USA v. Thoms et al

Filing 186

Order on Motion to Suppress

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
TRACE RAE THOMS and
JENNIFER ANNE THOMS,
Defendants.

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3:10-cr-00069 JWS
ORDER AND OPINION
[Re:

Motion at Docket 57]

I. MOTION PRESENTED
At docket 57, defendant Trace Rae Thoms (“Thoms”) moves to suppress all
evidence derived from search warrants in this case. Defendant Jennifer Anne Thoms
joined the motion at docket 62.1 The government opposes the motion at docket 63.
Defendants’ reply is at docket 84.2
A Franks hearing was held on February 7 and 11, 2011. Trace Thoms filed a
closing argument at docket 165. Jennifer Thoms filed a closing argument at
docket 166. The government filed a supplemental summation at docket 169, to which
Trace Thoms replied at docket 170, and Jennifer Thoms replied at docket 171.
At docket 174, Magistrate Judge John D. Roberts filed an initial report
recommending that defendants’ motion to suppress be denied. Trace Thoms objected

1

The defendants are referred to collectively herein as “defendants” or “the Thomses.”

2

Jennifer Thoms joined the reply at docket 83.

to the report at docket 176. Jennifer Thoms joined those objections at docket 177. The
government replied at docket 181. Judge Roberts issued a final report and
recommendation at docket 182, in which he declined to modify the initial report.
II. BACKGROUND
On February 22, 2010, the Alaska State Troopers executed a search of the
Thomses’ property in Wasilla, Alaska. The search was conducted pursuant to a warrant
issued by a state judge based on the affidavit of Investigator Kyle S. Young (“Young”).
The warrant authorized a search for evidence of Misconduct Involving a Controlled
Substance IV (“MICS IV”), a state crime. The search produced evidence of a large
marijuana grow operation.
Young’s affidavit is twenty-two pages long.3 The first section is labeled
“preliminary matters” and provides a description of Young’s background, training, and
experience.4 The second section is titled “typical marijuana grow” and contains Young’s
factual deductions regarding marijuana grow operations.5 The third section is labeled
“personal knowledge” and recounts generalities derived from Young’s experience with
marijuana grow operations.6 The fourth section is titled “turning to the specifics of this
case” and contains the most relevant statements for purposes of this motion.
Young’s affidavit provides as follows:
Approximately 0120 hours on 2-22-10, I smelled a strong odor of
cultivating marijuana while driving on West Scarlett Circle, off of Scarlett
Drive in Wasilla. I immediately stopped my vehicle and checked the wind
direction and noted that I was downwind of the first residence on the right
on West Scarlett Circle, off of Scarlett Drive. The residence is a brown
colored two-story structure, enclosed by a chain link fence.
I parked my vehicle and walked along the roadway and noted that a strong
odor of cultivating or recently harvested marijuana was present, when I got

3

Doc. 57-2; doc. 57-3; doc. 57-4.

4

Doc. 57-2 at 1–2.

5

Id. at 2–6.

6

Id. at 6; doc. 57-3 at 1–4.

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near the suspect residence described above. I continued to check the
wind direction and determined that the first residence on the right, at what
appears to be the beginning of West Scarlett Circle, was the source of the
odor. I could not see any structure up wind of the suspect residence and it
appears that there is a pond or swamp behind the residence and no other
nearby structures (upwind) that could have been the source of the odor.
Based upon the odor of marijuana in the proximity of the suspect
residence and the wind direction at the time, I believe that the source of
the odor was the first residence on the right on Scarlett Circle, described
above.7
The affidavit details Young’s subsequent investigation. Young examined maps and
“determined that the property was owned by Trace Thoms and Jennifer Thoms.”8 He
ran background checks on both defendants and noted Trace Thoms’ 2005 conviction for
MICS IV.9
Young then “contacted [Matanuska Electric Association,] confirmed that the
electrical subscriber for the property was Jennifer Thoms . . . and learned that there
were two electrical accounts at the property.”10 The affidavit notes that a typical
homeowner would pay around $90.00 per month, owners of a larger residence would
pay approximately $176.00 per month, and the Thomses were paying approximately
$788.00 per month.11
The affidavit then describes that, in Young’s experience, “just smelling the odor
of cultivating marijuana on the outside air is indicative of a commercial grow
operation.”12 The affidavit includes a section titled “marijuana grow data” which
recounts Young’s catalogue of “smell cases”–cases “where the odor [of marijuana] was

7

Doc. 153-2 at 4.

8

Id. at 5.

9

Id. at 5.

10

Id. at 5.

11

Id. at 5–6.

