IV. LEGAL ANALYSIS.

A. BORDER PATROL SEARCH

1. What is the legal authority of the Border Patrol to conduct searches for drugs?

The Border Patrol has the legal duty to enforce federal immigration and naturalization laws. (8 U.S.C. 1225, 1357; 8 C.F.R. 100.2(f), 103.l(q), and 287. 1 et seq.) Federal law authorizes Border Patrol officers to make warrantless arrests based on probable cause for "any felony cognizable under the laws of the United States," but only "if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest." (8 U.S.C. # 1357(a)(5)(B).)

The foregoing was corroborated in a discussion with a Border Patrol legal counselor in Washington, D.C. Following this discussion, on March 9, 1993, we received a telephone call from Deputy Chief Patrol Agent Robert Logazino who is stationed with the Border Patrol in Northern California. He agreed with our legal analysis but stated that the reason the Border Patrol was involved in the search was because a Forest Service agent told them that illegal aliens were suspected of being present on the property searched. He further stated that the Border Patrol was informed by the Forest Service that the area where the Border Patrol incursion was made was federal forest land rather than private property. This was the first time this suggestion had been mentioned and was not in any Border Patrol reports.

Mr. Logazino also stated that all of the Border Patrol agents involved in the search were cross-designated as DEA agents, which would permit the agents to investigate narcotics-related cases on the ranch because it is within 100 miles of the ocean. However, he unequivocally stated that they were not relying upon this authority to justify their entry onto the Trails End Ranch, but were justified by a search for illegal aliens.

We discussed the issue with Forest Ranger Mike Alt, who was the Border Patrol"s contact in this case. He states that during the September 22 meeting in Whittler, someone mentioned that it is not unusual to use illegal aliens to harvest large crops of marijuana. (The Border Patrol was not present at this meeting.) He does not recall any information that there were illegal aliens at the Trails End Ranch and does not recall if he said anything to the Border Patrol about illegal aliens. He states that he contacted the Border Patrol in order to ask their assistance in finding marijuana He states that he told them that the search was on private property. This conflicts with a written statement by Border Patrol Chief Patrol Agent W. L Bonnette, Jr., which states that At made it "very clear that this operation would take place on federal land" and that private property was never mentioned.

We also discussed the issue with Deputy Spencer. He states that at the briefing on the morning of October 2, he said that there might be Mexican nationals on the property to help harvest the marijuana. Of course, this was all after the Border Patrol searches of September 24 and 25. Spencer does not recall hearing anything from the Forest Service about illegal aliens.

Our conclusion is that the recent claim that the Border Patrol was looking for illegal aliens is false. It does not appear that the Border Patrol had any specific information about illegal aliens on the property. Most telling are the Border Patrol"s own reports regarding the search. Border Patrol Agent Erik Dubbe wrote a two-page "Operations Order" outlining what would be done, and a two-page "After Action Report." These documents state that he was contacted by Alt and was asked to gather "evidence that marijuana was being grown on a ranch in the Malibu area." Neither document states that the ranch was on government land, or makes any reference to illegal aliens. We thus conclude that the Border Patrol was looking for marijuana rather than aliens and acted beyond their legal authority in entering the property in this case.

2. Did the Border Patrol entry constitute a trespass?

Trespasses are of two kinds: criminal and civil. The entries in this case would constitute criminal trespasses if the property were posted with signs forbidding trespass at intervals of at least three to the mile along all exterior boundaries and at all roads and trails entering the property. (Penal Code section 602(k) and 602.8(a).) The administrator of the estate, Nicholas Gutsue, told us that not all of the boundaries of the property were posted. We therefore conclude that the Border Patrol agents may not be prosecuted for criminal trespass.

However. the entries constituted civil trespasses. Under civil tort law, a trespass is an unauthorized entry onto the land of another. (Miller v. National Broadcasting Co., (1986) 187 Cal.App.3d 1463,1480.) Every trespass causes at least nominal damage and no special damages need be shown. (Costerisan v Melendv (1967) 255 Cal.App.2d 57, 60.) Since we have concluded that the Border Patrol"s actions are not justifiable under federal immigration law, it is our opinion that their entries constitute civil trespass.

3. Does the Fourth Amendment permit government agents to enter private property to search for drugs?

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. When Border Patrol agents conduct a search on a location other than the border or its functional equivalent, they are governed by ordinary Fourth Amendment restrictions. (United States v Brennan (5th Cir. 1976) 538 F.2d 711, 716 719.) Thus, in addition to the issue discussed above regarding the extent of the Border Patrol"s authority, this case raises the more general issue of whether government agents may enter and search private property without a warrant.

The fact that conduct constitutes a trespass does not mean that it violates the Fourth Amendment. (People v. Ring (1970) 5 Cal.App.3d 724, 727.) Searches of "open fields,"" even those on private property, do not violate the Fourth Amendment. (People v. Freeman(1990)219 Cal.App.3d 894, 901, 903.) An open field need be neither "open" nor a "field" as those terms are used in common speech. A "thickly wooded area"" or any unoccupied or undeveloped area may be considered an open field that is not protected by the Fourth Amendment. (ibid)

A Fourth Amendment violation would occur only if the incursion was made into the area immediately surrounding and associated with the home, which is called the "curtilage" of the property. (United States v. Dunn (1987) 480 U.S. 294, 300.) The court in Dunn (at page 30l)referred to four relevant factors in determining what constitutes "curtilage" :


[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.

Because the Border Patrol he not permitted us to interview its involved agents, we cannot determine with certainty where they went. There were gates on the road, but we do not know where they went in relation to the residence. We therefore cannot determine whether the Border Patrol entered the curtilage in violation of the Fourth Amendment.

We did not attempt to use the grand jury or other means to compel the Border Patrol to provide this information. The reason is that a violation of the Fourth Amendment in and of itself does not form the basis for a criminal prosecution. Thus, while we would have liked to interview the agents to learn better what occurred, it was not critical to our evaluation that we do so.

B. LAND FORFEITURE

1. Did the Los Angeles County Sheriff obtain the warrant in order to obtain Scott"s land?

Simple possession of drugs (other than cocaine base) is not a basis for forfeiture of real property under either California or federal law. However, real property may be forfeited under both California and federal law if used for the manufacture, sale or possession for sale of narcotics. California law does not provide for the forfeiture of real property used to cultivate marijuana. (74 Ops.Cal.Atty.Gen, 70 (1991).) However, real property used to cultivate marijuana may be forfeited under federal law. (21 U.S.C. ~ 881(a)(7); United States v. Tax Lot 1500 (9th Cir. 1988) 861 F.2d 232, cert. denied, 493 U.S. 954; United States v Premises and Real Property at 250 Kregg Road (W.D.N.Y. 1990) 739 F.Supp. 120, 124.) Thus, if marijuana had been found growing on the ranch, the ranch could have been forfeited under federal law.

