Pulled over and asked to step out of the car. Spread-eagled against the vehicle. First, one arm and then the other pulled behind you as you're snapped into the handcuffs. Why? Plastic cover over your license plate somehow interfered with the officer’s ability to read it. Also, the front tire may have been a bit over the limit line at that last stop sign.
This is gung-ho policework, to put it mildly, performed by Willits Police Officer Michael Nguyen, recently of the US Marines. But, hey, some young white guy with a retro afro driving a pricy GMC Yukon SUV through Willits in the midnight hours, odds are pretty good the Yukon will get the full attention of law enforcement.
Sure enough, there’s nearly ten pounds aboard. But wait a minute. Isn’t this profiling? Maybe. Some cops say they only profile the vehicle, Yukons and Tahoes being more or less synonymous with the marijuana business. If you're driving a Yukon unless you look like the old lady on the See's Candy box chances are better than good the long arm of the law is going to reach out for you.
Scott Allen Daellenbach of Willits, who doesn't look like the old lady on the candy box, hired a lawyer new to Ukiah, Christopher Brooke, to get the evidence suppressed and assert his right to his weed under the Compassionate Use Act, Proposition 415. These efforts failed, and Mr. Daellenbach was held to answer on the charges; those charges did not include driving with an obscured license plate or running a stop sign, but possession and transportation of marijuana, and for thereby being in violation of his probation.
A word about the defense attorney. Chris Brooke was elected District Attorney for Modoc County, way up in the northeast corner of the state in the last election. But, citing the safety of his family, up and quit, packed up the wife and kids, and moved out. He now works out of the law offices of Duncan James in Ukiah.
Google has quite a lot of interesting reading on Mr. Brooke, but we know that the internet is teeming with character assassins and, from what we can gather, Brooke was at serious odds with the Modoc cops. You wouldn't want to find yourself on the wrong side of the cops in a place like Modoc, and Brooke being a young guy with a family, well, Mendocino County is the land of re-invention.
On cross, DA Eyster objected to every question Brooke asked. And if Eyster was overruled, Eyster argued with Judge Moorman until he got his way.
Brooke began his defense with an aerial photo of the Willits area, most likely from Google Earth, but Eyster objected. He said it lacked foundation. The buildings shown may have since changed ownership, or gone out of business. Brooke said he only wanted the officer to say whether he recognized the streets — which Officer Nguyen said he did. Still, Eyster quarreled and quibbled. That Eyster was personally prosecuting Daellenback probably meant that Daellenback, or his attorney, had seriously annoyed Mendocino County's top cop. Ordinarily, a minor case like this would be prosecuted by a junior DA.
At issue were conflicting versions of events. Daellenbach said Officer Nguyen was riding his bumper, tailgating him around town and had nearly clipped Mr. D when he turned the Yukon into a driveway to drop off a friend. Nguyen said he was never closer than five to seven car-lengths behind the Yukon and had had to race to keep up with it, that midnight, March 15th. The officer’s headlights were indeed probably bouncing off the Yukon's plastic license plate cover, making it hard for the young cop to read.
Nguyen: “I was attempting to catch up.”
Brooke: “Did he stop at the stop sign?”
Nguyen: “I don’t know. I hadn’t caught up yet.”
Brooke: “Then he turned down Mill Street?”
Nguyen: “Correct.”
Brooke: “Did you see him pull into a driveway?”
Nguyen: “No, I did not.”
Brooke: “How far away were you?”
Nguyen: “By the time I reached Raymond and Coast, he was all the way down to Highway 20.”
Brooke: “How far away is that?”
Nguyen: “500 yards, maybe.”
Brooke: “How far was he away when he stopped at Highway 20?”
Nguyen: “Maybe 10 car lengths.”
Brooke: “At any point did you tailgate him?”
Nguyen: “No.”
Brooke: “This was at night?”
Nguyen: “Yes.”
Brooke: “And you saw his tire cross the white limit line at the stop sign?”
Nguyen: “I could see it, yes.”
Brooke: “Let me just make sure I’m hearing you clearly, officer. You’re ten car-lengths behind him, at night, and you can see his front tire go over the limit line?”
Nguyen: “Correct. The roadway drops down to Highway 20, so I was above him.”
Brooke: “You made the stop after the vehicle turned onto Highway 20 — why not before?”
Nguyen: “Correct. I would not have stopped him just for the license plate cover.”
Brooke: “You made no effort prior to his crossing the limit line?”
Nguyen: “I was trying to catch up to him.”
Brooke: “Now, when you first called him in, dispatch said there was no record of him being on probation?”
Nguyen: “Correct.”
Brooke: “In fact, three times they told you his probation status was negative, isn’t that true?”
Nguyen: “Correct.”
Brooke: “And it wasn’t until Deputy Crosley got there that you found out he was on probation, correct?”
Nguyen: “Yes that’s correct.”
Brooke: “And in the meantime, you detained him?”
Nguyen: “Correct.”
Daellenbach should have been cited for crossing the line and sent on his way, to Mr. Brooke’s thinking, the first time the probation status inquiry came back negative. But Daellenbach had no California driver’s license, and his Missouri license had been suspended or revoked. The officer explained that the system had a lag-time and that Daellenbach had admitted he was on probation, felony probation, which meant he was not supposed to have more than eight ounces of marijuana for his medical needs.
Also, the defendant’s girlfriend, Georgia Culpepper, was in the Yukon. She had told the officer that Daellenbach had a medical marijuana prescription. Defense attorney Brooke wanted to ask officer Nguyen about this, but every time he tried, Eyster objected on the grounds it was hearsay. The longer Eyster's challenges went on, the more frustrated Brooke became until the Modoc transplant was practically begging the judge for at least a semblance of fairness. And this is a point that our medical marijuana community doesn’t get. They think a doctor's recommendation means they can possess and use weed with impunity. But in court these 215 cards and lengthy “prescriptions” are not especially viable. Often as not, in a prelim, like in this case, they are completely ignored. Ms. Culpepper had four so-called prescriptions to account for the four different “patients” the nine-and-a-half pounds of “medicine” was intended for.