12

Id. 153-2 at 7.

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either smelled by officers while driving past the suspect location, approaching the
suspect location on foot or at the front door of the location attempting contact or during
contact with the occupants.”13 The data is presented as a study and purports to indicate
that over 96% of the time, when an officer smells marijuana on the outside air, there is
more than four ounces of marijuana present.14 The presentation is statistically flawed,
but ultimately irrelevant to the present motion.
Execution of the search uncovered approximately 500 marijuana plants and other
evidence of a commercial marijuana grow. Subsequent search warrants were issued
authorizing searches of the Thomses’ bank accounts, computers, and business
records.15
Thoms sought a Franks hearing and argued 1) that Young intentionally or
recklessly misrepresented facts in his affidavit; 2) that Young intentionally or recklessly
failed to disclose material facts in his affidavit; and 3) that, nonetheless, the warrant was
facially unsupported by probable cause. Judge Roberts determined that only the
contention that Young intentionally misrepresented that he smelled marijuana while
driving by the Thomses’ property merited a Franks hearing. The scope of the Franks
hearing was accordingly limited to the truthfulness of Young’s statement that he smelled
a strong odor of marijuana coming from the Thoms residence.16

13

Id. at 8.

14

Such a statistic would be relevant to probable cause because in Alaska, “an adult may
possess any amount of marijuana less than four ounces in their home, if their possession is for
personal use.” State v. Crocker, 97 P.3d 93, 95 (Alaska 2004).
15

See doc. 153-3; doc. 153-4.

16

Doc. 140 at 10–14.

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III. STANDARD OF REVIEW
The district court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”17 When reviewing a magistrate judge’s
report and recommendation in a case such as this one, the district court conducts de
novo review of all conclusions of law,18 and any findings of fact to which objections have
been made.19 Uncontested findings of fact are reviewed for clear error.20
IV. DISCUSSION
A Franks hearing allows a criminal defendant to challenge the truthfulness of
statements in an affidavit supporting a search warrant.21 “The defendant must prove by
a preponderance of the evidence that there was a knowing and intentional falsehood or
a reckless disregard for the truth, and that the challenged statement was essential to
the finding of probable cause.”22 If the defendant carries that burden, the proper remedy
is suppression.23
The Thomses object to the report’s finding that Young was truthful in his sworn
statement that he smelled a strong odor of marijuana coming from the Thomses’
property. The Thomses also object to the report’s related conclusion that they failed to
establish by a preponderance of the evidence that Young was intentionally or recklessly
untruthful. Consistent with the standard articulated above, the court will conduct de
novo review of the findings and conclusions in Section I.E of the report.24

17

28 U.S.C. § 636(b)(1).

18

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
19

28 U.S.C. § 636(b)(1).

20

Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).

21

Franks v. Delaware, 438 U.S. 154, 171–72 (1978).

22

United States v. Dozier, 844 F.2d 701, 705 (9th Cir. 1988).

23

United States v. Leon, 468 U.S. 897 (1984).

24

See doc. 174 at 17–33.

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The Ninth Circuit has described the preponderance standard as requiring a
showing that the object of proof is “more likely than not.”25 The overarching question is
whether the Thomses demonstrated that it is more likely than not that Young
intentionally misstated in his affidavit that he smelled a strong odor of marijuana when
driving by the Thomses’ residence. The evidence that the Thomses presented bears on
the probability that Young smelled marijuana as he claimed. If the defendants showed
by a preponderance that it was highly improbable that Young smelled marijuana, then it
is more likely than not that his affidavit was untruthful.
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. The building was equipped with a carbon filtration system. There was a twostory 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. Significant portions of the defendants’ case hinge on Thoms’ own
testimony and the testimony of an expert in the field of smell detection.
A. Defendants’ Witnesses
1. Thoms’ Testimony
The government maintains that because Thoms is “a practitioner of deceit,” and
a convicted felon, his “capacity for telling the truth [is] in doubt.”26 The government also
maintains that “the substance of his testimony is of doubtful worth.”27 Under some
circumstances, the court would be skeptical of the testimony of a defendant in Thoms’
position. Because important elements of Thoms’ testimony were corroborated by other
witnesses–including government witnesses–and government exhibits, the court’s
skepticism is diminished accordingly.

25

See, e.g., United States v. Forrester, 616 F.3d 929, 949 (9th Cir. 2010) (internal
quotations omitted) (describing the government’s burden of proof at sentencing); Sanchez v.
Monumental Life Ins., 102 F.3d 398, 404 (9th Cir. 1996) (describing a removing defendant’s
burden of proof).
26

Doc. 169 at 3.

