Leap Frog In The North Sector
by Bruce McEwen, July 6, 2016
Take note, all you reasonable and prudent people, that the sweetness of your wise self-righteousness rests at bottom on this worthiest of inspirations: fear! —Stendhal
California Highway Patrol Officer Luke Adams was on patrol north of Willits on June 24th of '15 when he saw two vehicles in close proximity traveling at a high rate of speed. Officer Adams hooked a U-turn and lit out in hot pursuit, lights flashing, siren wailing, and was soon pulling a white Chrysler, over. Having stopped one speeder, Adams soon pulled over the second offender. But just as he was getting out to ticket the SUV driver, the Chrysler shot past.
Adams had only been on the job eight months. He was mastering some of the trickier aspects of the work. He yelled at the SUV driver to stay put and took out after the Chrysler. When he pulled it over a second time, he got out his ticket book determined to get the job done, and subsequently only swore an oath under his breath when (please don’t snicker) the SUV roared past him.
That one got away.
“There was only so much I could do,” the young cop said apologetically on the stand.
A year later the Chrysler case came to court — for a speeding ticket? It took a year to get a speeding ticket to court?
Not quite. Like many vehicles traveling the “north sector,” especially rentals, the Chrysler was carrying marijuana — not to mention other complications, like the driver, James Samuel Smith, driving on a suspended license who had to be extradited from Indiana to answer the pot charges.
Deputy DA Johnna Sack was prosecuting Mr. Smith for the transportation of marijuana for commercial purposes, and this would be a good time to make a correction. In last week’s column we mistakenly concluded that she’d been “discombobulated” (our word) by the fact that a defendant had been so transported at the imagined splendors of the defense attorney's rear end that he had commenced whacking off in court. Ms. Sack indignantly asserts she was not at all upset at the unexpected and perhaps unprecedented appearance of Eros in the unlikely setting of a courtroom. It didn’t bother her a bit, we’ve since learned, let alone cause her to go home and gulp down a bumper of plonk (again, our guess as to her off-duty reaction). She remained even-tempered throughout the, er, performance. I guess it was me who was discombobulated. Shocking as our world is, some things still shock me.
Meanwhile, back on Highway 101, just south of the Reynolds Highway turnoff, our rookie Officer Adams was asking the driver of the Chrysler 300 if he had a driver’s license, and no, his Indiana license was suspended. How, then, was he able to rent the gangster car? A friend, Mr. Smith said, rented it for him.
“Okay, fine,” Adams told Smith. “But since you don’t have a license, I can’t let you drive the rental away. It will have to be towed. Now, I can give you a lift into Willits, if you like, and I’ll let you get your personal belongings out of the rental — because you won’t be allowed access after it’s towed.”
Mr. Smith wanted his cellphone from the front seat and a black duffel bag from the trunk. As per CHP policy, the bag would have to be searched for weapons, else Mr. Smith couldn’t get the free ride into Willits. This sounds reasonable enough, but defense attorney Jonathan Opet of the Office of the Public Defender, thought the request was just a ploy to abuse Mr. Smith’s Fourth Amendment rights. Mr. Opet was further upset that Officer Adams not only pried into the duffle bag, but had peeked into the four FedEx packages that were in the duffle bag, further violating his client’s constitutional rights to privacy.
Just for fun, let’s assume everyone knows in advance what is in the duffle bag. Now, how do we go about busting Mr. Smith? Do we say, “Look here, Smith. Best thing for you to do is pick up that bag and hoof it on down the road. Wait until I’m gone, then put up your thumb. Everything will be fine.”
Or do we say, “I’ve got to search that bag, sir, or leave you stranded out here in this redneck hellhole where a man with enough melanin in his skin could end up hung to a tree. Now, what’s it gonna be?”
Our guess is the rookie cop chose the latter option. (And no, cousin, Willits is not a racist redneck hellhole, but a black motorist makes different assumptions than us honks make.)
Sack for the prosecution: “What did you find?”
