Last week Judge David Reed denied the defense motion to dismiss in the state’s case against Cody Grimes. Mr. Grimes is being held on felony drug, weapons, child endangerment and owning a dog with intent to engage in dog fighting charges. In December 2017, a preliminary hearing was conducted and he was held to answer on all counts.
But the defense has challenged the charges and moved to dismiss on the grounds that evidence was destroyed. Judge David Reed denied the motion to dismiss, ruling that t although the dogs were not handled in a manner consistent with evidence in a criminal case, the defense did not prove this over sight could be attributed to any actions or efforts to suppress evidence by the prosecution.
Further he argued that the photos of the marijuana plants were sufficient to establish that they were confiscated, and that the remaining three dogs could potentially be made accessible for a future inquiry on the part the defense.
This actually one of several cases in which YONET is alleged to have destroyed evidence. While the destruction of evidence falls into the gray area in terms of the law on good faith actions and the violation of due process rights – without the available evidence, the prosecution may be hampered in their ability to prove this case beyond a reasonable doubt.
The case, is already two and a half years old, as the events occurred in April 2016 and relate closely to the raid on Paul Fullerton’s establishment from earlier that year which was resolved earlier this year.
On April 11, 2016, officers from the Yolo County 9 Sheriff’s Office conducted a probation search of Mr. Grimes’ residence in Dunnigan. That sweep located an alleged butane honey oil lab and cannabis cultivation operation. YONET was contacted and located at least 20 grams of presumptive cannabis concentrate, 3 grams of cannabis flower, and a binder of Proposition 215 paperwork.
There were also 303 immature cannabis plants, 63 pounds of cannabis shake and 8 grams of cannabis concentrate.
These 303 plants were “destroyed on scene” even though the defense notes “there is no other mention of destruction or Health and Safety Code section 11479.”
The defense further argues that Mr. Grimes due process rights were violated by the destruction of the cultivated cannabis – though they did take at least 27 photographs, consisting of at least 13 unique imagines of the cannabis – the defense argues, “ These images do not verify a plant count. No weight of the destroyed cannabis was determined, nor was any measurement of the cut down cannabis taken to determine dimensions of the cannabis to be destroyed.”
The question arises as to “The question arises whether law enforcement’s failure to preserve these cannabis plants violate Mr. Grimes’ right to Due Process and thereby warrants a dismissal of the action.”
On the one hand, the law says that “Law enforcement agencies have a duty, under the Due Process Clause of the Fourteenth Amendment, to preserve evidence that might be expected to play a significant role in the suspect’s defense.”
On the other hand, “The negligent destruction of, or failure to preserve, potentially exculpatory evidence, without evidence of bad faith, will not give rise to a due process ‘violation.”
A key to the defense claim is first the exculpatory value of the evidence – in other words, “it must have been material to the defense case.”
In this case, “This evidence was material to the defendant’s case because the number of plants being cultivated and the amount of cannabis that would have been produced by the plants goes directly to the applicability of medicinal cannabis defenses.
“Established case law indicates that patients and cannabis collectives may possess cannabis in amounts reasonably related to the ongoing medical uses of the patients served.”
Furthermore, the defense points out, Deputy DA Kyle Hasapes “has indicated that the number of plants is a fact that he will be arguing to show that possession of cannabis was for sale and a danger to Mr. Grimes’ children.”
On August 21, Mr. Hasapes argued that “the 303 plants all be it immature plants on this property went beyond the plants allowable within the cooperative through information through cooperative documents that defense had in this case. It allowed only 99 plants to cultivate and yet here he has 303, almost three times above what he’s allowed to have.”
The defense argues, “That Attorney Hasapes plans to bring in the exact number of plants as per se evidence that the amount of cannabis cultivated was beyond what would be permitted for a collective of a violation shows that a verifiable plant count and the amount of cannabis that would have been produced is material.”
Finally they cite caselaw noting, “The quantity and quality of the contraband seized is always relevant to the issue of whether the narcotics are held for sale or personal use.”
The second part of the test is that the case can only be dismissed if the government acted in bad faith destroying the evidence. Here they argue that the issue turns on “the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”
They argue, “Here, the government’s bad faith in not preserving the evidence can be inferred from law enforcement’s knowledge of the exculpatory value of the cannabis prior· to its destruction.”
The defense points out that the “reasonably related” standard for medicinal cannabis has been the law of land for over twenty years, and the officers knew that Mr. Grimes would be presented a medicinal cannabis defense because “there was collective paperwork seized during the search, and Mr. Grimes made statements regarding medicinal cannabis during his interview.”
Mr. Hasapes counters, “the destruction of that should not be bad faith when officers have knowledge at that very point that he is in violation of going outside of the collective he’s claiming to be legitimate.”
The defense argues this argument breaks down “to officers not needing to retain exculpatory evidence because they believe the defendant to be guilty. Officers do not get to determine who is innocent and guilty upon first contact and cannot be permitted to decide what evidence need be preserved based upon this opinion.”
The defense argues that Mr. Grimes Due Process Rights were also violated by the governments destruction of the pitbulls.
There were five pitbulls found on the property and they were taken away by Yolo County Animal services. There was an administrative hearing in May 2016 whereby Mr. Grimes was provided with a notice stating that the dogs would not be returned to him.
Defense points out a telephonic request to view the dogs was made but “denied on the basis that the dogs were evidence in an ongoing case.”
At some point Yolo County euthanized two of the dogs and transferred the remaining three to a rescue service for adoption.
Defense points out there was no notice to defense counsel regarding this action, “despite the dogs’ status as evidence in an ongoing case.”
Does this present a violation of Mr. Grimes’ right to due process.
The defense argues this evidence was “material to the defendant’s case because the behavior and physical condition of the dogs is direct evidence of whether they were kept as fighting dogs or as family pets. The prosecution has reports regarding the physical condition of the dogs, including scarring present, and the characterization of the dogs as aggressive or not.
“The dogs themselves could have been examined by a defense expert to determine if any scars were consistent with dog fighting, and to determine if they showed signs of aggression consistent with dog fighting, or if there was another explanation for such behavior. There is no other available evidence comparable to an actual examination of the dogs in question.”
The defense argues that “The dogs were seized from Mr. Grimes to prevent any destruction of evidence, but the dogs were disposed of without notice to the defense.” Defense writes, “It is common that canine behavior is something that needs to be observed to interpret, as dogs cannot explicitly communicate their intent or what happened to them. Knowing that the opportunity for expert examination and observation would end once the dogs were euthanized or readopted, law enforcement acted in bad faith by failing to provide a period for examination before destroying and/or losing the dogs.”
Judge Reed ultimately ruled that the existence of three remaining dogs is sufficient. But the defense points out that “Mr. Grimes is unaware of any measures that can be taken to retrieve the dogs that were readopted and knows there is no way to resuscitate the euthanized dogs. Mr. Grimes is not able to obtain comparable evidence.”
Ultimately while the judge ruled against the defense here, the police and District Attorney’s office may regret these decisions. Should this case go to trial, the defense would be able to raise the point about the destruction of evidence to the jury as a way to plant reasonable doubt in their minds.
The prosecution will have a tougher task proving their case when the defense was unable to examine the dogs or definitively demonstrate the quantity of marijuana to the jury.
—David M. Greenwald reporting