27

Id. at 4.

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2. Doty’s Testimony and Opinion
Thoms also offered the testimony of Dr. David Doty (“Doty”). Doty is the director
of the Smell and Taste Center at the University of Pennsylvania School of Medicine.28
He has published over 170 peer-reviewed articles in various fields. He edited,
contributed to, and is “best known” for The Handbook of Olfaction and Gustation, a
highly regarded work in the “chemical sense field.”29 Doty helped develop the University
of Pennsylvania Smell Identification Test, which is “sort of the gold standard for smell
testing.”30 He was qualified as an expert on smell and taste detection and smell
detection capabilities.31 Doty ultimately opined that there was a “zero” probability that
Young smelled marijuana as he claimed.32
The report notes that Doty has only participated in two relatively small studies
relating specifically to the smell of marijuana and that those experiments “were limited to
the rather specific conditions on which they were performed.”33 Although the
experiments were purposely targeted, there are “no other studies in the literature that
have looked at marijuana odor from the perspective of capabilities of people being able
to detect it under certain conditions.”34 Doty’s expertise should not be discounted based
on the particularity of the experiments he has conducted when those are the only
experiments in the relevant field.
The report also discounts Doty’s testimony because he did not address “the
accumulative effect of any odor of marijuana that could have come from [the outbuilding
containing the budding plants] and stagnated near the vicinity where . . . Young

28

Doc. 164 at 105, 106.

29

Id. at 112.

30

Id. at 113.

31

Id. at 125.

32

Id. at 160.

33

Doc. 174 at 25.

34

Doc. 164 at 127.

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purportedly” smelled marijuana.35 It is likely that Doty did not consider that possibility
because the other variables precluded it. Moreover, although Young stated that on the
morning in question “[i]t was fairly calm [and] wasn’t very breezy,”36 his having detected
any odor of marijuana at all was necessarily dependent on a favorable wind current,
given that the source was over 400 feet away. Any such wind would presumably have
prevented stagnation.
The report notes that “Dr. Doty based his opinion in part on the fact that
[Young’s] window to his vehicle was up during the time he made his observation.”37
Although Doty may have mistakenly understood that Young’s window was completely
up, the effect of the car window was presented at the hearing as an afterthought.38
Doty’s written opinion includes no mention of Young’s window as a barrier to odor
whereas all other variables are discussed.39 The report incorrectly found that “Doty
assumed that the distance from the marijuana source” to Young’s position when he
claimed to smell marijuana “was about 1000 feet.”40 Doty’s written opinion
contemplated a “distance of [approximately] 500 feet.”41
The report states that Doty “was not apprised of the number of marijuana plants
seized by law enforcement” pursuant to the search.42 That statement is incorrect. It is
clear from Doty’s discussion of the documents he reviewed to formulate a basis for his

35

Doc. 174 at 30.

36

Doc. 167 at 87, 120.

37

Doc. 174 at 31.

38

See doc. 164 at 159.

39

Doc. 153-6 at 2–3.

40

Doc. 174 at 30.

41

Doc. 153-6 at 2.

42

Doc. 174 at 32.

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opinion, and from his written opinion in which he describes the number of plants found
in one of the outbuildings, that he was apprised of the number of plants seized.43
The report ultimately concludes that “Doty’s opinion is entitled to little weight
because the factors upon which he based his opinion involved generalizations and
speculation as to the actual weather and uncertainty as to whether the odor of
marijuana could have escaped the [outbuilding] on [the Thomses’] property.”44 The
court disagrees with that assessment. 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. The inability of Doty to
know, for example, the precise wind speed and direction at the Thomses’ residence at
1:20 a.m. on February 22, 2010, does not preclude the court’s application of the general
principles that Doty articulated, based on, for instance, Young’s characterization of the
weather that morning.45
For similar reasons, it is insignificant that Doty did not visit the Thomses’
property, that he “never inspected the actual filters and had no independent knowledge
of whether the filtration system was working on the date in question.”46 Doty’s testimony
explicitly assumed that the filtration system was functional. The court must assess
whether it was based on the evidence presented at the hearing. A lack of personal
knowledge as to whether the system was saturated should not affect the weight given
Doty’s opinion when his opinion obviously assumed that the system was in working
order.

43

Doc. 153-6 at 1–2, 2.

44

Doc. 174 at 33.

45

The report notes Doty’s conclusion “from the weather report that at the time [Young
claimed to smell marijuana] there was no prevailing wind.” Id. at 32. Doty’s assumption is
consistent with Young’s testimony that it was relatively calm. Doc. 167 at 87.
46

Doc. 174 at 32.

