Cruzin’ For A Bust
by Bruce McEwen, March 31, 2011
Juda & Hugo
It has taken more than a year just to get to the preliminary hearing in the Juda and Hugo Cruz case.
Juda is the father, Hugo is the son. They are co-defendants.
The Cruzes are charged with possessing 51 pounds of methamphetamine, enough go-fast to send every speed freak in the state on a two-week trip to Uranus with enough left over for all the tweekers in Navarro and Westport to clean a hundred carburetors a hundred times.
A “fifty-sack” is the usual dose for your generic tweeker. It’s about a quarter-gram in a tiny little zip-bag you get for $50 if you want to stay awake for a week, lose your teeth and destroy your life and the lives of the people around you.
The Cruzes would have had about 93,000 fifty-sacks. At $50 per sack, that’s a street value of over $4.5 million. If they cut it they'd make even more money.
Juda and Hugo Cruz were part of a big drug bust in February of 2010 north of Ukiah. The Mendocino Major Crimes Task Force took down 13 suspects that week following an investigation that included weeks of surveillance and a number of operations where undercover cops posed as drug dealers.
At the time, the local task force commander, Bob Nishiyama, said it had all started at the California Bureau of Narcotics Enforcement office in Sacramento. As the investigation progressed, it came to include two Laytonville locations, a storage unit and three residences in Ukiah.
The Cruzes were arrested shortly after they left an apartment in north Ukiah which had been under surveillance. As they drove off, a posse of law enforcement vehicles, way more than were needed, prepared to pounce on them, and the ensuing keystone collision between the vehicle the Cruzes were in and an undercover cop car has raised some questions, and not about driving skills. The lawyers for the defense, Richard Petersen for Hugo Cruz, and Al Kubanis for Juda Cruz, made a motion to suppress the evidence subsequently seized, and a prelim finally got under way last week.
Under law, the defendants have a right to a preliminary hearing within 60 days of their arrest. But it rarely happens that fast. More often, both parties waive the 60 day time limit to allow time for further investigations and prepare a better case. In the Cruz matter, with them looking at lengthy prison sentences if they're convicted because of the large amounts of methamphetamine involved — not to mention 250-plus pounds of marijuana attributed to the enterprising father and son team — the defense team wanted plenty of time to get everything right, to tweak their strategy you might say.
The Cruzes and their lawyers are fighting an uphill battle here. Rarely, if ever, are these motions to suppress granted. If a judge grants one, it's tantamount to calling the cops liars. Most judges won't do it even when the reasons to suppress seem compelling.
The judge in this case is Richard Henderson. Henderson has made it clear that he doesn’t consider drug charges “victimless crimes.” He especially loathes meth and those who deal in it. To get Henderson to toss the evidence in this case is unlikely.
However, there is an exceedingly talented and experienced lawyer at work here. Richard Petersen, who strongly resembles Buffalo Bill and whose forceful, articulate courtroom style seems to get a lot of people off simply by the energy of it, says he only takes cases nowadays for the “fun” of it — or, if he’s convinced of the defendant’s innocence, he’ll take a case on principle. Either way, this guy has made his bones.
Mr. Albert Kubanis, florid-faced co-counsel, is a retired Navy officer who dresses like he's under military inspection — starched shirts, spit-shined shoes, his trousers creased sharp enough to cut your finger. He's been around Ukiah a long time. He knows his stuff but he's not Petersen. Nobody's Petersen. They only made one of him.
I got a good look at Kubanis when he suddenly left the defense table to come over and drop in the chair next to mine to advise me about what was going on.
He said, basically, that the cops had pulled a Dirty Harry.
“We are trying to show that Deputy Wells and Sergeant Smith rammed the Cruzes’ vehicle,” Kubanis explained.
I had gathered as much.
Also at the defense table was Justin Petersen, Richard Petersen's son, and a skilled and thorough lawyer in his own right. Private Investigator Richard Venturi was up front as well.
In a motion to suppress, the burden is on the prosecution. The defense is alleging a violation of Fourth Amendment rights against unlawful searches and seizures. Law enforcement must establish that they acted in good faith and within the restraints of the law.
Deputy Wells was first to testify. He’d been driving an unmarked Chevy Suburban. His passenger was Sgt. Smith. They were on a surveillance post at a storage unit north of the area where the Cruz bust went down. They, along with “five or six” other vehicles were called to a turnout area at Lover’s Lane in north Ukiah, the whole fleet ready and eager for the bust. An Officer Gregori had been watching an apartment on nearby Tanya Lane through his binoculars. He saw Juda and Hugo Cruz come out of the apartment and go to their vehicle, a white Honda Del Sol. He suspected the apartment was a distribution point for the big bale of meth and he wanted the Honda stopped at all costs. Or, at least, this is what Deputy Wells seemed to think, although he said the Cruzes Honda had run into his Suburban.
