April 22, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
TRACE RAE THOMS AND JENNIFER ANNE THOMS, DEFENDANTS.
The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motion at Docket 57]
ORDER AND OPINION
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.*fn1
The government opposes the motion at docket 63. Defendants'
reply is at docket 84.*fn2
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 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.
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.*fn3 The first section is labeled "preliminary matters" and provides a description of Young's background, training, and experience.*fn4 The second section is titled "typical marijuana grow" and contains Young's factual deductions regarding marijuana grow operations.*fn5 The third section is labeled "personal knowledge" and recounts generalities derived from Young's experience with marijuana grow operations.*fn6 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 gotnear 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.*fn7
The affidavit details Young's subsequent investigation. Young examined maps and "determined that the property was owned by Trace Thoms and Jennifer Thoms."*fn8 He ran background checks on both defendants and noted Trace Thoms' 2005 conviction for MICS IV.*fn9
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."*fn10 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.*fn11
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."*fn12 The affidavit includes a section titled "marijuana grow data" which recounts Young's catalogue of "smell cases"--cases "where the odor [of marijuana] was 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."*fn13 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.*fn14 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.*fn15
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.*fn16
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."*fn17 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,*fn18
and any findings of fact to which objections have been
made.*fn19 Uncontested findings of fact are reviewed
for clear error.*fn20
A Franks hearing allows a criminal defendant to challenge the truthfulness of statements in an affidavit supporting a search warrant.*fn21 "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."*fn22 If the defendant carries that burden, the proper remedy is suppression.*fn23
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.*fn24
The Ninth Circuit has described the preponderance standard as requiring a showing that the object of proof is "more likely than not."*fn25 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 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. 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."*fn26 The government also maintains that "the substance of his testimony is of doubtful worth."*fn27 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.
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.*fn28
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."*fn29 Doty helped develop the University of Pennsylvania Smell Identification Test, which is "sort of the gold standard for smell testing."*fn30 He was qualified as an expert on smell and taste detection and smell detection capabilities.*fn31 Doty ultimately opined that there was a "zero" probability that Young smelled marijuana as he claimed.*fn32
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."*fn33 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."*fn34 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
purportedly" smelled marijuana.*fn35 It is likely that
Doty did not consider that possibility because the other variables
precluded it.Moreover, although Youngstated that on the morning in
question "[i]t was fairly calm [and] wasn't very breezy,"*fn36
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
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."*fn37
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.*fn38
Doty's written opinion includes no mention of Young's window as a
barrier to odor whereas all other variables are discussed.*fn39
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."*fn40
Doty's written opinion contemplated a "distance of [approximately] 500
The report states that Doty "was not apprised of the number of marijuana plants seized by law enforcement" pursuant to the search.*fn42 That statement is incorrect. It is clear from Doty's discussion of the documents he reviewed to formulate a basis for his 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.*fn43
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."*fn44 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.*fn45
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."*fn46 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.
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."*fn47 Because smell is a sensory perception, no training is necessary. Any probative value is derived from those witnesses' firsthand perception.
B. The Thomses' Showing
The only marijuana that could have produced an odor detectable by
Young was housed in a dedicated structure with no windows.*fn48
There were two doors and two garage doors.*fn49
The garage doors were insulated and taped.*fn50
Thoms testifiedthat 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."*fn51 There
was an intake hole, near the entry of the building, approximately
eight inches in diameter.*fn52 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.*fn53 The filtration system ran
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 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.*fn55
Doty opined that carbon functions as an "excellent" filter.*fn56 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."*fn57
Doty recognized that carbon can become saturated and that carbon filters have to be changed "occasionally" in order to maintain their efficacy.*fn58 Thoms stated that he purchased new carbon filters "weekly"*fn59 and that he kept "two spares and one hanging."*fn60 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.*fn61
He stated that he checked it "constantly."*fn62 The ladder is visible in government exhibit 7.
Within the ductwork itself, Thoms installed ionizers.*fn63
Ionizers rely on ozone to bond with molecules responsible for
scent. Thoms stated he had five or six ionizers in place.*fn64
The effectiveness of ionizers is questionable.*fn65
The report notes the defendants' contention that "nothing in the government reports indicates that the [filtration] system was broken down."*fn66 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."*fn67 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.*fn68
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.
Thoms stated that the distance from the gate on his property to the outbuilding containing the budding marijuana plants was approximately 550 feet.*fn69 Defendants' private investigator measured the distance from the gate to the same outbuilding at 538 feet.*fn70 Young estimated the distance to be between 400 and 600 feet.*fn71 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.*fn72 "[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."*fn73 The report notes that "Doty stated that distance affects the strength of odor but he did not have an equation to be more specific."*fn74 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."*fn75 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.