Property forfeited under the federal statute is deemed to be in the custody of the Attorney General of the United States(21 U.S., ~ 881(c)), but may be transferred to any other federal agency or state or local law enforcement agency which participated in the seizure. (21 U.S.C. ~ 881 (e)(l )(A).) Transfers to state or local law enforcement agencies must bear a reasonable relationship to their degree of direct participation in the law enforcement effort resulting in the forfeiture. (21 U.S.C. ~ 881 (e)(3)(A).) Because the Los Angeles Sheriffs Department was the lead agency in this case, it is likely that it would have received a substantial portion of any forfeited property.

The possibility of forfeiture of the ranch had been discussed before the warrant was served, and deputies assigned to the Los Angeles County Sheriffs drug forfeiture unit were on the property when the warrant was served. We thus conclude that forfeiture was at least one of the motivating factors for obtaining and serving the search warrant. There would have been no legal impropriety in this under existing law if the search warrant had been supported by probable cause. Drug forfeiture laws were enacted to deter crime, punish offenders, prevent continued illicit use of the property, impose an economic penalty to render illegal behavior unprofitable, and reimburse public agencies for the costs of investigating drug offenses. (Calero-Toledo v. Pearson Yacht Leasing Co. (1974)416 U.S. 663, 679, 686 687; Note, Some Constitutional and Practical Considerations of Civil Forfeitures Under 21 U.S.C. s 881 (1987) 9 Whittler L. Rev. 27, 29.) In order to seize and forfeit property under either California or federal law, there is no requirement that an individual be arrested or charged criminally. (People v. Superior Court (Moraza) (1989)210 Cal.App.3d 592.)

We recognize that there is a wide spectrum of public opinion regarding drug forfeiture laws. It is beyond the scope of this report to debate policy considerations as to what the law should be or how such laws should be administered. We limit our analysis to the legality of the conduct under existing law and find no legal prohibition to law enforcement investigations with forfeiture of property as a motivating factor.

There is no evidence that the Los Angeles County Sheriffs Department went to the property with the intent to kill Scott, Or that they killed Scott in an attempt to take his land. If marijuana were growing on the land or some other narcotic offense were discovered for which forfeiture was authorized by law, then the land could have been forfeited. if, as actually occurred, no such evidence was found, than the land could not be forfeited. In neither case would Scott"s death permit the government to seize land that it could not otherwise seize.

2. Did the National Park Service orchestrate the investigation or killing in order to obtain the land?

The United States Department of the Interior performed an administrative inquiry into the involvement of the National Park Service in the case, Based upon our review of the report of that inquiry and the other evidence in this case, we conclude that the National Park Service did not instigate the investigation, search warrant or shooting as a means of acquiring land. Instead, the Park Service played a relatively minor role at the request of Los Angeles County Sheriffs narcotic detectives as part of the local Interagency Drug Task Force.

The National Park Service receives annual appropriations for purchasing property. The Service maintains two lists of properties it wishes to acquire for the Santa Monica Mountains National Recreation Center. The "high priority fee acquisition" list is a priority listing by fiscal year of properties that the NPS is actively seeking to acquire. It currently contains property located along the Backbone Trail. The Trails End Ranch is not on the Backbone Trail and has never been on the high priority list. The "fee acquisition" list contains all properties that the Service would like to acquire at some future date. The Trails End Ranch is contained on this list as a desirable piece of property.

In July, 1983, the Park Service did a title search of all property in the area, including the Trails End Ranch. NPS Ranger Simonds states that at one meeting prior to the October 2,1992 shooting, Spencer stated that if the property were seized, Los Angeles County might give it to the Park Service. It is clear that Spencer had no authority or authorization to make such a statement and there is no evidence that NPS personnel in any way relied upon this statement. The Service interviewed its employees with knowledge of the Santa Monica Mountains and reviewed land acquisition tiles and found no evidence of any plan to condemn, purchase or seize the Trails End Ranch. Nor had the Service ever attempted to obtain an appraisal for the land, which would-be a necessary step before attempting to purchase it. The Santa Monica" Mountains National Recreation Area has never attempted to acquire property through the asset forfeiture process, and states that it don not have the staff or resources to do so.

Forfeited property may be transferred to any federal agency. (21 U.S.C. ~ 881 (e)(l)(A).) However, according to Superintendent David E. Gackenbach, the Park Service cannot directly obtain land through forfeiture because any land forfeited to the federal government would be sold with the proceeds going to the Department of Justice asset forfeiture fund. The Interior Department report also notes that because the role of the National" Park Service was so minor in the case, the Park Service would have had to purchase the property from the seizing agency, Los Angeles County, and would be required by law to pay the appraised value of the property.

The Service also concluded that the appropriations that it receives for land acquisition are insufficient for the purchase of the Trails End Ranch. In making this conclusion, they assumed a $50 million purchase price for the property. However, a realtor was contacted who is familiar with Malibu real estate estimated the value as $3 million to $5 million.

Some members of the public have hypothesized the existence of a secret government conspiracy to steal Scott"s land. We are unwilling to simply assume that a conspiracy of this kind existed in the absence of significant evidence. There is no question that the property here would be a valuable addition to the National Recreation Area. It does not necessarily follow, however, that the National Park Service attempted to obtain it through the forfeiture process, and was have found no evidence to support such a claim.

C. EVIDENCE OF MARIJUANA CULTIVATION

1. How reliable are the observations of marijuana from the air?

Two obvious questions are whether DEA Agent Stowell really saw marijuana and whether marijuana was in fact growing at the ranch. It is important to realize, however, that the validity of a search warrant does not depend on what is found in the resulting search. The law is clear that if a warrant is not supported by probable cause, it does not become valid if the officers hunch pays off and contraband is found when the warrant is executed. (Wong Sun v. United States (1963) 371 U.S. 471, 484.) By the same token, if Stowell honestly and reasonably believed that he saw marijuana and if the warrant was in other respects validly issued, then the absence of marijuana when the warrant was served would not retroactively invalidate the warrant. (See 1 LaFave, Search and Seizure (2d ed. 1987 & 1993 supp.) ~ 3.2(d), pp. 575-576.) The actual presence or absence of marijuana on the date of the overflight is important, however, because it bears on Stowell"s credibility in stating that he saw marijuana,

Agent Stowell he extensive experience in detecting marijuana from the air and to this day states that what he saw was marijuana However, the more we learn about the "science" of aerial detection of marijuana, particularly marijuana growing under the canopy of trees, the less convinced we are of Agent Stowell"s observations.

