When the police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search warrant.
— US Chief Justice John Roberts (Herring v. US)
* * *
Defense lawyers from all over the county crowded Judge Anne Moorman’s courtroom last Wednesday to hear how she would rule on this very point. An energetic free market Laytonville man named Samuel Baker stood accused of presiding over a large-scale pot op.
Moorman had earlier ruled that the probable cause used to obtain the search warrant was inadequate, and now the lawyers, nearly breathless with anticipation, were waiting to see if she would rule that the evidence — nearly 1,000 plants — would have to be suppressed, and Mr. Baker set free.
It all started on May 28th when a DEA agent flew over Sam Baker’s busy Laytonville property at 51700 North Highway 101. The airborne narc counted 19 greenhouses, and noted the black plastic sheeting lying near each one. The plastic sheeting thrown up over pot plants to make them flower early. Growers using this technique can get their product to market earlier than the hidebound fogies waiting for the summer solstice when naturally grown outdoor marijuana begins to flower in the waning daylight.
Sam Baker's enterprise is not your grandpa’s pot farm, dude. It’s the cutting edge, kinda like pro football players — bigger, stronger, faster.
“Light dep” grows have proliferated over the past few years and are now common in the endless hills of the Northcoast. The product gets into America's fathomless marijuana market with fully mature pounds of bud before the old-school growers have even begun to think about harvesting theirs.
(People unfamiliar with life in the Emerald Triangle might wonder how large-scale pot farming has become so blatant. Well, it's like this: there are so many of these operations spread over such a large area that lots of growers operate on the roulette assumption, that the odds are heavy on their side, much better than any Vegas gamble. Mendocino County alone is 35,010 square miles. Factor in the myriad pot ops in Sonoma, Lake, Del Norte and Trinity counties and do the math. Sam Baker's Laytonville farm had a pretty good chance of going un-busted.)
The DEA agent was pretty sure Sam Baker wasn't growing tomatoes, but sky spying isn't the same as a close up, and the case was turned over to Mendocino County's Major Crimes Task Force for a ground-level look-see.
On June 19th Sergeant James Lee Wells and a recon team night-goggled camo buddies entered a neighbor’s property in the middle of the night and started to sniff around. The agents didn’t smell marijuana, they said, “but did capture an odor that had a toluene-type smell that burned our nasal passages.” They also reported they smelled vinegar, and Sgt. Wells opined that these chemicals were consistent with methamphetamine production.
Acetic acid — vinegar — is also used in the manufacture of heroin and toluene is the second “T” in TNT, but I digress.
Later that day, the DEA flew over again and took some photographs of Rancho Baker. Sgt. Wells of the Task Force subsequently looked the photos over and stated in his affidavit for a search warrant for Baker's property that he could see devil weed growing in Baker's greenhouses. Wells also said he saw "fencing materials" being used to conceal the contents of the greenhouses. Wells went on to assert that in 2008 and 2011, significant numbers of marijuana plants had been found and eradicated on the very same property where the raid teams had also found tree-stands equipped with night vision goggles and high-powered rifles that the better prepared pot farmers use for sniping at head-hunters — marijuana thieves who cut-off the flowers and flee into the night.
Sgt. Wells took all this information to the County Courthouse and convinced the Honorable David Riemenschneider, a family court judge, to sign it.
Ukiah-based defense attorney Robert Boyd represented Mr. Baker.
On October 10th, Boyd wrote the following legal reference to a precedent case Boyd said applied to the Baker case: “A search warrant granted after an officer waited 52 days after purchasing marijuana was based on information so stale that it could not be relied on in good faith and Leon does not save the warrant as Good Faith and is not a magic lamp. Here, the probable cause was so lacking that the warrant could not be relied on in good faith...."
Boyd wanted the judge to suppress "all evidence derived from illegal searches" of Baker's "home, outbuildings and surroundings" because "the declaration in support of the search warrant did not provide sufficient basis for a finding of probable...."
Sentence by sentence, Boyd made his case that the Baker warrant was no good.
“The declaration essentially states that: We see really big greenhouses and black plastic but we cannot see in them as they are closed shut. Because they are closed shut we believe that they are being used for a crime. People (same or different who knows?) have done crimes here years before so we think they are now. We also smell something funny and funny smells make us think meth lab. This falls short of probable cause.
