By Gracy Joslin
WOODLAND, CA – Yolo County Superior Court Judge Timothy Fall late Friday tossed out much of the evidence against Dustin Robert Ray after arresting officers failed to Mirandize him properly, as noted by Deputy Public Defender Richard Van Zandt.
Judge Fall concluded, based on body camera evidence and testimony, “everything from the point that he (Ray) was handcuffed to the point that he was actually given his Miranda rights… everything in there is subject to exclusion under Miranda.”
In the evening of March 20, Officer Sierra Brewer, Corporal Ruben Esquibel, and Officer Kayla Schweitzer responded to a report of a drunk driver.
As Officer Brewer testified, she was given a description of the driver which was simply “a male in a hoodie,” along with a license plate number, and was told the vehicle was a truck.
She originally was unable to locate the truck, but eventually spotted it in a Raley’s/Bel Air parking lot with nobody inside.
When Deputy District Attorney Alex Kian asked Officer Brewer about her initial contact with Ray upon finding him in the grocery store, she stated, “I noticed slurred speech, unsteady gait and bloodshot watery eyes.”
Brewer said, based on this observation, she claimed to be concerned about him walking back along the busy road, as “it made me nervous he may lose his balance at some point and put himself in harm’s way.”
Officer Brewer said the purpose of her investigation was to “conduct an investigation for a DUI,” and to determine if Ray was the driver of the truck.
Ray was handcuffed and seated on the curb outside the store and further questioned by officers.
Body camera footage revealed to the court that things did not occur exactly how Officer Brewer said they did.
She said after talking to him for a little while on the curb, “I observed that the driver’s seat was very far pulled back which he later mentioned to me that a female of about 5’6 was driving, which wouldn’t make sense for how far back the seat was… it was appropriate for his height, not a woman of 5’6… the car was still warm when I got there so it had been driven recently.”
She continued, “I placed him in the vehicle, saw the objective signs and I put the pieces together that he was driving while intoxicated,” noting she found alcoholic beverages in the vehicle, visible through the window and a Modelo bottle cap in Ray’s pocket.
However, keys were not located in Ray’s pocket…they were inside the vehicle.
PD Van Zandt read the police report submitted by Officer Brewer after the incident which said, “Due to Dustin’s unsteady gait, I believe Dustin was unable to care for himself as he walked towards Bourn Drive on East Gibson Road where cars commonly travel above the speed limit and could place Dustin in an unsafe situation if he were to trip and fall into the roadway.”
The questioning then went as follows:
PD Van Zandt: “So when did Mr. Ray walk towards Bourn Drive?”
Officer Brewer: “He didn’t.”
PD Van Zandt: “Well why would you put that in your report if it in fact wasn’t true?”
Officer Brewer: “That was going to be his plan, since he stated he walked there, he was to walk back. Therefore, it would have been unsafe for him to do so if he walked back.”
PD Van Zandt: “Well, your report says ‘I believe Dustin was able to care for himself as he walked towards Bourn Drive’… where does it say this was Dustin’s plan?”
Officer Brewer: “He mentioned to me he walked there and was going to walk back home.”
PD Van Zandt then asked if she viewed the body camera footage which she said she did before the hearing and questioned her further on what happened that night.
PD Van Zandt: “When you did get there, you did advise Mr. Ray of his Miranda rights?”
Officer Brewer: “Correct,” but wasn’t sure when she did this.
Van Zandt: “Mr. Ray did not have any car keys on his person, correct?” She confirmed this was correct.
Van Zandt: “Do you know why Mr. Ray was handcuffed in front of Raley’s before he was Mirandized?”
Officer Brewer: “Yes. Me and Corporal Esquibel had a conversation… we detained him (because) if he walked home it wouldn’t have been safe to do so.”
Van Zandt: “Was there anything on Mr. Ray’s person that would indicate identification that tied him to that vehicle?”
Officer Brewer: “No.”