Apparently, the technique used here consisted of looking at a certain time of the day for a particular shade of green which Stowell says distinguishes marijuana from other vegetation. However, Ranger Alt has stated that when viewed from the air with the naked eye, marijuana is the same color as other green bushes. In People v. Mavoff (1986) 42 Cal.3d 1302, 1319, the California Supreme Court noted that a botanist, Dr. Norris, had testified that "marijuana has no unique color which distinguishes it from other cultivated crops" and had testified that it "is impossible... to determine from 1,000 feet the identity of common plants under cultivation." As the court noted in People v. Mavoff. aerial detection of marijuana from altitudes such as 1000 feet may be valid in some situations, such as when the unusual color is accompanied by other evidence such as cultivated rows of plants growing in remote or rugged areas, the presence of an irrigation systems, or footpaths leading from residences to the cultivated area. No such evidence was found here, either from the air or on the ground. Nor were binoculars used, as they were in Dean v. Superior Court ( 1973) 35 Cal.App.3d 1 12, 1 14, to determine the shape or arrangement of the leaves. But see California v. Ciraolo (1986) 476 U.S. 207, in which the Supreme Court upheld the validity of a search based upon an anonymous tip and naked-eye identification of marijuana from an airplane flying at 1000 feet, but did not discuss the reliability of such identification.

It is not clear why efforts to hide marijuana in trees would be ineffective against observations at 1000 feet. In our visit to the ranch and examination of aerial photographs, we found the canopy of the trees to be extremely dense. Further -reducing the credibility of Stowell"s conclusions was the fact that he had not observed such a disbursement pattern before and the fact that he thought the plants looked unusual because there was light under them. Finally, even though Stowell had a camera with him and it is the usual practice of himself and others to take photographs, he inexplicably failed to do so.

Also troubling is the fact that neither Stowell nor McClung could identify any marijuana in the aerial photograph taken of the property by Pacific Western just four days before Stowell"s flight. Stowell and McClung disagree as to whether these photographs are similar to what could be seen at 1000 feet. However, when we look at the dense foliage in the photograph, it is difficult to imagine how anyone at 1000 feet could spot marijuana plants hanging under the trees.

Stowell initially told Spencer that he had a warrant to write, but then stated his unwillingness to be the basis for a search warrant without corroboration. As noted above, Stowell gives explanations for this position and insists that he was nonetheless sure that he saw marijuana. Notwithstanding these protests, the almost unavoidable conclusion to be drawn from his change of heart is that he was either lying or not sure that he saw marijuana.

Stowell has stated that plants cultivated in grow bags easily can be transported from one location to another, and that the marijuana could have been removed in a small van or pick-up truck in less than a day. He also feels that the 9 day delay between his observations and service of the warrant was too long, particularly because marijuana is commonly harvested in early October.

A number of other factors also indicate that Stowell did not see marijuana, When McClung flew over the area in a helicopter after the shooting, he saw an area that he thought might contain marijuana near the area identified by Stowell. Officers on the ground found only ivy growing, which suggests that Stowell too may have misidentified the vegetation he saw.

Also disturbing is the virtually inaccessible location identified by Stowell, the absence of trails or irrigation systems, and the failure to find stems, seeds, ropes, or any other remnants of marijuana cultivation. The inability of the Border Patrol agents to penetrate-the area described by Stowell is evidence that the area was not accessible enough for cultivation activities. Ventura County Sheriffs Commander Vince France has expertise in narcotics cases and been to a number of sites where marijuana had been cultivated. He reports that there were always stems, seeds, or some other -evidence of the cultivation remaining. It is his professional opinion that cultivation of marijuana on the scale suggested by Agent Stowell will always leave such evidence.

2. What other evidence supports or refutes the presence of marijuana?

The evidence of the presence of marijuana includes Stowell"s observations and the statements of the informant discussed in the Factual Summary, including Plante"s alleged acknowledgment that marijuana was growing somewhere nearby If the cigar box with marijuana debris were found at the ranch, it would help support a conclusion that marijuana was used or possessed on the ranch at some point, but would not be evidence of cultivation. However, in light of the failure to list the box in the search warrant return and the inability of deputies to state where it was found, it is our conclusion that it is extremely unlikely that it was found at the ranch. Both the search warrant return signed by Spencer and Penal Code section 1537 require that "all of the property taken" pursuant to the warrant be listed in the return. Plante has denied ever seeing a cigar box on the property, and Nicholas Gutsue, who knew Scott well for many years, told us that Scott did not buy cigars but only occasionally smoked them, when a friend would bring one to him.

There is also additional evidence that would support a conclusion that marijuana was not present on the property. In our interview with Frances Plante, she denied that there was ever marijuana at the ranch, that she never saw Scott smoke marijuana, or that she ever smoked marijuana at the ranch. She stated that the claim that there was ever anything growing in the trees was ridiculous. She stated that Scott was against drugs.

United States Pretrial Services Officer Michael Morgan reports that Plante is under his supervision while her misdemeanor conviction for marijuana possession is on appeal. Plante was indicted in federal court for possessing one marijuana cigarette on an aircraft and assaulting a flight attendant during a flight on December 17, 1990. Because of the disturbance she created, the pilot was forced to land the plane in El Paso rather than Houston. Morgan reports that he visited her approximately once a month and walked up to the waterfall with her several times, but never saw any marijuana. Los Angeles County Deputy District Attorney Larry Longo knew Scott and also stated that Scott was against drugs and never used drugs.

Other indications that there was no marijuana on the property include the failure of the Border Patrol to locate any marijuana, the lack of any evidence of cultivation when the search warrant was served, and the factors discussed in the previous question including Stowell"s indecision, his failure to take photographs, the impossibility of identifying marijuana in the aerial photographs we do have, and the almost impenetrable vegetation.

From all of the evidence, we conclude that Stowell did not see marijuana cultivation from the air as he maintains. Although there is conflicting evidence as to whether marijuana was present on the Scott property, it is the District Attorney"s conclusion from all the known facts that marijuana was not being cultivated on the property in the quantity and manner suggested by Agent Stowell. Whether he was mistaken or dishonest is unknown.

D. VALIDITY OF SEARCH WARRANT

1. How is the validity of a search Warrant determined?

Search warrants must be supported by probable cause. Probable cause has been defined as a "substantial basis for concluding that a search would uncover evidence of wrongdoing." (Illinois v. Gates ( 1983) 462 U. S. 213. 236 (internal punctuation omitted).) Usually, the validity of warrants is tested in criminal cases by way of a motion to exclude the evidence seized on the basis that the warrant was invalid. The procedural context is different in this case because no evidence was seized which led to a criminal prosecution. However. we shall apply the same legal standards in our analysis.

