A. INITIAL INVESTIGATION
Deputy Spencer has been a peace officer for 15 years, including 9 years as a deputy sheriff for the County of Los Angeles. He has been a narcotics detective since late 1989. He has no prior shooting incidents arid has a clean service record. Deputy Cater has been a peace officer for 9 years and has been a narcotics detective since early 1990. He also has no prior shooting incidents and has a clean service record.
Spencer states that on November 19, 1991, an informant told him that Frances Plante was frequenting the Malibu area and acting suspiciously. The informant stated that Plante had a big wad of $100 bills, paid for small purchases with $100 bills, and tipped heavily. Spencer states that the informant gave him the license number of the. BMW Plante was driving, which Spencer states was registered to Donald Scott at the Trails End Ranch. Spencer states that since he was unable to find an address for the Trails End Ranch, he merely filed away this information. However, we found that the vehicle was registered to a Nevada Corporation associated with Plante, with a post office box in Malibu, and cannot determine how Spencer traced the vehicle to Scott at the Trails End Ranch.
In September, 1992, Spencer received information from a second confidential informant. The second informant stated that 3,000 to 4,000 marijuana plants were growing on a ranch on Mulholland in Malibu occupied by Frances Plante and Donald Scott and that Anthony Tomkiewicz was involved in the cultivation. The informant also said that Frances Plante made statements indicating that she had personal knowledge of growing marijuana. Spencer received information from another law enforcement agency that the informant was reliable and had assisted law enforcement in the past.
Spencer obtained information from the federal Drug Enforcement Administration (DEA) regarding Frances Plante and her associates" involvement in negotiations to smuggle and sell heroin in 1988 and 1990.
Spencer learned that the Trails End Ranch was owned by Donald Scott and was located in the County of Ventura. However, the road leading to the property is in Los Angeles County and the phone at the ranch has a Los Angeles County area code (310). Emergency phone calls (911) from the property are directed to the Los Angeles County Sheriff.
B. NATIONAL PARK SERVICE VISIT
The ranch is adjacent to the Santa Monica Mountains National Recreation Area, which is administered by the National Park Service (NPS). On August 11, 1992, Park Superintendent David E. Gackenbach received a telephone call from Plante complaining that hikers in the park were throwing rocks into the waterfall at the ranch. She asked to meet with him and requested he bring a six pack of beer when he came. On August 13, Gackenbach and NPS Ranger Mike Maki met with Scott and Plante at the ranch in response to the complaint. All four hiked to the waterfall. Although Maki and Gackenbach had no reason to look for marijuana at that time they, did not notice any on the property. Plante had Scott display his "chrome-plated, engraved six shooter." Plante started twirling it in her hand. Scott took the gun from her and admonished her not to play with a loaded gun. Gackenbach states that the meeting was friendly and cordial and that Scott invited him to return to examine some Native American sites on the property. Maki states that Plante invited him to return to the property.
C. ARRANGING THE AERIAL SURVEILLANCE
On September 9,1992, Spencer phoned NPS Ranger Tim Simonds. Los Angeles County narcotics detectives had worked with Simonds as part of a Marijuana Eradication Task Force, and Spencer thought that Simonds could assist in the investigation with maps and other resources. Simonds told Spencer about the August 13 visit by the National Park Service employees.
The next day, September 10, Spencer, Deputy John Cater, and Deputy Dave Valentine hiked to the top of the waterfall overlooking the ranch. They could not see any marijuana from that location. Spencer then discussed the case with Los Angeles Sheriffs Sgt. Larry M. Boyce and National Park Service Ranger Tim Simonds. They then agreed that they should conduct aerial surveillance of the property.
On September 10, 1992, Simonds arranged for the California Air National Guard to fly over the ranch in an RF-4 jet and take photos between September 13 and 19, 1992. Simonds has informed us that the National Park Service is part of Operation Alliance, which is a marijuana eradication project that can utilize the Air National Guard for aerial photography.
From September 14 to 16, 1992, Spencer attended a course on thermal imaging and indoor marijuana cultivation in South Lake Tahoe. The instructor was DEA Special Agent Charles A. Stowell. Stowell has extensive experience in recognizing marijuana from the air. He states that he can identify marijuana because it has a color not found anywhere else in nature. As the Deputy Incident Commander for the California Campaign Against Marijuana Planting (CAMP), he wanted to achieve a better working relationship between DEA and the Los Angeles Sheriffs Department (LASD).
While in South Lake Tahoe, Spencer and Los Angeles Sheriffs Sgt. Robert W. Mueller told Stowell that an informant told them that approximately 3000 plants were being cultivated in a remote ranch in Malibu. They agreed to meet on September 22 to discuss the case further.
On September 22, 1992, Stowell met in Whittler with members of the Los Angeles Sheriffs Department, DEA and the U.S. Forest Service. No National Park Service employees or Ventura County officers were present.
Ranger Mike Alt and Special Agent Laurel Pistel, both of the U.S. Forest Service, were present at the meeting. Pistel states that she was invited by LASD Sgt. Mueller, arid that she believed the purpose of the meeting was to discuss a prior marijuana case that the Forest Service and Los Angeles Sheriffs Department had worked together. While in attendance, she learned that the meeting involved the Trails End Ranch. She states that she did not hear asset forfeiture discussed at the meeting.
At the meeting, Spencer displayed the aerial photographs of the property taken by the California Air National Guard. However, Stowell stated that he could not identify cannabis plants because the photographs were in black and white.
In his report, Stowell states that the photographs show an "illegal water system" at the property. Forest Ranger Mike Alt stated that it appeared that the water may have come from the National Recreation Area and if so, could be illegal. He said that fact would allow the Forest Service to enter the land, but only if the National Park Service requested their assistance.
We obtained enlargements of the Air National Guard photographs. The only "water system" that can be seen is a pipe leading from the waterfall to a water tank, which supplies the water to the area where the buildings are located. The vegetation shown in the photographs is extremely dense, and no cultivated plants or foot paths can be identified.
At the September 22 meeting, Spencer stated that LASD intended to get a search warrant for the ranch and requested DEA assistance. Stowell recommended that the area be reflown to confirm that cannabis was growing there. In a report he prepared after the shooting, Stowell stated that it was decided at the September 22 meeting that ground surveillance would be initiated to confirm the results of the overflight. LASD Sgt. Mueller arranged for LASD Deputy David Kitchings to fly his privately-owned, fixed-wing aircraft over the property with Stowell the next day.
