As appellate courts often receive appeals on a variety of issues from the same case or trial, some of their decisions, even unpublished ones, contain an incredible amount of information about a variety of legal issues. The Second Division of the Court of Appeals of Washington recently released such an opinion, which will be the fodder of this and a later post.
The case comes from a two-year investigation by the Olympia Peninsula Narcotics Enforcement Team (OPNET). During the course of the investigation, OPNET surveilled both the defendants'—two brothers—homes, as well as a shop that they owned. During the course of that surveillance, officers noted that they smelled strong odors of marijuana emanating from the shop on several occasions. Through these reports, OPNET was able to obtain a warrant to examine the shop's utility records and to use thermal imagers to search the shop.
OPNET continued to report odors of marijuana emanating from the shop. They also claimed that the thermal imaging revealed suspicious heat activity consistent with an indoor growing operation. Using this information, they were able to obtain a warrant to search the shop, where they found a grow operation.
Before trial, the defendants moved to suppress the evidence discovered during the search; they also requested what is known as a Franks hearing to challenge the assertion that OPNET could smell marijuana emanating from the shop. A Franks hearing determines whether the police officer's affidavit used to obtain a warrant is based on false statements made by the officer.
In challenging the odiferous claims, the defendants desired to call Dr. James Woodford as an expert witness. The State opposed him based on his qualifications, arguing that he was not sufficiently trained in the detection of marijuana and that he was not an expert on ventilation and filtration systems. Notably, they did not request a Frye hearing, which would allow the court to assess whether the doctor qualified as an expert, and would also be reviewable on appeal. The trial court allowed the testimony.
Dr. Woodford testified that the marijuana operation, in part because of the filtration system, could not be detected by smell from the distances observed by the OPNET members. Because of this testimony, the trial court struck the smell evidence from the previously obtained warrants and concluded that they were no longer valid. The case was dismissed.
It almost goes without saying that the above was an extremely effective use of an expert witness. A defense team should always considering using an expert witnesses for use to protect your rights if you face criminal charges. Attorney Kevin Trombold has years of experience using science as a method to protecting his client's rights. If you face a criminal charge in the Greater Seattle area, including King, Pierce, and Snohomish counties, contact him today for a free consultation.