Adams: “Six pounds of processed marijuana.”
Sack: “Did you also do a pat-search of Mr. Smith’s person?”
Adams: “I did, yes.”
Sack: “What, if anything, did you find?”
Adams: “He had 15 $100 bills in his shirt pocket.”
Sack: “Did you inventory the contents of the rental car?”
Sack: “And what did that include?”
Adams: “There were shipping labels for an address in Indiana on the front seat and some cardboard boxes and packaging materials in the trunk.”
Sack: “Did he tell you where he was going?”
Adams: “Yes, to the airport in San Francisco, and from there back to Indiana.”
Sack: “Did he tell you where he was coming from?”
Adams: “Yes, Eureka.”
Sack: “Did you open the FedEx bags?”
Sack: “And what did they contain?”
Adams: “Marijuana in vacuum-sealed bags. Each package had a second bag over the one containing the marijuana and this second bag was filled with a soapy liquid.”
Sack: “Did you weigh the bags?”
Adams: “Yes, and the marijuana came to approximately six pounds, total.”
Jonathan Opet for the defense: “Did you prepare a report, officer?”
Adams: “I did, yes.”
Opet: “Is that report accurate?”
Adams: “I believe it is, yes.”
Opet: “At the time of the incident, how long had you been on the job?”
Adams: “Only eight months, sir.”
Opet: “I want to ask you about the offer to give my client a ride into Willits — was that before or after he exited the vehicle?”
Adams: “It was before.”
Opet: “And it was for that reason you chose to search the duffle bag?”
Adams: “No, it was because he wanted to retain it.”
Opet: “You were concerned that a weapon could be inside it?”
Opet: “Was there anything about Mr. Smith that caused you to suspect him of having a weapon?”
Adams: “No, sir.”
Opet: “Did he take it out of the trunk or did you?”
Adams: “He did.”
Opet: “Did you try to manipulate or palpitate (sic) the bag to see if there were weapons inside it?”
Adams: “No, I picked it up by the strap and unzipped it.”
Opet: “What did you see inside the bag?”
Adams: “The four FedEx envelopes.”
Opet: “Did you use your finger or some other object to open the top flap of the envelopes?”
Adams: “I’m not sure how I did it.”
Opet: “But you say you observed some leafy, green material in one of the envelopes?”
Adams: “That’s right.”
Opet: “How big are these envelopes?”
Adams: “Approximately 16 by 13 inches.”
Opet: “And how thick?”
Adams: “I’d say about three to four inches.”
Opet: “What kind of weapon do you suppose would fit in such a small space?”
Adams: “I can think of a long list of weapons that would fit in there.”
Opet: “But there was nothing specific that would lead you to believe there was a weapon in there?”
Adams: “No, sir.”
Opet: “Do you recall if you retained Smith’s ID card while you searched his duffle bag?”
Adams: “I don’t recall.”
Opet: “Did you tell Smith he could leave the area?”
Adams: “I did not.”
Opet: “So by allowing Smith to retain the duffle bag, it would not be inventoried with everything else prior to the vehicle being towed?”
Opet: “You were north-bound when you first saw the two speeding vehicles?”
Opet: “Then you made a u-turn?”
Adams: “Yes. I pulled your client over first — he was in the rear — then went around him and stopped the SUV. But then I had to go after Mr. Smith again, and the SUV got away. I couldn’t get ‘em both, being only one officer.”
Opet: “Nothing further.”
Deputy DA Sack: “When you decided to have the rental vehicle towed, were you required to return any items to the driver?”
Sack: “That was a choice you made?”
Sack: “It was a favor to Mr. Smith?”
Sack: “Did Smith ever decline the offer of a ride?”
Sack: “If he had grabbed his bag and left would you have searched it?”
Sack: “Was he in handcuffs?”
Sack: “Nothing further.”
Judge David Nelson: “You may step down, officer.”
Sack: “The People call Brian Hanson. … Officer Hanson, how long have you been with the California Highway Patrol?”
Hanson: “Over four years.”
