The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motion at Docket 57]
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
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.
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 ...