“The fact that the doors are shut cannot be used to infer that a crime is occurring at the location. Taking steps to ensure privacy heightens the expectation of privacy and cannot be used to show probable cause of anything really. Otherwise the locked door of every home would create probable cause to believe that a crime was occurring within every home. Otherwise why else would they lock the doors after all?”
On November 4th Judge Moorman ruled that the affidavit did indeed lack probable cause. She wrote, “In this case, while there was evidence that greenhouses could be seen from the air at two different times in 2013, there were no facts presented in the affidavit showing it likely that the greenhouses contained marijuana. While a reasonable inference of such could have been drawn based on discoveries on the same property in 2008 and 2011, there was no showing that the property was under the control of the same party or parties in 2013. Furthermore, while the agents explored the boundary of the property before asking for the search warrant, they did not smell an odor of marijuana but rather a ‘chemical odor’ similar to toluene and an odor of vinegar. These odors are not consistent with marijuana growing and there was nothing but the odor to suggest illegal manufacturing of methamphetamine was ongoing at the property.”
As word spread that Judge Moorman had nullified her judicial colleague's probable cause warrant, Robert Boyd and the rest of the marijuana lawyers in the Emerald Triangle began to vibrate with joy, but Moorman wasn’t finished.
If Boyd could show wrongful conduct on the part of Sgt. Jim Wells, Sam Baker would skate.
On November 12th Boyd requested a hearing to show that Wells had acted on a flawed probable cause warrant. On November 19th Boyd filed another brief.
“The Fourth Amendment is not about being close enough,” Boyd wrote. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 4th[sic] Amendment US Constitution. It is worth noting that the Constitution requires probable cause. It does not say near probable cause or something really close to probable cause because that is exactly what is required.”
The second sentence in the above quote is taken verbatim from the Constitution, not in Boyd’s own words, as the reader may have noted.
“To allow officers to get search warrants on less than probable cause and then give no recourse to the person who had their right to privacy violated without probable cause does nothing to improve police conduct. Indeed it encourages police officers to do sloppy work and slide warrants through the magistrate knowing that if they can get past the magistrate they are basically home free. The Fourth Amendment surely requires more of us all.”
The hearing was set for November 20th, but was inevitably put over, time and again, until last Wednesday, January 8th, and began with Mr. Boyd calling his witness, Private Investigator Richard Venturi, a former cop — 12 years with the Mendocino Sheriff’s Office, and six years with the Willits PD.
Boyd: “Do you have any experience with search warrants?”
Venturi: “Yes, quite a lot.”
Boyd: “Did I request you to review the case against Samuel Baker?”
Venturi: “Yes, and I would have some questions about the search warrant, as there were some things lacking in the affidavit and there was no specific sighting of any marijuana plants.”
Boyd: “What else was lacking in the affidavit?”
Venturi: “Two years ago there was some marijuana growing there, but I’ve been told there’s a two-week window on that. So that was one thing.”
Boyd: “The fact that there were greenhouses — does that indicate illegal activity?”
Boyd: “What about the black plastic — does black plastic indicate a marijuana grow?”
Venturi: “No. Other plants like strawberries can be grown using light deprivation.”
Boyd: “What about the fact that the officer saw fencing?”
Venturi: “Yes. People like their privacy.”
Boyd: “So that does not indicate marijuana growing?”
Boyd: “The vinegar smell, is that an indication enough to get a search warrant?”
Boyd: “Can these chemicals be used for things other than making methamphetamine?”
Boyd: “Do people with meth labs usually clean up the property?”
Venturi: “No, not at all. It usually takes quite a bit to clean up the site of a meth lab.”
Boyd: “There were no steps taken to confirm it was the same person who owned the property from 2011 was there?”
Boyd: “People commit crimes, not property”—
DA David Eyster: “Objection.”
Boyd: “Sorry Judge Moorman. Question withdrawn. Was there any probable cause for this search warrant?”
Venturi: “No, not to my mind.”
Eyster began for The People, many of whom, in his jurisdiction, are in the intoxicants business. The DA is accustomed to swimming against the tide.
“You testified that strawberries were grown using light deprivation — have you ever seen this?”