D. D.E.A.- OVERFLIGHT
On September 23, 1992, Kitchings and Stowell flew over the ranch for approximately 10 minutes. Stowell reported that he did not see any marijuana until the third "orbit" over the ranch, when he saw approximately 50 marijuana plants, located approximately 75 yards southwest of an outbuilding on the property. He stated that the plants were at staggered elevations, and had light underneath them. The plants were approximately 25 yards north of and parallel to a dirt road in line with the main residence-. He also described the location as being directly in line with the barn and out approximately 75 yards. Stowell checked the remainder of the property but did not locate a large d cannabis cultivation site. He stated that if there were 3000 plants on the property, they were well hidden or were in an outbuilding. Kitchings then conducted aerobatics to lessen suspicion that they were conducting surveillance.
Stowell had a camera in the plane during the September 23 flight but stated that he took no photographs. Stowell and other narcotics officers state that the usual procedure is to take photographs. A review of published cases involving overflights indicates that photographs are frequently attached to the search warrant affidavit. Stowell stated that he should have taken photographs, and could not explain why he had failed to do so (however in two reports, Stowell states that he was able to "rephotograph" the location in an October 5 flight over the Property).
Stowell told us that he was flying at an altitude of at least 1000 feet and was not using binoculars because binoculars make him feel sick.
Spencer was on the ground one or two miles away on Mulholland Drive. Stowell contacted Spencer via radio during the September 23 flight and by telephone after they landed. Stowell stated that he had seen approximately 50P plants, disbursed in an unusual manner; and told Spencer that he had enough information for a search warrant. Stowell said that he did not believe that there were anywhere near 3000 plants present and that there did not appear to be enough space available for a garden that size. In a later interview by Ventura Sheriffs Detective Pat Buckley, Stowell said that he told Spencer to not be discouraged because more plants might be hidden using sophisticated methods.
Stowell states that while flying back to Sacramento, he thought about what he observed. He was unsure about the way the plants were distributed because he had never seen anything like that before. In a written statement, Spencer states that Stowell told him that he, Stowell, was concerned about the discrepancy between his observations and the informants statements and advised Spencer not to formulate a search warrant until Spencer took "further steps to eliminate the discrepancy.
On September 24, 1992, Stowell contacted LASD Sgts. Mueller and Boyce and recommended or requested that a ground team verily the results of the overflight. Stowell states that his reasons were that the cannabis plants had an unusual disbursement in trees near a drainage, appeared to be 3 to 4 feet in height, and had an unusual hollow or empty space below them. He stated that the plants were "spiked," which means that they were planted late in the season to create a thinner, less bushy plant. He also stated that he was concerned that he had only seen approximately 50 plants but that the informant had said there were 3000 plants. Stowell told Mueller and Boyce that he did not want to be used as a source for the search warrant based only on his observations.
E. BORDER PATROL SEARCH
At the meeting of September 22, Forest Ranger Mike Alt suggested that a reconnaissance team go onto the property to look for the marijuana and stated that a team could be ready within 24 hours. Alter the aerial surveillance by Agent Stowell, Spencer asked Alt to put the team together.
On either September 22 or 23, Alt contacted the U.S. Border Patrol in Bakersfield and asked that the Border Patrol"s "C-RAT" team assist the Forest Service with reconnaissance on the property. On the evening of September 24, 1992, Alt met at the Sheriffs Department with four members of the Border Patrol, along with Sergeant Boyce and Deputies Cater and Spencer. Border Patrol Agent Erik P. Dubbe was the commander of the mission, which the Border Patrol called "Operation Malibu." The Border Patrol agents were outfitted with climbing gear, cameras, weapons, and other equipment. They all then went in a Sheriffs van to the area of the ranch.
Dubbe"s report states that they were provided with photographs but not maps. At states that they were shown black and white aerial photographs (presumably the photographs by the Air National Guard) and were shown the area in which Stowell had made his observations. However, Deputy Spencer states that he did not have any photographs to show them because he had given the photographs to another deputy to plan a possible SWAT approach to the property. According to Spencer, the team was dropped off at approximately 9:00 p.m. at a dirt road.
The Border Patrol agents hiked toward the area where the marijuana was said to be growing. Alt did not feel he could search because he had not received permission from the National Park Service, so he waited on a mountain southeast of the target area. The Sheriffs deputies waited nearby in the van. Dubbe states that the terrain was difficult and required use of the specialized climbing equipment they had. He states that they left the area because the terrain we too dangerous to proceed further.
A letter from Border Patrol Chief Patrol Agent W. L Bonnette, Jr. states that the reconnaissance occurred at approximately 11 p.m. on September 24. He states that because of steep terrain and thick underbrush, the team we able to travel only approximately 300 yards from their drop off point, which was about half a mile from the nearest building. Bonnette states that Ranger Alt told them they would be on federal land. However, Alt states that he told them it was private property.
The agents left the area at some point between 12:30 and 3:00 a.m., September 25, and returned to the Sheriffs * station.
At some point between 5:00 and 6:00 a.m. the same morning, they returned to the area of the ranch and tried again. Dubbe states the same routes were used during the second attempt This time, as the Border Patrol agents got close to the residence, the dogs began to bark. According to Spencer, the Border Patrol agents said that four rottweilers were barking and charging. They left the property at some point between 7:30 and 10:00 a.m. Spencer reports that Border Patrol agents got close enough to the residence to see the chimney, and may have estimated their distance from the residence at 150 feet.
Chief Patrol Agent Bonnette writes that for the second attempt, the team was dropped off at a point where the road came close to the creek bottom, approximately 1/2 mile from the nearest building. He writes that they proceeded up the creek bottom until they were able to observe the nearest building about 300 meters away.
Spencer states that he is not sure exactly what area the Border Patrol searched. He states that at that point, he still believed the marijuana was growing on the ground and that to the best of his knowledge, the Border Patrol-was only looking for marijuana on the ground and not in the trees. He states that they reported that they did not cover all of the property, but were confident they did not see any marijuana plants in the areas they covered. He also states that the Border Patrol reported that it was extremely unlikely that 3000 plants were present.
