The Search Warrant
by Bruce McEwen, August 12, 2010
David Eyster, candidate for Mendocino County District Attorney, does not enjoy the unanimous support of local law enforcement. Except for the Fort Bragg Police Department, Eyster did not get the endorsements of the Mendocino County Sheriff’s deputies, the Ukiah City cops, or the Major Crimes Task Force, that eclectic roving band of badged dope fighters whose membership includes federal, state and local cops. These boys are particularly hard to please. They tend to think that everyone is a perp, a would-be perp, or a perp-symp. They're right, of course, but what we need here is some sense of proportion. Our jails and prisons are already stuffed with drug offenders. We can't lock up everyone.
Eyster's criticism of DA Meredith Lintott has been that she files whatever charges the cops hand her. Eyster thinks a lot of money would be saved if Ms. Lintott could “just say no” to the cops. At least a once in a while. Cops, not surprisingly, do not regard Just Say No as particularly supportive of their work. They're aren't in particularly good humor anyway. Their pay has been cut, more people than ever are growing marijuana in Mendocino County and, out there in crumbling America, more and more citizens are self-medicating.
So, why not toss the marginal cases and focus on the bad people?
How about the Katlyn Long case? Young Fort Bragg girl spends the night with a well-connected Fort Bragg man, name of Matson. He's a decade older than she is. Now that she's old enough to know a chump when she meets one, the kid wants to dump him. The guy's got a long drug history. Daddy's bailed him out of a lot of jams. Matson wants to talk to Katlyn one more time. They meet at her house. But the next morning Katlyn doesn't wake up. She's not a drug person, but the toxicology report reveals she died of methadone poisoning. Matson hires ace criminal defense attorney Richard Petersen, Mendocino County's go-to guy if you're guilty and have the money to pay him. Matson skates, Katlyn Long will never see her 23rd birthday.
Meanwhile, the DA boldly takes on dope trimmers.
Why charge pot “trimmers” with felony cultivation and possession of marijuana for sale. When the cops bust a big grow, they bring in everybody and let the courts sort them out. Eyster thinks the sorting should be done in the DA’s Office before these cases take up a lot of public time and money being run past a judge and jury.
And Eyster thinks killers ought to be prosecuted. That used to be a consensus opinion in Mendocino County.
The case was an old one, lagging toward conclusion because the DA’s office is, predictably, swamped, which is what happens when you're charging everyone the cops haul in to the County Jail.
The prosecutor, Deputy DA Brian Newman last month filed another motion to put this one off again, citing no less than a dozen reasons why he couldn’t get to it:
12. On the 8th I had a full court day of a continuing prelim in the Peterson case.
11. That prelim is expected to take another two days.
10. The same day I filed a 22 page brief in the Scoville case that addresses whether inter-collective sales and distribution of marijuana is permitted by the Medical Marijuana Program. (Newman lost that one.)
9. On the 1st, the prelim in the Brunelle homicide case occupied nearly a full court day.
8. I’ve had to cover hearings for my colleagues while they’ve been out of the office for various reasons.
7. Two prosecutors are on medical leave.
6. Three have been on vacation.
5. The DA’s Office is understaffed.
4. The incumbents are level III and level IV.
3. My present caseload is 100 cases.
2. Counsel for defendant Pfefferkorn filed a motion to suppress.
1. I work for the County of Mendocino, which is broke.
When the Erich August Pfefferkorn matter finally went to prelim Eyster's problem with certain officers of the law became evident, not that he was doing anything but his job as the defense attorney.
The People vs. Pfefferkorn was held in Judge Cindee Mayfield’s court. It had to do with the validity of a search warrant she had signed. Cynics will howl that this is a little like asking the dog who ransacked the garbage, Was it you or the cat?
Eyster seemed to be suggesting that Judge Mayfield had a proclivity for autographing search warrant affidavits as obligingly as an author on a book-signing tour. While Judge Mayfield maintained a judicious detachment, her pleasant smile did seem a little bent.
When the cops come to the Courthouse to get a search warrant signed by a judge, they generally have to wait for an audience with Their Honors. They bring with them a highly sensitive document called an affidavit. The affidavit is full of Top Secret info, yet it mustn’t be folded, spindled or mutilated, so the cops curl it lengthwise to keep prying eyes from seeing who the person about to get raided is – or who is the snitch.
This particular affidavit had a color photo with it, taken by Sheriff’s Deputy James Wells during an over-flight in a helicopter. It showed a brown trailer house, the presumed object of the search. The color photo stayed with the affidavit and a black and white copy went with the search warrant. Aerial surveillance notwithstanding, the ‘wrong’ trailer got searched and the cops busted Mr. Pfefferkorn.
