It is alleged that Frank and Patricia Thomas had five greenhouses full of marijuana plants, 2,648 in all, 527 pounds of processed bud, 212 pounds of shake — which used to be of negligible value until honey oil became so profitable. The Thomas's also had 52 guns and $40,000 in their petty cash box. All this booty was seized at Frank and Pat's 160-acre Red Mountain fastness in the wilds between Piercy and Leggett. It was one of the biggest takes in North County history, pending final totals at the nearby Island Mountain raid a couple weeks ago.
The Thomases seem to be one of our more thriving outback mom and pop ag ops. They were in court to get the evidence against them suppressed, and they'd lawyered up, big time. Mr. Thomas hired a Pier 5 lawyer, Ean Vizzi, from Tony Serra’s San Francisco-based office while Mrs. Thomas hired Keith Faulder, Mendocino County's ace criminal defense man. It seems the task force hadn't found all the US Currency on the Red Mountain pharm.
In court last week, defense attorney Vizzi started in with a Franks Motion to suppress, saying that the ubiquitous Special Agent Peter Hoyle, who haunts the Mendo marijuana imagination to such an extent that he's assumed to be omni-present, had shown “a willful disregard for the truth,” and had made errors that were “deliberate and reckless.”
DA Eyster said, “Judge, if you look at the California Judge’s Benchbook you’ll see that this Franks Motion has to come with sworn statements — you can’t just get a person up on the stand and try to get the standards that way, and I think the motion should be denied as insufficient.”
Judge John Behnke got out his Benchbook and flipped through to the applicable scripture. After a moment he looked over his reading glasses and said, “Mr. Vizzi says the affiant (Agent Hoyle), in the search warrant has a willful disregard for the truth causing errors that were either deliberate or reckless…”
Behnke read a moment more, then whipped his reading glasses off and said Vizzi was also contending that flying over the defendants’ property was in itself an unreasonable invasion of privacy and constituted an illegal search.
Mr. Vizzi confirmed the judge's assertion: “The overflight was a warrantless searching of the defendant’s home where he had a right to privacy.”
Behnke: “Special Agent Russell was the officer who made the overflight. He then went over the photograph with Agent Hoyle and told Hoyle that he saw what he thought was marijuana growing in one of the greenhouses. What are the false statements you are alleging?”
Vizzi: “Russell was flying too low, in a manner that would be deemed invasive and obnoxious.”
With that much weed growing on the place, the International Space Station could be seen as flying too low.
Vizzi: “The altitude of the overflight was a deliberate omission.”
Behnke: “What I’ve seen is one lousy black and white photograph where I can hardly make out the house, and your clients were hardly aware of the overflight. If that’s a search or unreasonable somehow…”
Eyster: “This is a fishing expedition, Judge, and the motion has to be denied. We’re not going to be able to get into recklessness or falsities without the sworn statements.”
Behnke: “I don’t think a false statement or deliberate omission has been made. The first search warrant had some insufficiencies and I guess that’s why they got the second. Agent Hoyle went over the photograph with Special Agent Russell—”
Vizzi: “The first search warrant was never executed, so we’re only dealing with the second — which was signed by Officer Partlow. Agent Russell flew over, spoke to Agent Hoyle, who spoke to Partlow. Agent Russell’s experience is in no way detailed, and without a detailed description of his experience, his observation is not sufficient to justify a search warrant; and it’s far below the level needed to justify probable cause.”
Faulder: “Judge, this is a vast 160-acre parcel with two residences widely separated. Special Agent Russell told Agent Hoyle that he saw marijuana in one of the greenhouses, and I don’t think that’s sufficient evidence to go in and tear up two houses.”
Eyster: “There’s no evidence the houses were torn up, Judge.”
Behnke: “That’s hyperbole, and I’ll disregard it. But the DA cites years of experience by all the officers involved. There were these two greenhouses, side-by-side, both 75 feet long, and we have Russell telling Hoyle he saw marijuana in one of them. And we have the others full of some green vegetative matter, so it’s not unreasonable for the magistrate to say, Yeah, I think he knows what he’s talking about. I think the magistrate was well within the law to grant the search warrant.
“The original search warrant may well have been deficient in describing Special Agent Russell’s experience, but in the second Officer Partlow is instructed by two very experienced people and I tend to agree it’s a bit of a stretch with a 160-acre property, but you can see that this [the photograph] wasn’t taken from a low altitude — you don’t have to be an expert to see that. You know, it’s pretty much a situation where we have five greenhouses and Russell saw marijuana in one, so I think the question for the court is, Is that enough? I think it is. There is sufficient probable cause, so I’m denying the motion. I can’t imagine how the aircraft could have been close enough to bother anybody.”
At this point the defense attorneys decided to waive further prelim. I asked the DA some questions about the Island Mountain raid and Eyster said he don’t know and asked Hoyle — who was sitting right there. Hoyle told the DA he hadn’t been on the Island Mountain raid. He said he was off duty that week and had gone fishing.
