TACOMA — The state Court of Appeals has upheld dismissal of 2009 drug charges against brothers Steven and Timothy Fager that hinged on how far away law enforcement officers could detect the smell of pot.
The charges of manufacturing and intent to deliver marijuana, filed in Jefferson County Superior Court, were based on an investigation by the Olympic Peninsula Narcotics Enforcement Team (OPNET), which pursues drug cases in Clallam and Jefferson counties.
“It was a proper decision,” Steven Fager said Friday.
“[The case] should never have been done.”
Jesse Espinoza, the Clallam County deputy prosecuting attorney who inherited the case from Lew Schrawyer, said Thursday that no decision had been made about filing a motion for reconsideration with the appeals court.
Jefferson County Prosecuting Attorney Mike Haas, who represented the Fagers before he was elected in November, said he had no comment on the appeals court ruling.
“At this point in time, hopefully it’s time for everyone to move forward in their lives,” Haas said.
A companion $20 million civil suit for damages for an alleged cover-up of “egregious misconduct” surrounding the raid on Timothy Fager’s Discovery Bay property has already been thrown out in federal court.
“It’s absolutely going to be appealed,” Fager said.
But the panel of three state appeals court judges handed the brothers a victory in Tuesday’s ruling.
In a unanimous opinion written by Chief Judge Jill Johanson, the jurists confirmed the late Judge Craddock Verser’s ruling in January 2013 that OPNET acted with “reckless disregard for the truth” in obtaining a search warrant.
The warrant led to the discovery of a marijuana grow operation on two parcels at the Freeman Lane, Discovery Bay, property of Timothy Fager, 57, where he and Steve Fager, 59, of Sequim had a shop.
Discovery Bay Village Water Co., in which the brothers were listed as officers, was on the other parcel, according to court records.
OPNET officers who had been surveilling the property for a month had said they could smell marijuana from the Fagers’ grow operation from at least 130 feet away, according to the appeals court.
That led to warrants to inspect the Fagers’ utility records and conduct thermal imaging of the shop, which detected abundant electricity usage.
Inside the building, officers allegedly found 275 marijuana plants and “well in excess of 10 pounds of processed marijuana bud,” according to court records.
But at a pretrial hearing before Verser, expert witness James Woodford, a chemist with a doctorate, testified that the odor could not have been detected at more than 60 feet away because of pot’s molecular structure.
He said it would have been impossible to determine the direction of the odor, Johanson wrote.
Seattle lawyer Jim Dixon, representing Timothy Fager, said in an interview that marijuana being grown has a far smaller odor distance than pot being smoked or that has been cut.
“Judges at the state and federal levels have been treating Dr. Woodford as an expert on marijuana issues for the last 25 years,” Dixon said.
“This is not a johnny-come-lately-type thing.”
Schrawyer, Clallam County deputy prosecuting attorney arguing on behalf of OPNET, had claimed Woodford had no formal training in detecting the odor of marijuana.
Verser struck the “smell evidence” from the thermal image and property search warrants, eliminating probable cause and rending moot the evidence seized as a result.
Verser also found “governmental mismanagement” because video recordings of the thermal image search “had apparently been destroyed despite numerous attempts by the defense to obtain them,” Johanson wrote.
Verser also dismissed a charge of defrauding a public utility, according to court records. Authorities had said the Fragers diverted power from the Jefferson County Public Utility District.
Woodford’s testimony became the basis for determining what Verser said was the OPNET officers’ reckless disregard for the truth.
Schrawyer, who has since retired, argued that Verser incorrectly applied what is called the Franks test because Verser did not find the officers intentionally made false statements.
He argued they were “merely mistaken as to their belief they smelled marijuana emanating” from the Freeman Lane address.
“The Fourth Amendment does not proscribe ‘inaccurate searches,’ only ‘unreasonable ones,’” Johanson wrote.
Schrawyer also argued that Verser erred by not conducting what is called a Frye hearing, in which expert testimony is examined to determine if it is grounded in established and accepted scientific method.
Johanson said Schrawyer did not have standing to raise that argument on appeal because Schrawyer did not argue the point before Verser.
“The state never contested the proposition that the theory was generally accepted in the scientific community,” Johanson said.
Clallam County Sheriff Bill Benedict discounted Woodford’s testimony.
“He’s not a scientist; he’s a hired gun,” Benedict said, contending there was no established science on the detection of marijuana odors.
“The appellate court got it wrong,” Benedict said.
He was at a loss to explain the missing thermal image videos.
“Sometimes things happen,” he said.
The drug task force was moving its offices at the time, Benedict said.
“Since the Fager case happened, there have been significant changes in OPNET, almost a complete turnover in personnel,” he said.
“You can be sure that those items that were policies and procedures that were not up to snuff were brought up to snuff, that they were corrected.”
The deadline to file a motion for reconsideration with the state appeals court is March 2, or 20 calendar days after the appeals court ruling, said David Ponzoha, clerk of the Court of Appeals.
A petition for review also can be filed directly to the state Supreme Court by March 12, or 30 calendar days after the Feb. 10 ruling.
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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at pgottlieb@peninsuladailynews.com.
