that’s what the warrant was restricted to.”

Curtilage is a real estate term that, according to a dictionary published jointly by the American Institute of Real Estate Appraisers and the Society of Real Estate Appraisers, means “the fenced-in area surrounding a building.” In filings defending the search warrant, Assistant U.S. Attorney Collins argued state troopers conducted the search in good faith and that because Trooper Young had used the word “curtilage” as well as the broader descriptive term “premises,” the warrant application was meant to describe all the buildings on the Thoms’ property. Those arguments lost the day, at least for now.

Judge Beistline’s order adopts recommendations written by U.S. Magistrate Judge John Roberts. Both defense attorneys believe this second argument for tossing the warrant is a less-likely target for a government appeal. The first argument — that Trooper Young was mistaken when he smelled marijuana from the road and claimed under oath that he could detect where the odor originated — led to a problematic situation because Magistrate Roberts supported Trooper Young’s claims and was later overturned by Judge Sedwick after Sedwick reviewed court records. The government appealed and the Ninth Circuit ruled the lower court judge had a responsibility to listen to the trooper in person before finding making a finding that the trooper lacked credibility.

The motivations of federal judges are often private and secret, but from the outside it appears Magistrate Roberts found a way to keep the fruit of the search warrant out of court without making a finding that spoiled the reputation of an Alaska State Trooper.

“We had largely focused on [Trooper Young’s] misstatements of fact and he is like the Teflon Don in that respect,” Butler said. “So we did some additional work and this curtilage argument is a result of that work.”

Chaobal said the latest battle was more fact-based because it didn’t require anyone to rule the troopers were disingenuous.

“We prevailed on the more objectively based issue,” Chaobal said. “The issue of whether you believe someone is lying or not is much more subjective. I don’t think Trooper young is a bad guy. I think that sometimes law enforcement makes mistakes.”