How Not To Get A Search Warrant

Not everyone in Mendocino and Humboldt counties will be broken-hearted to learn that a federal agent has spoiled a promising career by making a false statement under oath to a judge. Will we be saying good-bye to BLM Investigator Edward Del Molino, recently of the comfortable Eureka office? Will Del Molino spend the rest of his days overseeing some alkali wasteland from an ugly little cinderblock igloo fifty miles from Nowhere, Wyoming? The Academy must surely teach these guys that no pot bust is worth risking your pension, and that the surest path to sad folly is perjury.

Agent Del Molino was part of large-scale pot eradication effort in the summer of 2011 that claimed to have confiscated more than 70,000 plants on public lands, a tiny portion of which was discovered when Agent Del Molino found a trail and the telltale black plastic hose connecting BLM land to private property north of Black Oak Mountain in the Laytonville area.

Further investigation led Del Molino to a plot where marijuana plants had been harvested. Agent Del Molino hiked back to his fabulously equipped Ford 350 service vehicle and went on-line to a geological identity service called ParcelQuest where the intrepid officer learned that the property had once belonged to a Wendy Harbell but had recently been sold to a Roland Keltner.

Satisfied that he'd discovered a private citizen helping himself to the public's bounty, Del Molino prepared an affidavit for a search warrant and went to Judge John Behnke for a judicial signature authorizing a search of private property.

In the affidavit Del Molino swore under oath that he had gone to the Mendocino County Recorder’s Office and found that Ms. Harbell had sold the parcel (“the rural property”) to Mr. Keltner. Assuming that the BLM agent had discovered this fact the way he'd sworn he discovered it, Judge John Behnke signed the search warrant.

But Del Molino then went to Ms. Harbel’s Laytonville home and busted her with some marijuana, apparently assuming she’d harvested the weed from “the rural property” before she'd sold it to Keltner. Whatever Del Molino assumed about who owned what, he'd told the judge he’d gone to the recorder’s and assessor’s office on Low Gap Road, Ukiah, when he hadn’t, and there's the rub, and the defense lawyers couldn’t rub the rub enough.

Defense Attorney Randy Pollock: “You told the judge you knew the property had been sold to Keltner from Harbel, didn’t you, officer Del Molino?”

Del Molino: “At the time I believed it had.”

And right here one wonders why the heck did Del Molino go to Ms. Harbel's house when he should have gone to Keltner's?

Pollock: “Yes, but that isn’t what you told the judge; you told the judge you knew it had been sold because you had been to the County Recorder’s office, didn’t you, Agent Del Molino?”

Deputy DA Damon Gardner: “Objection, your honor; that’s irrelevant to the issues we are addressing here today. And it’s argumentative.”

Judge Moorman: “It’s not irrelevant; and it certainly isn’t argumentative. The officer’s credibility is being impeached. Over-ruled.”

Pollock: “You didn’t tell the judge you went to ParcelQuest. You said you checked it out at the County Recorder’s Office, didn’t you, Agent Del Molino?”

Judge Moorman: “Okay, counsel, I get it. The officer made a false statement to my colleague Judge Behnke, who is away.”

DDA Gardner: “At the time, he believed it was true, your honor. He believed Harbel had sold the property to Keltner. It was actually sold to the Schmidts who sold it to Keltner, but at the time the officer believed it was true.”

Judge: “Yes, but he told the judge he checked at the Recorder’s office, which was a false statement, when all he’d done is look it up on ParcelQuest and Geographical Identity Service.”

A second lawyer for the defense, this one representing Roland Keltner, although her name was listed on the calendar as Not On Record, was whispering something to Mr. Pollock: “Ask again why he lied to the judge.”

“Co-counsel is feeding questions to Mr. Pollock, judge,” Gardner sniped crossly. “I object.”

Gardner was not happy with the fix his prize witness was in. “I strongly object.”

Pollock: “But your honor, he’s been whispering to his agent, too -- so there!”

Not On Record spoke for herself: “Ask him again why he lied to the judge.”

Judge: “Move on, counsel. Mr. Gardner, your objections are over-ruled. Ask your next question, counsel.”

Pollock: “He also violated my client’s Miranda rights, your honor.”

Judge: “Counsel, ask your question.”

Pollock: “Did you read Wendy Harbel her Miranda rights, Agent Del Molina?”

“Yes.”

“And didn’t she say she wanted her lawyer present?”

“I don’t remember her saying that.”

“Did you tape the interview you had with Ms. Harbel?”

“Yes.”

“And you don’t remember her saying she wanted her lawyer present?”

“She said something about a card upstairs, but I didn’t check.”

“But you continued to ask her questions after she said she wanted her lawyer, didn’t you, Agent Del Molino?”

“I don’t remember that.”

Judge: “Okay, stop. Let’s play the tape.”

Gardner: “I object.”

Judge: “Over-ruled. Play the tape.”

Del Molino’s voice comes from the speakers: “You have the right to remain silent, and anything you say can be used against you in a court of law. You also have a right to have a lawyer present, and if you cannot afford a lawyer one will be appointed free of charge. Do you understand your rights as I’ve read them to you?”

A woman’s frightened voice: “Yes.”

“And do you still want a lawyer?”

“Yes.”

“Do you have a lawyer?”

“Yes. I have his card upstairs.”

“Now, I’m going to ask you just some preliminary questions. Just some basic questions. Do you own this property?”

“Well, I really ought to ask my lawyer.”

“Do you own this property or not?”

“Well, yes.”

“Do you own any other property?”

“Well, I…”

“How much income do you have?”