In Franks v. Delaware (1978) 43X U.S. 154, the United States Supreme Court held that when a defendant demonstrates by a preponderance of the evidence that a false statement was knowingly or with reckless disregard for the truth included in a search warrant affidavit, the false statement must be omitted from the affidavit and the search warrant must be retested for probable cause. The "deliberate falsehood and reckless disregard standards of Franks and the add-and-retest procedures apply to intentional or reckless material omissions as well as affirmative falsehoods. (People v. Gesner (1988) 202 Cal.App.3d 581, 590-591; United States v. Ippolito (9th Cir. 1985) 774 F.2d 1482, 1486-87. m. 1.> A warrant will not be invalidated based upon misstatements or omissions which are merely negligent. (Franks v. Delaware. supra at p. 171; People v. Gesner, supra. at p. 590; People v. Truer (1985) 168 Cal.App.3d 437.) The officer need not include all information in the search warrant affidavit; the officer"s duty to disclose information extends only to facts that are material and adverse to a finding of probable cause. (People v. Gesner, supra, at p. 591; Stewart v. Donaes (10th Cir. 1990)915 F.2d 572, 582-583.)

2. Did the warrant affidavit contain knowing or reckless false statements or material omissions?

The Statement of Probable Cause upon which the warrant was based includes a number of statements which could be considered false. They are: (a) that the information that Plante was spending $100 bills was "anonymous information," (b) that the BMW was registered to Scott at the Trails End Ranch, (c) that Stowell "noticed" marijuana "while conducting cannabis eradication and suppression reconnaissance," (d) that Spencer verified the location of the plants from the ground, and (e) that Stowell used binoculars. In addition, there are a number of facts which could be considered material omissions, including (f) that there had been several entries onto the property in which marijuana had not been seen, (g) the altitude that Stowell flew over the property, (h) the basis for Stowell"s opinion that he saw marijuana, (I) that Stowell saw nothing the first two times he flew- over the property, (j)Stowell"s equivocation regarding obtaining a warrant, (k) that Stowell only agreed to have his name go on the warrant based on purported statements by an informant that there was. a 40 pound yield of marijuana, and (1) the discrepancies in the informant"s statements regarding the amount of marijuana. These potential misstatements and omissions are discussed in order below.

(a) Spencer refers to the information from the informant regarding Plante"s spending $100 bills as "anonymous information." Spencer told us that he does in fact know the name of the informant, but that he used the term "anonymous" to mean that he was not disclosing the name. In his file is a photocopy of a dictionary entry for "anonymous" which arguably supports this use of the term.

Despite Spencer"s reliance upon the dictionary definition of "anonymous, " we believe that his use of the term in the search warrant was misleading. In making probable cause determinations, published case law gives much less weight to an "anonymous" tip, where the identity of the caller is unknown to the officer, as compared to information from an "informant" whose identity is known to but not disclosed by the officer. (See, e.g., Illinois v. Gates, supra.) However, because labeling the first informant as "anonymous" in this case actually tended to understate rather than overstate the probable cause and because the information from this informant added almost nothing to the probable cause anyway, the characterization of this information as "anonymous" should not be a significant factor in challenging the validity of the warrant.

(b) Spencer states that he received information that Plante was driving a BMW with Nevada plates, and that when he checked the license number, he learned that it was registered to Donald Scott at the Trails End Ranch. However, we determined that the vehicle was in fact registered to a Nevada Corporation with a Malibu post office box address. We cannot determine if Spencer fabricated this information or was confused about the information he obtained.

This information is significant because it links Plante, who was reportedly spending the $100 bills, to Scott and to the Trails End Ranch.

(c) The Statement of Probable Cause states that Stowell "noticed" marijuana "while conducting cannabis eradication and suppression reconnaissance." Dictionary definitions of "reconnaissance" include "a preliminary survey" and "a general examination or survey," but also include other examinations of an area. Our opinion is that the statement that Stowell "noticed" marijuana during "reconnaissance" may be literally accurate, but creates the false impression that Stowell was doing a routine general flight and that the marijuana was so visible that it attracted Stowell"s attention. In fact, Stowell was specifically flying over that property to look for thousands of marijuana plants, saw nothing the first two times he flew over, and then saw what he thought were 50 plants with an unusual disbursement pattern.

Aerial observations of marijuana from 1000 feet are constitutional whether they occur during "routine patrol" or during a flight made for the purpose of looking at particular properly. (California v. Ciraolo, supra, 476 U.S. at p. 214, fn. 2.) The problem here is the implication that the marijuana was so readily apparent that it was spotted fortuitously during a routine flight over a large area.

(d) The Statement of Probable Cause states, "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." This statement is susceptible of two meanings: that Spencer verified that the area was in the ranch, or that Spencer verified that marijuana was growing in the ranch. Spencer did tell the deputy district attorney who reviewed the warrant that he, Spencer, never actually saw any marijuana on the ranch. We do not know how the magistrate interpreted this sentence.

(e) Spencer erroneously stated that Stowell used binoculars in making his observations from the air. This misstatement would mislead the magistrate into thinking that Stowell"s observations were more accurate than they really were. This misstatement is material because it directly affects the accuracy of what Stowell could have observed. See People v. Joubert (1981)118 Cal.App.3d .637,646 (subsequent opinion at 140 Gal. App.3d 946) in which the Court of Appeal concludes that "plants cannot truly be identified as marijuana at reasonable altitudes without the aid of binoculars." This misrepresentation is clearly false rather than an issue of interpretation. When we recently asked Spencer about this issue, he stated that during a discussion of the overflight at the September 22 meeting, either Stowell or Sgt. Mueller gestured as if they intended to use binoculars, and that Spencer therefore assumed that binoculars would be used.

(f) 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 the undercover threat assessment of September 27. Specifically, the Border Patrol made two incursions onto the properly in order to locate marijuana but found none.

If officers had seen marijuana during the entries onto the property, the failure to disclose the entries would not invalidate the warrant because the warrant was based on the aerial observations as an "independent source" of probable cause. (Murray v. United States (1988) 487 U. S. 533.) But the fact is that marijuana was not found during the entries, which is material information counter to a finding of probable cause which should have been included in the affidavit.

It could be argued that the ranch is a big place and that there is no evidence that any of the individuals went to the area where Stowell said he saw the plants. The Border Patrol"s refusal to be interviewed has frustrated our attempts to learn exactly what area they saw.

