Pros & Cons
by Bruce McEwen, August 18, 2011
A frantic 911 call last June alerted North County law enforcement to a drug deal that had gone bad, very bad, near Piercy, a pot heavy hamlet just below the Humboldt County line. An undetermined number of people in a brown Land Rover had tried to buy nearly 60 pounds of prime bud with counterfeit hundreds at a rendezvous point on the Red Mountain access road. The sellers checked the money, found it suspect, pistols were produced and shooting commenced. As everybody dove for cover, the brown Land Rover sped off and the informant — presumably one of the growers who got ripped off — called the cops.
Sergeant Mike Davis got the call and radioed ahead to CHP Officer Jesse Talbot to proceed north and be on the lookout for the southbound brown Rover. Officer Talbot met Sgt. Davis at a location called Burns Flat, a few miles north of Laytonville, where they waited for the southbound vehicle. It was about 10pm the night of June 17th. The two cops kept their headlights on for a better view of the traffic on Highway 101, the only way people unfamiliar with pot country know to get back to the anonymity of the city.
It wasn’t long before a brown Rover went by.
The case went to a preliminary hearing last week.
“Did you get a look at the driver?”
“Yes, sir,” Officer Talbot said.
The caller had said one of the highwaymen was a black male with a shaved head and a mustache, a big guy in a white t-shirt. This fit the description of the driver of the brown Rover as it passed through Officer Talbot’s headlights.
Officer Talbot is a rookie. He’s only been a sworn police officer for a year and a half. It used to be that the older CHP officers would get rural assignments in places like Mendocino County where they could do a little 'fishing' in their last few years before retirement. ‘Fishing,’ in the parlance of law enforcement, is when a CHP cruiser sits in a concealed turnout along the highway and waits for speeders to go by. But these days dope interdiction — the big fish — is a lot more interesting than nailing Aunt Mabel for pushing her big Buick a few miles over the speed limit.
And we have a bunch of energetic rookies working the highways who often need the guidance of the more experienced local sheriff’s deputies who know the terrain, and know it intimately.
Sgt. Davis was driving a Ford Expedition SUV, so he let Officer Talbot in his much faster Crown Vic Interceptor take the lead as they fell in behind the brown Rover.
Officer Talbot may have been a rookie, but the suspect, Charles Merritt-Osborne was a seasoned pro. And a man with a unique pedigree for a guy reduced to trying to rip off marijuana growers. Depending on what he's up to, Merritt-Osborne deploys the aliases Charles Merritt, Charles Osborne, Charles Patterson.
Not long ago the guy
was pulling down an annual
quarter million as CEO of CBC Property Investment Corporation where, with the aid of an insider at Fidelity National Title Company, Merritt-Osborne-Patterson is alleged to have defrauded victims in Napa, Santa Clara, San Francisco, and Los Angeles counties for nearly $250,000. That was in 2006.
In 2008, the Attorney General’s Office busted him as ringleader of an identity theft scam involving fencing stolen (or non-existent) items on eBay that raked in over $2 million. He pled out to 62 charges and served three years in prison.
From his sentencing in Santa Clara County Superior Court on September 18th, 2008 on the eBay scam until his preliminary hearing in Mendocino County Superior Court last week Mr. Merritt-Osborne has been a free man — out of a cell, that is — for a very brief time. And Deputy DA Matt Hubley was trying to get him put back in the slammer on a more permanent basis last week, having filed five felony counts against him, including the violation of his parole.
And despite all the money Merritt-Osborne has made, he had to settle for a public defender, Deputy Public Defender Farris Perviance III.
What could Mr. Perviance be expected to do for such a defendant?
Prosecutor Hubley moved with confident precision to describe a hair-raising tale of the high-speed chase down the narrow, winding stretch of Highway 101 from Spy Rock Road to the CHP weigh station north of Willits.
The visiting judge, Honorable Richard L. Freeborn (Retired) of Lake County has an old-fashioned way of participating in the questioning of the defendant that a lot of lawyers aren’t quite used to. Judge Freeborn interrupted Mr. Hubley to ask Officer Talbot about the lighting conditions.
“Now, I know the days are long at that time of year, but I don’t suppose it was still light out at 10pm, was it?”