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3. Lay Witnesses
The Thomses presented the testimony of two lay witnesses who did not smell
marijuana on the their property while visiting at different times. The report noted that
those witnesses were “untrained in the act of olfactory observation.”47 Because smell is
a sensory perception, no training is necessary. Any probative value is derived from
those witnesses’ firsthand perception.
B. The Thomses’ Showing
1. Filtration
The only marijuana that could have produced an odor detectable by Young was
housed in a dedicated structure with no windows.48 There were two doors and two
garage doors.49 The garage doors were insulated and taped.50 Thoms testified that he
employed “a carbon filter, approximately four feet high, with an eight-inch hole [to
accommodate] a fan that’s designed just for the filter.”51 There was an intake hole, near
the entry of the building, approximately eight inches in diameter.52 The filtration system
created a vacuum such that outside air would be drawn into the building and all air that
left the building would go through the carbon filter.53 The filtration system ran
continuously.54
Thoms described the system as follows:
Air comes from the roof, the attic, into the building. Halfway through the
building is my charcoal filter, at least a four-foot charcoal filter [that

47

Id. at 17.

48

Doc. 164 at 78.

49

Id. at 79.

50

Id. at 79.

51

Id. at 60.

52

Id. at 96.

53

Id. at 61, 102.

54

Id. at 99.

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weighs] a good 100 pounds, with a pre-filter on it, [that] takes out all the
dust so the carbon doesn’t get plugged, with a fan . . . sucking air through
the filter, kind of like you would have for . . . your car. It’s spitting the air
out, passing by at least three [ionizers] up and out the building.55
Doty opined that carbon functions as an “excellent” filter.56 Doty testified that
“one of the reasons why charcoal works so well is it has a very high surface area . . . so
when molecules go through charcoal, [they] get[] absorbed into the . . . charcoal.”57
Doty recognized that carbon can become saturated and that carbon filters have to be
changed “occasionally” in order to maintain their efficacy.58 Thoms stated that he
purchased new carbon filters “weekly”59 and that he kept “two spares and one
hanging.”60 New filters are visible in the government’s Exhibit 11. Thoms stated that he
had a dedicated ladder positioned to check the effectiveness of the filtration system.61
He stated that he checked it “constantly.”62 The ladder is visible in government
exhibit 7.

55

Id. at 101.

56

Id. at 145.

57

Id. at 139.

58

Id. at 145.

59

Id. at 74.

60

Id. at 74.

61

Id. at 83.

62

Id. at 63.

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Within the ductwork itself, Thoms installed ionizers.63 Ionizers rely on ozone to
bond with molecules responsible for scent. Thoms stated he had five or six ionizers in
place.64 The effectiveness of ionizers is questionable.65
The report notes the defendants’ contention that “nothing in the government
reports indicates that the [filtration] system was broken down.”66 The report does not
give much weight to the defendants’ evidence that it was functional–it notes that “an
assessment of the condition of the filter system was not performed before the
equipment was disassembled because the condition of the equipment was not then at
issue.”67 The report omits that no assessment could be performed because State
Trooper William Welch (“Welch”) accidentally dropped the filter while disassembling it,
and the filter broke open.68
The Thomses presented evidence that the filtration system was functional.
Thoms’ testimony was substantiated by government exhibits and testimony. The
government did not attempt to refute Thoms’ testimony and was not able to definitively
refute that testimony because the primary filter that was in place when Young claimed to
smell marijuana was irreparably damaged while being disassembled. It requires an
additional inferential step to conclude that the filtration system was not functional
beyond what is needed to conclude that it was working. The court sees no reason to
take that additional step. The Thomses established by a preponderance of the
evidence that the filtration system was functional.

63

Id. at 60.

64

Id. at 76. Young stated that he believed only two ionizers were seized. Doc. 167 at 76.
Because their effectiveness is suspect, the precise number of ionizers in place is not critical.
65

Doc. 164 at 145 (Doty noted that “there’s some question about ionization.”); doc. 167 at
76 (Young opined that ionizers are “not very effective.”).
66

Doc. 174 at 29.

67

Id.

68

Doc. 167 at 60.

