Judge Says Trooper Couldn’t Have Smelled Pot; Dismisses Case


Graphic: Alaska Dispatch
Alaska State Trooper Kyle Young claims he smelled marijuana from 450 feet away. A judge threw the case out on Friday.

​An Alaska trooper’s claimed ability to sniff out marijuana grow operations from hundreds of feet away has been called into doubt in federal court.

U.S. District Judge John Sedwick concluded in a Friday ruling that the reputed pot-smelling power of investigator Kyle Young wasn’t supported by the facts in a Mat-Su marijuana case, and should not have been used to justify a search warrant, reports Lisa Demer in the Tacoma News Tribune.
The judge said no reasonable jurist could believe the word of Trooper Young, and he  threw out the seized evidence, including about 500 marijuana plants. Unless prosecutors appeal the ruling, the government’s cannabis case against Trace Rae and Jennifer Anne Thoms of Wasilla, Alaska, is mincemeat.

Graphic: U.S. District Court

​”This time, the tables turned, said defense lawyer Rex Butler, who represents Trace Thomas. “This is a huge case, especially for the Valley.”
Thoms said the case carries implications for numerous cases that were based on Trooper Young’s claimed marijuana-smelling skill.
Young, who has been a trooper for more than 20 years, claims he did smell marijuana that day in February 2010.
“It was fairly strong,” Young claimed. “Smelled it on the air. Smelled it downwind of that place,” he said on Sunday. “For them to rule that I couldn’t, to me that says they are saying I am lying or that I was mistaken. And neither was correct.” (Maybe he should call the wambulance.)
Trooper Young claimed that he’s located by smell, investigated and seized between 100 and 150 Alaska marijuana grow operations since 1998.

Graphic: Alaska Newspapers Inc.

​Trace and Jennifer Thoms each face three counts, including “manufacturing marijuana,” as well as a charge of money laundering conspiracy in which they are accused of disguising more than $1 million in marijuana proceeds. Jennifer Thomas additionally faces 14 money laundering counts separately.
The indictment against them also seeks forfeiture of their home, almost $100,000, five snowmobiles, a Ford F-250 pickup, a GMW Yukon Denali SUV, a Rolex gold watch, and a 14-karat diamond wedding ring set.
Trooper Young, who supposedly has whatever passes for “advanced training” in “drug investigations” in Alaska State Trooper circles, was assigned to the Alaska Bureau of Alcohol and Drug Enforcement in November 2000.
Young wrote in a sworn statement with his request for a search warrant last year that he was driving in a residential area at about 1:20 a.m. on February 22, 2010, when he smelled “a strong odor of cultivating marijuana.”
He already had “suspicions” about a grow operation there, he admitted in the interview.
Young stopped and claims he determined he was downwind of the first house of the right and that’s where the smell was coming from. He checked property records, discovering the residence belonged to Trace and Jennifer Thoms, he wrote in his affidavit.

Photo: Northwest Law Enforcement Association

​He found that Trace Thoms had a “criminal history,” including a 2005 felony marijuana conviction. He checked electrical usage and found that the home had two accounts in Jennifer Thoms’ name averaging nearly $800 in electricity a month. (Young claimed he later learned there were additional accounts in the names of businesses for snow plowing and painting, which wouldn’t have used electricity.)
Troopers searched the Thoms’ property that same day and found what they claimed was a “sizable grow operation” with budding plants in an outbuilding behind the house. Among the 500 plants, more than 200 were budding, which Young conceded were perhaps all he could smell, according to Judge Sedwick’s order.
Prosecutors claimed the number of marijuana plants seized “would tend to establish the likelihood that there was a strong odor of marijuana present on that date.”
A magistrate judge, John Roberts, in February held a hearing on the search and last month recommended against throwing out the evidence. But the final decision was Judge Sedwick’s.
The outbuilding was at least 450 feet from the road, where Trooper Young claimed he smelled marijuana from inside his vehicle. The building has no windows. There are two doors, and two garage doors, which were insulated and sealed.
A wooded area was in between the grow building and the road, as was the couple’s two-story house, which was on a hill.
Thoms testified at the February hearing that his outbuilding was equipped with a large charcoal air filter designed to capture odors. A fan sucked out the air through the filtration system, which weighed about 100 pounds. Thoms testified that he bought new filters each week, and had a dedicated ladder against the building so he checked it “constantly,” Judge Sedwick wrote.
A smell expert hired by the defense doubted that anyone could have smelled marijuana under those circumstances. David Doty, director of the Smell and Taste Center at the University of Pennsylvania School of Medicine, “ultimately opined that there was a ‘zero’ probability that Young smelled marijuana as he claimed,” Judge Sedwick wrote.
The defense paid about $20,000 for the smell expert, which is more than most defendants could afford, Butler said.
Trooper Young tried to question the reliability of the filter, but it couldn’t be tested. Another clueless buffoon of a trooper had dropped the filter while trying to dissemble it, and it had broken open.
For Young’s claim about smelling marijuana to be true, Judge Sedwick wrote, a number of factors would have had to come together: an air filter that wasn’t functioning, an air current that carried the odor up and over vegetation, then up or around the house, and then suddenly down to Young, a distance of 450 feet, all without losing the strong marijuana smell.
And there is no evidence of any of those things, the judge wrote.
According to Sedwick’s decision, searches based on bad information can still be legal if the officer operated in “good faith.” But that does not apply if the officer knowingly or recklessly included false information in seeking the search warrant, the judge wrote.
Trooper Young said that in the future, “maybe two or three officers” will need to confirm the smell of marijuana before a search, so that no one has to rely on a single officer’s word.
“That is exactly what you need to do,” Butler said.
Unfortunately, in the real world? This may well mean that now, two or three officers will be required to lie, where it only took one before.