PD Van Zandt: “You were told keys were found in the vehicle, after Mr. Ray was handcuffed?”
Officer Brewer: “Correct.”
PD Van Zandt: “How could you tell the car had been driven recently?”
Officer Brewer: “When I first arrived, I touched the hood of the car and it was warm.”
At this point, Officer Brewer’s body camera footage was played, and Officer Brewer called the reporting party to get more information to identify Ray was the driver of the truck.
The reporting party said on the phone that the person was a male, but did not remember his race or face, but he was in a hoodie, adding “it was from a distance, I honestly probably couldn’t see.”
Judge Fall jumped in, and he asked Officer Brewer, “You didn’t hear Officer Esquibel say that if you were comfortable you could take him out of cuffs?”
Officer Brewer: “I am sorry, I don’t recall.”
Judge Fall: “Well, when he plays the video, you need to listen carefully because I heard he told you, you can take him out of cuffs if you are comfortable with that.”
The video was then resumed and we eventually heard the portion about the alleged warm hood of the car Officer Brewer testified previously about touching “upon arrival.”
Judge Fall intervened again, “Had you not felt it?” The officer admitted, “Not yet.”
The judge added, “Because earlier when you testified that when you got there, you touched the hood and it was warm.” Officer Brewer confirmed that.
PD Van Zandt then asked, “So your earlier testimony is incorrect, is that true?” Brewer responded, “I believe I was saying that I had touched the hood when I was there.”
PD Van Zandt followed up with “your earlier testimony was that you touched the hood soon after arriving. You testified to that today. Correct?”
She said her “intent” was that she touched it “at some point during the investigation” and not necessarily upon arrival.
He then reiterated “your testimony was that you touched the hood soon after arriving, do you remember that testimony?” She responded, “Yes.”
This part of her earlier testimony was confirmed to be incorrect, but it didn’t stop there.
He then asked her about another statement given in her earlier testimony in which she claimed Ray said the driver of the vehicle was a woman of 5’6 height.
However, after watching the footage PD Van Zandt asked her, “No actual height was specified, correct?” She responded, “Correct.”
Moreover, Officer Brewer, when asked earlier to describe what an “unsteady gait” looks like, said that “it looks like you don’t have great coordination when you walk… you might lose your balance every now and then.”
However, after watching the footage PD Van Zandt followed up, “In any of the body cam footage that we thus witnessed this afternoon, did we see Mr. Ray lose his balance?”
She responded, “No.”
Corporal Esquibel, the officer who actually handcuffed Ray that night, was called to testify, and said, “During our initial contact with Mr. Ray in the store, he appeared intoxicated, clearly agitated…at one point he had kind of a raised voice… appeared to be a little aggressive to me… so based on those factors I decided to put him in handcuffs for our safety.”
Ray uses profanity in the footage, but as PD Van Zandt later asked Corporal Esquibel in cross-examination, “Mr. Ray was legally entitled to use profanity against you in the same way he did so in this case, is that correct?”
Corporal Esquibel replied “yes,” adding “I asked him if I could see the keys in his pocket or something like that…”
But the footage shows Ray repeatedly says he does not have keys on him.
However, Corporal Esquibel said he was sure he had heard keys in Ray’s pocket, but when he emptied his pockets there were in fact no keys to be found.
Judge Fall concluded, “Miranda does not allow custodial interrogations without the Miranda warnings being given…from the point that Mr. Ray was handcuffed and commanded to go outside and sit on the curb… and because he wasn’t Mirandized… it is a custodial interrogation.”
Judge Fall ruled that all statements made by Ray between the time of handcuffing, until the time he was read his Miranda rights, were to be excluded from a trial.
It seemed like after this ruling there was a possibility that a resolution could be met, as PD Van Zandt requested to have a quick conversation with DDA Kian.
But, Judge Fall said because of time constraints, that wouldn’t be able to happen in the present hearing.