Erich Pfefferkorn was camped in one of those little pop-up tent/trailers at 43608 Wilderness Lodge Road in Branscomb last October. It’s white with a candy-striped awning. Even in black and white it seems a little hard to mistake for a brown mobile home.
“It was a little dusty,” Deputy Wells explained.
Sergeant Bruce Smith and Special Agent Peter Hoyle made their entry.
“Was Knock and Notice given?” Mr. Newman asked.
“Yes, it was given at about 15-20 feet away.”
(Knock-knock. Who's there? Pfefferkorn. Pfefferkorn who? Pfefferkorn popped, that's who.)
“Objection,” Eyster said, going on to express doubt that Knock and Notice was defective.
Judge Mayfield overruled him.
Wells said, “Sgt. Smith pounded on the door and I heard Agent Hoyle say…”
“Objection,” Eyster said, this time giving Judge Mayfield chapter and verse so she could look up the law. “Number 844 of the Evidence Code,” Eyster said.
Mayfield looked. It wasn’t there.
“I’m sorry,” Eyster said. “It’s in the Penal Code, 844 of the Penal Code.”
Mayfield switched books, flipped through the pages and read for a while.
“The court’s reading does not change the ruling,” she said flatly.
In that case Eyster said he’d like to make a standing objection.
A standing-objection is necessary to keep the case open for appeal.
Mr. Newman smiled contentedly, clasped his hands behind his back, and pleasantly asked Deputy Wells what it was he heard Agent Hoyle say.
“POLICE! SEARCH WARRANT!!”
Three words to freeze the blood of anyone outside a movie theater, and probably shouted loud enough to knock the rummies off their bar stools at Boomer's Bar ten miles to the east in downtown Laytonville.
DA Newman established that Wells had conducted a briefing at the Willits Police Department where the officers were shown the color photos, some Parcel Quest computer maps, and “persons of interest” were discussed.
Eyster asked, “Who had the search warrant — you?”
“I did, yes.”
“Did it have the photographs with it?”
“It did not. The photographs were with the affidavit.”
“So you basically......”
DA Newman didn’t like whatever was being implied and he objected that Eyster was being argumentative.
Judge Mayfield said she’d withhold ruling for the present.
Eyster asked Wells if they’d searched two small tents.
DA Newman said the question was irrelevant.
Eyster said a mistake had been made. The court authorized the search of two tents but a whole campground of 11 tents were searched.
“The terms of the search warrant were not complied with,” Eyster said. “It was an exploratory search. All this shows a general conduct of law enforcement not authorized by this court.”
At this point Mayfield sustained Newman’s objection saying, “It’s just not relevant, Mr. Eyster.”
Eyster: “The structure was a white camper, with an awning?”
Newman: “Objection! Argumentative!”
Eyster: “Your honor, this is part of the Motion to Suppress.”
Eyster: “A striped awning tent camper is not a motor home, right?”
Eyster: “The motor home was brown in color, right?”
Eyster: “The tent camper was not brown; it was dirty, not brown?”
Eyster: “Did you direct Sgt. Smith and Agent Hoyle to this trailer?”
Wells: “I don't remember. We were moving down the road, we had officers from the BLM, the Willits PD, others…”
Eyster: “Did you brief them that they were to search a brown motor home?”
At this point the Court Clerk announced that she'd found the search warrant, and reported that it did not contain any attachments.
Eyster: “You circled this thing up here in the trees, correct?”
Wells: “Yes.” He had circled the brown motor home in the photo.
Eyster: “A brown motor home, correct?”
Newman: “Objection — relevance!”
Eyster: “There is an object on the property that seems to fit the description — ”
Eyster: “Was the motor home searched?”
Eyster: “Was that authorized by the warrant?”
Wells: “We searched it when we came through to make sure there were no bodies in it.”
Eyster: “When you were doing the briefing did you emphasize it was a brown motor home you were looking for?”
Eyster: “But you searched it anyway?”
Newman: “Objection — argumentative.”
Eyster: “It's a search for a brown trailer and you go in a — ”
Eyster: “No further questions.”
Newman showed Wells the search warrant. “Would you look at the photographs attached to the affidavit, please. Is one of those the same as People's Exhibit I and do any depict a motor home on which a security sweep was done?”
Newman: “Were these photographs shown to Smith? To Hoyle?”
Newman: “Any particular mention made of it?”
Newman: “When you described the trailer as a brown motor home were you describing it to the best of your ability?”
Wells: “When I'm up there in the helicopter, and I have a GPS in one hand and a camera in the other…”
Newman: “Did it have a motor in it?”
Wells: “No, it did not.”
Newman: “Appear habitable?”
Wells: “No. There were broken windows, garbage…”
Eyster: “Did you give any other information — other than 'brown motor home' — in your briefing?”