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2. Distance
Thoms stated that the distance from the gate on his property to the outbuilding
containing the budding marijuana plants was approximately 550 feet.69 Defendants’
private investigator measured the distance from the gate to the same outbuilding at 538
feet.70 Young estimated the distance to be between 400 and 600 feet.71 The court is
satisfied that Young was at least 450 feet from the only potential source of odor when
he claimed to smell marijuana.
Doty testified that “as you get farther from the . . . source” an odor becomes less
strong.72 “[B]ecause odors are dispersed in air . . . any kind of air pattern will disperse
the molecules to the point that they’re not . . . concentrated enough to be . . .
perceived.”73 The report notes that “Doty stated that distance affects the strength of
odor but he did not have an equation to be more specific.”74 The court is skeptical that
such an equation exists because there are too many other variables such as “[t]he
velocity of air, [the] density of air [and] the volatility of the chemical.”75 The pertinent
aspect of Doty’s testimony in this regard is that the greater the distance from the source,
the less likelihood of detecting an odor.

69

Doc. 164 at 53.

70

Id. at 32.

71

Doc. 167 at 120.

72

Doc. 164 at 141.

73

Id. at 141.

74

Doc. 174 at 29.

75

Doc. 164 at 136.

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3. Weather
Doty testified that “in the winter . . . odors . . . don’t move around very well.”76 In
warm temperatures air disperses more. In cold air there is less movement.77 Doty
stated that when warmer molecules responsible for any odor reach cold air, they tend to
cool down and drop.78 Young’s affidavit states that he smelled marijuana at 1:20 a.m.
on February 22, 2010. On February 22, 2010, at the Wasilla Airport–approximately four
miles from the Thomses’ residence–the temperature at 1:16 a.m. was 29 degrees
Fahrenheit.79
Doty stated that “wind disperses everything.”80 The court has concluded that
Young’s description of the wind is a better indicator than the weather reports provided
by the defendants. Young stated “[i]t was fairly calm, it wasn’t very breezy,”81 but that
any wind was coming from the direction of the Thomses’ residence. Doty’s testimony
suggests that, to the extent the wind was blowing, it would act as a catalyst to dispersal
of any odor.
4. Vegetation, Land Mass, and Structures
Directly in between the only potential source of odor and the location where
Young claimed to smell marijuana there is a large section of forest and a two-story

76

Id. at 133.

77

Id. at 137.

78

Id. at 148.

79

Doc. 163-2 at 3.

80

Doc. 164 at 139.

81

Doc. 167 at 87, 120.

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residence on top of a hill.82 The forest contains both deciduous and non-deciduous
trees.83
Doty testified that foliage acts as a barrier to dispersal of an odor.84 Molecules
responsible for a particular smell “as they traverse will bind to things, and . . . foliage . . .
will take up molecules.”85 Doty stated that “an uphill gradient . . . would spread [the
odor] all over the place.”86 He described the hill as “a significant barrier.”87
5. Sensory Perception of Lay Witnesses
The Thomses offered the testimony of Yukon Tanner (“Tanner”), a safety
manager for Matanuska Electric Association. Tanner was called to the scene of the
search to investigate possible electrical theft.88 When Tanner arrived at the scene, his
car window was up, and his heater was running.89 Tanner did not smell marijuana on
the Thomses’ property until he entered one of the outbuildings, even though the door to
that outbuilding was ajar.90 Tanner did not smell marijuana when he checked the
electrical meter on the house.91 Tanner is 60 years old and his nose “doesn’t work like it
used to,” but he is familiar with the smell of marijuana.92 Tanner has investigated

82

See, e.g., doc. 153-14. See also doc. 153-13; doc. 153-14. Young’s location when he
claimed to smell marijuana is marked with an “X” on defendants’ Exhibit K.
83

Government Exhibit 6 provides the best sense of the density of the forested area.
Defendant’s Exhibit I offers the best sense of its depth. See doc. 153-13.
84

Doc. 164 at 138.

85

Id. at 138.

86

Id. at 139.

87

Id. at 148.

88

Doc. 167 at 5.

89

Id. at 16.

90

Id. at 7–8, 9, 12–13.

91

Id. at 8–9.

92

Id. at 10.

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electricity theft at 20 or 25 grow operations.93 Tanner has “been on properties where
[he] could smell [marijuana] as far away as the street.”94
Thoms presented the testimony of Brian Brett (“Brett”), a driver for Alaska
Waste. Brett collected refuse at the Thomses’ house on the last Friday of every month.
Brett was on the Thomses’ property on the last Friday of January 2010.95 Brett
generally did not get out of his vehicle while on the property and does not recall whether
his windows were up or down when he visited in January.96 He testified that he never
smelled marijuana on the Thomses’ property.97
C. The Government’s Witnesses
The government’s primary contentions in rebutting Thoms’ showing are that
1) Young claimed he smelled marijuana; and 2) execution of the search warrant yielded
202 budding marijuana plants.98 Young’s statement in the affidavit is entitled to a
presumption of validity, and it was corroborated by the fruits of the search.99 In addition
to Young, the government called State Troopers Curtis Vik (“Vik”) and Welch as
witnesses.
1. Inconsistencies in Young’s Statements
Young’s affidavit attested to his knowledge “that marijuana contains ‘terpenes’
that generate an odor that is unique only to marijuana and therefore the odor of the
marijuana plant is readily recognizable.”100 On direct examination at the Franks hearing,

93

Id. at 10.