When we visited the ranch after the shooting, we found the dogs to be friendly and docile. Frances Plante states that several times in September, the dogs at the residence were barking continuously during the night, and that this was most unusual. The Border Patrol entries described above may account for some of this barking. She also states that one dog had its head split open during this period, and that the injury appeared to be caused by a person. It is not known whether the Border Patrol activities caused this injury
The Border Patrol has refused to allow us to interview its agents regarding this case. The written materials they have provided are contradictory and inconsistent as to times and are uncertain as to locations. As a result, we have been unable to determine the exact area that they searched.
On September 30, 1992, Spencer phoned Stowell and said that the ground team had been thwarted by dogs and was unable to complete its mission. Spencer said that he then spoke with the informant, and the informant said the expected yield was only approximately 40 pounds of marijuana and that the plants were suspended in the trees by "block and tackle." Stowell said that this would explain the unusual disbursement and the light beneath the plants. Stowell has seen photographs from other cases of marijuana plants suspended in trees. Stowell and Spencer agreed that 40 pounds would be the expected yield for 40-50 plants. Stowell told Spencer that the marijuana could be harvested at any time.
Stowell noted in a report that "it was not until I received the above information from Spencer that I consented to allow my observations as part of his affidavit. That is NOT to say I was unsure, as I had seen the plants, but 50 is a long way from 3000 and I felt we could locate the rest of the plants as well.
Spencer talked to the informant after the shooting. He states tin the informant did not recall making the comment about 40 pounds being the expected yield.
We also interviewed the informant after the shooting. The informant denied ever saying anything to Spencer about a 40 pound yield or any other amount of marijuana on the property less than thousands of plants. However, the informant made statements to us which indicated that before the shooting, Plante acknowledged that plants were growing in the area. It is not clear that Plante was referring to plants at the Trails End Ranch.
On October 5, after the shooting, Spencer told Stowell that the informant may have been talking about a different piece of property located on Mulholland, which Spencer described. It is not clear when the informant would have made the statements upon which Spencer based this conclusion. As best we can determine, the information from the informant was always that the marijuana was growing on both Scott"s property and on other property.
On March 4, 1993, Spencer phoned our office and stated that he had found a note of a conversation with the informant which documented the statement about 40 pounds. We obtained a copy of the note, which contains names, phone numbers, doodlings and other information. Spencer explained that the note contained information from at least two different conversations with different people regarding the case. The note includes "$3000 lbs" and directly next to it, "40 lbs." We are unable to confirm when this note was written.
G. FISH AND GAME AND COASTAL COMMISSION
On September 25, 1992, California Coastal Commission Program Analyst Mark Capelli and Fish and Game Warden John Wilcox went to the stream at the Trails End Ranch to check out objects which had been dumped into d the stream below the ranch and to do a stream survey. Capelli was in plain clothes and Wilcox was in uniform.
They started hiking up the stream from Mulholland. When they were approximately 100 to 150 yards from the residence, the dogs started barking. They report that Mrs. Scott was initially agitated and irate that they were on the properly, but -later calmed down and even served them refreshments and invited them and their families to return. Mr. Scott was calm and receptive to their being there to protect the creek and the environment. It appeared that Donald Scott was having trouble seeing, and he said that he had undergone eye surgery two or three days before.
Neither Capelli nor Wilcox were aware of any drug investigation and did not observe anything which appeared to be marijuana. Wilcox observed a large water tank on a hill with many irrigation pipes running down from it. Mrs. Scott insisted on accompanying Capelli and Wilcox on the ranch, and escorted them down the road until they were off the property.
During our interview of Frances Plante, she stated that Capelli and Wilcox had come up the creek to the area near the creek house. She stated that she yelled at them, "Get out of here, you"re on private property and you"re trespassing." She stated that Wilcox said he had a badge and could go wherever he wanted and then put his hand on his gun. She stated that things calmed down when Donald came out. She said that the officers claimed they were doing a steelhead trout survey but that Donald pointed out that there was no water in the creek.
There is no evidence to suggest that the visit by Fish and Game and the Coastal Commission was related in any way to the drug investigation.
H. UNDERCOVER THREAT ASSESSMENT
On or about September 22 or 24, 1992, LASD Sergeant Bill Marsh met with Spencer regarding possible SWAT entry on the house during execution of the search warrant. NPS Ranger Maki was contacted because he had been on the property in response to the complaints about rocks being thrown, and because Plante had invited him to return. Maki phoned Plante and made arrangements to meet on the property on the pretext of Marsh wanting to buy a puppy.
On or about September 27, 1992, Marsh went to the ranch with Maki. Maki reports that they were greeted by Scott and Plante, both of whom were friendly. They walked up to the falls and -several other areas, and Scott went up a hill to show them an old generator. It did not appear to Maki that Scott was having any difficulty with his vision on that date.
Marsh reports that Plante gave them a tour of the property near the waterfall. Marsh said he did not see any of the remote areas on the ranch. Marsh describes Scott as nice but smelling of alcohol. Scott told Marsh that two Fish and Game officers had been on the property and said they were doing a fish count in his stream and ponds. He also said that he was shown a badge, but he didn"t really trust them.
Plante said that Scott was good with a gun. At Plante"s urging, Scott gave a demonstration of his expertise in quick-drawing using an engraved, chrome-plated .45 caliber revolver.
Marsh told Spencer that he felt the threat from the Scott"s was minimal and that SWAT would not be necessary. Marsh drew a diagram of the property and wrote on it "Dogs are friendly." He said that the threat was so low that they could just drive up to the house, and the Scott"s would let them inside.
I. OBTAINING THE SEARCH WARRANT
On October 1, 1992, at Spencer"s request, Ventura County Municipal Court Judge Herbert Curtis III issued a search warrant for the Trails End Ranch. Pursuant to Ventura County practice, Spencer first presented the warrant and supporting documents to a Ventura County Deputy District Attorney for review. Because no prosecutor assigned to search warrant duty was available, Deputy District Attorney John Vanarelli agreed to review the affidavit.
The search warrant was based upon an affidavit signed by Spencer which incorporated a Statement of Probable Cause. The Statement, typed in capital letters, related Spencer"s training and expertise regarding drug offenses, followed by the following:
On September 23, 1992, your affiant, Gary R. Spencer (hereafter referred to as "I" or "me") spoke via telephone to Charles A. Stowell, who is known by me to be a special agent employed by the United States Drug Enforcement Administration, and who had previously provided me with an affidavit detailing his experience and expertise (See Attachment #1).