Our opinion is that all of the entries onto the property by government agents which Spencer knew about should have been reported in the Statement of Probable Cause, along with whatever information was available as to what areas were observed. The magistrate then could make his own determination as to whether the entries affected probable cause. We conclude that the failure to include this information constituted a material omission contrary to a finding-of probable cause.

(g-j) Few details are given regarding Stowell"s observations. Not disclosed are the specific altitude of the flight, the basis for his opinion that he saw marijuana, the fact that he did not see the plants until the third pass over the ranch, and his equivocation regarding obtaining a warrant, The Statement of Probable Cause does not state that Stowell"s opinion was based solely on the color of vegetation and that he did not see any nearby irrigation system, paths, cultivated rows of plants or other evidence to support his conclusion.

At first blush, the allegations in the Statement of Probable Cause regarding aerial observations sound reasonable. An experienced DEA agent with extensive expertise in aerial detection of marijuana states that he observed marijuana growing on the property. It would appear reasonable to rely upon the credibility and expertise of law enforcement officers when one officer reports that a DEA agent saw and recognized marijuana. It also would be reasonable to believe that the agent would not report seeing marijuana unless the plants were in such a location and were viewed from such an altitude that the observer, using binoculars as the search warrant, claimed, would be in a position to recognize it.

In preparing an affidavit in support of a search warrant, it is not enough to merely set forth the opinions of peace officers. Additionally, one must set forth sufficient facts upon which those opinions are based so that the magistrate can make his or her own determination as to whether probable cause exists, (See Illinois v. Gates, supra, 462 U.S. at p. 239.)

The limitations of aerial observations for detection of marijuana are discussed in a separate section above. The weight to be given to the opinion would be affected by the specific altitude of the flight. if Stowell"s opinion was based solely upon the shade of green, that fact should have been disclosed. If he had some other bases for his opinion, they should have been disclosed as well. Stowell"s equivocal statements regarding use of his name on the warrant also affected the credibility of his opinion and should have been disclosed.

Like many prosecutors, the deputy district attorney who reviewed the warrant was not familiar with the cases discussed above which deal with the accuracy of aerial detection of marijuana. It is actually somewhat unusual for published case law to give guidance on the factual sufficiency of different kinds of evidence as opposed to stating more general principles of law (with which the prosecutor was familiar). If a narcotics prosecutor who was more familiar with aerial observations had been available to review the affidavit, the deficiencies in the affidavit might have been uncovered. However, had Spencer complied with his obligation of including the additional information discussed above, the deputy district attorney and the magistrate who reviewed the warrant should have been alerted to the thin factual basis for the conclusion that marijuana had ken spotted. Aerial photographs would have also assisted in the determination as to whether probable cause existed.

The District Attorney takes responsibility for his office"s role in approving the search warrant. This case is a painful reminder that prosecutors and judges reviewing search warrants must understand the factual basis for "expert"" opinions upon which probable cause determinations are made. The affiant must be pressed to include all relevant information which forms the basis for the probable cause determination, and all evidence that might detract from a finding of probable cause.

(k-l) One of the most disturbing issues in this case is Spencer"s claim that the informant reported that a yield of 40 pounds of marijuana was expected. The informant denies making such a statement to Spencer. Ordinarily, an officer would not be obligated to include statements by an informant if the warrant were adequately supported by other evidence such as an officer"s direct observations. This case is unusual in that the informant"s statement was not relied upon in the Statement of Probable Cause, but was used to induce Stowell to agree that a warrant could-be sought. If Spencer fabricated the information, then Stowell"s agreement is based upon false statements. Further complicating this issue is the fact that Stowell has insisted all along that he is sure he saw marijuana.

If the informant really did say there were 40 pounds, the statement, along with the informant"s prior inconsistent statements about 3000 pounds, should have been included in the Statement of Probable Cause because it places Stowell"s opinion in context and has a significant bearing on Stowell"s credibility and the weight to be given to his opinion. If the informant did not really say there were 40 pounds, then the fact that Stowell"s agreement was induced by deceit should certainly have been included and would have reduced both Spencer and Stowell"s credibility.

The prosecutor who reviewed the warrant has stated that he did not know about Stowell"s equivocation or the fact that Stowell agreed to the warrant only after the purported statement from the informant about 40 Pounds. If the deputy district attorney had known about this information, he would have insisted on learning about the informant"s credibility and including information about the information in the affidavit.

A similar problem is that Stowell told Spencer that he sew approximately 50 plants, but Spencer told the deputy district attorney reviewing the warrant that Stowell saw between 50 and 100 plants. Just as Spencer used purported statements of the informant to induce Stowell to agree to use of his name in the warrant, Spencer exaggerated the number of plants in convincing the deputy district attorney to approve the search warrant affidavit.

3. Do the misstatements and omissions invalidate the warrant?

It is our legal conclusion that the misstatements and omissions discussed above are material and would invalidate the warrant.

We provided the deputy district attorney who reviewed the warrant with the information provided above, and asked for his opinion as to whether he would have approved the affidavit if he had known the additional information. His conclusion is that if he had known then what he knows now about the facts of the case and the law regarding aerial observations, he would not have approved the affidavit.

4. May the officers be prosecuted for perjury?

Penal Code section 1 18a defines perjury as willfully stating under oath in an affidavit "any material matter which he knows to be false." In order to be guilty of perjury, the person must have the specific intent to testify falsely under oath and must know or believe that the statement is false or be aware that he dose not know if- the statement is true or not. (CALJIC 7.24; Penal Code ~ 125; People v. Meza(1987) 188, Cal.App.3d 1631,1647.) In order for perjury to be assigned, the false statement must be "material," i.e., it must have tended to influence the outcome of the "proceedings." (People v. Hedgecock (1990) 51 Cal.3d 395, 405.) A misleading but literally true statement will not form the basis for a perjury conviction. (Bronston v United States (1973) 409 U. S. 352.) Proof of falsity may not rest solely upon contradiction with the testimony of a single other person. (Penal Code ~ 1 18 (b).) As in all criminal cases, all elements of the crime must be proven beyond a reasonable doubt. (Penal Code 1096.)

In the present case, the truth of statements that Spencer received "anonymous information," that Stowell "noticed" marijuana "while conducting cannabis eradication and suppression reconnaissance," and that Spencer verified the location of the plants from the ground, are a matter of interpretation. We cannot establish beyond a reasonable doubt either that these statements are false or that Spencer knew them to be false. The statement that Stowell was using binocular is clearly false. However, it cannot be proven that Spencer knew this to be false; it is also possible that he believed it to be true and was mistaken. The misstatement that the BMW was registered to Scott is not so easily explained. While it seems unlikely, it is possible that Spencer obtained the information from some other source which he did not recall a year later when he prepared the warrant affidavit. At a trial for perjury, we would need to prove beyond a reasonable doubt that he knowingly lied, and that the statement was "material" for purposes of the perjury statute by influencing the issuance of the warrant. Based on our evaluation of the evidence, it is our conclusion that a prosecution for perjury based upon these statements could not be proved beyond a reasonable doubt.