Wells: “I believe it's just basically in the facts. I noticed two small tents near the marijuana garden, a structure with blue tarps over it.”
Eyster: “Any of that in the search warrant?”
Eyster is a stickler for search warrants. He has been since he was a prosecutor back in the last century. His position is that everything the cops know should be in the warrant request so that there’s no doubt about its validity later.
Wells: “I believe so.”
Eyster: “The search warrant talks about attachments. Did the magistrate ask about the motor home, the brown structure — you talked about what you'd been authorized to search?”
Newman: “Objection. Argumentative.”
Mayfield: “Sustained. Re-phrase.”
Eyster: “You told them what they were authorized to search? The affidavit was passed around? Did everybody read it?”
Wells: “Not everybody, no.”
Eyster: “I think what's telling is Smith and Hoyle did not read the affidavit. A candy-striped camper is not a brown motor home. They were acting on their own. It seems to me you'd have to pause and say, 'Oh, boy. This is not what we've been authorized to search.' They don't even have the warrant with them. It would have been prudent for law enforcement to back off. This was exceeding what was authorized.”
Newman: “I think it's important that the photographs depict what was searched. The officers knew what they were going to search. In this situation it was not a mistake, your honor. The probable cause was rather broad; the search warrant authorized search of the whole 160 acres. Authorization was not just for the motor home. The trailer was reasonable and included.”
Eyster: “The officers hadn't read the affidavit. To say — to come back and say — after the fact — that that was a brown colored motor home is an issue of the officers searching anything they wanted. They should have called in and said, “Oh boy, we got a problem here.”
Mayfield: “The defense has made an interesting case. I've re-read the affidavit and decided that a law enforcement officer with substantial experience described a property in Branscomb with numerous structures. I agree after seeing the photographs that the structure is different than a brown motor home. However, when the court was considering the warrant, People's I was a copy of the color photograph. But its proximity to the growing marijuana and because it was photographed at a distance, the court does find it's not consequential in such a degree that it would invalidate this court's decision to sign the search warrant. Motion denied.”
* * *
People who are not lawyers sometimes have a hard time understanding the sense of the rulings. Mr. Kevin Berry, the victim of a theft, was having difficulty in understanding why the defendant, Javier Fernandez — who Mr. Berry caught himself and placed under citizen's arrest a few days later. Fernandez was wearing Berry's shirt with Berry's two dollars still in the breast pocket. But Fernandez was being let out on probation.
Citizen Berry was rightly upset.
“My two guns are still missing and letting him go puts us in fear. It makes me nervous he's out on the streets with my own guns out there.”
Judge Richard Henderson asked about the prosecutor, Deputy DA Matt Hubley.
“Is Mr. Hubley here?”
Deputy DA Shannon Cox answered: “He's not. He's on vacation. Many of these items were pawned. [She didn't mention the guns.] But there's significant proof problems with this case.”
Tim Baird, a court-certified interpreter, was translating the proceedings to Fernandez.
“My office stipulated to this on the 3rd so I'm bound,” continued Ms. Cox, “but would ask the court for a Criminal Protective Order for Mr. Berry and his family.”
Judge Henderson considered Mr. Berry's apprehensions and said, “I want to continue this matter for two weeks so Mr. Hubley can be here to explain this to the victim.”
Then there was the Laytonville property owner who came home to find that his neighbor had perforated his octagon-style dwelling with rifle fire. The property owner, Michael Mann of 47341 Meadow Lane, was not happy. The bullets had come through the door and punctured the kitchen sink, splintered the bathroom fixtures, and had detracted violently from the clean lines of the woodwork.
“There were three bullet holes in the door,” Deputy Wyant testified.
Judge Brown got it.
“What if there'd been a caretaker there!”
Or any other human-type being, yer honor.
Counsel for Mr. McNeely, the neighbor who fired the shots from his own driveway and left the incriminating shell casings where they fell 70-odd yards away was retiring Public Defender James Griffiths. This was perhaps Mr. Griffith’s last case.
Shannon Cox of the DA’s Office interrupted my note-taking to ask if I wanted to sign a farewell card for the man. She handed me the card and looked significantly, perhaps fondly — after all, it’s our enemies who define us — at the white-haired, bow-tied gent. I was flattered to be asked and signed.
Griffiths was saying that his client knew Mann was out of state. Moreover, there was a dispute of long-standing rancor between the two.
Judge Brown said, “I think he knew Mr. Mann wasn’t there, but other people could have been in the house. I find probable cause and he’ll be held to answer.”
Firing into an occupied building is a serious offense, whether one knows it’s occupado or not.
The reader may scarcely credit the coincidence, but I encountered a man on the bus who had just come into town to buy a new tent. His neighbor had shot the previous one — an occupied dwelling, apparently — full of holes.