Agent Stowell told me that today while conducting cannabis eradication and suppression reconnaissance he was flying over the Santa Monica Mountains in a single engine fixed wing aircraft. While abiding by F.A.A. regulations and using binoculars Stowell noticed that marijuana was being cultivated at the Trails End Ranch 35247 Mulholland Highway in Malibu.
Specifically Agent Stowell saw approximately 50 plants that he recognized to be marijuana plants growing around some large trees that were in a grove near a house on the properly. While Stowell was still in the air I was able to verify from the ground that the location the marijuana plants were growing in was the Trails End Ranch.
I recalled that approx. 1 year ago I received anonymous information that a woman named Frances Plante was seen in the Malibu area driving a silver or gray BMW with Nevada lic plate #211CUJ. Suspicion was aroused when Plante was seen flashing a very large bundle of currency and paying with $100.00 bills for very small purchases. When I checked the license number, I learned that it was registered to Donald Scott, Trails End Ranch, in Malibu. (Please see Attachment #2)
I went to the Ventura Co. Tax Assessors Office and learned that the property at Trails End Ranch has been owned by Donald P. Scott since 1969 with no subdivisions or changes of ownership since then. Although the entrance leading to the properly is in Los Angeles County and has an L.A. County post office address, the entire ranch is in Ventura County.
Based on the above it is the opinion of your affiant that marijuana under cultivation will be found near the house at the Trails End Ranch and an authorized search of the ranch and buildings will yield those plants and evidence of their cultivation and preparation for use or sale.
Attached to the Statement of Probable Cause were a summary of Stowell"s training and expertise and a computer print-out of Scott"s drivers license information. The statement did not give a particular altitude of the flight. No reference was made to the visit by the National Park Service on August 13, Spencer"s attempt to view the property on September 10, the Border Patrol entries, or Marsh and Maki"s visit on September 27.
Neither the Statement of Probable Cause nor the attached documents made any reference to information from the second informant. Spencer told Deputy District Attorney Vanarelli that an informant corroborated that marijuana was being cultivated on the property. Even though Stowell had only reported seeing approximately 50 plants, Spencer told Vanarelli that Stowell had seen between 50 and 100 plants on the property and that Spencer therefore expected to find approximately 50 to 100 pounds of marijuana on the property. With reference to the information from the informant, Spencer did not indicate that any particular quantity of marijuana had been reported. Spencer said that he did not want to mention the informant in the search warrant affidavit because he felt it might endanger the informant. Spencer earlier had told Stowell the same thing. Vanarelli agreed that it was unnecessary to mention the informant because Stowell"s observations constituted sufficient probable cause for issuance of the warrant.
Vanarelli felt that two issues needed to be clarified in the Statement of Probable Cause. First, there was nothing to establish that the marijuana was being cultivated as opposed to growing wild. Second, there was nothing to indicate how close the marijuana was to the main house. In order to address these issues, Spencer made the following handwritten addition to the Statement of Probable Cause:
Upon further inquiry, Agent Stowell told me that the marijuana plants he saw growing would be found if I walked from the house toward the barn and then continued in the same direction past the *barn for approx. 75 yards. He added that the plants appear to be suspended from the large trees. 1 recognized this method as one occasionally used to hide cultivated marijuana from casual aerial detection or infrared photographic detection. *The barn appears to be 30-50 yards from the house, with automobile parking and a dirt road between the two structures.
After Vanarelli approved the affidavit, Spencer presented it to Judge Curtis, who issued the search warrant. Judge Curtis states that he checked to make sure that the warrant had been approved by the district attorney"s office, and since it had, felt that he could rely on Spencer"s representations.
Judge Curtis reports that about a week after he signed the warrant. Spencer returned to the judge"s chambers to talk to him. Spencer apologized and said that he knew that no judge wants to sign a search warrant that results in someone being killed. Spencer assured Curtis that everything contained in the warrant was true. He showed Curtis some maps and charts and discussed the unsuccessful attempts to verify the presence of marijuana from the ground before the warrant was issued.
J. PERSONNEL AND PREPARATION FOR SERVING WARRANT
At 7:00 a.m. on Friday, October 2, 1992, the officers who were to serve the search warrant gathered at the Los Angeles Sheriffs Malibu Station and were briefed. Present were 30 law enforcement officers (l3 from the Los Angeles Sheriffs Department, 5 from the Los Angeles Police Department canine unit, 3 from the National Guard, 3 from the National Park Service, 2 from the U. S. Forest Service; 2 from the California Bureau of Narcotic Enforcement (BNE), and 2 from the federal Drug Enforcement Administration). A list of persons present is attached to this report,.
In addition, two researchers from the Jet Propulsion Laboratory (JPL) in Pasadena were present. They state that they were there to conduct research. Los Angeles Sheriffs Sergeant Robert W. Mueller invited them to be present when the warrant was served. One of the researchers was a reserve officer for the Los Angeles Police Department, d but was at the scene on behalf of JPL and not on behalf of the police department.
Two of the Los Angeles Sheriffs deputies were from the asset forfeiture unit. They state that it is customary that forfeiture personnel be notified several days before service of a search warrant and accompany narcotics officers serving the warrant to seize cash and documents which may lead to other assets. The forfeiture deputies in this case were notified a week or less before the warrant was served. As is customary, they did not begin any investigation before the warrant was served.
Spencer states that BNE agents were present as part of CAMP and were assigned to assist with locating and harvesting marijuana plants. Spencer states that the canine handlers were assigned to look for evidence of narcotics hidden in buildings or cars and that the LAPD canine unit was used because Sheriffs canines were not available. An officer with the LAPD narcotics canine unit told us that they brought dogs trained to detect cocaine, heroin, and methamphetamine, as well as dogs trained to detect marijuana. The Los Angeles County Sheriffs Department Shooting Evaluation states that two unidentified Los Angeles County Probation Officers were also present. No personnel from Ventura County Sheriffs Department, which has the primarily law enforcement authority and responsibility for the area, was present or notified that the warrant was going to be served.
The briefing was conducted by Spencer and Sgt. Boyce. According to National Park Service Rangers Bryan Sutton and Tim Simonds, they were told at the briefing that there were weapons in the house, but that no problems were anticipated.