94

Id. at 13.

95

Id. at 18.

96

Id. at 23.

97

Id. at 22.

98

Although the search uncovered approximately 500 marijuana plants in total, Young
conceded that he could only have possibly smelled budding plants. Id. at 141.
99

See Franks, 438 U.S. at 171.

100

Doc. 57-3 at 3, 4.

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Young stated that in his experience, however, “a trapping bait . . . has that skunky smell
which marijuana is kind of similar to.”101 While the discrepancy is easily explained–the
former representation that marijuana’s odor is unique is attributed to someone else–it is
unclear, if Young knew from his own experience that the odor of marijuana was not
unique, why the affidavit would attest to another’s claim that it was.
Young’s affidavit also states that, after smelling the strong odor of marijuana
while in his vehicle, he got out, “continued to check the wind direction and determined
that the first residence on the right . . . was the source of the odor.”102 It appeared to
him that “there [was] a pond or swamp behind the residence and no other nearby
structures (upwind) that could have been the source of the odor.”103 Young’s affidavit
indicates a belief that the house itself was the source of the odor. Similarly, Young
testified at the Franks hearing that “the Thoms residence was directly upwind of where
[he] was at” when he smelled marijuana outside his vehicle.104 During crossexamination, Young testified that “based on the wind direction, that the source of the
odor was coming from the Thoms property.”105 Also during cross-examination, Young
stated that he “believed it was from that property, not necessarily just [the] house.”106
Young’s statements during cross-examination are inconsistent with representations in
the affidavit.
2. Young’s Smelling Ability Relative to Vik and Welch
Vik testified that the furthest distance he has ever smelled marijuana from the
source was “a couple hundred yards.”107 On the day of the search, he first smelled

101

Doc. 167 at 68–69.

102

Doc. 57-3 at 4 (emphasis added).

103

Id.

104

Doc. 167 at 87.

105

Id. at 117.

106

Id. at 121.

107

Id. at 43.

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marijuana when he was “fifty to seventy-five feet” away from the source.108 Vik could
not smell marijuana from the Thomses’ residence.109 Welch testified that he has
detected the smell of marijuana from “over a mile” away.110 On the day of the search,
he did not smell marijuana as he approached the outbuildings on the Thomses’
property.111 He did not smell marijuana at all until he “entered the first building.”112
Welch did not smell the budding marijuana plants until “trying to gain entry into” the
building housing them.113
Young believes that he does “not have . . . a really good sense of smell.” He has
“had contact with people that have been consuming alcohol, and other troopers would
say they could smell it [but he] never noticed it.”114 Similarly, Young stated that he has
been unable to smell odors detected by family members.115
Of those who testified at the Franks hearing, one other individual besides
Young–Vik–claimed to smell marijuana on the Thomses’ property prior to entering a
building containing it. Vik was one-ninth the distance from the source that Young was
when he claimed to smell marijuana. The path that the odor would have traveled to
Vik’s position when he smelled marijuana was approximately 90% less distant and
unobscured by vegetation or the Thomses’ house. The law enforcement officer with
past experience detecting the smell of marijuana from over a mile away was unable to

108

Id. at 48.

109

Id. at 49, 50. The report erroneously stated that Vik “did smell marijuana at or near
the Thoms residence.” Doc. 174 at 20.
110

Doc. 167 at 54.

111

Id. at 57.

112

Id. at 58. This was building number 1 on defendants’ exhibit V. It contained only
vegetative plants.
113

Id. at 59.

114

Id. at 110.

115

Id. at 110.