Sack: “Are you trained in drug trafficking and concealment?”
Hanson: “Yes, I’ve taken the Desert Snow course, which covers the packaging techniques of vacuum-sealing, masking and deodorizing of drugs for trafficking and smuggling.”
Sack: “Do you believe this marijuana was being transported for purposes of sale?”
Hanson: “I do, yes. It’s common for drug dealers to ship marijuana back to their home state in a double vacuum-sealed bag system with laundry detergent in the outer bag to mask the odor of the marijuana, and it also adds weight to the commonly used one-pound amounts marijuana is commercially sold by. Also, in this case the six pounds were divided up into four packages to mislead the shipping agents.”
Sack: “Nothing further.”
Nelson: “Mr. Opet?”
Opet: “I have no questions.”
Nelson: “You are excused, officer. Ms. Sack, do you care to argue?”
Sack: “Clearly, your honor, there was reason to stop the defendant based on the speeding. There was no prolonged detention, despite the suspended driver’s license and irregularities with the rental being in someone else’s name. The officer was nice enough to offer the defendant a ride to Willits, and the duffle bag was searched as a matter of policy which resulted in the discovery of the marijuana.”
Opet for the defense: “When Mr. Smith is out of the vehicle and the duffle bag is on the ground, at this point the bag isn’t going with the vehicle to be towed. In order for the officer to search it, two things were necessary. Either consent from the owner, or a reasonable suspicion that there was a weapon inside the bag — the offer of a ride doesn’t hold up; the officer needs to obtain consent. This so-called policy is a justification put forward, but consent or reasonable suspicion was needed. Consent was not obtained, and the officer made no specific indications that Smith was a danger or armed. It was a broad and general assumption that there could be a weapon in the bag, so the search was unlawful.”
Nelson: “You’re saying the officer can’t search the bag even if he gives him a ride in the patrol car?”
Opet: “Yes, your honor. That doesn’t give the officer the right to search the bag. Consent was needed.”
(Your trusty correspondent has been in this situation, personally. Hitch-hiking on 101 in approximately the same area, Christmas Day in heavy rainfall, a Park Ranger offered me a ride. As I slung my pack into the back of his pickup, the ranger said he’d have to search it because that was “policy.” I responded by grabbing my gear and declining the ride. He then told me I had to get off the highway, or he’d arrest me, because no pedestrians were allowed. I went into the woods and waited until the ranger was gone, then went back to hitch-hiking, divining that the policy was designed more to intercept marijuana, than to protect officers.)
Sack: “There was implied consent when Smith accepted the offer of a ride.”
Nelson went into his chambers to study the case law, and after five minutes research returned. There was a precedent, he told the lawyers, and gave them the chapter and verse, before denying the defense motion to suppress the evidence.
Opet asked for his client to be released from jail, while awaiting sentencing, since he was nearly timed-out on maximum jail time for the offense.
Sack objected due to the failure to appear the year before.
Opet said that was the result of some confusion about whether he had to be there or not.
Sack said he’d signed a promise to appear on the date in question.
Opet countered that his client wasn’t a violent person and was in danger of losing his job.
Nelson said he’d like to let him out, but wasn’t sure if he should.
“How did we get him here? Did he have to be extradited from Indiana?”
“Yes, your honor.”
“Well, in that case there’s nothing I can do. Let’s set this for arraignment on the information as soon as possible and maybe Mr. Eyster can do something, because he’s about timed-out, anyway.”
It was set for July 15th by which time Smith will have 50 days in custody — an unusually stiff sentence for a mere six pounds — especially in a county where it’s common to serve no more than a day for booking purposes even when caught with over 100 pounds!
Footnote: The booking process for most offenders ordered by Nelson (last year, when Nelson was doing arraignments) meant they came in to the jail at their convenience for two-three hours at the Jail to get booked. For the inconvenience, they were given credit for 24 hours, a full day's credit, even though all they did was get their fingers smuged and pix taken — not only that, but it would count in any sentencing as TWO days!