Drug Law
Drug Law

Cop Smells Pot from 150 Yards Away; Judge Says No Way

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Alaska prosecutors cannot use 500 seized marijuana plants as evidence since cops executed the search based on an officer's unlikely claim to have smelled the drugs in a Wasilla home from a distance of 150 yards, a federal judge ruled. 

Trace Rae Thoms and Jennifer Anne Thoms moved to suppress all evidence derived from a February 2010 search warrant based on the affidavit of police investigator Kyle S. Young. 

Young claimed to have smelled marijuana while driving by the Thomses' Wasilla home, and determined that no other upwind source could have produced the odor. He obtained a search warrant after running background checks and examining the Thomses' unusually high electrical bills, and a search ultimately uncovered about 500 marijuana plants and other evidence that suggested a large-scale growing operation.

Jennifer and Trace Thoms, who was convicted in 2005 of delivering a controlled substance, used olfactory experts and witness testimony to discredit Young's affidavit. 

Though a magistrate judge recommended that the court keep the evidence, U.S. District Judge John Sedwick rejected the findings.

David Doty, director of the Smell and Taste Center at the University of Pennsylvania School of Medicine, "opined that there was a 'zero' probability that Young smelled marijuana as he claimed," according to the ruling. 

"In short, the Thomses demonstrated that Young claimed to smell a strong odor of marijuana that could have only emanated from an enclosed building approximately 450 feet away," Sedwick wrote. "The building was equipped with a carbon filtration system. There was a two-story residence atop a hill and substantial vegetation obstructing the only possible source of odor. Young was in a moving vehicle with his driver's side window partially down in February." 

The Thomses also installed additional ionizers in the ductwork. Such products theoretically rely on ozone to bind to scent molecules, and Trace said he had a dedicated ladder positioned to check the effectiveness of the filtration system," which he checked "constantly."

Yukon Tanner, a Matanuska Electric Association safety manager, also testified for the Thomses that he could not smell the marijuana when he participated in the search to investigate possible electrical theft. Tanner says he has smelled marijuana in other searches throughout his career, which has covered more than 20 grow operations.

An Alaska Waste garbage collector who visited the Thomses' home monthly also testified that he never smelled marijuana. 

In support of Young's testimony, two Alaska State Troopers, Curtis Vik and Williaam Welch, testified that they have smelled marijuana at other sites from distances of a "couple hundred yards" and "over a mile away," respectively.

Still, neither of these troopers smelled marijuana upon approaching the Thomses' residence. They testified that they did not smell the evidence until they tried to gain entry into the exact grow room that housed 202 budding plants.

Young's description of the weather in his affidavit also undermine his story. Though Young says he could pinpoint the Thomses' home as the source of the marijuana odor because it was a "fairly calm" day with no breeze, Doty testified that the investigator would have needed stronger wind conditions to smell a stagnating odor of marijuana in winter since "odors don't move around very well." 

Essentially, the conditions would have had to be windy, the filtration system impaired and the air warm to traverse the vegetation surrounding the house. 

Trace's 2005 conviction and the $800-a-month electricity bill - compared to $176 a month for a large home - cannot by themselves support the search, Sedwick added, citing 9th Circuit precedent.

After reviewing the various testimonies, Sedwick said he had no choice but to suppress all evidence seized by false means.

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