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‘Cut Away, Barrister!’

Eric Galloway crossed the double yellow line on the Coyote Valley Reservation north of Ukiah, giving Tribal Officer Greg Salisbury probable cause to pull him over. When Officer Salisbury got up to Mr. Galloway’s vehicle he detected the smell of alcohol and proceeded to arrest Galloway for driving under the influence. Salisbury then handed Galloway off to CHP officer Dabbs. It all seemed to be a routine DUI arrest on the rez.

The case arrived in court on March 20th, Galloway’s lawyer, Michael Shambrook of Ukiah, made a motion to suppress the evidence. This move surprised Judge John Behnke for a couple of reasons. First, because the officer who had seen Galloway weaving back and forth across the double yellow seemed to have adequate reason for making the stop. Second, because the case had been turned over to the CHP, and their cases are usually air-tight.

It looked like a slam-dunk for newly-hired Deputy DA Daniel Madow, but things went sideways right from the start.  Madow’s first witness, the rez cop Salisbury, was running late. Also, Madow couldn’t quite figure what the defense was up to.

Madow: “I’m not sure what the motion is, because Mr. Shambrook said he didn’t want to go through the field sobriety tests… I’m not sure if he wants the blood draw, either.”

Shambrook: “I’m not going to question the blood draw. I’ll leave that. But I do want what happened on the actual hand-over [to the CHP officer, Christopher Dabbs].”

Behnke: “So do you want to call Officer Dabbs first?”

Madow: “Sure.”

Behnke: “Where is Mr. Galloway?”

Shambrook: “He’s not present.”

Behnke: “It’s a motion to suppress?”

Shambrook: “Yes, your honor. And I have an investigator who is here.”

Behnke: “Mr. [Richard] Venturi.”

Shambrook: “Are we on the record?”

Behnke: “Yes.”

Shambrook: “He’ll be sitting beside me.”

Behnke: “That’s fine. And so at this time it’s agreed it’s a warrantless search?”

Madow: “Yes.”

Shambrook: “Yes, your honor.”

Behnke: “I’d ask the prosecution, since they have the burden of going forward, to call their first witness.”

Madow: “The people call Officer Dabbs.”

The handsome young Officer Dabbs, a local guy well-known to many county residents, gave a summary of his background and training. Dabbs said he'd been dispatched to the Coyote Valley Reservation last September 14th for a hand over on a possible DUI. When he got there he contacted Officer Salisbury, then the subject, Galloway, conducted an evaluation and placed him under arrest for DUI.

Madow: “Do you see him in court today?”

Dabbs: “Yes.”

Madow: “Could you please identify him?”

Dabbs: “The subject is right there.”

Madow: “Your honor, may the record indicate the identification?”

Behnke: “No.”

Madow: “No?”

Behnke: “That’s Mr. Venturi, who is the investigator for the defense. That’s not the defendant.”

Madow: “Is the defendant in court today?”

Shambrook: “No.”

Madow: “I didn't know. Okay…”

Hey! The kid's a rookie, okay? Cut him some slack.

Defense attorney Shambrook raised the obvious objection. “Your honor, if the gentleman can’t identify who he [Galloway] is, then he can’t describe anything about what he did.”

Madow: “Your honor, he’s not objecting to the field sobriety tests or the blood draws, so Officer Salisbury can identify him.”

Behnke: “First, what Mr. Shambrook says is a bit of argument. It’s not really an objection to the testimony. And it’s an interesting fact, and I don’t know how this will work out, but if Officer Salisbury identifies Mr. Venturi as the defendant, I’ll grant the motion.”

Madow: “Okay. I can ask…”

Behnke: “You can ask him about the field sobriety tests that he performed on the subject he took from Officer Salisbury.”

Madow instead asked Dabbs how many DUIs he processed and how hard it was to remember every face.

Behnke: “Wait a minute, didn’t he conduct the field sobriety tests?”

Madow: “He did, but Mr. Shambrook didn’t want to go in to the Field Sobriety Tests.”

Behnke: “So what exactly are we suppressing, the stop?”

Madow: “I imagine it’s the stop.”

Behnke: “Mr. Shambrook, can you elaborate?”

Shambrook: “I certainly can, your honor, yes. I need to cross-examine the witness before, and let the prosecution rest, before I explain what my legal argument is.”

Behnke: “You can withhold your legal argument, but I need to know whether your motion is aimed at the Field Sobriety Tests or the blood draws.”