Doty testified that "in the winter . . . odors . . . don't move around very well."*fn76 In warm temperatures air disperses more. In cold air there is less movement.*fn77 Doty stated that when warmer molecules responsible for any odor reach cold air, they tend to cool down and drop.*fn78 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.*fn79
Doty stated that "wind disperses everything."*fn80 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,"*fn81
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
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 residence on top of a hill.*fn82 The forest contains both deciduous and non-deciduous trees.*fn83
Doty testified that foliage acts as a barrier to dispersal of an odor.*fn84 Molecules responsible for a particular smell "as they traverse will bind to things, and . . . foliage . . . will take up molecules."*fn85 Doty stated that "an uphill gradient . . . would spread[the odor] all over the place."*fn86 He described the hill as "a significant barrier."*fn87
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.*fn88 When Tanner arrived at the scene, his car window was up, and his heater was running.*fn89 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.*fn90 Tanner did not smell marijuana when he checked the electrical meter on the house.*fn91 Tanner is 60 years old and his nose "doesn't work like it used to," but he is familiar with the smell of marijuana.*fn92 Tanner has investigated electricity theft at 20 or 25 grow operations.*fn93 Tanner has "been on properties where [he] could smell [marijuana] as far away as the street."*fn94
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.*fn95 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.*fn96 He testified that he never smelled marijuana on the Thomses' property.*fn97
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.*fn98 Young's statement in the affidavit is entitled to a presumption of validity, and it was corroborated by the fruits of the search.*fn99 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."*fn100 On direct examination at the Franks hearing, Young stated that in his experience, however, "a trapping bait . . . has that skunky smell which marijuana is kind of similar to."*fn101 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."*fn102 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."*fn103 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.*fn104 During cross-examination, Young testified that "based on the wind direction, that the source of the odor was coming from the Thoms property."*fn105 Also during cross-examination, Young stated that he "believed it was from that property, not necessarily just [the] house."*fn106
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."*fn107 On
the day of the search, he first smelled
marijuana when he was "fifty to seventy-five feet" away from the
source.*fn108 Vik could not smell marijuana from the
Thomses' residence.*fn109 Welch testified that he has
detected the smell of marijuana from "over a mile" away.*fn110
On the day of the search, he did not smell marijuana as he
approached the outbuildings on the Thomses' property.*fn111
He did not smell marijuana at all until he "entered the first
building."*fn112 Welch did not smell the budding
marijuana plants until "trying to gain entry into" the building
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."*fn114 Similarly, Young stated that he has been unable to smell odors detected by family members.*fn115
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 recognize any odor until he entered the building containing the budding marijuana plants.
D. The Government's Rebuttal
The government sought to establish at the Franks hearing that one of
the two grow buildings was not equipped with charcoal
filtration.*fn116 According to Young, however, "the
upper floor" of the building did have such a system.*fn117
In any event, the building only contained vegetative
marijuana plants.*fn118 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
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."*fn120 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.*fn121 Welch's testimony suggests that the carbon filter Thoms had in place weighed approximately one hundred pounds.*fn122 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 use carbon filtration under certain circumstances. That fact renders one interpretation of Young's testimony that carbon filters are "not always effective" suspect.*fn123
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.*fn124 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]."*fn125 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."*fn126 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."*fn127
The fact that Young could see the vegetation behind the Thoms' houseand 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.
Young stated at the Franks hearing that, on the morning of February
22, "[i]t was fairly calm, it wasn't very breezy."*fn128
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
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."*fn130 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.*fn131
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."*fn132 When Young cannot see his breath, he
uses a "finger in the air."*fn133 Young stated that he
made his assessment that the wind was coming from the Thomses'
residence in "four to five minutes."*fn134 He stated
that he came to that conclusion after "walking back up and down [the
road adjacent to the Thomses' property] several times."*fn135
Young eliminated four other structures from consideration in
that same time and using those procedures.*fn136
Vik testified that the wind in the Palmer-Wasilla area varies
dramatically and can change over short periods of time.*fn137
Welch testified that in his experience the wind in
the Palmer-Wasilla area can vary over short distances.*fn138
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.*fn139 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
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."*fn140
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 activity."*fn141 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.*fn142 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.*fn143 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."*fn144 However, the good faith exception does not apply to situations "when an affiant has knowingly or recklessly included false information in the affidavit."*fn145
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
good faith exception, "the inquiry is one of objective
reasonableness."*fn146 Here, "a reasonably
well-trained officer would have known that this particular search was
illegal despite the [state] judge's authorization."*fn147
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.
"A district court must suppress evidence seized under a warrant when an affiant has knowingly or recklessly included false information in the affidavit."*fn148 Moreover, because the other search warrants were derived from execution of the invalid warrant,*fn149 the evidence seized pursuant to the other search warrants must also be suppressed.*fn150
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.
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.
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.