Venturi: “I’ve never seen it; I know they do it, though.”
Eyster: “But in fact, you’ve only seen light deprivation used in marijuana growing quite often, correct?”
Venturi: “I’ve seen it; not that often, though.”
Eyster asked to see Mr. Venturi’s work product, and Boyd objected.
Moorman: “Were there notes created for your testimony today?”
Moorman: “So you prepared them since I ruled on the probable cause question?”
Venturi (flushing red and finding his voice): “…Er, yes, your honor.”
Moorman: “I’m ordering them!”
Venturi sheepishly handed his notes over.
DA Eyster and Sgt. Wells studied the pages for a few minutes before Eyster rose, folded his arms over his chest in his well known 'gotcha' pose, ready to pounce. But for a moment he simply stared the stare of the true and the good, a Javert vibe radiating at investigator Venturi.
Eyster: “Tell me, investigator, which items in particular brought you to your conclusion that the search warrant lacked probable cause?”
Venturi: “The judge’s ruling.”
Eyster: “Well, based on your experience and training, why wait?”
Venturi: “I just read the documents given me by Mr. Boyd.”
Eyster: “So you just read two documents, the affidavit and the court ruling?”
Venturi: “I read the points and authorities, as well.”
Eyster: “Which points and authorities are you referring to?”
Venturi: “The ones prepared by Mr. Boyd.”
Eyster: “I see. Why?”
Venturi: “That’s what Mr. Boyd provided me.”
Eyster: “So, you read the ruling, then the affidavit, then the points and authorities, then reached your conclusion?
Eyster: “What deference would you give a magistrate’s signature on a search warrant?”
Venturi: “I’d think it was good.”
Eyster: “As you sit here today, you have no idea how many people reviewed this search warrant before it was signed by the magistrate?”
Venturi: “I have no idea.”
Eyster: “But you reviewed it yourself?”
Eyster: “Did you not see it was reviewed by a deputy DA?”
Venturi: “Not that I recall.”
Eyster: “Do you have a copy?”
The private eye looked at his copy of the search warrant affidavit until the DA directed him to a certain page.
Eyster: “Do you see where Sgt. Wells wrote on the search warrant affidavit that he took it to a prosecutor in the DA’s Office for review, then to the magistrate who approved it?”
At this point, I thought Boyd would jump Eyster's bones. So, Mr. DA, if the document had all these hawk-eyed critical thinkers reading the damn thing before it was served on Baker, how come none of them said, "If we're going to pop this Sam Baker guy for an industrial dope grow maybe we better include the noun 'marijuana' somewhere in the goddam warrant."
But Venturi seemed cowed. He squeaked a barely audible yes, never lifting his eyes from the pages before him. DA Eyster beat the investigator like a stray dog.
Eyster: “You testified, did you not, that the smell of toluene did not indicate the presence of marijuana?”
Venturi peeped another affirmative.
Eyster: “Can you tell me if toluene is used in any marijuana-related activities?”
Venturi: “Yes, it is used to make honey oil [a powerful concentrated marijuana intoxicant].”
Eyster: “How many honey oil cases did you investigate when you were with law enforcement?”
Venturi: “None. It wasn’t a big thing back then.”
Eyster: “But you saw in the affidavit that toluene was used in honey oil extraction from marijuana?”
Eyster: “You testified that the black plastic did not indicate that marijuana was being grown — are you trained in light deprivation techniques for marijuana cultivation?”
Venturi: “No, not directly… I can’t say… I, uh, most the stuff I was involved in was outdoor… and…”
Eyster: “Did you even research it?”
Venturi: “Oh, yeah. On the internet.”
Eyster: “How many articles did you read?”
Venturi: “Just one.”
Eyster: “One article…. May I see it?”
Venturi didn’t have it with him.
Eyster: “So you didn’t personally research this, did you?”
Venturi: “No, it came from Mr. Boyd.”
Eyster: “So what we have here is a self-fulfilling prophesy from Mr. Boyd?”
Sgt. Jim Wells was called as the crimson-faced Venturi crept down from the stand.
Eyster: “You were the affiant regarding the search warrant?”
Eyster: “Did you take it directly to the magistrate for a signature?”