Shambrook: “It is not. Neither of those am I going to ask, your honor.”

Behnke: “So now what you’re talking about is the fruits of the stop. Is that correct?”

Shambrook: “Yes, your honor. It’s the fruits of the stop and its procedures. I’ll say no more. And if I may continue for just a few minutes, I’ll be done with the gentleman.”

Behnke: “Go ahead.”

Shambrook: “You remember the client, Mr. Galloway?”

Dabbs: “Mr. Galloway?”

Shambrook: “Galloway.”

Dabbs: “Just from reading the report.”

Shambrook: “You have no personal recollection today?”

Dabbs: “No.”

Shambrook: “Your honor, the gentleman has no personal recollection.

Behnke: “Okay. Fine. Is that all you have?”


It was not all Shambrook had. Like a stage magician pulling a long chain of handkerchiefs out of his sleeve, the naturalized Brit barrister began a surprising series of questions.

Shambrook: “Is it true that you took over an enforcement stop made by an officer of the Tribal Police?”

Dabbs: “Yes.”

Shambrook: “Is it true that Mr. Galloway was weaving, contrary to California Vehicle Code 21658, and crossing the double yellow line, contrary to Code 21460?”

Dabbs: “Yes. He mainly told me the vehicle was weaving.”

Shambrook: “Contrary to California laws?”

Dabbs: “Well, yes.”

Shambrook: “Is it a violation to weave within the lane, not crossing the lines?”

Dabbs: “It’s been deemed that it’s reasonable suspicion to stop someone and evaluate them for driving under the influence.”

Shambrook: “That’s not the question I asked.”

Dabbs: “There’s no law that says you cannot weave within your lane.”

Shambrook: “Was there any unsafe traffic — was there any other traffic on the road?”

Dabbs: “I wasn’t there so I don’t know.”

Shambrook: “Did the tribal officer describe the weaving in detail?”

Dabbs: “He just briefly informed me he stopped the vehicle for weaving.”

Shambrook: “Do you know if this road is a California road?”

And in walked Officer Salisbury, the tribal policeman.  Shambrook wanted Salisbury out of the courtroom so he couldn’t hear Dabb’s testimony and adapt his own testimony to make the stories conform. But Madow moved quickly to name Salisbury as his investigating officer to keep him in the courtroom.

Everyone except the weaver, the suspected DUI, the defendant, was now present.

Shambrook: “I’ll continue your honor. Is this a California road?”

Dabbs: “It’s a road that’s open to the public.”

Shambrook: “Yeah, but is it a California road?”

Dabbs: “I guess I don’t understand the question.”

Shambrook: “Is it maintained and operated and the signage and all of these things done by a California legal agency?”

Dabbs: “I don’t know which agency maintains it.”

Madow: “Objection. Relevance.”

Shambrook: “He’s weaving around lines, your honor.”

Madow: “But he [Dabbs] did not observe this.”

Behnke: “I’m just going to let the question and the answer stand.”

Shambrook: “Thank you, your honor. Did the officer suggest to you that he was handing over someone who was arrested by him?”

Dabbs: “Not when I came in contact with him. I was the one that placed him under arrest.”

Shambrook: “So what was his legal position when the hand-over was made?”

Dabbs: “I believe he was detained at that point.”

Shambrook: “Detained by who?”

Dabbs: “The officer that stopped him.”

Shambrook: “And he’s an officer, is he [Salisbury] a peace officer under California law?”

Dabbs: “I’m not sure how the tribal police stand in that sense.”

Shambrook: “Did you Mirandize the client at any time?”

Dabbs: “No.”

Madow: “Objection. Relevance.”

Behnke: “I’d sustain that. How would that affect the stop? You’ve limited your challenge to the stop; the stop was done by a different officer.”

Shambrook: “Everything this officer has done, it was — to cut to the chase, your honor?”

Behnke; “Cut away, Barrister.”

Shambrook: “The police officer Salisbury is a Coyote Valley tribal officer. He’s not a peace officer under California law; therefore, he can only do a citizen’s arrest. In a nutshell, the citizen’s arrest is an arrest. When it’s passed over to this gentleman [Dabbs] the arrest passes over with it. When he — if he doesn’t Mirandize him [DUI suspect Galloway] and he does ask questions, he’s in contravention of Miranda.”

Behnke: “How would that affect the stop?”

Shambrook: “It makes everything after the stop illegal, suppressable.”

Behnke: “Finish your questioning of this officer, if you will.”

