Judge Fall Grants Pitchess Motion in Davis Marijuana Case

Last week Judge Timothy Fall granted a Pitchess motion in a co-defendant case involving the Davis Police Department.  Pitchess is a motion that grants discovery of citizen complaints against law enforcement officers, and the disciplinary records concerning the officers’ records in terms of propensity to commit acts of violence or other problems.

To obtain peace officer personnel records, a defendant need only make a “good cause” showing by affidavit, setting forth the materiality of the information sought and an allegation about the governmental agency identified in the request.

Granting such a request does not grant the defendant access to what is inside the officer’s personnel file, but rather allows the judge to inspect the record to see if any information is pertinent to the existing case, and if it is, the judge would turn over information about the witnesses who complained, rather than the file itself.

These include, “The names, addresses and telephone numbers of percipient witnesses of the complained-about conduct are discoverable, verbatim copies of citizen complaints and all other internal affairs records related to the investigation of the complaints are also discoverable,” and “statements of witnesses and the officer to investigators are discoverable.”

The defending agency in a Pitchess motion is the law enforcement agency’s counsel, rather than the District Attorney’s office.  Thus, in a matter involving the City of Davis, City Attorney Harriet Steiner and her staff are the attorneys who oppose all Pitchess motions as a matter of course.

In this case, the defense was seeking the information on Davis Police Officer Mark Hermann.

The defense writes, “According to Officer Hermann’s extremely brief report, at approximately 8:29 p.m. on July 25, 2011, Mr. Warfel was stopped while riding as a passenger in a vehicle driven by co-defendant, Ryan McChesney, who made a u-turn against a ‘no u-turn’ sign, on Research Park Drive north of Cowell Boulevard in Davis, California.”

Upon contacting the driver and passenger, Officer Hermann reported he was able to detect a “moderate odor” of marijuana emanating from the vehicle.

“Officer Hermann reported that Mr. Warfel stated he had a medical marijuana card and allegedly produced a ‘small amount’ of marijuana from his backpack,” the defense continues.  “From the officer’s report, it is clear that the vehicle Mr. Warfel was traveling in was searched, though the report does not provide information regarding whether consent was obtained from either Mr. Warfel, or the driver of the vehicle, Ryan McChesney.”

They continue, “Further, it is unclear from the officer’s report to whom the vehicle and the backpack belonged.”

The search of the vehicle revealed roughly three pounds of marijuana packaged in one-pound bags.

Officer Hermann then reported that Mr. Warfel was searched and his phone was seized and searched.

“Within the Blackberry, the officer reportedly located text messages indicating Mr. Warfel was planning to sell three pounds of marijuana for $1,200 per pound. There was no indication in the officer’s report regarding whether consent was obtained to search the Blackberry, Mr. Warfel’s person, or his belongings,” the defense argues.

The defense argues that, according to Mr. Warfel, “Immediately after he finished writing the ticket, Officer Hermann asked both Mr. McChesney and Mr. Warfel if they had been smoking marijuana. Mr. McChesney replied that he had not. Mr. Warfel informed the officer that he had smoked medicinal marijuana earlier at his home, but that he had not smoked within the vehicle.”

The defense adds that Mr. McChesney, when asked if either of them had marijuana with them, “replied that he did not.”

Officer Hermann then asked permission to search the vehicle, but was denied.

The defense then argues, “Regardless of Mr. McChesney’s refusal, the officer ordered Mr. McChesney and Mr. Warfel out of the vehicle and began to search the vehicle. Another un-named officer, who had just arrived on scene, detained Mr. McChesney and Mr. Warfel during Officer Hermann’s search of the vehicle.”

The defense argues, “There are serious, blatant inconsistencies and omissions in Officer Hermann’s report, obvious from reading the differing accounts set forth in the officer’s extremely brief report and Mr. Warfel’s factual scenario, contained herein.”

Mr. Warfel alleges that this is due to Officer Hermann’s falsification of the police report.

Critically, the defense argues: “Officer Hermann falsified his report by alleging he could detect the odor of marijuana emanating from Mr. McChesney’s vehicle. The only marijuana located in Mr. McChesney’s car was that contained within plastic turkey bags, used for their containment of odor, and further, within a sealed thick plastic garbage bag. There is no reasonable possibility that the officer could have smelled the marijuana that was present in the car.”

“The defense submits Officer Hermann falsified his report of the odor of marijuana in an attempt to retroactively provide probable cause for his baseless search of Mr. McChesney’s vehicle,” the defense charges.

“The falsifications and omissions of Officer Hermann seriously prejudice the defendant; he deliberately obscured the lack of probable cause in support of the search of Mr. McChesney’s vehicle, which resulted in the location of Mr. Warfel’s medical marijuana,” the defense continues.

The defense further argues, “Officer Hermann also engaged in misconduct by undertaking an unlawful search of Mr. McChesney’s vehicle, without probable cause. From the extremely brief report provided to the defense, it is clear that the sole reason for the search of Mr. McChesney’s vehicle was the alleged odor of marijuana detected by Officer Hermann.”

In opposition to the Pitchess motion, Davis City Attorney Harriet Steiner recounts a similar set of facts detailed from the police report and argues, “The defense here takes a great leap in concluding that it was impossible for Officer Hermann to detect any odor of marijuana and thus his justification for searching the vehicle was completely fabricated.”

Officer Hermann reported: “Located on the passenger side back seat of the vehicle was a black plastic garbage bag that had a strong odor of marijuana about it.”

Argues Ms. Steiner, “Importantly, the defense does not dispute the presence of marijuana inside the car. Moreover, Defendant himself admitted that he had smoked marijuana earlier that day.”

She continued, “Accordingly, Defendant himself could have contributed to the odor of marijuana emanating from the vehicle. Therefore, Defendant’s contention that the odor of marijuana was impossible to detect, and as a result the Officer must have fabricated from whole cloth a reason to justify a search, stretches the bounds of plausibility and does not meet the Pitchess good cause standard justifying intrusion into the Officer’s confidential personnel records.”

Ms. Steiner adds: “Other contentions in support of Defendant’s Pitchess motion are built upon Defendant’s allegation that the Officer lacked probable cause to search the car. That is, the defense contends the search of McChesney’s car was unreasonable because the Officer lacked probable cause to conduct the search, and, in addition, McChesney allegedly refused consent to a search of his vehicle.”

However, while the barrier is high for the inspection of police personnel records, the resultant standard for disclosure is fairly low.

Judge Fall in particular ruled that the fact that the marijuana was stored in turkey bags and the fact that turkey bags supposedly hold the odor inside constitutes sufficient evidence that the defense might be able to sustain their case.

He therefore ordered Lt. Colleen Turay of the Davis Police Department – the custodian of Officer Hermann’s Police Personnel file – to turn over the file to him for the inspection of the police personnel file in-camera.

After a number of minutes Judge Fall emerged to report that the file contained no disclosable information.

The defense has indicated that they will file a motion to suppress the evidence they believe to have been illegally obtained, concurrent with a preliminary hearing set for early April.

—David M. Greenwald reporting