“I, uh…”

“How much is your PG&E utilities, here? Where do you get the money for the bills? What is this over here? How long have you had this property?”

Del Molino was firing off questions in an imperious and intimidating manner, asking about all of Harbel’s personal business. Her answers were reluctant. And she was scared.

“Are you willing to waive your rights and talk to me, now?” Del Molino continued.

“No, I don’t believe so… I want my lawyer… what about my Fourth and Fifth Amendment rights?”

Del Molino persisted: “Now, are you willing to waive your rights? Do we have your permission to search this property?”

The tape ends before she answers.

Pollock: “Now, Agent Del Molino, do you now recall that Ms. Harbel asked for her lawyer?”

Del Molino: “She actually did answer my questions.”

Pollock: “Questions you continued to ask even after she told you she wanted her lawyer!”

Del Molino: “She seemed willing to answer.”

Pollock: “Was she in custody at the time?”

Del Molino: “I don’t recall.”

Pollock: “Well, was she free to go?”

Del Molino: “Uh, well, no, not really.”

Pollock: “So she was under arrest and wearing handcuffs surrounded by armed men. And she did not actually give you permission to search the property – not on the tape – did she?”

“Del Molino: “Uh, no, not on the tape, she didn’t.”

Agent Del Molino’s troubles really began with a baseless rumor. A snitch had gone to the County of Mendocino Marijuana Eradication Team (COMMET) and said that Roland Keltner was “facilitating a big Mexican operation” on public lands. (Gringo growers tend to be eager to put the blame for environmentally reckless marijuana cultivation on Mexican nationals although ethnic eco-damage seems co-equal. But say the magic word "cartel" and here come the cops.

It seems an “undisclosed informant” had it in for Roland Keltner. COMMET passed the rumor on to our trusty BLM agent and he hiked the six miles in to the area where “the rural property” in question joined BLM property at a place called My Spring and another called Bad Camp. Here Del Molino found three cisterns, some black plastic water lines and, eventually, a secluded marijuana grow on the private property adjacent to BLM land where Del Molino determined that marijuana had been freshly harvested.

This was in August, 2011. Del Molino took some snapshots and estimated that between 75 to 100 plants had been grown at the site, and irrigated with government-owned water from the cisterns on public land. He fabricated the search warrant affidavit and pumped up the size of the grow to make it seem much larger than it was.

Eventually, Wendy Harbel had been allowed to contact her lawyer, and the lawyer's private investigator, a retired cop named Hermann, subsequently trekked to “the rural property” to see if he could see what Del Molino claimed to have seen.

Investigator Hermann took a great many photographs and held up some of Del Molino’s pictures in the photo-frame to demonstrate that he was indeed in the same spot.

Hermann had been scrupulously thorough, establishing that there were only 55 plants in the garden – not 75 to 100 – and that he had gone there in January of 2013, and that the roots and mounds where the marijuana was grown and been harvested looked pretty much the same as it did in Del Molino’s pictures, which were taken in August of 2011 – two winters earlier. This put a cool shade on Del Molino’s sunny assertion that the plants had been harvested shortly before his arrival and, therefore, belonged to Ms. Harbel.

Agent Del Molino had also exaggerated the number of plants in the garden in his fatally flawed search warrant affidavit to Judge Behnke.

DDA Gardner jumped to his feet and snapped at Mr. Hermann like a rottweiler straining at his leash. “Oh, well, it’s all very easy to play Monday morning quarterback, isn’t Mr. Hermann?”

Not On Record, the attorney who wasn't present, said, “Objection, your honor. What’s the relevance of this?”

Judge: “It’s a question of the officer’s credibility, and I’ll hear it.”

Gardner: “Let me ask you this, Mr. Hermann – were you armed when you went to the property?”

Hermann: “Yes, of course.”

Gardner: “And why is that?”

Hermann: “Well, even in January, you can’t be too careful in that kind of situation; I mean a place like that…”

Gardner: “Yes, and how much more dangerous would a situation and place like that be in August? So you see the officer (BLM's Del Molino) was there a short time and took only a hurried survey of the situation. And you seem to think he should have been more by-the-book about it?”

Hermann: “Well, yes. That’s his job.”

After recess, when Del Molino was on the stand, defense made a further point on this matter of “officer safety.”

Pollock: “May I approach the witness, your honor?”

Judge: “Go ahead.”

Pollock: “Do you recognize this photograph I’m showing you, Agent Del Molino?”

Del Molino: “Yes. I took it.”

Pollock: “And what is that figure to the left side of the photo?”

Del Molino: “It's another BLM officer.”

“It is an armed officer, isn’t it, Agent Del Molino?”

“Yes.”

“So you weren’t there alone, were you, officer Del Molino?”

“No, not at all.”

“And did you ever, at any time, see any marijuana being cultivated on the property?”

“No, but it was my belief that the marijuana had been harvested that year.”

“Are you a botanist?”

“No.”

“Nothing further.”

Judge: “Is the matter submitted, then?”

Apparently, it was. But the judge seemed reluctant to rule. “If you want to argue,” she said, “I’ll hear what you have to say, but I’m going to take it under submission and think about it a while. It seems abundantly clear that both the officer and Mr. Hermann were at the same location and Del Molino opined that the marijuana had been grown that season, while Mr. Hermann declined to form an opinion. Then the officer said he went to the County Recorder’s office … which is a false statement… So, if I omit that, is there still probable cause…? I need to re-read the search warrant affidavit and think about this. Let’s bring it back on March 6th for the setting further proceedings, and I should have a ruling by the 13th of March.” ¥¥