Eyster: “It’s double hearsay, judge. First, from the person, the ‘doctor’ who wrote it, and second from Ms. Culpepper, here, as to what she told the officer.”
Judge Moorman agreed.
“These pieces of paper, they are not prescriptions, no matter what they say on the face of it,” the judge said.
Transportation of marijuana is a serious charge, and no one since the late Judge Ron Brown has listened to the argument that someone else can deliver your meds to you. (“I often have my nephew pick up my prescriptions at Rite Aid,” Brown once said during a transportation of marijuana case. “Isn’t that the same thing we have here?”)
Brooke: “Your honor, I’m trying to make a Compassionate Use Act defense here, if the DA would just let me ask my questions.”
Moorman: “Rephrase, counsel.”
Brooke: “Officer Nguyen, did Ms. Culpepper tell you”—
Eyster: “Objection. Hearsay.”
Moorman: “Overruled.”
Eyster: “Judge, hearsay can be admissible in a 215 prelim, but we have three separate proceedings going on here at once, and hearsay is not admissible in a probation violation hearing or in a motion to suppress.”
Brooke: “These doctors are generally reliable when they write these prescriptions, your honor.”
Moorman: “I have a problem with that. Just because it says on its face that it’s a prescription, that doesn’t necessarily mean there’s any proof that it is.”
Brooke, realizing that his plan of attack had been repulsed, begged for a recess to regroup. When he came back, the new plan was to question whether the detention of his client had been warranted.
Brooke: “How long did it take for Deputy Crosley to arrive?”
Nguyen: “Approximately 10 minutes.”
Brooke and his client conferred in whispers. Eyster politely advised them that he could overhear what they were saying, suggesting they talk in the hall. This they did and after another lengthy intermission, it was decided that Daellenbach would take the stand.
Brooke: “On or about midnight on March 15th, did you see Officer Nguyen in a patrol car in Willits?”
Daellenbach: “Yes. He was parked at Village Market and I passed him on Main Street.”
“Then what happened?”
“He pulled in behind me, and got a few feet off my bumper.”
“How close?”
“No more than five feet.”
“What did you do?”
“I turned left on Mill Street.”
“What did he do?”
“He stayed right up on me. I turned into a driveway to let a friend off and the patrol car went around me.”
“Then what?”
“When I turned right on Coast, he was right there on the next side street and he pulled out behind me again. And again, he came right up on me.”
“Did you stop at the stop sign?”
“Yes.”
“Did you stay behind the white limit line?”
“Yes, I’m pretty sure I did.”
“He was right on you the whole time?”
“Yes, and he almost hit me once.”
“When was that?”
“When I turned into a driveway on Mill Street to let my friend off.”
“How close did he come to hitting you?”
“Within a couple of feet.”
“Was he ever five to seven car-lengths behind you?”
“No, never.”
“When did the patrol car first turn on his emergency lights?”
“When I was going down Highway 20.”
“Is it possible you went over the white line when you stopped at Highway 20?”
“I really don’t think so, especially with a police car that close behind me.”
“Nothing further.”
Eyster: “Sir, isn’t it true you’ve been convicted of two crimes of moral turpitude?”
“I don’t know what that means.”
“You’ve been convicted of burglary, haven’t you?”
“Yes.”
“And attempting to dissuade a witness?”
“Yes.”
“So you were pretty nervous because you were on felony probation, weren’t you?”
“No.”
“Who was the friend you dropped off?”
Brooke: “Objection. Relevance.”
Moorman: “How is that relevant?”
Eyster: “We’re going to find out if he’s involved in this, too.”
Moorman: “Overruled."After a reluctant pause on the part of the witness, the judge explained, "Overruled means you have to answer.”
Daellenbach: “His name’s Tyler Elza.”
Eyster: “Where does he live?”
Daellenbach: “On Mill Street, with his mother.”
Eyster: “What’s the address?”
Daellenbach: “I don’t know.”
Eyster: “Describe the house.”
Brooke: Objection, your honor. This is an outrage — is he going to drag the mother into this too?”
Moorman: “Sustained.”
Eyster: “Nothing further.”
Mr. Daellenbach left the stand looking like he wasn’t very happy with his performance. It’s always easy to sit back and watch a police officer dodge exculpating answers on the stand — implying things you know just ain’t right, but it’s a lot harder than it looks, and it’s likely you’ll find yourself in over your head when a skilled prosecutor like Eyster gnaws away at you.
Judge Moorman: “I’m going to deny the motion to dismiss the charges as per the Compassionate Use Act. The defendant’s terms of probation limited his possession of medical marijuana to under eight ounces, and there’s been no proof that the nearly 10 pounds were not his. As to the motion to suppress, the officer’s attention was drawn to the vehicle due to the plastic cover over the license plate; he said he wouldn’t have pulled him over for that reason alone, but then he went over the white limit line at the stop sign, so I’m going to deny that. The defendant was on searchable probation, and the search turned up the marijuana. As to the reason he was not given a ticket and sent on his way, he told the officer he had no California driver’s license and that his Missouri license was revoked or suspended. That alone, being a misdemeanor, was sufficient cause to detain him. Then it comes down to whether the officer could see if the front tire went over the line, and he testified credibly that the roadway put him at a height advantage above the defendant’s vehicle and that he could see it clearly. So I’ll find sufficient evidence to hold him over on the charges. Let’s set this out two weeks for arraignment on the information.”
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