JUDGE RULES DRUG OFFICERS TRESPASSED TO GET WARRANT

The state dismissed charges against a Wasilla man arrested for growing
marijuana after a Palmer Superior Court judge ruled that drug enforcement
officers trespassed in order to smell the marijuana and subsequently get a
search warrant.

Four charges of misconduct involving a controlled substance in the case
involving James H. McDermott, 35, of Wasilla, were dropped Monday.

On Sept. 9, 1999, McDermott was arrested after drug enforcement officers
obtained information about his alleged marijuana-growing operation by
"smelling the pot" while standing in a vacant, privately owned lot next door.

On the strength of the scent, the officers were able to obtain a search
warrant from a Palmer Superior Court Magistrate David Zwink. Inside
McDermott's home they reportedly found 436 marijuana plants.

"The smell of marijuana is unique enough that if you are trained to detect
it, then you can testify," said Palmer Assistant District Attorney Jack
Smith. "But you have to be able to tell where it is coming from. Because of
the wind direction, even though they were able to smell the pot while on
McDermott's property, they could not confirm where the smell was coming
from. That is why they went to the vacant lot."

Defense attorney Karen Bretz argued in her motion that the evidence should
be suppressed because drug enforcement officers had essentially conducted a
"search by smelling" while trespassing on private property, which rendered
the subsequent search warrant issued to the officers illegal.

Judge Beverly Cutler sided with Bretz on the trespass issue but rejected
her other arguments for suppression.

Smith said the judge's ruling to suppress shuts down the drug case against
McDermott because, "evidence seized cannot be used," he said. He announced
the state's decision to drop charges against McDermott at Monday's hearing
in Palmer Superior Court.

"This is the first court in Alaska that says you can't go on a vacant lot
to conduct an investigation," Smith said. "It presents an interesting
obstacle to police work."

At its basis, the case affirms police do not have greater protection than
any other citizen when it comes to entering private property, Smith said.

This expands an earlier decision by Palmer Superior Court Judge Eric Smith,
in which the judge ruled a person could make a case that constitutional
rights of privacy were violated when officers obtained information from a
path adjoining two pieces of property, Jack Smith said.

Palmer Assistant District Attorney Bill Estelle, who originally was the
prosecutor in the McDermott case, had objected to dismissing evidence, on
the grounds that the officers had not committed criminal trespass. At worst
it was a civil trespass since no sign was posted and there is a
four-wheeling trail on the property, suggesting it was used often.

Cutler's ruling disagreed with Estelle's assessment.

McDermott cannot be charged or reindicted in connection with this case,
Bretz said.

The defense attorney said she was pleased it is being dismissed, and said
some of the circumstances in it illustrated that though drug enforcement
officers need to do their job, they shouldn't do it by "running rough-shod
with people's rights."

In one case, officers obtained a search warrant on the strength of an
alleged marijuana scent. The plants were, in fact, tomatoes, Bretz said.