“No, sir,” Talbot admitted. “But it wasn’t that dark either and with my headlights I got a good look at the vehicle and the driver.”
Hubley said, “Did you notice anything else about the vehicle?”
“Yes, sir. The vehicle was missing a plate.”
“Do you mean the license plate was missing?”
“What did you do?”
“I bumper-paced him and determined he was going 62 miles per hour.”
“Did you initiate a stop?”
“Not at that time. I wanted to wait until other officers were present.”
“Why is that?”
“To deal with the possibility that there were multiple armed individuals in the vehicle; I didn’t know how many might be hiding in the vehicle or whether they were armed or not. The report had said three or four armed men. And I didn’t want to pull the vehicle over where he would be blocking that portion of Highway 101.”
If there’s going to be a gun battle, it’s better to move it off the road a bit.
“Did you eventually initiate a stop of the suspect vehicle?”
“Yes, sir. I paced him for approximately 14 miles, waiting until we were close to Irving Lodge, a well-lit area where there’s room to get off the roadway.”
“Did you use lights and siren?”
“Did the Range Rover yield?”
“No, sir. He continued heading south to about mile marker 55 and then he sped up to approximately 80 miles per hour. He crossed the double yellow line to pass a white Thunderbird, a northbound vehicle had to slam on the breaks and swerve off the roadway to avoid being struck — when he performed that maneuver he was going approximately 90 miles per hour.”
“During that 14-mile chase was the suspect vehicle traveling over the speed limit for most of the course?”
“Yes, sir. For over half, he was going anywhere from 80 to 115 miles per hour.”
“Where was Sgt. Davis during this time?”
“He was at some distance behind, driving a Ford Expedition, which couldn’t go as fast as the Crown Victoria I was driving.”
“Does the Expedition have a smaller engine?”
“No, sir, they both have the same engine, but the Crown Vic has different gears, and it’s lighter with a top speed of over 130 miles per hour whereas the Expedition’s top speed is approximately 110 miles per hour.”
“How did the suspect vehicle eventually come to a stop?”
“By running over spike strips at the weigh station just north of Willits.”
“Then what happened?”
“I observed the suspect get out of the vehicle and run off in an easterly direction.”
“Did you pursue him?”
“No, sir. Officer [John] Heinke did.”
“Did you search the Range Rover?”
“What did you find?”
“Fifty-eight bags of marijuana, weighing approximately 469 to 500 grams each.”
Before Mr. Farris Perviance III began his defense of Merritt-Osborne, Judge Freeborn wanted to know if rookie Talbot had sufficient training and experience to recognize marijuana when he saw it. Talbot went over his qualifications and the judge approved them.
Mr. Perviance asked, “You talked to Sgt. Davis over the radio?”
“And he gave you the information on the subject and the subject vehicle?”
“Did he tell you how he got this information?”
“Yes, sir, a confidential informant.”
“This was somebody he was snitching on?”
“Sgt. Davis got a call from one of the parties involved…”
“Okay, you were informed that two to three others were in the car?”
“Yes, sir. They were at the deal. It was unknown if the others were in the car.”
“And when you met up with Sgt. Davis, you were pulled off to the side of the road?”
“We were in the turnout with our lights on, yes, sir.”
“So your lights were facing the on-coming traffic?”
“”We were, well… No, we were — he was — Sgt. Davis was on the other side of the highway and I was on the southbound side.”
“And you pulled out behind the Range Rover and followed?”
“I’m a little confused here, Officer Talbot. You say you followed him for 14 miles before you turned on your lights and siren, correct?”
“Yes, sir. That’s right.”
“And then you said the high-speed chase was approximately 14 miles…?”
“Uh, yes, sir.”
“So we’re talking a total of 28 miles, correct?”
“This entire time the suspect vehicle was going over the speed limit?”
“No, sir. As we traveled south he kept a speed of 60 to 62 miles per hour until we hit just north of Branscomb Road when he slowed to 57 miles per hour. He went through Laytonville at 40, accelerated at the other end of town to 45, then 55 as he came to the 55 mph sign. He went up to 65 miles per hour when he went past Shamrock Ranch, then got over into the left lane at mile marker 62 and accelerated. That’s when I hit the lights.”