Shambrook: “It was your impression that the officer was a police officer, is that correct?”

Dabbs: “Yes.”

Shambrook: “I’ve finished, your honor.”

Behnke: “Redirect?”

Madow: “No.”

Behnke: “Call your next witness.”

Madow: “Officer Greg Salisbury.”

Madow went through Officer Salisbury’s credentials and details of the stop. We learned that the roadway, Coyote Valley Boulevard, is managed and maintained by the Bureau of Indian Affairs, and that Officer Salisbury is not cross-deputized — that his powers stop at the borders of the reservation. Then it got interesting.

Shambrook: “Do you see Mr. Galloway in court?”

Salisbury: “It’s been since September. I couldn’t recognize him. I see a lot of faces.”

Shambrook: “Do you remember the incident?”

Salisbury: “As far as my report, that’s the only thing I recollect about it. It’s been since September. I remember bits and pieces of it, but not the whole thing.”

Shambrook: “If Mr. Galloway had not stopped, what would you have done?”

Salisbury: “I would have pursued him to the end of the reservation, and because he was under the — or at the time seemed to be under the influence — I would have stayed behind him and contacted CHP and had them take over.”

Shambrook: “What are your powers to stop a search and seizure that are conferred on you by the tribe?”

Behnke (to Salisbury): “He wants to know if you can arrest somebody for perceived driving under the influence on tribal land.”

Salisbury: “Our policy is that anyone who is perceived to be driving under the influence we contact California Highway Patrol.”

Shambrook: “Did you perceive him to be driving under the influence?”

Salisbury: “Yes. I did.”

Shambrook: “Was he free to leave when you stopped him?”

Madow: “Objection. Calls for a legal conclusion.”

Behnke: “Well, it goes to whether or not he was detained. So the officer knows that. Overruled.”

Salisbury: “No, he was not free to leave. I hadn’t turned off my emergency lights yet.”

Shambrook: “And Mr. Galloway was in your custody for about 20 minutes before the CHP arrived, is that correct?”

Salisbury: “He was sitting inside the vehicle he was driving still.”

Shambrook then asked a series of questions about speed bumps and how fast Galloway was going and after a while Madow objected to the relevance.

Behnke: “You didn’t stop him for speeding, you stopped him for crossing the double yellow line and for weaving… But [turning to Shambrook] isn’t the point of your motion that you do not believe a tribal officer can detain someone for allegedly driving under the influence?”

Shambrook: “No, your honor. It’s that he’s not a peace officer under California law. He’s enforcing a California law on a road that’s not a California road; it’s a federal road. He is not capturing him for a federal offense; he’s not capturing him for a tribal offense; he’s capturing him for a California offense.”

Behnke: “Okay.”

Shambrook: “I’m making my argument instead of asking questions. I appreciate the opportunity to talk.”

Behnke: “That’s fine. Most lawyers do. I guess my opportunity is not only to listen, but also to figure out whether there’s a legal basis to object to either the stop by the officer or to the detention. And I get that it’s on tribal land. But isn’t your argument one that you have some legal authorities on?”

Shambrook: “Yes. It is in fact that he’s not a peace officer. Therefore, he’s a private citizen making a citizen’s arrest. It’s not a California road, so therefore, the rules that apply to yellow lines do not occur.”

Behnke: “That’s a legal argument which eventually I’ll ask you both to submit in writing. As I see it we have a situation where a tribal officer detained the defendant on tribal lands. We have limited the scope of this motion to whether it’s a valid stop. I’ll agree that the officer stopped him for violating the vehicle code, both California and tribal, by crossing the double yellow lines and weaving. Mr. Galloway — not Mr. Venturi — was detained for a considerable period of time, at least 20 minutes, until the CHP officer arrived. So, if that’s unlawful conduct, okay. You can convince me by citing case law or authority. And, Mr. Madow, you can convince me to the contrary by citing case law and authority.”

The matter was submitted in writing, and on April 16th Judge Behnke ruled that the tribal officer was within his rights to stop and detain Galloway, so the motion to suppress was denied. The judge added a caveat, however, saying that due to the fact that investigator Venturi had been identified as defendant Galloway by CHP Officer Dabbs, and tribal officer Salisbury couldn’t remember what the defendant looked like either, the case looked like it was headed for a plea deal.

Shambrook went ahead on an assumption of a jury trial, indicating that the case would probably be resolved before it came to that. Whatever Galloway is paying Shambrook, he's getting his money's worth.

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