According to Simonds, they were told that the warrant was for the property rather than the people and there would not be a quick entry. Simonds also recalls that a deputy stated that the ranch would be seized if they found 14 or more plants. According to Bureau of Narcotics Enforcement Agent Greg McClung, someone said at the briefing that they would look into seizing the property if marijuana plants were found.
K. KNOCK NOTICE
The personnel from the briefing assembled at the ranch at approximately 8:30 a.m. According to Spencer, it took approximately 5 minutes to cut a padlock on a gate at the edge of the property in order to enter. Plante confirms that the lock was cut.
The "entry team" of five Los Angeles County Sheriffs Deputies went to the front door of Scott"s residence. Spencer was wearing black shoes, olive green pants, an olive drab entry vest with a 3-inch cloth Sheriffs star and "SHERIFF" written across the front in 4-inch yellow letters, and an olive green windbreaker underneath with painted Sheriffs shoulder insignia. Cater was wearing a uniform shirt with patches on both shoulders, an entry vest with a cloth star on the left breast and the Sheriffs emblem on the back, green fatigue pants, black boots and a web belt holster.
Seven officers from various agencies surrounded the barn and garage area down the hill from the residence. Six officers were behind their vehicles on the roadway below the residence.
At approximately 8:35 a.m., Deputy Cater knocked on the front door. Cater states that he beat loudly on the door with his fist and yelled repeatedly, "Sheriffs Department. We have a search warrant. Open the door.
The knock-notice was heard by at least 12 sheriffs deputies and other officers outside the house, including National Park Service Rangers and a DEA agent. These witnesses include entry team members standing at the front door, as well as witnesses who were some distance away from the house. While the witnesses are not identical in exact quotes or sequence of the knock-notice, it is clear that both Spencer and Cater knocked on the door loudly and yelled at least 6 to 10 times some variations of "Sheriffs Department. We have a search warrant. Open the door. Estimates of the duration of the knock-notice range from 60 seconds to 4 minutes.
Spencer states that he saw a crack of light between the door and the jam go black, which indicated to him that someone inside the house was coming forward toward them. it then appeared to Spencer that the person went back inside. Spencer reports that a male officer yelled, "Open the door, ma"am. It"s the Sheriffs: Department," and then said, "She"s going back inside" or "she went back inside.
Spencer states that he went to a window toward the rear of the house and yelled, "Don! It"s the Sheriff! You"re going to have to open the door or were gonna have to break it open!" Spencer states that he was constantly calling Donald and Frances" names, stating they had a search warrant and would have to break open the door if they refused to open it. He heard constant movement in the house and a man"s voice in the house. Spencer told the rest of the team, "Well, let"s go ahead and take it down.
In addition to Spencer, at least seven sheriffs deputies and National Park Service rangers heard a woman"s voice inside the house, and three also heard a man"s voice inside the house.
Deputy Burch states that Spencer went by the window and stated at least twice, "Donald, this is the Sheriffs Department, we have a search warrant, open the door. Open the door. If you don"t open the door, we"re going to knock it down." Sgt. Boyce reports hearing "Open the door we have a warrant, open the door we have a warrant. If d you don"t open it, we"re going to break it in."
Deputy Cater states that he, Cater, yelled out, "Donald, open the door. Sheriffs Department. Frances, open the door.
Frances Plante told us the following: She and Scott had gone to bed at approximately 2 or 3 a.m. They were asleep in bed and were awaken by their 22 dogs barking and the house shaking. She quickly pulled on a pair of overalls, backward, and got up to see what was going on. She does not remember what either she or Scott said. She was putting on a shirt as she walked toward the door. Scott was sitting on the side of the bed in a t-shirt. She believes that he was putting on a pair of pants. She states that she did not hear knocking on the door or anyone say "Sheriff" or "search warrant." She states that she did not know that law enforcement personnel were involved. She saw a man"s face in the window by the front door looking at her and yelling "Let me go first." Another voice replied, "Yeah, let Gary go first.".
Spencer denies that there were statements as to who would go first. He states that the order of entry was determined in advance.
The deputies forced the door open. According to Sgt. Boyce and Deputy Valentine, because the door opened outward, a battering ram was used against a crow bar (which they call a "pick"), and the door opened immediately. Ranger Simonds. who was at least 50 yards away, heard several loud bangs as if the door were being rammed. However, Deputy Spencer says they used the crow bar without the ram.
The entry team then entered the house. According to Sgt. Boyce and Deputy Cater, they entered in the following order: Spencer, Cater, Valentine, Burch, and Sgt. Boyce. (Valentine and Burch report that Burch was in front of Valentine. )
Spencer states that when he entered the house, the following occurred: He did not see anyone and called out, "Sheriffs Department! We have a search warrant!" He then saw Plante come from the living room to the kitchen, buttoning a white blouse. He said, "Sheriffs Department. We have a search warrant. Come out here." Plante hesitated. Spencer repeated, "Come on out." Plante said, "You"re scaring the heck out of me." Spencer stated in a calming voice, "I know." He repeated that they had a warrant and approached her. He grabbed her left wrist and pulled her backward to the team members behind him. She did not yell anything and did not say, "Don"t kill me!" or anything similar.
From at least 50 yards away, Ranger Simonds heard deputies continue to identify themselves in loud, clear voices after they entered the residence and heard a woman"s voice inside the building.
Deputies Cater and Valentine confirm that Plante was walking in the kitchen toward the deputies and that when Plante was passed back to Deputy Burch, Burch searched Plante with her left hand and then passed her back to Sgt. Boyce. Valentine remembers that Plante was talking, but does not know what she was saying. Valentine and Boyce state that Boyce then took Plante outside. Boyce states that he had Plante stand facing wall outside the house, and that they did not reenter the house until after the shooting. Spencer told us that he did not look back to see where Plante went, but is confident that she was not in the living room at the time of the shooting.
Frances Plante said that as she was approaching the door to open it, several people broke through the door, holding guns. She still did not know who they were, and had not heard any statements identifying them as "sheriff" or otherwise. She did not see uniforms at that time, but just focused on the guns, which she described as black and pointed up. She states that she started backing into the living room, screaming, "Don"t shoot me, Don"t kill me." She stated that she was riot moved outside before the shooting, but was standing in the living room when Scott was shot.