As discussed above, we have concluded that Stowell did not see 50 marijuana plants under cultivation on the Trails End Ranch. However, Stowell cannot be prosecuted because he did not make his statements under oath, and because we cannot prove that he knew his statements to be false. By the same token, Spencer"s inclusion of Stowell"s observations cannot be the basis for a perjury prosecution because it cannot be proven that Spencer knew that Stowell had not seen marijuana

Nor may Spencer be prosecuted on the basis of omissions in the Statement of Probable Cause. There are conflicting cases as to whether the omission of a material fact required to be disclosed under oath may constitute perjury. Compare People v. French (1933) 134 Gal. App. 694, 699 (no perjury for falling to disclose all assets in affidavit to obtain county relief work) with People v Meza, supra (perjury may be based on silence when judge asked prospective jurors if any of them knew defendant, and prospective juror in fact knew and was brother-in-law of defendant.) In contrast, the present case does not deal with silence in response to a direct question, but a much more general legal duty to disclose material negative information in a search warrant affidavit. In our opinion, the perjury statutes do not equate such omission with a false statement.

We thus conclude that neither Spencer nor Stowell may be prosecuted for perjury. The issue of whether the many misstatements and omissions subject-Deputy Spencer to prosecution for homicide is discussed under issue F, below.

E. SERVICE OF WARRANT

1. Why were so many officers and agencies present?

Thirty law enforcement officers were present to serve the warrant. Deputy Spencer states that he had originally planned on a large number of officers to deal with the 3000 plants he expected to find, and had some difficulty in reducing the number of people when the size of the expected drug seizure was reduced. It makes sense that officers from different agencies who had already participated in the case would be interested in observing and participating in the seizure of marijuana plants. Finally, the size of the property justified having a relatively large contingent on hand in order to search all areas.

2. Was the presence of Ventura County deputies required?

One concern is why the Ventura County Sheriffs Department, which has law enforcement jurisdiction over the Trails End Ranch, was not present or notified that the warrant was going to be served.

Penal Code section 830. I, subdivision (a), provides that the authority of a deputy sheriff extends to the county by which he is employed, unless he has the prior consent of the chief of police or the sheriff of another city or county.

Absent consent of the Ventura County Sheriff, a Los Angeles County Deputy Sheriff would have no authority to serve a search warrant in Ventura County that did not relate to an offense which occurred in Los Angeles County. (People v. Galvan (1992) 5 Gal. App. 4th 866.) The search of the Trails End Ranch did not relate to a Los Angeles County offense. However, there is an agreement between the Sheriffs of Ventura and Los Angeles Counties signed in May, 1990 entitled "Consent Pursuant to Section 830.1 of the California Penal Code." That agreement provides that "any peace officer employed by the other signatory to this agreement, has the authority of a peace officer at all times within the city or county for which each of the signatories can give consent." (The consent of the Los Angeles Sheriff is limited to unincorporated areas and contract cities.) It appears that this agreement would satisfy the requirement of "consent" referred to-in Galvan. As-such, it would appear that a local peace officer from Ventura County was not legally required to be present during the execution of the search warrant at the Trails End Ranch.

When the investigation of offenses occurring in one county require bank records, telephone records, and similar documents located at an office in a second county, it is common for law enforcement officers of the first County to serve a search warrant for the records in the second county. In these circumstances, there is little practical reason to notify the Sheriff of the county where the office containing the records is located. But when a search warrant is to be served in a neighboring county and there is a potential for violence or for a criminal prosecution in that county, there is good reason to notify the law enforcement agency with primary law enforcement authority for the area involved, and it is the usual practice to do so.

A newspaper article regarding this case quotes Los Angeles County Sheriff Chief of Detectives Paul Myron as saying that they simply forgot to notify the Ventura County Sheriff In an interview, Spencer stated that he does not know why the Ventura County Sheriffs Department was not notified, but felt that there was no need to do so, other than as a courtesy. In a subsequent written statement, Spencer gives an explanation of several pages as to why there was no notification. He stated that because he no longer thought there would be thousands of plants, he reduced the number of personnel needed for service of the warrant and did not need the Ventura Sheriff to provide additional personnel. He also stated that an accidental confrontation with Ventura County deputies was unlikely because of the remote location of the property and the fact that 911 calls would ring into the Los Angeles County Sheriff. Finally, he stated that he had learned that Ventura County deputies had recently seized a large amount of cocaine in an unrelated arrest and felt they would be busy working on that case. Spencer denies that he failed to notify the Ventura County Sheriff based on any desire to exclude Ventura County from sharing in the proceeds of a possible forfeiture.

These explanations are not particularly convincing and it is probable that the Ventura County Sheriff was not called because Los Angeles County did riot want to split the forfeiture proceeds with that agency. The properly is worth millions of dollars, which Los Angeles might need to split with the other agencies already involved. Of course, the fact that several other agencies were already involved can be interpreted in several ways. One possibility is that it shows that Los Angeles had no reluctance to involve other agencies. A second possibility is that because so many agencies were already involved, the Los Angeles County Sheriffs Department did not want to further split the proceeds with yet another entity. A third possibility is that, as the lead agency, LASD expected to get the major share of the proceeds and was not concerned that the involvement of other agencies would have a significant effect.

We cannot conclusively determine what the motivation was for failing to notify the Ventura County Sheriff. We can only suggest that when an operation of this kind directly and significantly impacts a neighboring county, the law enforcement agency with primary law enforcement authority for that area should be notified as a matter of interagency courtesy and professionalism.

A related issue is why the Sheriffs Department, Coroner and District Attorney of Los Angeles County attempted to handle the investigation of the shooting. The consent document discussed above was not intended to give the Los Angeles County Sheriff the authority to conduct the investigation of a fatal shooting in Ventura County. Nor are we aware of any authority for the Coroner or District Attorney of Los Angeles County to handle a shooting death occurring in Ventura County. It is clear that a death in Ventura County is appropriately investigated by Ventura County authorities.

Deputy Spencer knew they were in Ventura County because he had researched the property records and had obtained the search warrant in Ventura County. It is possible that other law enforcement personnel on the scene did not know they were in Ventura County or did not think about that issue after the shooting occurred. We cannot eliminate the possibility, however, that Los Angeles County Sheriffs personnel wished to avoid scrutiny of their actions by outside investigators.