Prosecutor Katherine Houston asked Wells, “Did you intend to block the road to keep the Honda from escaping?”
“No. I was trying to get turned around so I could get behind the Honda and pull it over. … I stopped the Suburban and put it into reverse.”
“To block the road?”
“No. To get turned around.”
“Did you move backwards at all? On Lover’s Lane?”
“Had you been to a briefing that morning?”
“Was Supervisor Gregori in charge?”
“Yes, basically. And in terms of allocation of authority on Tanya Lane.”
“Was he your supervisor?”
“No. That was Sergeant Bruce Smith.”
“And where was he?”
“In the passenger seat in the Suburban.”
Richard Petersen rose to cross. He has togged out in a western cut red sport coat and pink necktie, white hair flowing almost to his shoulders. His basso voice fills the courtroom and he speaks distinctly. He wanted Deputy Wells to draw a diagram of the scene. The duly rendered diagram showed the area where the cars were assembled on the turnout at the curve in Lover’s Lane.
Wells said, “There were five or six law enforcement vehicles and one civilian car when we started out.”
“So they’re all strung out behind Officer Gregori? … When the collision happened, were your lights on?”
“Do you mean my headlights?”
There was an objection from Ms. Houston, and some confusion as to whether they were talking about headlights or emergency lights.
“So what are you saying?” Mr. Petersen asked.
“I saw Officer Gregori try to stop it and it went past him, then the next one. It went past him too.”
“Who was that?”
“The BLM agent, Matt Knutsen.”
“Okay, so 1721 Tanya Lane is the address of the apartment the vehicle came from. And you heard Gregori say ‘stop that vehicle’ and you didn’t try to stop it by ramming it, did you?”
“How did the civilian vehicle fit into the collision?”
“It was in the train, the line of cars, as we moved out.”
“It was in front of you?”
“So because of the civilian vehicle slowing down, you started your turn earlier than you should have?”
(Some pesky citizen, the "civilian vehicle," had managed to insert his vehicle in the police flotilla in pursuit of the Cruzes' Honda, assuming the "civilian vehicle" was not driven by a cop, which may not be a safe assumption in this context.)
There was a driveway on the diagram Wells had made. He said he’d tried to turn in there to get turned around and go in pursuit of the Honda.
“And the driveway is how wide, about normal?”
“Okay, I’d say. Correct.”
“Is there a ditch?”
“So one couldn’t cut the corner and go across the ditch?”
“How fast were you going?”
“Ten, 15 miles an hour.”
“Now, as to the cars ahead of the civilian vehicle, is there a gap developing?”
“I don’t know.”
“A couple of car lengths or more?”
“So you see this as a widening gap?”
“And Matt Knutsen’s are the lights you saw go on?”
“And you turned on your lights?”
“We didn’t have any.”
“When the defendant went around Gregori’s vehicle, can you say that his lights were on then?”
“I cannot, no.”
“And you weren’t sure how all this fit together, were you?”
“You were listening to the radio transmissions?”
“So you were trying to get the vehicle into reverse at the time you were struck?”
“Yeah, I think I had it in neutral.”
“How fast was Mr. Cruz going when you were struck?”
“I have no idea. One moment we saw him coming, and then he hit us.”
“After impact, were the vehicles still touching?”
“Had your vehicle, the Suburban, moved?”
“I don’t know. I don’t remember moving back at all.”
“Did you have airbags?”
“I don’t know.”
“Thank you, Deputy Wells.”
Mr. Kubanis asked, “You and Sgt. Smith exited the vehicle after the collision?”
“With drawn guns?”
“I think you testified that one of the law enforcement vehicles crossed the center line and swerved into the path of the Cruz vehicle.”
“As I remember it, yes.”
“And that would be against the Mendocino County Sheriff’s rules, right?”
“How old is the vehicle?”
“I’m not sure.”
“Would it be fair to say that it was about eight years old?”
“Uh, yeah. I guess so.”
“Now at the briefing you attended earlier in the day, you were given some codes, I suppose?”
“We were using numerous codes.”
“But you were able to contact Agent Matson and Officer Gregori?”
“Based on a radio communication from Matson and Gregori you were first to stop that vehicle and secondly, what Matson put over the radio. Did you put that in your report, what Matson said?”
Deputy Wells didn’t seem quite sure how to answer.
Mr. Kubanis read from a page in his hand: “‘Two occupants left the apartment and went to the subject vehicle.’ Do you recall that?”
“Did you read Matson’s report?”
“I don’t know.”
“Would it be accurate to say the gist of his report went something like, ‘…saw Jose Garcia leave the residence and have a conversation with the occupants of the vehicle’…?”