M. THE SHOOTING
Deputy Spencer gives the following account of what occurred next: He walked forward to the doorway between the kitchen and the living room. As he passed into the living room, both he and Cater called out "Sheriffs Department, we have a search warrant." He looked to the right into the living room and saw no one. He stepped forward and looked around the door to the left and saw Scott in the doorway on the west side of the living room. Scott was 8-10 feet to Spencer"s left. Scott was holding a gun in his right hand, with his palm and fingers around the cylinder rather than around the butt. Scott"s elbow was at his side with his forearm straight out or slightly up, his hand turned up with the barrel of the gun pointing at a 45 degree angle toward the ceiling. Scott was holding the gun with the barrel pointing upward, as if he were going to hit someone with it rather than shoot it,
Spencer states that he then crouched down on one knee behind the door. He states that he leaned to his right, so Cater could squeeze in and be able to see. Spencer states that he yelled, "Donald drop the gun!" and pointed his Beretta at Scott, Spencer repeated, "Drop the gun! Drop the gun!" This took approximately 4 seconds. Spencer states that he recognized Scott"s gun to be a .38 caliber snubnose with a heavy barrel with a matte finish. Spencer states that he did not verbally identify himself after seeing Scott.
Deputy Cater makes the following statements: As he and Spencer moved through the kitchen toward the living room, they were continuously yelling "Sheriffs Department. We have a warrant. Sheriffs Department." Spencer squatted down at the door on one knee and looked to the left. Spencer shouted, "Sheriffs Department. Stop! Drop the gun! Drop the gun! Donald, drop the gun! Donald drop the gun!" Cater could not see Scott at that time.
Deputies Valentine and Burch confirm that Spencer stopped at the doorway entry to the living room with Cater right behind him. Valentine and Burch were standing side by side in the kitchen, behind Spencer and Cater. Valentine states that Spencer yelled "Drop the gun!" several times, "loud and clear," and identified himself. Burch states that Spencer" yelled two times "Drop the gun," a three second pause, and then said "I said drop the gun!"
Ranger Sutton states that he heard, from 60-100 feet away from the house, "Put the gun down," followed by a one to two second pause. He then heard, "Put the gun down. Sheriffs Department, put the gun down." At least six other officers outside the house, including another park ranger and set. Boyce, heard several commands to drop the
Spencer reports that the following then occurred: Scott slowly rotated the barrel downward and to the right until it was pointed directly at Spencer. As Scott slowly rotated the gun in his hand, he adjusted his grip on the gun so that his finger was on the trigger. Scott was looking directly at Spencer and Spencer was looking down the barrel of the gun. Spencer thought Scott was going to shoot him and was in fear for his own life. The gun was pointed at Spencer"s eye level for almost a second. Spencer went through a mental process as to whether he should shoot or not and concluded that he had no choice but to shoot first to stop Scott from shooting him. Spencer fired a round from his 9mm Beretta. While Spencer was shooting, Cater was standing above him and fired his weapon. Less than half a second later, Spencer fired again,
Caters statement is as follows: He leaned forward, glanced to his left, and saw Scott standing in doorway. Scott was looking at Spencer and Cater, holding the handgun in a conventional grip and was slowly bringing it up from a 45 degree angle. (This conflicts with Spencer"s statement that Scott was bringing the gun down) Cater shouted, "Sheriffs Department, Sheriffs Department," and thought Scott was going to shoot Spencer or Cater. As Scott pointed the gun toward them, Spencer fired a round, Cater fired a round, and Spencer fired a round, in quick succession.
At least ten other officers heard the shots. They most commonly reported hearing three shots, although estimates ranged from two to four shots. Several officers reported a slight pause between the second and third shots. Ranger Simonds estimates that there was a 4 to 5 second pause between the commands to put the gun down and the shots. DEA Agent Youngblood estimates the time from the first knock on the door to the shots as two to three minutes.
According to Spencer, Scott flinched backward, staggered forward, dropped to his knees and fell forward, Spencer states that Scott said something like "You got me," "Oh you hit me" or "Oh God, you shot me." Cater reports that Scott said something like, "Oh God, what have you done?"
Spencer saw blood pouring from Scott"s chest. Spencer squatted down but felt no carotid pulse. Either Burch or Valentine used a flashlight to find Scott"s gun behind the door. Cater called out "Shots fired. Man down. No deputies hurt.
When we interviewed Frances Plante, she stated that she saw Scott enter the doorway of the living room from the hall with his gun pointed straight up in the air. She could not see how he was gripping it because the house was too dark. According to Plante, he said, "Frances, are you all right?" She reports that she was in the living room, between the television and the fireplace. Somebody screamed "Put your gun down" three times. She states that Donald was lowering his gun when she heard three shots. She states that Scott dropped to the ground, saying nothing, and that she saw blood.
This statement is inconsistent with her statement to Ventura Sheriffs Sgt. Fadler less than four hours after the shooting. Fadler asked if Scott had a weapon. Plants replied. "I"ll tell you if he did I"m sure he would have shot them first, if he did." This suggests that Plante did not actually see the shooting and therefore did not know if Scott had a
N. AFTER THE SHOOTING
After the shooting, Spencer remained with Scott"s body while the rest of the entry team checked the house and found no additional people present. Boyce and Spencer recall that Boyce came into the house with Plante, and Spencer told Boyce to take her outside.
An ambulance was requested over the police radio and by phone.
Deputies Valentine and Burch spoke to Spencer after the shooting. He said he was a little slow in responding to the gun pointed at him, arid could have been killed.
LASD Reserve Deputy Reichie and Sgt. Marco watched Plante for approximately half an hour after the shooting. She was seated on the patio; handcuffed and calm. She said something like it"s stupid to grow marijuana on your own property when there"s government land so close. Sgt. Boyce reported that the only thing she complained about were her feet being cold and that she wanted shoes. She was also concerned about her dogs and asked to see the waterfall on the property.
Spencer states that Plante said there was no marijuana present, and that Scott thought they were process servers trying to serve papers on him from his ex-wife. According to Cater, Plante said, "God, he thought you guys were there to serve him papers from his ex-wife." Boyce heard Plants say, "We thought you were here to serve Donald some papers from his ex-wife." These statements are ambiguous as to whether Scott and Plante knew that sheriffs deputies were present or thought they were civilian process servers.