3. Did the officers comply with knock-notice requirements?

Penal Code section 1531 states:


The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.

The policies underlying section 1531 are fourfold: (l)to protect the occupants" privacy; (2) to protect innocent persons who may be present on the premises; (3) to prevent violent confrontations between householders and law enforcement officers who enter without proper notice; and (4) to protect peace officers who might be injured by a startled and fearful householder. (Duke v. Superior Court (1969)1 Gal. 3d 314, 321.)

Compliance with section 1531 requires that officers executing the warrant do the following:


1. Knock or utilize other means reasonably calculated to give adequate notice of their presence;


2. Identify themselves as police officers;


3. Explain the purpose of their demand for admittance; and


4. Give the occupants an opportunity to surrender the premises voluntarily (i.e., right to refuse entry). (Duke v. Superior Court, supra, at p. 319, Jeter v. Superior Court (1983) 138 Gal. App. 3d 934, 937.)

Refusal justifying forcible entry may be implied, e.g., when officers have knowledge that someone is awake inside the residence and falls to admit the officer within a reasonable time. (People v. Hobbs (1987) 192 Gal. App. 3d 959, 964-965.) Courts have upheld entries where they are made as quickly as 20 or 30 seconds after the demand is made. (See Jeter v. Superior Court, supra.)

In the present case, numerous officers at the scene report repeated knock and announcements before entry was made. These officers include not only sheriffs deputies but also officers of other agencies including the National Park Service and Drug Enforcement Administration. We are persuaded that knock and notice were given as required by law.

Time estimates for the length of the knock-notice range from 60 seconds to 4 minutes. Under existing case law, this appears to be an adequate period before entry. However, the events after the entry and the statement of Frances Plante suggest that Plante and Scott had been asleep and were still reacting to the knock-notice when the deputies forced entry.

F. SHOOTING

1. May a peace officer use deadly force in serving a search warrant?

Murder is the unlawful killing of a human being with malice aforethought. (Penal Code 187.) Malice is (a) the deliberate intention unlawfully to kill a human being, or (b) the deliberate performance of an intentional act with knowledge of the danger to, and conscious disregard for, human life, without considerable provocation. (Penal Code g 188, CALJIC 8. 11.)

Voluntary manslaughter is the unlawful killing of a human being without malice aforethought, but with the intent to kill. There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion, or in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. (Penal Code (j 192 (a); CALJIC 8.40.)

Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill, in the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. (Penal Code ~ 192 (b); CALJIC 8.45.)

When Deputy Spencer pointed his Beretta at Scott and shot him, he intended to kill or at least seriously injure him. The issue is whether the killing was legally justifiable and therefore not "unlawful" under the murder and manslaughter statutes.


Penal code section 196 provides:


Homicide is justifiable when committed by public officers...


1. In obedience to any judgment of a competent Court; or,

2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty...

This section applies because Scoff was resisting Deputy Spencer in the execution of a search warrant.

The killing is also justifiable because it was in self-defense. Self-defense requires that the person doing the killing honestly and reasonably believes that there is imminent danger that the other person will kill him, and that it was necessary under the circumstances to kill the other person to prevent death or great bodily injury to himself. (Penal Code ~ 197(1); CALJIC 5. 12.)

A number of witnesses report that Spencer commanded Scott to drop the gun. Spencer reports that Scott was slowly lowering his gun when Spencer shot him. It is significant that while there is a conflict as to whether Plante was in the room during the shooting, her statement supports Spencer"s statement that Scott was lowering the gun. The statements of other officers at the ranch regarding the timing of the commands to drop the gun and the shots also support Spencer"s version of the shooting. Spencer states that the gun was pointed directly at him, and Cater corroborates this statement. Another deputy found Scott"s gun on the floor near his body shortly after the shooting.

The conclusion of the Medical Examiner-Coroner as to the position of Scott"s arm neither supports nor contradicts Spencer"s statement The Medical Examiner-Coroner states that Scott"s upper arm was to his side when he was shot, but is inconclusive as to the position of his forearm.

The medical examiner-coroner concluded that the fatal bullet entered Scoffs upper chest at a 35 degree downward angle. This could occur if Spencer were shooting at a higher elevation than Scott"s chest. But Spencer and Cater state that Spencer was on one knee when he shot Scott. Spencer is 5"8" and Scott was 5"11". There are no stairs or obvious slants in the floor. The downward angle of the bullet could also occur if Scott ware leaning forward. Although neither Spencer nor Plants report that Scott was in that position, and although Spencer states that Scott jerked backward and then fell forward, it is possible that this was the second shot and that Scott was momentarily leaning forward in response to the first shot. A third possibility is that the medical examiner-coroner"s measurements were incorrect.

While there remains some question as to the downward angle of the bullet as described by the medical examiner-coroner, it is our conclusion that the relative positions of Spencer and Scott are as reported by Spencer, Cater and Plante, i.e. that Spencer was on one knee and that Scott was standing in the doorway.

If Scott wished to submit to the demand to drop the gun, he reasonably would have done so in a way that did not point the gun at the deputy, e.g. by dropping the gun onto the floor or by pointing the gun to the side as he lowered it. We cannot determine why Scott would have lowered the gun in the manner described by Spencer (although Spencer"s report conflicts with Cater).

Spencer"s lack of candor regarding the search warrant affidavit. Cater"s conflicting report on the movement of Scott"s arm at the time of the shooting, and the downward angle of the bullet give us reason to doubt Spencer"s report of the shooting. However, in a criminal prosecution, it would be the burden of the prosecution to disprove Spencer"s assertion that he acted in self-defense. Although we are left with some question as to how the shooting occurred, we cannot disprove Spencer"s version of the shooting. We thus must conclude that the evidence supports the claim that Spencer and Cater reasonably feared for their lives and shot Scoff in self-defense.

Penal Code section 198.5 creates a presumption that a person had a reasonable fear of imminent peril if that person used deadly (force within his or her residence) against a person not a member of the family or household who unlawfully and forcibly entered the household, if the householder knew or had reason to believe that an unlawful and forcible entry occurred. In the present case, it is reasonable to assume that Scott knew that Spencer and the others were sheriffs deputies based upon the verbal identification and large yellow letters arid other insignia identifying them as such. If Scott knew that they were sheriffs deputies, then he would not have reason to believe that the entry was unlawful, and section 198.5 would not apply.

However, even If Scott did not know the identity of the officers, based on his intoxication or otherwise, this would not mean that Spencer would be criminally liable. The issue in a criminal prosecution for homicide against Spencer would be whether Spencer reasonably believed he needed to shoot in order to defend himself, not what Scott believed.