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recognize any odor until he entered the building containing the budding marijuana
plants.
D. The Government’s Rebuttal
1. Filtration
The government sought to establish at the Franks hearing that one of the two
grow buildings was not equipped with charcoal filtration.116 According to Young,
however, “the upper floor” of the building did have such a system.117 In any event, the
building only contained vegetative marijuana plants.118 Consequently, even if there
were no filtration system at all in that building, it is immaterial. Young stated that he had
to have been smelling budding plants.119
Young testified that his experience with charcoal filtration was limited to the use
of respirators “when we do meth labs [and] when we’re tearing down a large marijuana
grow, because of the molds and some other dangerous inhalation hazards.”120 Young’s
testimony that the canisters used in his respirators are “a one-time use” because “we
don’t know when they’re going to be saturated” is not probative of the efficacy of Thoms’
filter.121 Welch’s testimony suggests that the carbon filter Thoms had in place weighed
approximately one hundred pounds.122 Consequently, OSHA regulations that require
one-time use of personal respirators does not bear on the effectiveness of Thoms’
filtration system. Young’s testimony does establish that the Alaska State Troopers also

116

Id. at 92–93.

117

Id. at 92.

118

Id. at 92.

119

Id. at 141.

120

Id. at 74.

121

Id. at 74.

122

Id. at 60.

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use carbon filtration under certain circumstances. That fact renders one interpretation
of Young’s testimony that carbon filters are “not always effective” suspect.123
2. Distance
As discussed above, Young was approximately 450 feet from the only potential
source of the odor. By his own estimate, based on his time on the property during the
search, Young was “somewhere between 400 to 600 feet” from the building containing
the budding plants.124 During cross-examination, Young confirmed his belief, reflected
in the affidavit, that “there were no other structures visible upwind. It looked like there
was a swamp behind [the residence].”125 Young concluded that the residence had to be
the source because there were no other structures “upwind or close enough to be the
source of the odor.”126 Young continued to say that he “believed [he had] isolated the
source of the odor because there [were] no other structures close to have been it.”127
The fact that Young could see the vegetation behind the Thoms’ house and ruled
out anything beyond that point as the source of odor is in tension with his having
actually smelled marijuana. Young’s statements on cross-examination also make clear
that even he did not think that anything beyond the trees behind the Thoms’ residence
could have produced the odor he claimed to smell.
3. Weather
Young stated at the Franks hearing that, on the morning of February 22, “[i]t was
fairly calm, it wasn’t very breezy.”128 This is consistent with his testimony that “[i]f it’s
windy, [he] won’t bother” with “going out to try to smell for a marijuana grow.”129

123

Id. at 73.

124

Id. at 120.

125

Id. at 122.

126

Id. at 122 (emphasis added).

127

Id. at 122 (emphasis added).

128

Id. at 87, 120.

129

Id. at 78.

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However, by virtue of the distance to the only potential source of odor, Young’s ability to
have smelled marijuana was dependent on wind current. It is difficult to conceive how
an odor could have traveled over 400 feet in the middle of winter–above or through
forest and above or around the Thoms’ home–when“[i]t wasn’t breezy at all.”130 Young’s
testimony as to the lack of a strong wind does not mesh with his statement that the odor
was “strong” insofar as it is unclear how a sufficient concentration of an odor could have
reached the point where Young claimed to smell marijuana without dispersing absent a
strong wind.131
Young detailed his methods of determining wind direction. Because Young
typically investigates marijuana grows at night, he shines the lower stage bulb on his
flashlight “directly up in the air,” he “breathe[s] out and . . . watch[es] which way [his]
breath drifts.”132 When Young cannot see his breath, he uses a “finger in the air.”133
Young stated that he made his assessment that the wind was coming from the
Thomses’ residence in “four to five minutes.”134 He stated that he came to that
conclusion after “walking back up and down [the road adjacent to the Thomses’
property] several times.”135 Young eliminated four other structures from consideration in
that same time and using those procedures.136
Vik testified that the wind in the Palmer-Wasilla area varies dramatically and can
change over short periods of time.137 Welch testified that in his experience the wind in

130

Id. at 120.

131

Id. at 88. Even if there were a strong wind, Doty confirmed the intuitive premise that
wind disperses odor.
132

Id. at 86.

133

Id. at 86.

134

Id. at 117.

135

Id. at 117.

136

Id.

137

See id. at 41.

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the Palmer-Wasilla area can vary over short distances.138 Young testified that the wind
in the Palmer-Wasilla “blows from all corners of the compass” and can vary over short
distances and periods of time.139 The court accepts the troopers’ personal experience
with respect to wind variation in the Palmer-Wasilla area. It is not especially probative
because the court accepts Young’s description of the conditions near the Thomses’
property on the morning of February 22, 2010, as reasonably accurate.
E. Thoms Has Met His Burden For Purposes of the Franks Hearing
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.
F. Without the Averment that Young Smelled Marijuana, the Affidavit Does Not
Support a Finding of Probable Cause
Probable cause exists where the totality of the circumstances give rise to “a fair
probability that contraband or evidence of a crime will be found in a particular place.”140
Setting aside the alleged falsity, the only relevant allegations in the warrant affidavit
specific to the defendants are 1) Trace Thoms’ 2005 conviction for MICS IV and 2) two
electrical accounts in the name of Jennifer Thoms, one of which used approximately
$800 worth of electricity per month.
High electricity usage cannot support a finding of probable cause on its own–it
has been treated by the Ninth Circuit Court of Appeals as “weak evidence of criminal
138

Id. at 52.