The executor of Scott"s estate, Nicholas Gutsue, told Det. Pat Buckley that Plante said that when she and Scott were getting dressed, Scott was complaining about "those goddamn process servers."
We contacted Scott"s ex-wife, Karen Scott. She states that the last time she had Scott served with papers was in December, 1991. However, around the beginning of September, 1992, she talked to Donald about the possibility of serving him with papers regarding visitation rights.
When interviewed by our office, Plante denied saying that she thought people were there to serve papers. She said that while she was outside after the shooting, someone asked her where the drugs were, and she said, "We don"t have any drugs." He asked where the plants were, and she said, "I"m the only Plante here and that"s my name." She said that a man (presumably an officer of some sort) got on his knees and buttoned her shirt and while doing so touched her breasts.
Initially, members of the Los Angeles County Sheriffs homicide bureau, Los Angeles County Coroner"s Office and Los Angeles County District Attorney"s office responded to the scene. The Ventura County Sheriffs Department was not notified until 9:35 a.m., about an hour after the shooting. Ventura County Sheriffs deputies and personnel from the Ventura County Medical Examiner-Coroner"s office and District Attorney"s office then went to the ranch. Although the Los Angeles County Sheriffs Department said they would conduct the investigation, the Ventura County Sheriffs Department asserted authority over the investigation because the shooting occurred in Ventura County. Ventura County authorities then took over the investigation and the homicide investigators, coroners office and District Attorney personnel from Los Angeles County left the scene. A neighbor of the Scott"s, Patrick Doheny, told a Ventura County Sheriffs deputy that he knew for a fact that Frances had tape-recorded the entire incident, including the shooting. However, Doheny later told us that he had heard only about a tape of phone calls after the shooting. Scott"s attorney, Nicholas Gutsue, told detectives that the Scotts had a tape running during the raid which included orders to drop the gun and the shooting. He said that the sheriff would need a court order to obtain the tape. He arranged to meet detectives to play the tape, but played a tape only of phone calls after the shooting. He denied saying that the tape included orders to drop the gun. No such tape was found during execution of the search warrant, and it seems unlikely that such a tape ever existed.
A transcript of the tape we received is attached to this report. The first call is for an ambulance. The second call is from a neighbor in which Spencer at first states that he is a friend of Scott"s. This was done in compliance with the search warrant, which instructed officers to "answer the telephone and converse with callers who appear to be calling in regards to drug sales and note and record the conversations without revealing their true identity." The third call is from LASD Lt. Dewitt to LASD Capt. Walde.
O. THE SEARCH
After the shooting, law enforcement personnel searched the buildings and grounds for the evidence listed in the warrant. No marijuana was found growing and no evidence was found to indicate that marijuana had been growing or cultivated on the property.
National Park Ranger Simonds states that he searched very thoroughly the area in which Stowell reported seeing marijuana. Simonds described it as very dense, no irrigation pipes, no well-worn trails. He slates that the area is unique in that there are a lot of sycamore trees mixed in with oak trees.
There is a large cable between two trees near the house. It appears that the function of this cable may be to keep the trees from growing into the electric lines above them. No other wires or ropes were seen in the trees.
The return to the search warrant filed with the court indicates that the only property seized consisted of telephone bills, photographs, miscellaneous paperwork, and, inexplicably, a California State Park uniform jacket. The phone bills included calls to Thailand. On advice of counsel, Plante refused to tell us if Scott knew anyone in Thailand.
Seized during execution of the warrant was a 1990 notice from General Telephone which stated that it had received a request from the Drug Enforcement Administration for Scott"s phone record. from June 28,1984 through November 30, 1987.
In a written statement by Spencer, he states that tools such as shovels were missing. Frances Plante told us that there were shovels and other old gardening tools on the property, and we saw such tools on the property during a visit several months after the shooting.
A quantity of old dynamite was present on the property. If officers sew it on October 2, they did not seize it or mention it in their reports. Plante called the county days after the shooting and had it removed.
We looked through the property which Spencer said was taken pursuant to the search warrant and found a cigar box with what appeared to be several marijuana stems, two burnt empty remnants of paper that appeared to be the remains of marijuana "roaches," and some flecks of green material that append to be a minute quantity of marijuana, interestingly, these items were not listed in the deputies" reports or in the return to the search warrant. Neither Spencer, nor Sgt., Marco, who signed the Search Warrant Property Record incorporated into the return to the search warrant, could state who had seized the box or had any idea where it had come from. Sgt. Marco states that he does not list contraband on the property receipt, but only lists property that at some point might be returned to the owner. However, the search warrant return, signed by Spencer under oath as "a true and detailed account of all of the property taken by me pursuant to the search warrant," incorporates Marco"s Search Warrant Property Record as the list of property taken.
Ventura County detectives located three 9 mm casings in the living room. Spencer and Cater each stated that they had 16 rounds in their pistols. Spencer"s weapon and its magazine were examined and were consistent with two shots fired. Caters weapon and its magazine were also examined and were consistent with one shot fired.
Ventura County Sheriffs detectives traced the paths of the bullets, and concluded that one of the shooters must have been about a foot Past the opened door into the living room. One flattened bullet was stuck in the sleeve of a sweater which had been hanging behind Scott next to the door frame. One bullet with a copperjacket was removed from Scott"s back at the autopsy. A silver colored bullet, which appeared to be from an old wound, was removed from his left lower leg. Ballistics tests determined that the two rounds which struck Scott came from Spencer"s Beretta, and that a round removed from the wall was fired from Cater"s Beretta.
Scott"s gun, found on the floor, was a Colt Detective Special revolver which was found to operate properly and was loaded with six .38 special rounds. The ammunition was old and of mixed manufacturing. The round which was under the hammer had a small impact dimple on the primer, which indicates that the hammer was released at a very short distance from the primer with the trigger in the rear position, it cannot be determined whether this dimple was caused on the morning of October 2 or on some earlier occasion. Neither Spencer nor Cater reported that Scott attempted to pull the trigger or cock the hammer at the time of the shooting. Scott"s gun was traced to a friend of Scott"s, who stated that he sold or gave Scott the gun some time in the. 1970"s.