Across the hall a prelim for Francisco Chavez was just finishing up. Mr. Chavez is a longtime employee at Gowan’s Apple Farm in Philo. This case concerned his fourth (some say ninth) DUI arrest. Chavez had been in the Boonville Pic-N-Pay causing a disturbance when Deputy Craig Walker was called. When Deputy Walker arrived and saw that Chavez’s vehicle was parked out front he called in the CHP to process the DUI.
The prosecutor was Deputy DA Caitlin Keane. Chavez was represented by Andrew Higgins of the Public Defender’s Office. I caught the tail-end of Judge Ann Moorman’s decision.
“Mr. [Ernie] Pardini told Deputy Walker over the phone on June 6th that he’d taken the keys from the ignition of Mr. Chavez’s vehicle, so he had clearly been driving....."
The judge suddenly broke off to admonish the public defender.
"Don’t ever roll your eyes at me, Mr. Higgins. I won’t have it. You want to roll your eyes, do it out in the hall."
The judge resumed her assessment of People vs. Chavez.
"He had left his car in front of the Pic-N-Pay partly blocking the door, and had been inside yelling and throwing things. You can’t infer, Mr. Higgins, that Mr. Pardini gave a false statement [that Chavez was driving] without some offer of proof, so I’m going to hold the defendant to answer.”
Arraignment on the charge was set for 9:30 on July 14th.
If Higgins rolled his eyes out in the hall, I didn't see him do it.
Xavier Francis, formerly of Boonville, was back in the dock last week. In 2012 he pled to a gun theft from a residence on Mountain View Road, but when Deputy Walker tried to download his photos of the crime scene the pix disappeared into virtual oblivion. Francis still owed $5,000 in restitution. He'd sold the guns, undoubtedly to people who shouldn't have them, and pocketed the money.
Then Francis got busted with a couple of pounds of pot, which he was breaking down into small, affordable amounts and selling to his homies in his Sunnydale neighborhood in San Francisco. The eye rolling public defender, Higgins, was Francis's lawyer on the gun charges and still is today.
Higgins argued that certain unnamed Boonville persons had caused Mr. Francis to stray from the path of righteousness, to which his client had since returned. Francis, incidentally, is very charming, very smart, the kind of kid people are drawn to and remain fond of. He's also a stone crook who may or may not return full-time to straight life.
Public Defender Higgins: “He gets it, now. He’s cut his ties with those people who have dragged him into these problems. He acknowledges that these are serious felony charges, but custodial time will be detrimental to his plan to become a productive citizen, so we ask the court to consider whatever’s possible to keep him on this new path and reduce his fines and fees. Also, he would like to address the court."
Francis: “I just want to put all this behind me, your honor.”
Moorman: “Are you still working at Safeway?”
Francis: “No, I’m not.”
Moorman: “Are you going to school?”
Francis: “I’d like to.”
“It was my hope that when he was put on probation for stealing guns we’d never see here him again,” said DA David Eyster who was personally prosecuting the case. “Then he moves into this marijuana business to make money because it’s easier than working. Probation says he has a problem with accountability and they’re recommending 60 days. I myself thought this should be a 120 day case. He basically denies the facts here, hemming and hawing about his responsibility. He came to Anderson Valley after he committed a robbery and went into the youth home. Then we have the stolen firearms, and in all this time no effort to pay anything at all on the restitution. Judge, I want him back sometime in July to inquire into his ability to repay the $5,000 — which is collecting interest at 10% per annum, by the way.”
Probation Officer Izen Locatelli: “We don’t call people liars outright—”
Moorman: “That’s good, Mr. Locatelli. I’m glad to hear that.”
Locatelli: “But there’s a vast difference between what he tells us and what he does.”
Higgins: “He pled guilty to trespass charges in the old case because the evidence fell apart. He got sucked into a social circle in Anderson Valley, but he’s through with that now, and cutting the last strings.”
In fact, Francis was on juvenile probation out of San Francisco when he arrived in Boonville.
Moorman: “Who’s with you today?”
Francis looked over his shoulder at two women who stood up and introduced themselves as counselors from a rehab facility in San Francisco called Edgewood.
The judge said she was familiar with Edgewood and the Sunnydale area of San Francisco. She told the defendant that she was "sorry about your father, by the way. That’s one thing missing for you, but you’re a man now and I’m going to treat you like one. I see you taking concrete steps in the right direction now and I’m going to support you in that. You met some people in Anderson Valley who told you how to make money without working for it?”
This statement from the judge contradicted the known facts. Francis wasn't working, he'd made no restitution for the guns he'd stolen and sold, he had racked up new charges for marijuana sales, and the probation department assessed him as saying one thing while doing another.
Francis: “Yeah,” confirming that it was the unnamed Boonville bad people who had led him astray.
Judge Moorman: "But you’ve learned from that and I’m gonna give you a chance because you’re at Edgewood. You know you can stay there until you’re 25, don’t you?”
Moorman: “Good. Live by the rules. And write me a letter a year from now, I wanna see how you’re doing.”
Francis: “I already thought of that.”
Moorman: “Okay, I’m gonna suspend the 60 days over the DA’s objection and, God forbid — I’m not even gonna say it — just don’t.”
Francis: “That won’t happen.”
Moorman: “— and probation will be transferred to San Francisco. You’ll have to come back on July 28th for an inquiry into your assets. That’s all. Good luck.”