Wells: “No, I went first to Deputy DA Damon Gardner for a review.”
Wells: “It’s just our policy. In case there’s any problem with the probable cause.”
Eyster: “So when you went to the magistrate, did you have any idea the probable cause for the affidavit was insufficient?”
Wells: “No, none at all.”
Boyd: “So you’re saying Judge Moorman is incorrect in her ruling?”
Judge Moorman fairly shouted: “My ruling is not part of this! Mr. Boyd, we are trying to establish whether or not there was good faith on the part of the officer, and your question was completely out of line! Moreover, I am sick to my stomach of your obsequious mewling, your slavish flattery, absurd worship of what you perversely perceive me to be, and your ridiculous expectations of me. I take my position here very seriously — which is to say, I most certainly do not champion any real or imagined downtown clique or any set of local political interests! Do you understand me, counsel? Have I made myself clear?”
It was Mr. Boyd’s turn to peep an affirmative.
Moorman: “Ask your next question.”
Boyd (with a squeak): “Thank you Judge Moorman … Is Deputy DA Damon Gardner still with the DA’s Office?”
Eyster: “Objection, relevance.”
Boyd isn't very fast on the draw.
Deputy DA Damon Gardner had been prosecuting a case involving a faulty search warrant, the case against a Laytonville defendant where a BLM agent had lied to Judge John Behnke to get a warrant signed. Judge Moorman ruled for defense in that case and the BLM agent is presumably now counting pronghorn antelope droppings in the alkali wastes of Wyoming. Meanwhile, Gardner has left the DA’s Office under curious circumstances — he shot a man outside a Sacramento hotel in an “alcohol-involved” incident. Another Deputy DA, Ms. Alexandra Khuory, whose honor the gallant gunman was apparently defending during the street fight that he put a period to with a gunshot to his assailant, did not survive her employment as a probationary prosecutor, although the street warrior that Gardner shot survived the encounter. According to the DA’s press release, Ms. Khoury was fired because of her relationship with former Deputy DA Gardner who, since his departure, is expected to be a private criminal defense attorney based in Ukiah. If Ms. Khoury stayed with the DA’s office she would be prosecuting the crooks her sweetie pie was defending. You couldn't have a prosecutor enjoying a close personal relationship with Ukiah-based defense attorney, could you? Of course you could. Mendocino County runs on insider trading, but that's one for the editorial department.)
Boyd: “Nothing further. Thank you, Judge Moorman.”
Moorman, unmollified: “I want to make this observation. The law took a fundamental turn in 2009. Prior to Herring, Leon itself excluded from the application of the good faith rule four situations: 1) where the affidavit in support of the warrant contained false or misleading material information; 2) where the affidavit was so lacking probable cause as to render official belief in its existence entirely unreasonable; 3) where the magistrate abandons his/her neutral and detached role; and 4) where the warrant was so facially deficient in particularizing the place to be searched or the items to be seized that the executing officers could not have reasonably believed the warrant to be valid … Herring interjected into the good faith analysis an objective review of the officer’s/affiant’s conduct … [In the case at bar] while the court has found that the affidavit lacked sufficient probable cause, it does not appear to rise to the level of suppression because of the extent of the failure of the showing … The court will refrain from reaching this conclusion to allow the parties to brief the issue …”
These comments are copied from the judge’s November 4th ruling, which hasn’t, as yet, changed. Her Honor said she would be glad to hear more on the issue, and Mr. Boyd jumped at the prospect to write another brief, argue another day in court, and bill his client accordingly. But before he slithered out the door, Boyd tried to lather up Her Honor.
“Thank you, Judge Moorman. We thank you so much. My client and I, we thank you. We thank you so much. We’d like a couple a weeks to submit another brief, Judge Moorman. Thank you.”
Haysus Cristo, Boyd! This judge is no dummy. Your Uriah Heep act might go over at a school board meeting but this is a courtroom, not a nuzzle-fest. You're lucky Judge Moorman didn't toss you into an iso cell for felony ass kissing.
February 18th was the date set for Mr. Sam Baker, seemingly a man of means, one of many latter-day Gatsbys at large in contemporary Mendocino County. If he can stall the flawed warrant long enough, and it is obviously and fatally flawed, it might just disappear.