The autopsy of Scott"s body was performed by former Ventura County Medical Examiner-Coroner F. Warren Lovell, M.D. He reported that the decedent was wearing a t-shirt and blue jeans with a belt at the time of death. Dr. Lovell concluded that one bullet entered the right arm and traveled under the skin without actually entering the biceps. It proceeded into Scott"s right side. broke a rib, and lodged in Scott"s back. Dr. Lovell concluded that to match the wounds from this bullet, the shoulder must be pulled down slightly and the arm brought slightly forward and probably rotated slightly outward.
The other bullet entered the right upper chest at a 35 degree downward angle, punctured the aorta and lungs, ran downward at a 15-20 degree angle and exited through the left side of the back. It appears that this is the bullet found in the sweater hanging next to the hallway door.
Analysis of Scott"s blood showed a blood alcohol level of 0.13% by weight. For purposes of comparison, in California, the driver or a vehicle is presumed to be under the influence if his blood alcohol level is 0.08% or higher.
R. ADDITIONAL AERIAL OBSERVATIONS
At approximately 10:30 on the morning of the shooting, U.S. National Forest Ranger Jim Burton and BNE Agent Greg McClung new over the property in a helicopter for approximately 30 minutes to look for marijuana. They new over the property at approximately 250 to 500 feet. McClung spotted one area which he described as questionable as to the presence of marijuana plants, and they descended to 10 feet above the trees. The area was 25 to 50 feet from the area in which Stowell had reported seeing marijuana. McClung directed -several agents on the ground to the area, and they found that the vegetation was ivy rather than marijuana. They did not observe any other suspicious areas.
On October 5, 1992, Stowell and Kitchings flew over the ranch again and Stowell reported that the plants were gone. Stowell photographed the area from the plane. They also flew over the nearby property which Spencer had said the informant may have been referring to. Stowell did not see marijuana on that property either.
A commercial aerial photography company, Pacific Western, does periodic photographic surveys of all of Ventura County. During the preparation of this report, we learned that Pacific Western photographed the area including the Trails End Ranch on September 19, 1992, only four days before Stowell"s original flight. We had enlargements made of the photograph at scales of approximately 200 feet = 1 inch and 132 feet = 1 inch.
Without saying when the photograph was taken, we showed the enlargements separately to McClung and Stowell. Nether could determine whether they showed growing marijuana. Stowell stated that objects in the photograph appeared smaller than what he observed from the plane, and that the photograph was not large enough or close enough to determine if marijuana was present.
McClung stated that one enlargement was similar to what would be seen at an altitude of 1000 feet. He stated that he did not observe any color in the photograph that appeared to be marijuana, but stated that the time of day is important because if the light is not right, marijuana may not be visible in a photograph. Like. Stowell, McClung stated that he does not use binoculars because they make him feel sick- He stated that he can spot marijuana with the naked eye at 1000 feet or higher. He stated that marijuana is not always detected on the first pass over it, but that a "flash" of green can be seen which contrasts with the surrounding vegetation. He also relies upon factors such as the location of the plants in relation to the residence and signs of irrigation systems. He stated that he was trained to take photographs of the suspected marijuana with a telephoto lens, which he would use as an exhibit attached to the search warrant.
We also spoke with Forest Service Ranger Mike Alt. He has spent hundreds of hours doing aerial surveillance for CAMP. He stated that it would be highly unlikely that "spiked" marijuana plants could be seen from the air at 1000 feet, and that to do so would be similar to "seeing a corn dog sticking out of the ground." He stated that the color of marijuana cannot be distinguished from other green bushes and that he always obtains corroboration for his aerial observations before seeking a search warrant.
In March, 1993, we visited the area identified by Agent Stowell and found the vegetation to be dense and the area almost inaccessible. We found no trails leading to the area, which makes it unlikely that anyone was tending plants in that area. The dense canopy of the trees makes it unlikely that any plants growing in them could be seen from the air.
S. INTERVIEW OP PLANTE
Several days after the shooting, Ventura Sheriffs Sgt. Pat Buckley went to the ranch to interview Plante. She was hostile and refused to be interviewed. United States Pretrial Services Officer Michael D. Morgan was present and suggested she contact her attorney. Plante then called a neighbor, Los Angeles County Deputy District Attorney Larry Longo, who advised her not to talk to the detective. When Sgt. Pat Buckley later contacted Longo to ask about why he had given this advice, Longo quizzed Buckley about the investigation.
Alter numerous attempts to set up an interview with Plante, she failed to appear at our office at the scheduled time. The attorneys representing her in her wrongful death case stated that she was too upset from court proceedings that day regarding the validity of her marriage. We later interviewed her at her attorneys" office, where she answered some questions and refused to answer others on advice of counsel. She particularly refused to answer most questions about Tomkiewicz and individuals who have been investigated in connection with narcotics offenses.
Larry Longo was also present at the interview, giving advice to Plante and asking us questions about the investigation. He stated that he was there as a friend of Scott and Plante and not in an official capacity. Longo has also unsuccessfully attempted to be appointed as a co-executor of Scott"s estate. As noted above, Longo earlier had interfered with Sgt. Buckley"s investigation by advising Plante to refuse to talk to Buckley. In our opinion, this course of conduct is unprofessional and incompatible with Longo"s employment as a Los Angeles County Deputy District Attorney. (See Government Code section 26543, which prohibits the district attorney from acting as counsel for a private plaintiff in an action against a political subdivision of the state; Section 55 of the Los Angeles County Charter, which prohibits a deputy district attorney from engaging in the private practice of law; and Penal Code section 148, which prohibits obstructing a public officer or peace officer in the attempt to discharge his duties.)
Frances Plante admitted that Anthony Tomkiewicz was a friend of Scott and was living in the bunk house at the ranch at some time between January 1991 and the shooting. Court records show that in 1974, Tomkiewicz was convicted of possession of marijuana for sale and transportation of marijuana. The conviction was later dismissed pursuant to Penal Gods section 1203.4, which allows the court to dismiss a case after the probation period has been completed. A dismissal pursuant to this section relieves the defendant of certain penalties and disabilities resulting from the conviction but does not purge the defendant"s guilt or obliterate the fact that the defendant was convicted. (Adams v. County of Sacramento (1991) 235 Gal. App. 3d 872, 877-878.) We also obtained records which show that in 1977, Tomkiewicz was arrested in Connecticut for possession of 8 ounces of cocaine and marijuana plants, but failed to appear in court to answer charges.
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