“Why did you decide to pull him over?”
This lawyer’s stunt always has a stunning effect on rookies. Talbot had made it clear that he’d been tipped off by the victims of the pot robber. The cops had a description of the vehicle and driver. Talbot had already told the court that the getaway vehicle didn’t have a license plate and he clocked the driver going 67 mph right after he pulled out and bumper-paced him.
The old defense lawyer had no defense but to suggest that Talbot had no probable cause to pull over the Rover. But Perviance had nothing other than the officer’s word that the license plate was missing or that the fleeing vehicle was clocked at 67, rather than 65, the legal speed limit. And certainly his client, even by the officer’s admission, had been scrupulous in observing the speed limit as he passed through Laytonville.
Caught off guard with this question — a question that questioned his truthfulness — Officer Talbot snapped back hotly, “Anyone one of those violations! The license plate, speeding! And, Uh…!” Talbot’s ears were pulsing like neon signs.
Perviance is a grey old boy who has no inclination for retirement. He's been pulling hopeless cases out of legal bogs for many years. Perviance also has a penchant for painted neckties with animal motifs. On this hot August afternoon he was wearing one with a polar bear. He idly smoothed his tie and asked. “Did you notice a license plate on the front bumper?”
“No sir,” Talbot snapped.
Perviance wanted to know if the officers had their headlights facing the traffic coming down the highway, and his next question was even more illuminating.
“Do you know if Nevada requires a front license plate?”
Now the rookie cop was adjusting his position in the comfortable chair behind the witness stand. He was uncertain about Nevada license plate law, it seemed. But it was clear that Perviance was suggesting that the missing plate was on the front — not the back bumper — and that the vehicle was registered in Nevada.
Prosecutor Hubley, who I thought had gone to sleep — he seemed so secure in the prospects of his case — objected that the question wasn’t relevant. But before the judge could rule, Perviance shrugged indifferently. For the purposes of the prelim it wasn’t crucial. But it is likely that this curious detail will come up in the trial.
Instead Perviance said, “And so he was going seven miles an hour over the limit at that time?” The lawyer said this so softly it seemed he was thinking to himself.
The witness wasn’t sure he’d heard right. Neither was I, even though I was the only person other than a prisoner, who witnessed the hearing.
Before Officer Talbot could react, Perviance asked, “But you saw his facial features?”
I’ve hitchhiked that stretch of roadway — twice. Once at night. With the headlights in my face from an oncoming car, if there was enough ambient light from whatever source — traffic in the other lane, cops eating doughnuts in the turnouts, or a great big glorious summer moon — to also see the driver, then there was enough to see the license plate and front bumper. I spent the night at a hobo camp on the rusty old tracks at the Deep Freeze, waking up with a coat of hoarfrost on my blanket. The camp was close to where the cops nailed Merritt-Osborne.
“Were the spike strips put down by the Willits PD?”
The strike-out pitch was in fact thrown by a seasoned Willits cop. It's not uncommon that southbound desperados are spiked just north of Willits. But first the Willits cops let another rookie try his hand at throwing a bed of nails under an oncoming vehicle, nails that could stop a Cape buffalo or a pot thief driving south at 112 mph. It was late at night and maybe the older cop said something like, “Go ahead kid, try it. I’m getting too old for this shit.” The tall, lanky CHP Officer Heinke hitched up his Sam Browne belt and came up on the highway to intercept the speeding Range Rover.
“Two strips were thrown out,” the witness said. “The first one missed, but the other strip got the other vehicle.”
Now it was Talbot’s turn to be uncharacteristically quiet.
“It also got another vehicle, didn’t it,” Perviance said, lifting an eyebrow.
“A Suburban, yes,” Talbot whispered.
The Suburban, apparently, was not involved in the Piercy caper.
Perviance was not surprised. He nodded like a man who has seen it all and, having seen it all, suspended judgment. “I’m not trying to trick or fool you Officer Talbot,” he said. “But what did the suspect vehicle do after the officer — wasn’t it the sheriff’s deputy from Willits?”
“Yes, sir. Officer Fahey of the Willits PD.”
“Well, what did the vehicle do then?”
