Mr. Meant-To has a comrade,
And his name is Didn’t-Do;
Have you ever chanced to meet them?
Did they ever call on you?
— From The Book of Virtues by former Drug Czar Wm. J. Bennett
Jacqueline and Anthony Witt are Anderson Valley’s reps from glamorous Beverly Hills – Anthony Witt’s father is the celebrity screenwriter Paul Junger Witt.
Late last March the cops called on Mrs. Witt at her Holmes Ranch, Philo, home. They weren't there to talk about movies.
“Hello, Ma’am. We’re the police. What’s the story with all the marijuana plants?”
Witt: “Oh, they’re nothing — just starts.”
Sergeant Bruce Smith: “A plant’s a plant. Do you have a doctor’s recommendation for marijuana?”
Witt: “Yes, it’s in the car with my husband.”
Smith: “How many plants do you have?”
Witt: “I don’t know anything about it.”
Smith: “You’ve grown tons of weed here every year — I’ve flown over and seen it, so what’s the story?”
Witt: “I don’t know, honestly — I don’t even smoke marijuana.”
Smith: “So your doctor’s recommendation is a fraud?”
Mrs. Witt is heard groaning in the realization she’d put her foot in her mouth.
Smith: “What do you do with all this marijuana then?”
Witt: “I don’t know — you’ll have to ask him [Mr. Witt]. I’m kind of freaking out right now.”
Smith: “Well, you must have known this day was coming. What do you do for a living?”
Witt: “I’m an artist. I work in fabrics.”
Smith: “What does your husband do?”
Witt: “He’s a farmer.”
Smith: “What does he farm — besides marijuana, I mean?”
Witt: “I don’t know — we’re going through really hard times right now.”
Mrs. Witt sounded a little like Zsa Zsa Gabor in Green Acres, a 1970s parody of a rich couple who moved from a penthouse to a hardscrabble farmstead. Mr. Witt might be a secretive dude, but a major pot grow out back would be hard for the wife not to know about.
The cops, Sergeant Bruce Smith and Deputy Jeremy Mason, arrived without a search warrant, although they may have meant to, so last Friday, October 30, the case went out the window.
This business of driving up to some hillmuffin’s house and introducing yourself is what law enforcement calls a casual “knock and talk.”
The Witts had enough pot plants to put them in the same income bracket as grandpa down in Hollywood. Mendo’s pot raiders (County of Mendocino Marijuana Eradication Team, COMMET) had flown over the Philo hills and knew the Witts were farming a lot of love drug.
While Sgt. Smith asked about all the plants, his road dog, Deputy Mason, had sniffed around and turned up more weed and some hard drugs, assault weapons and, well, a baby. The Witts could have gone to prison while their first-born was held hostage by CPS for child endangerment.
The Fourth Amendment guarantees us against unjustified incursions into our private lives. The Fourth Amendment indemnifies us against unreasonable search and seizure (please stop, I’m getting giddy!).
One has to wonder what Smith and Mason thought they were doing. No warrant?
Mrs. Witt’s lawyer, Jona Saxby, argued that the initial entry onto the Witt property on March 31st by the officers was a warrantless search conducted in violation of the Fourth Amendment, the fruits of which must be suppressed. That meant all tangible and intangible evidence collected, including the search warrant (which was later obtained through recently promoted Sgt. Peter Hoyle) and any statements Mrs. Witt made to the officers during the encounter could not be used as evidence against the Witts.
On June 9th, Mr. Witt, through his lawyer, Saxby’s husband, Keith Faulder, filed a written joinder in the motion to suppress.
Judge Ann Moorman granted the motion last Friday.
The parties were supposed to be in court Friday to comment on the ruling, but Deputy DA Dan Madow, the prosecutor in the case, couldn’t make it.
“Because his team [Miami Dolphins] lost last night,” DA David Eyster explained. “It’s his day off and he’s probably home crying in his beer.”
As the Witts were leaving the courtroom, Ms. Saxby played a game of charades with her client, Jacqueline Witt, who was separated from her by the milling crowd. She made a pair of half-moons with her hands, moving them together and apart to compress and expand the idea of a circle, or concentric circles. She may even have mouthed the word “target.” Then Saxby turned and reached over her shoulder to indicate a spot on her back between the shoulder blades. Saxby arched her brows to ask whether her client got it.
