Pubdate: Thu, 31 Oct 2013
Source: Anchorage Press (AK)
Copyright: 2013 Anchorage Publishing, Inc.
Contact:  http://www.anchoragepress.com/
Details: http://www.mapinc.org/media/3078
Author: Scott Christiansen

FEDS DROP 'MAGIC ODOR' CASE

Federal prosecutors in Anchorage have dropped their appeals in the 
marijuana case nicknamed the "magic odor case" after just one week 
earlier filing for an appeal to the U.S. Ninth Circuit Court of 
Appeals. The government had signaled its intention to appeal a 
decision by U.S. District Court Judge Ralph Beistline to throw out 
evidence - including about 500 marijuana plants and some 
sophisticated growing equipment - that was the result of a contested 
search warrant.

Judge Beistline was the second federal judge to toss out the evidence.

The one-sentence filing to the appellate court says: "The United 
States, with the concurrence of the United States Solicitor General, 
moves to dismiss the appeal filed in this case." It appears 
prosecutors only filed the appeal in order to meet a Ninth Circuit 
deadline. "It looks as if they filed the appeal as a placeholder," 
Anchorage defense attorney Vikram Chaobal said. "Washington D.C. 
clearly made the decision that they should not go forward."

Assistant U.S. Attorney Stephan Collins, in an email sent Wednesday, 
confirmed that the prosecution for the marijuana grow is over. As far 
as the charges related to the 500+ marijuana plants that [Alaska 
State Troopers] found on Trace Rae and Jennifer Anne Thoms' property 
in February, 2010, the motion to dismiss ends that prosecution," Collins wrote.

The email was terse and did not mention - or rule out - a tax evasion 
prosecution, but the government has sent strong signals that one is 
in the works.

In addition to the plants and indoor gardening equipment, the 
troopers seized about $88,000 in the search as well as three 
vehicles, including one front-end loader.

The case began in early 2010 and took a circuitous path through the 
court system that led from state courts, to the U.S. District Court 
for Alaska and to the Ninth Circuit appellate court and then back to 
U.S. District Court where Judge Beistline became the second federal 
judge to preside over the case. There could be a third.

Defense attorneys say the IRS now claims the couple owes thousands of 
dollars in back taxes.

The government also seized a pick-up truck, a front-end loader 
Chaobal said was used for snow removal contracting and other 
property, all of which the family is trying to recover.

"After the judge ruled our way, suddenly they got a message from the 
IRS saying they owed the government thousands of dollars," Chaobal 
said. The collateral damage to the family caused by the case, so far 
almost three years long, has been heavy, Chaobal said. "The truck 
they seized is their son's truck and he is 18-years-old and just 
starting out," Chaobal said. "He lost his truck.

They lost their livelihood and their name has been damaged."

The case began when Alaska State Troopers Kyle Young was 
investigating his suspicions there was a marijuana operation on the 
property where the Thomses have their family home. Young applied for 
a search warrant in state courts.

Young told a magistrate he had researched electricity use at the 
property and knew about a marijuana conviction in Trace Rae Thoms' 
past. The case became known as "the magic odor case" because Trooper 
Young also swore he smelled a commercial grow operation while sitting 
on a road inside his patrol car. The search warrant was granted 
partly because Young testified to his own experience. Young claimed 
he could make a distinction between the smell of a small marijuana 
operations for personal use - which Alaska rights to privacy protect 
- - and the smell of a commercial growing operation.

Troopers led a raid on the property and found a large building behind 
the home. The building housed 500 plants and grow lights.

It also had a sophisticated air handling system with filters.

The marijuana odor allegedly not only escaped those filters, but 
would have traveled 450 feet, over a hill and past the Thoms' house 
before it could reach Young's patrol car. After some initial 
wrangling in state court, the case moved to the U.S. District Court 
for Alaska in Anchorage, where the Thoms' defense attorneys, Chaobal 
and Rex Butler, began asking for special hearings to examine the 
validity of the search warrant.

That special hearing is called a Franks hearing and is relatively 
rare. Trooper Young testified at the Franks hearing defending his 
previous sworn statements made while applying for the warrant.

The defense team brought an odor expert to court.

Dr. Dave Doty, the director of the Smell and Taste Center at the 
University of Pennsylvania, testified that it seemed impossible that 
the odor traveled 450 feet over a hill and through the woods to 
trooper Young's nose. In April 2011, U.S. District Court John Sedwick 
ruled that all the evidence stemming from Trooper Young's search 
warrant should be thrown out.

"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. Those assumptions are contrary to a preponderance of the 
evidence presented at the Franks hearing [all sic]," Sedwick wrote.

The case was extended when the Government appealed Sedwick's ruling, 
attempting to bring the fruits of the search back into trial. (The 
Thomses have never been tried.) Sedwick had not presided over the 
Franks hearing personally. Instead, he had assigned the hearing to 
one of his assistants, Magistrate Judge John Roberts. The federal 
government attacked Sedwick's Franks hearing procedures in their 
first appeal to the U.S. Ninth Circuit and won. In layman's terms, 
the ruling said Judge Sedwick, before adopting a ruling that impugned 
the credibility of a police officer, must preside over the hearing 
personally and look that officer in the eye.

The magic odor case was set to return to the federal courthouse in 
Anchorage, but Sedwick was set to retire so it was begun anew with 
U.S. District Court Judge Ralph Beistline presiding.

A second Franks hearing seemed inevitable, but the defense team also 
had another attack on the controversial search warrant in the works.

That argument said the language of the original warrant allowed the 
cops to search the Thoms home, but did not extend beyond the home to 
the building where the marijuana was found.

Judge Beistline adopted a ruling based on that argument.

Readers who made it this far (and are not completely numbed by the 
story now) can read about Beistline's ruling in the October 3 edition 
of the Anchorage Press or find it online here: 
http://tinyurl.com/Court-tosses-MJ-warrant.
- ---
MAP posted-by: Jay Bergstrom