Ruling has implications for marijuana cases

WASILLA — A ruling in federal court Friday casts doubt on a local investigator’s ability to smell growing marijuana and may have broader implications for other defendants.

“I think that anyone that has a marijuana grow case in which this guy alleges that he smelled marijuana will now, and should, do a very close check on the facts and circumstances,” said Anchorage attorney Rex Butler, who represented Trace Thoms in the case.

The investigator in question is Kyle Young, a longtime member of the Mat-Su Narcotics Team who has taken the stand in numerous trials over the course of his career here.

Thoms and his wife, Jennifer Anne Thoms, were arrested in July 2010. Young wrote in his affidavit leading up to the search warrant that on Feb. 22 of that year he was driving on Scarlett Drive when, “I smelled a strong odor of cultivating marijuana.”

Young writes that he got out of his car and checked the wind direction, eventually determining that the marijuana had to be growing in a brown, two-story home with a chain-link fence. He looked up property records and found the home belonged to the Thomses. He looked up utility bills and found the Thoms were paying $788 per month.

Anchorage U.S. District Court Judge John Sedgwick cited Young’s affidavit in his order striking down the search warrant, taking note of one section in which Young presents data from past search warrants based on marijuana odor.

“The data is presented as a study and purports to indicate that over 96 percent of the time, when an officer smells marijuana on the outside air, there is more than four ounces of marijuana present,” Sedgwick wrote.

The Thoms had 500 plants growing in a warehouse on their property. The feds moved to seize the home, $88,724 in cash, a front-end loader, jewelry, a pickup, five snowmachines and other of the couple’s belongings.

But Thoms cried foul. In court he testified that he had an elaborate air filter running in the grow room and monitored it constantly.

Butler flew in a smell expert from the Lower 48, Dr. David Doty, director of the Smell and Taste Center at the University of Pennsylvania School of Medicine, who testified to numerous other factors working against Young — cold weather keeping smells down and the distance the smell had to travel to reach the road.

“Doty ultimately opined that there was a ‘zero’ probability that Young smelled marijuana as he claimed,” Sedgwick wrote.

Prosecutors argued against giving much weight to Doty’s claims, considering that he was making generalizations and speculating about the weather and other complicating factors. The argument, essentially, was that Doty wasn’t there and hadn’t even inspected the evidence or the home.

“Although Doty’s opinion that Young could not have smelled marijuana may be entitled to less weight, his expertise is equally valuable for the principles guiding formulation of that opinion. The principles governing dispersal of odor are probative of the likelihood that Young — or anyone else — could have smelled marijuana as he claimed, independent of Doty’s conclusion,” Sedgwick wrote.

In the end, he sided with Thoms.

“To conclude that Young did smell marijuana from the road, while in his vehicle would require the court to assume that Thoms’ filtration system was either saturated or not functional; that the odor of marijuana left the outbuilding unfiltered and remained warm long enough to stay above the vegetation behind the Thomses’ house; that it either traveled around the Thomses’ two-story residence or stayed warm long enough to traverse above it then suddenly dropped in the area Young claimed to smell marijuana; and that it followed the described 450 foot course without dispersing beyond perceptible levels,” Sedgwick wrote.

Butler said that Doty’s testimony was key to getting the evidence thrown out.

Without that kind of testimony, Butler said, “you can’t replicate the situation so the judge can see it.”

Sedgwick’s ruling doesn’t dismiss the case, but does eviscerate it, considering that it throws out the plants and growing equipment. Prosecutors must now decide how to proceed.

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