Mrs. Witt’s elation at having won the case suddenly vanished, as she nodded acknowledgement. Mr. Witt began tugging at his wife’s sleeve.
“What is it,” he asked urgently. “What’s she saying?”
“Come on, Anthony. Let’s go. We’ve got a target on our back.”
What follows is some pertinent excerpts from Judge Moorman’s written ruling.
“The officers did not possess a search warrant … their decision to go to the property and onto it, was without any prior notice or consent. These officers were following up on an investigation. Sgt. Smith testified that the only reason he and Mason were in the area that day was to do an investigation … Law enforcement had conducted three separate overflights and had seen marijuana growing. The most recent had been in the fall of 2014.
“Getting to the Witts’ property is not a casual undertaking. Photographs admitted as Defense Exhibit A show the property located in a remote, marginally populated area of the county. The property is only accessed using unmaintained, dirt roads that take a circuitous route to the Witts’ gate. It is clear from these photographs and Exhibits 1 and 2 that the closest paved road is several miles away. Smith Hills Road itself was described as a dirt road which dead ends just past the Witts’ residence. The closest neighbor was a considerable distance away and all rational inferences from the testimony was that no one had a bird’s eye view into the property either from the road or a neighboring property.
“The driveway used to enter the property had a wooden gate and wooden fencing that extends in both directions to the side of the gate. The materials used prevent anyone seeing into the property in the unlikely event someone is driving by. Even if the gate is open, one can only see a few feet down the driveway…
“Both Sgt. Smith and Deputy Mason testified that they drove into the property and down the driveway to the Witts’ residence. …after driving approximately 800 feet down the driveway, they observed marijuana plants in the rear camper shell of a pickup truck parked near the garage. They also saw marijuana plants growing near the truck.”
The judge then goes on to cite case law, specifically, Florida v. Jardines: When “the Government obtains information by physically intruding … a search within the original meaning of the Fourth Amendment” has “undoubtedly occurred.”
“In Jardines, the Court stated based on the facts before it that the officers were gathering information in an area belonging to Jardines and immediately surrounding his house – in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.”
Judge Moorman quotes Chief Justice Antonin Scalia from Jardines: “while law enforcement officers need not shield their eyes when passing by a home on public thoroughfares, an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. When it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
Moorman notes that “this right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.”
Prosecution had argued that since the gate was open – and it was the Witts’ word against the officers’ that it was open – that the officers had “implied license” to enter the property for a “knock and talk,” just a friendly or neighborly chat.
“In examining whether the officers’ conduct is reasonable in this case, some common sense must be used. In rural areas, where ‘no man can set his foot upon his neighbor’s close property without his leave’ … Missionaries, girl scouts, and door-to-door salespersons would be foolish to think that an uninvited entry onto such property were anything other than plainly rude, culturally unacceptable, and potentially risky.
“Strangers just do not show up at a house so situated. The sheer concept of “private property” in this context means “do not enter.”
“In this case, law enforcement went to the property to further their investigation of marijuana manufacturing … seen from the air … six months previously. On this day the officers only wanted to gain entry to see if they could see marijuana plants. They did not need only special tools, they only needed a vantage point. Unfortunately they acquired their vantage point from within the residential curtilage.
“Even if the gate was open, that did not give the police license to enter given the other indications to the contrary and the purpose of their visit. … The officers here did not possess any new information since the last overflight. There was no testimony that any other investigation had been conducted. They simply were looking for a way to get onto the property to look for plants; but they needed a search warrant for that.”
“Law enforcement conducted a warrantless search within the residential curtilage on March 31, 2015. Their initial observations of marijuana plants as well as all observations made and evidence collected during this unlawful and unreasonable search must be suppressed. Since this information was used to later acquire a search warrant for the same premises, that warrant must be declared an unlawful fruit of that search. All evidence gathered under its authority is suppressed from use in the prosecution’s case in chief. … Suppression of the evidence flowing from this unlawful, warrantless search leaves the court without sufficient evidence to hold the defendants to answer on the charges in the complaint.”
Now the question arises as to droits of the winner – those plants should be ready to harvest by now – will they be returned to the Witts? And what about the other drugs, and the firearms? With the targets on their backs, maybe the Witts don’t really want the stuff back… Maybe they’ll be content to sue for restitution instead.