State appeals court upholds marijuana convictions

PALMER — The Alaska Appeals Court has upheld the convictions of two Wasilla men for growing marijuana in 2006.

According to the ruling, released Dec. 5 and penned by judge Joel Bolger, Michael Hamilton and John Shook’s grow first came to light through an anonymous tip. The case proceeded through a search warrant and a search of the home, then ended with guilty convictions at trial.

Shook and Hamilton appealed, taking issue mostly with that search warrant. They said that evidence used to support the warrant was flawed because, among other things:

• Investigators left out an entire story when calculating the square footage of the house to compare electricity bills to typical consumption rates.

• It relied on a poorly calculated statistic.

• There was no way investigators could have smelled marijuana on the air outside the home.

That last point is similar to one cited in June 2012 as a reason to toss out a court case against Trace and Jennifer Anne Thoms. The Thomses and their attorneys convinced a federal court there was no way anyone could have smelled their growing marijuana.

Shook and Hamilton raise similar points — the home was far away from the road, it was cold outside, the trees still had their leaves — but to no avail. Bolger wrote that whether or not the investigators could have smelled the marijuana wasn’t at issue, just whether Superior Court Judge Kari Kristiansen made a blatant mistake in her rulings. The appeals court found that, given the evidence she had, she hadn’t.

“Whether an officer could have smelled marijuana under these circumstances is a very fact-intensive inquiry requiring far more evidence than Hamilton provided to the trial court,” Bolger wrote.

One of the major factors at play in all of these cases seems to be the peculiarities of Alaska’s marijuana laws.

“To justify a warrant to search a home for marijuana, a warrant application must contain information establishing probable cause to believe that the home contains more than the constitutionally protected four-ounce limit for personal use,” Bolger writes.

But how do prove that a home has more than four ounces rather than some smaller amount, such as 2 ounces or 3?

One way the drug unit has found is with a statistic Inv. Kyle Young put together. Combing through the unit’s case records, he found that when an officer can smell marijuana on the air outside a home, 96 percent of the time there is four ounces or more growing inside the home.

Hamilton and Shook attacked that statistic, saying that it ignores cases where marijuana was on another person’s property

“As Young noted, however, the point of the statistic is not to prove that officers are able to exactly locate the source of the odor. The point of the statistic is to show that, when officers are able to smell the odor of growing marijuana on the outside air it is likely that commercial quantities of marijuana are being grown,” Bolger wrote.

Shook and Hamilton also argue there were 20 cases included in which officers claimed to smell a felony level grow, but found felony levels of harvested marijuana instead.

Bolger writes that even subtracting those 20 cases from Young’s calculation yields “a significant correlation between the officers’ ability to smell marijuana on the outside air and the presence of a felony level grow operation.”

Kristiansen, then, wasn’t clearly mistaken in not throwing out the search warrant because it relied, in part, on the statistic.

Lastly, regarding that mistaken calculation of the home’s square footage, Bolger writes that Kristiansen ran the numbers herself and found that, calculated correctly, Shook and Hamilton were still consuming more than double what an average home that size consumes.

So, again, retaining the search warrant was the right call.

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