“It went about a quarter-mile further then stopped. I then observed the suspect exit the vehicle and run off.”
Perviance looked at a page in his file, perhaps a copy of the witness’s report, and said, “You stopped 200 yards away?”
“Feet,” Talbot corrected. “Two-hundred feet.”
“Then you saw a black male get out of the vehicle and run, correct.”
There was no one else in the Rover, just the one guy, the bold Mr. Merritt-Osborne who'd traveled north by himself to rip off the Emerald Triangle's experienced and thug-savvy growers.
Perviance had only one hope to save his client, the possibility of mistaken identity. He said, “Did you follow the man who got out of the car and ran?”
“No, sir. I waited for Officer Heinke and Sergeant Fahey. Officer Heinke brought the subject back.”
“And you identified him then as the same man you first saw driving the brown Range Rover?”
“Yes, sir. He was the driver I saw when I passed him, the subject I saw get out of the vehicle.”
“How do you know?”
“He was a large, black male with a bald head and a mustache, wearing a white t-shirt.”
“I have nothing further, your honor,” Perviance said.
Hubley stood and said, “I’d like to call Officer Heinke.”
Heinke said he was called to the weigh station just north of Willits. “I came from Willits with the intent to spike-strip the suspect’s vehicle. I tried to throw out the strips but missed the tires. They went over onto the shoulder of the road. A sergeant from Willits was with me. I don’t recall his name. His were successful, and also hit another vehicle’s tires. Once I caught up to the Range Rover I saw the tires were flat and the door open. The suspect was described to me and I was told he’d gone over a barbed-wire fence into a field with cows in it — quite a few cows — and none of them were moving so I thought…”
“How far were you from the vehicle when you got to the fence?”
“About 85 feet, and I thought if the suspect was out there those cows would be moving so I aimed at the blackberry bushes just over the fence and called the subject out. I told him to keep his hands where I could see them. He came out and reached toward his belt then started running. I could see he wasn’t armed so I holstered my duty weapon and gave chase with my taser in hand. He wouldn’t stop after repeatedly being ordered to, so I used the taser.”
“Then you took him back to Officer Talbot?”
“No further questions.”
Defense submitted on the evidence for the purposes of the prelim, but the business about the front license plate and going two miles per hour over the posted limit, as reasons to make the stop will come back at trial.
Merritt-Osborne’s impressive criminal history aside, the irony here is that the cops were, in effect, working for people who grow weed.
A confidential informant by any other name is a snitch. But who are you going to call when some big city gangster rips off your illegal grow? Not that many years ago people like Sheriff Tom Allman and DA David Eyster were the bad guys to the crusading hippies growing weed for fun and profit and all that quasi-spiritual/medical use. Not any more. Now, the DA lets the big growers buy their way out of court with eradication fees and reduced charges, preferring to prosecute the ‘criminals’ who rip the big growers off.
Take, for example, the Muellers from that same neighborhood in Piercy who got busted with something like 1500 pounds of pot, a cache of buried weapons and something like three-quarters of a million bucks in cash. These guys paid their eradication fees, forfeited the booty and walked. Same thing happened to all the other recent big busts, and Eyster now says he’s collected in the range of $300k so far, which is a hell of a lot better than endless and expensive court appearances that back up the justice system. This way, the Eyster way, the taxpayers come out ahead.
“Things are changing,” Eyster says. “Matthew Graves had more weed than the Mueller brothers and three times as many guns. Look what happened to him: he got acquitted by a jury. I go to these meetings in Sacramento and I see what’s coming.”
Mr. Eyster holds his hands up, his thumbs and forefingers at right angles, framing an imaginary picture like a movie director. “There’s a tidal wave of change coming so what are you going to do — just stand there, or head for higher ground?”
* * *
In other Courthouse news Nancy McGinty, the woman charged with burning down her house with her disabled son inside in a failed murder-suicide plot, was successful in getting Public Defender Linda Thompson replaced with Alternate Public Defender Bert Schlosser. Ms. McGinty has also made bail. Her old pregnant celly, Sunny Edwards, clearly a woman of means who takes sisterhood seriously, put up $25,000 against McGinty's $250,000 bail to free her friend.