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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.
News Hawk - The General @ 420 MAGAZINE ®
Source: Anchoragepress.com
Author: Scott Christiansen
Contact: About - Anchorage Press: Site
Website: Feds Drop 'Magic Odor' Case - Anchorage Press: Blotter
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.
News Hawk - The General @ 420 MAGAZINE ®
Source: Anchoragepress.com
Author: Scott Christiansen
Contact: About - Anchorage Press: Site
Website: Feds Drop 'Magic Odor' Case - Anchorage Press: Blotter