Ms. Houston objected. “My concern is the relevance,” she said. He said he hadn’t read the report.”
Mr. Kubanis said, “Matson’s report contradicts what was said over the radio.”
Judge Henderson said, “The objection is sustained. The witness didn’t read the report.”
Kubanis shouted angrily, “I’m entitled to ask him—”
Henderson said, “Mr. Kubanis—”
Kubanis shouted, “The whole crux of the stop is”—
Henderson repeated, “The objection is sustained.”
Kubanis: “I think I’m entitled to—”
Henderson: “Counsel, I ruled on the objection. Please proceed!”
Kubanis was steaming. His voice hissed.
"Wassss your purpose in going to the location to serve a search warrant?”
“I believed it was.”
“Do you have a different belief, now?”
“So you were given erroneous information?”
“I was under the impression we had a search warrant.”
“But you in fact did not?”
“Isn’t it true that the door was kicked in before the search warrant arrived?”
“I don’t know. I wasn’t there.”
“It’s accurate to say, isn’t it, that no one but Matson put information over the radio about the Honda Del Sol, and nobody else?”
“So it was solely Matson?”
Ms. Houston began her redirect. “In your briefing that morning of February 11th, did you receive information about that address, at 1721 Tanya Lane?”
“Do you remember what the weather was like?”
“It was a clear day.”
“And were there other agents in your team all on the same radio frequency?”
“Yes, I believe so.”
“And you were listening to these conversations on the radio in the Suburban, so you did not join the team until you turned onto Lover’s Lane?”
“And did you intentionally place your vehicle so as to detain the Honda Del Sol?”
“You said you were going to turn around—”
“Objection,” Kubanis howled. “Leading the witness!”
Ms. Houston re-phrased her question.
Deputy Wells answered, “I was going to turn around. I didn’t realize at the time that we didn’t have the emergency lights in the vehicle. I would have had to turn around and get behind the Honda and turn on the lights to pull it over.”
“When did you realize that you didn’t have the lights?”
“After the collision.”
Someone, somewhere in the courtroom made a derisive snort. Judge Henderson eyeballed the room for the culprit but the moment passed.
Mr. Petersen said, “Where do you keep the lights?”
“Between the seats.”
“While you were waiting at the turnoff, did other cars go by?”
“I don’t remember.”
“Well, you at least didn’t see that Honda go by did you?”
The lawyers were finished with Deputy Wells. He was leaving the stand when Mr. Petersen said, “Your honor, I’d ask the witness be admonished that he’s not to talk to any of the other witnesses.”
Judge Henderson watched Wells leave the courtroom. Kubanis seconded the request for admonishment. Henderson said, “He’s already gone.” Kubanis offered to go get Wells and bring him back to be admonished. The officers, of course, know very well that they are not to discuss or repeat their testimony with other witnesses — this is why tape recorders are forbidden in courtrooms. At any rate, the next witness, Sgt. Bruce Smith was already taking the stand.
Sgt. Smith corroborated most of what Wells had said.
“We received a call that the Honda was leaving the apartment and that we’d have to stop it.”
“Did you direct Deputy Wells to do anything?”
“Not really. I could tell it wasn’t going to stop. So I told him to get turned around.”
“As you were making that turn, what happened?”
“I saw the vehicle coming at us at a high rate of speed. So I asked Deputy Wells to back up and get out of the way. The driver was looking back and didn’t see us. It looked to me like he was looking in his rearview mirror.”
“Was the Suburban moving?”
“What happened next?”
“I got out and got the driver out and pat-searched him. He had a package the size of a golf ball in his pocket.”
“Did you find anything in the vehicle?”
“Yes, there was a pound of marijuana in the trunk.”
Agent Parker searched the passenger, Juda Cruz, the father, who also had a similar golf ball-sized “item.”
Hugo Cruz, the son, was the driver.
“When you told Deputy Wells to turn around, was it your intention that you’d be blocking Lover’s Lane?”
“We don’t conduct road blocks. It’s our policy and it’s just common sense.”
“Do you know if the Suburban is equipped with emergency lights?”
“Do you know if they were in the vehicle at this time?”
“I don’t know. We didn’t use them, I can tell you that.”
“Did any of the other vehicles turn on their lights?”
“Yes. The first one did, and they went around that; then the second one did, and they went around that one too.”
“As part of the team, what was your intent when you heard the radio broadcast concerning the Honda Del Sol?”
“To help as needed. To get into position if the vehicle didn’t stop.”
“Did you proceed to the apartment on Tanya Lane?”
“How long after the collision?”
“It was quite a while. A half-hour or 45 minutes.”
“Was there a search warrant by then?”
“I don’t recall if it was there by then or not.”