2. Does en invalid warrant make the shooting a crime?

As discussed above, it is our conclusion that the Statement of Probable Cause contained material misstatements and omissions and that the warrant was therefore invalid. The fatal shooting was by Deputy Spencer, who Signed the search war- affidavit.

We have not found any California case which bases a homicide prosecution upon defects in a search warrant affidavit. However, the principles in other cases are instructive.

In People v. Gonzalez (1990) 51 Gal. 3d 1179, the defendant was prosecuted for intentionally killing a peace officer who was serving a search warrant at the defendant"s residence. The California Supreme Court held at page 1218:


Squarely faced with the issue for the first time, we conclude that if a warrant is valid on its face, an officer carrying out its command to search or arrest is lawfully engaged in duty, and his or her attacker may be convicted and punished on that basis, even if the facts disclosed to the magistrate in support of the warrant were not legally sufficient to establish probable cause.

The court in Gonzalez went on to note that pursuant to Penal Code section 834a, citizens have a duty to refrain from resisting both lawful and unlawful arrests. (Id at p. 1219.) The court"s inference was that this rule also applied to search warrants. In the court"s own words:


When the police submit their suspicions for judicial evaluation, obtain a warrant regular on its face, arid act only as it expressly authorizes and commands, no issue of fault in the serving officer"s "performance of... duties" arises.

(Id at pp. 1220-1221, footnote and emphasis deleted.)

In reaching its decision, the court in Gonzalez relied upon Civil Code section 43.55, which immunizes peace officers from liability for the execution of arrest warrants "if the peace officer in making the arrest acts without malice.

In Crabtree v. State of Arkansas (1964) 238 Ark. 358, 381 S.W.2d 729, the Sheriff and his deputies, in uniform, served a search warrant at a residence for illegal possession of liquor. The defendant ran to the kitchen and started disposing of the liquor. When the Sheriff forced open the door, the defendant pointed a pistol at the Sheriffs head. In upholding the conviction for unlawfully resisting execution of a criminal process, the Supreme Court of Arkansas held that the defendant could not obstruct the service of a warrant regular on its face and could not challenge the validity of the warrant.

However, two California civil cases suggest that officers may be civilly liable for deficiencies in an affidavit which forms the basis for a warrant. In Harden v. San Francisco Area Rapid Transit District (1989) 215 Cal.App.3d 7, the court addressed whether a peace officer acted with malice in executing an arrest warrant. In that case, an officer provided false information forming the basis for the warrant under which the plaintiff was arrested. The plaintiff brought an action for false imprisonment and arrest. The California Court of Appeal held that the officer could be found liable if he "acted with malice" by "knowingly or recklessly" giving false information "with the intent to induce the arrest of [plaintiff], and that such action was a proximate cause of [plaintiffs] arrest." (d. at p. 15.) Similarly, in McKay v. County of San Diego- (1980) 111 Cal.App.3d 251, the court held that a district attorney investigator was liable for false imprisonment when he provided false information that generated an arrest warrant.

By analogy, it can be argued that a peace officer is not immunized for executing a search warrant when he acts with malice. Consistent with Harden and McKay. an officer who maliciously and wrongfully obtains a search warrant is not engaged in the lawful performance of his duty in executing said search warrant. In this context, "malice" is used in the general sense of "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act" (Penal Code section 7, subdivision 4) and not the "malice aforethought" required for murder, which requires an intent unlawfully to kill a human being or conscious disregard for human life (CALJIC 8. 11).

Also relevant are cases which address the admissibility in a criminal prosecution of evidence seized pursuant to an invalid search warrant. Evidence seized pursuant to an invalid search warrant may be admissible in a criminal case if the officers executing the warrant acted in "good faith" i.e., "whether a reasonable and well trained officer would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant,"" (People v. Camarella(l991) 54 Gal. 3d 592, 605-606, quoting Malley v. Briggs (1986) 475 U.S. 335, 345.) However, an officer cannot be said to have acted in "good faith" in procuring and executing a search warrant where he has misstated or omitted material facts in the affidavit. (People v. Alexander (1992)11 Cal.App.4th 1630, 1638, 1641.) Since we have concluded that the misstatements and omissions were material in nature we also conclude that Deputy Spencer did not act in good faith in procuring and executing the search warrant. Because there is no evidence that the other officers serving the warrant were involved in the preparation of the affidavit, their actions would be in good faith. (Id. at p. 1638.)

If it could be proven that Spencer knowingly omitted and distorted information in the affidavit in order to obtain the search warrant, "malice" in the general sense of the term would exist and he would not be in the "lawful performance of his duties" when he executed the search warrant. However, this would not necessarily mean that he is criminally liable for the resulting death of Scott. As discussed above. Penal Code section 834a obligates a citizen to submit to both a lawful and unlawful arrest; it is only where officers use excessive force that a citizen can resist the arrest and/or resort to self-defense. (People v. Muniz (1970) 4 Gal. App. 3d 562; People v. Henderson (1976) 58 Cal.App.3d 349, 356-357.) As a matter of public policy, citizens should have the same obligation to submit to search warrants regardless of whether they believe that the magistrate was correct in his assessment of probable cause. If a search warrant is improperly issued, then the occupants can obtain a remedy in a court of law.

As discussed above, we cannot conclude that the search warrant was invalid. However, while it is our opinion that a warrant would not have been issued if all the facts had been known, a court might rule otherwise. Moreover, in a criminal prosecution, we would be required to prove all elements of the crime, including the mental state of the killer, beyond a reasonable doubt. For those reasons, it is the conclusion of the District Attorney that the problems with the warrant would form an insufficient legal or factual basis for a criminal prosecution of Deputy Spencer for murder or manslaughter. Law enforcement officers responsible for obtaining a search warrant based on material misstatements or omissions may be civilly liable for civil rights violations under federal law. (42 U.S.C. ~ 1983; LoSacco v. City of Middletown (D. Conn. 1900) 745 F. Supp. 812, 8 1 6-817.) However, an officer "is entitled to qualified immunity if his actions were reasonable under the totality of the circumstances, even if those actions may be later determined to have violated the plaintiffs constitutional rights." (Tachiquin v. Stowell (E.D.Cal. 1992) 789 F.Supp. 1512, 1517.) A judicial determination that an officer lacked probable cause for a search would bar the defense of qualified immunity only if a reasonable officer would have known that the absence of probable cause was clear and unmistakable. (Ibid.)

Donald Scott"s estate has already filed an action in federal court alleging violation of civil rights. It would be inappropriate for us to predict the outcome of that lawsuit.

 

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