Drug case thrown out

PALMER — Citing flaws in the way the search was conducted and directing relatively harsh words at one of the officers involved, a judge has thrown out criminal charges against a marijuana grower.

Superior Court Judge Gregory Heath ruled Nov. 8 that the warrant obtained to search the home of Robin Kling and Samantha Clymer was invalid, as was all the evidence taken away after the search. Since that left prosecutors with very little, if any, evidence, he threw the case out.

One of two defense attorneys in the case, Kling’s attorney Josh Fannon, said he believes the case raises some troubling issues about how police work is handled, especially in drug cases.

“People are going to come back and say, ‘Oh great, you got this drug grower off on a technicality,” Fannon said.

But that misses the point, he said. Police shouldn’t be allowed to get away with the kind of work they did in this case, Fannon said, before paraphrasing Ben Franklin’s famous quote: “People who are willing to give up a little liberty for a little order aren’t going to get any liberty or any order, and they deserve neither.”

Heath’s reasoning has to do with the different types of informants in criminal cases. In this case, it has to do with the distinction between police informants and citizen informants.

Essentially, citizen informants are people concerned for their own or the community’s safety. Police informants have other motives. They may be hoping for leniency in their own criminal cases. They may be getting paid to give tips. Or, they may be seeking revenge.

In this case, Heath wrote, it was the latter.

The tip in this case came from King’s brother, Jeffrey Laplant, who had initially summoned Alaska State Troopers on Sept. 16, 2010, because, he said, Kling pointed a gun at him and told him to leave when he stopped by to pick up some tools. In reporting that, he also reported the marijuana grow.

An hour after the tip, troopers showed up at Kling’s house and talked to him.

Kling “denied ever pointing a gun at Laplant. King further denied that Laplant was on Kling’s property that day. Kling also asserted that it was Laplant who was making threats to Kling,” according to Heath’s ruling.

Clymer also talked to troopers, saying, “Laplant had been threatening her and her husband, that Lapalnt was a schizophrenic and that Laplant had a criminal history in Washington state.”

Ingram called investigator Kyle Young, one of his colleagues on the Mat-Su Narcotics Team, and told him what he’d found out at the house.

Young last made headlines in April when another case he worked on, that of Trace Thoms, was thrown out of federal court. In that instance, in July 2010 Young had alleged he could smell growing marijuana on the air as he drove by Thoms’ home. A federal judge ruled there was no way, given the air filters running in the grow operation and the distance Young was from the building, that he could have smelled those plants.

Efforts to reach Young for comment were unsuccessful.

In the more recent case, Young put together a search warrant application with all the stuff Laplant had told troopers, plus a few more details about a past conviction Kling had for drug misconduct and one that Laplant had for drunken driving. The counter allegations from Kling and Clymer weren’t in the application. Young then spoke to a magistrate but didn’t mention those counter-allegations.

Troopers got their search warrant, and turned up nine budding plants and .34 pounds of marijuana.

The warrant might have been valid if Laplant were a citizen informant. But, Heath wrote, he was not.

“The evidence in the search warrant affidavit does not show that Laplant acted with intent to aid the police,” Heath wrote. “Instead, Laplant’s motive for providing the tip was for revenge or out of anger.”

And cops aren’t allowed, as they are with citizen informants, to take the tip at face value. They have to back it up, the judge wrote. There has to be proof that Laplant had been a reliable informant in the past — he hadn’t — or that he was acting against his own interest. Vague admissions he made to buying some of Kling’s marijuana didn’t cut it, Heath wrote, because there wasn’t enough evidence to make that a prosecutable offense.

A third way to corroborate Laplant’s statements would be through other evidence. Heath found that was lacking in the case as well.

“The troopers did not report they smelled marijuana while on the property, nor did they hear fans which might be used to assist in grow operations. Investigator Young did not present Kling’s utility records which might have shown an abnormal usage level,” Heath wrote.

So Heath threw the case out, but his decision doesn’t end there.

Heath spent the last page and a half of his ruling taking Young to task for his performance before the magistrate just prior to the search warrant being executed. Heath lays out all the things Ingram was told about the alleged threats against Kling and Clymer, Laplant’s schizophrenia and his out-of-state criminal history.

“This information was discovered well before Investigator Young went before Magistrate (Cameron) Clark. None of this information was presented to the magistrate. Magistrate Clark specifically asked Investigator Young whether there were any developments,” Heath wrote. “Investigator Young did not inform the magistrate about the new information.”

In legal decisions a judge has to decide if a cop acting this way was being deceptive or negligent. Heath doesn’t make an official ruling on that, but he comes close.

“Investigator Young was more than negligent in his failure to disclose the additional information about the assault and Laplant,” the judge wrote. “Investigator Young violated his duty of candor to the court.”

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.