A recess for lunch was called, and when the hearing reconvened in the afternoon, Justin Petersen was interviewing a surprise witness out in the hall. It was an Agent Parker who has since left the state. The Petersens had flown him in to see if his testimony would contradict the other officers. It soon became apparent that the opposite was going to be the case — i.e., that he’d corroborate the other officers — so Justin Petersen told Agent Parker he wouldn’t be needed. He then offered to buy Parker’s lunch, and the officer left.
Meanwhile, Richard Petersen was cross-examining Sgt. Smith.
“Do you recall the weather?”
“It was a nice day for February.”
“Do you remember the time of your arrival at the turnout?”
“It was just minutes before all this happened, correct?”
“Correct. When we arrived, we just jumped in line.”
“There was no surveillance of number 2 at 1721 Tanya Lane — not by you, at least?”
“I had nothing to do with that.”
“At 151 Lover’s Lane there’s a turn into a driveway; is that the one you and Wells turned into, Mr. Smith?’
“When you see the car coming, is anyone immediately in front of you?”
“The civilian car?”
“What did it do?”
“I didn’t pay that much attention to it.”
“It slowed down?”
“Everyone slowed down.”
“There was a car coming at you, too, wasn’t there Mr. Smith?”
“Did it fit the description?”
“Yes; a white Honda Del Sol.”
“Was it speeding?”
“I don’t know. It was going fast.”
“What’s the speed limit on Lover’s lane?”
“I don’t know. It’s residential so it’s probably 25 [mph].”
“Where do you first see one of the vehicles turn on their lights? Officer Gregori, correct?”
“And officer Gregori was having a conversation with Agent Matson saying, quote ‘We gotta get this vehicle stopped’?”
“I don’t remember what the exact words were.”
“Could other officers hear this, Bruce?” (Smith's first name is Bruce. In Mendocino County everyone knows everyone else.)
“I don’t know.”
“As far as you knew, Mr. Smith, they were all hearing this?”
“Objection,” Ms. Houston said with a note of exasperation. “Can counsel please call the witness Sergeant Smith!”
“I can, yes,” Mr. Petersen said. “I have no further questions.”
Kubanis said, “Did you draw your weapon?”
“Did you point it at them?”
“I don’t know if I pointed it at anyone.”
“You’re wearing corrective lenses, aren’t you?”
“My glasses? Yes.”
“Were you wearing them at the time?”
“Contact lenses, yes.”
Kubanis looked at his notes. He said, “Officer Gregori’s radio was on the same frequency as yours, right?”
“I don’t know.”
“Well, earlier in the day there’d been a briefing and wouldn’t it be standard operating procedure to be on the same frequency?”
“It could be handy, yes. But I don’t know what frequency he was on. I monitor many frequencies, myself.”
“When the collision occurred, did the civilian vehicle also come to a stop?”
“I don’t know.”
“Was there any law enforcement contact with the people in that vehicle?”
“No, I don’t think so.”
“Do you have any explanation why that person was not interviewed?”
“They probably left.”
“Did it ever occur to you to get a statement from the people in that vehicle?”
“It would’ve been nice, but they left.”
It must have been exciting for the occupants of the "civilian vehicle," what with a flotilla of cop vehicles, a sudden collision, and guys jumping out of cars with guns. Small wonder the "civilian vehicle" got the hell out of there.
“When you say the apartment was secured shortly after the collision, was the door kicked in?”
“I don’t know. I wasn’t there until later.”
“You say it was secured. Does that mean it was entered before the search warrant arrived?”
Ms. Houston asked, “What does it mean that the residence was secured?”
“It means entering the residence by whatever means, and securing the residence so no evidence can be destroyed before the search warrant arrives.”
The plot thickens. You can kick the door down and "secure" the premises before the search warrant arrives?
“Do you know anything about any marijuana being seized in connection with this investigation?”
“Yes. About an hour prior to this about 100 pounds was seized.”
Yes, over 30 pounds of methamphetamine was seized.”
Sgt. Smith was allowed to step down. Judge Henderson asked if Defense wanted to put Agent Parker on the stand. No, they didn’t. … But Ms. Houston did. Justin Petersen said, “He has to catch a flight to Las Vegas.”
“He can spend the night on the Petersen dime and catch his flight tomorrow,” Ms. Houston cheerfully suggested.
“Petersen said, “We’d like to oblige, but he’s already left.”
“Oh, I think we can find him,” Ms. Houston said.
Sgt. Smith hustled out and returned in a jiffy with Agent Parker. Parker took the stand and corroborated everything the prosecution had asserted about the stop.
Judge Henderson said he’d have his ruling on the motion to suppress Tuesday. The decision had not been rendered by press time, but it's at least 100 to 1 it’ll be denied.