139

Id. at 66–67.

140

Illinois v. Gates, 462 U.S. 213, 238 (1983).

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activity.”141 While, for instance, thermal imaging can increase the probative value of
high electrical usage, there is no similar relationship between a past criminal conviction
and such electrical usage.142 Abnormally high electrical usage credited to an account in
the name of one spouse coupled with the other spouse’s past criminal conviction
involving marijuana does not give rise to a fair probability that evidence of a crime will
be found on a married couple’s property.143 The statement that Young smelled
marijuana was essential to a finding of probable cause.
1. The Good Faith Exception Does Not Apply
The Ninth Circuit has “refused to suppress evidence obtained under an invalid
warrant if the officers obtaining the warrant and performing the search relied in good
faith on the warrant’s validity.”144 However, the good faith exception does not apply to
situations “when an affiant has knowingly or recklessly included false information in the
affidavit.”145
Even if the good faith exception could apply where a defendant has satisfied his
burden at a Franks hearing, it would not apply here. In determining applicability of the

141

See United States v. Huggins, 299 F.3d 1039, 1048 & n.11 (9th Cir. 2002) (“[A]lthough
thermal imaging does not reveal direct evidence of crime, it can serve as a means of
corroborating direct but weak evidence of criminal activity–such as the informant’s tip that
triggered the investigation . . . . Thermal imaging can also bolster the probative value of
comparative electrical data by indicating that whatever power-intensive activity is occurring on
the premises under surveillance is also one that generates significant heat; this information
rules out some, albeit not all, innocent explanations for the target location’s relatively high power
bills.”); see also United States v. Robinson, 62 F.3d 1325, 1331 (11th Cir. 1995) (high relative
electricity consumption bolstered by infrared imaging, purchase of high-powered lights, and an
expensive residence despite no state income tax returns on file).
142

See Huggins, 299 F.3d at 1048.

143

See United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994) (High electrical
“consumption is consistent with numerous entirely legal activities. This evidence, which is
equally consistent with both legal or illegal activity, coupled with an entirely uncorroborated
anonymous tip, is simply not sufficient to establish probable cause for searching a home.”).
144

Id.

145

Dozier, 844 F.2d at 705; see generally United States v. Leon, 468 U.S. 897 (1984).

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good faith exception, “the inquiry is one of objective reasonableness.”146 Here, “a
reasonably well-trained officer would have known that this particular search was illegal
despite the [state] judge’s authorization.”147 High electrical consumption is relevant to
but inadequate for a determination of probable cause. Even in conjunction with a 2005
conviction for delivery of marijuana, a reasonably well-trained officer could not have
thought that information sufficient to constitute probable cause.
G. Suppression
“A district court must suppress evidence seized under a warrant when an affiant
has knowingly or recklessly included false information in the affidavit.”148 Moreover,
because the other search warrants were derived from execution of the invalid
warrant,149 the evidence seized pursuant to the other search warrants must also be
suppressed.150
H. Thoms’ Other Objections Are Moot
Because the court has concluded that the Thomses’ first objection to the findings
of the report has merit, the Thomses’ other objections are moot.
V. CONCLUSION
For the reasons above, the report and recommendation at docket 174 is
REJECTED. The motion at docket 57 is GRANTED as follows:
1) The evidence derived from execution of Search Warrant No.3PA 10-56 SW is
suppressed.

146

Clark, 31 F.3d at 835.

147

Id.

148

Dozier, 844 F.2d at 705 (emphasis added).

149

See doc. 153-3 at 6–7; doc. 153-4 at 6–9.

150

Wong Sun v. United States, 371 U.S. 471 (1963) (The question is “whether, granting
establishment of the primary illegality, the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.”) (internal quotations omitted).

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2) The evidence derived from execution of Search Warrant No.3PA-10-59 SW is
suppressed.
3) The evidence derived from execution of Search Warrant No.3PA-10-74 SW is
suppressed.
The United States shall promptly advise the court how it will proceed given the
court’s decision to suppress evidence.
DATED at Anchorage, Alaska, this 22nd day of April 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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