OFFICE OF THE: DISTRICT ATTORNEY
COUNTY OF VENTURA
STATE OF CALIFORNIA
March 30, 1993
REPORT ON THE DEATH
OF
DONALD SCOTT
MICHAEL D. BRADBURY
District Attorney
This report has been compiled from the original 62 plus pages
into this version
by:
the
Outpost of Freedom
Electronic version
March, 1997
[Note: The original report was scanned, and a cursory review made. There may be errors in this transcription, especially in case law and statute information. A copy of the original report can be provided. Contact Gary Hunt at the Outpost of Freedom for information.]
TABLE OF CONTENTS
I. INTRODUCTION
Ill. FACTUAL SUMMARY [included in separate page because of size]
A. Initial Investigation
B. National Park Service Visit
C. Arranging the Aerial Surveillance
D. D.E.A. Overflight
E. Border Patrol Search
F. Corroboration
G. Fish and Game and Coastal Commission
H. Undercover Threat Assessment.
I. Obtaining the Search Warrant
J. Personnel and Preparation for Serving Warrant
K. Knock Notice
L. Entry
M The Shooting
N. Alter the Shooting
O. The Search
P Weapons
Q Autopsy
R Additional Aerial Observations
S. Interview of PlanteIV. LEGAL ANALYSIS [included in separate page because of size]
A. Border Patrol Search
B. Land Forfeiture
C. Evidence of Marijuana Cultivation
D. Validity of Search Warrant
E. Service of Warrant
F. Shooting.V. CONCLUSIONS
VI. RECOMMENDATIONS
ATTACHMENTS
1. List of Officers
2. Diagram of House
3. Transcript of Answering Machine Tape
4. District Attorney"s letter - Subject: MotiveI. INTRODUCTION
Donald P. Scott, age 61, owned and lived on a 200-acre property known as the Trails End Ranch, 35247 Mulholland Highway, in the Ventura County portion of Malibu. California. On October 2,1992, while serving a search warrant at the ranch Los Angeles County Sheriffs Deputies Gary R. Spencer and John W. Cater, Jr. shot at Scott, resulting in his death. The shooting and the events leading up to it have raised a number of issues of concern to this office, other law enforcement agencies, and the public. This report summarizes our investigation and conclusions.
II. THE INVESTIGATION
The investigation by this office was conducted by District Attorney Senior Investigator Richard C. Haas, Senior Deputy District Attorney Michael D. Schwartz and Deputy District Attorney Kevin G. DeNoce assisted with the legal research and analysis.
During our investigation. we interviewed some 40 witnesses and reviewed statements of approximately 20 additional witnesses. We reviewed hundreds of pages of reports and other documents, including the reports of the Ventura County Sheriff and the internal investigation of the Los Angeles County Sheriff. We also visited the ranch and reviewed dozens of photographs, audio tapes of phone calls and interviews, and a video tape of the scene of the shooting. With few exceptions, the individuals and agencies we contacted cooperated with our investigation by being interviewed and providing us with requested documents. We greatly appreciate their assistance.
Deputy Spencer was interviewed several times and volunteered to provide us with any information we wanted. He offered to take a polygraph examination, but we declined based on our general concerns regarding the reliability of polygraphs. The United States Border Patrol provided us with written materials but refused to allow its agents to be interviewed.
In this report, we have noted some discrepancies in the statements of witnesses. We have done so to give a more complete report of what our investigation has found, with this caveat: it is a common human experience that there will be some variation between witnesses in their perception, recollection and reporting of events. Discrepancies may mean that a witness is lying, or may reflect the witnesses" honest recollection of what occurred.
V. CONCLUSIONS
Based upon the evidence in this case, the District Attorney is of the opinion that the following occurred:
Upon receiving information from the informant, Deputy Spencer originally thought that thousands of marijuana plants might be growing at the ranch. Efforts to confirm the presence of marijuana were unsuccessful. He was unable to see marijuana from the top of the waterfall and the Border Patrol did not see any plants during two attempts to do so. Agent Stowell claimed to see only a relatively few plants, based solely on their color, but was unwilling to be the basis for a search warrant without corroboration.
It is inherently unlikely that Agent Stowell could see marijuana plants suspended under trees in a densely vegetated area through naked-eye observation from 1000 feet. His failure to take photographs is unexplained, and when the warrant was executed, no evidence- of cultivation was found. Based on all of the evidence, it is the District Attorney"s conclusion that there was never marijuana bang cultivated on the property as reported by Stowell.
Spencer learned that the name of Plante and her associates had come up in investigations of heroin smuggling and other narcotics violations. Spencer knew that if he could put together a search warrant for marijuana cultivation, he could get onto the ranch and also search for other drugs, and had arranged to do so. He also knew that if marijuana were found growing, or if narcotics were found in sufficient quantity, it was possible that a very valuable piece of real estate would be forfeited to the government with proceeds from a sale of the property going to the Los Angeles Sheriffs Department.
Spencer could not get Stowell to agree to the search warrant without corroboration. When the Border Patrol failed to find marijuana, Spencer told Stowell that the informant now expected a yield of only 40 pounds of marijuana. The informant denies telling Spencer about 40 pounds, which raises the possibility that Spencer fabricated this information in order to induce Stowell to agree to use his name in the search warrant affidavit. We are unable to resolve the discrepancy between the statements of Spencer and the informant. However, other law enforcement officers have vouched for the informant"s credibility.
The Border Patrol entered the property to look for marijuana and not to look for illegal aliens. Their recent claim that they entered the property in a search for illegal aliens is unconvincing and unsupported by the evidence. Because we do not know exactly where they went, we cannot determine whether all of their actions were within the " open fields" exception to the Fourth Amendment.
The affidavit upon which the search warrant was based contains material misstatements that the BMW was registered to Scott at the Trails End Ranch and that Stowell used binoculars. It also omits material information, including the failure of the Border Patrol and others to see marijuana on the property, the altitude of Stowell"s flight, the very limited basis for Stowell"s opinion that he saw marijuana, and the manner in which Stowell was convinced to agree to the warrant. The misstatements and the omissions make the warrant invalid. While we were misled by Spencer into approving the warrant affidavit, further inquiry by this office might have uncovered the defects in the warrant. Because it cannot be proven that Spencer knowingly lied in the affidavit, there is an insufficient basis for a perjury prosecution,
It is the District Attorney"s opinion that the Los Angeles County Sheriffs Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government. While the National Park Service could indirectly obtain this land, there is no evidence that it instigated or played a significant role in the forfeiture plan. Based in part upon the possibility of forfeiture, Spencer obtained a search warrant that was not supported by probable cause. This search warrant became Donald Scott"s death warrant.
When the warrant was executed, the deputies sufficiently identified themselves and demanded entry to the residence in compliance with law. The evidence does not establish that Donald Scott intended a shoot out with the deputies. Nor is there any evidence to suggest that the deputies went to the ranch with the hope of killing Scott. When Deputy Spencer ordered Scott to lower his gun, Scott did so in a way that Spencer says caused him to fear for his life. There is no evidence to disprove Spencer"s version of how the shooting occurred. For that reason, we must conclude that Spencer and Cater were justified in shooting Scott in self-defense. While there is a conflict in the evidence as to whether Plante was in the room during the shooting, her report of the shooting itself is substantially the same a that of Deputy Spencer. The invalidity of the warrant does not form a sufficient legal or evidentiary basis for a homicide prosecution.
This case involves numerous individuals and agencies and is fertile ground for speculation as to the motivations of each of them. What we cannot forget is that Donald Scott"s death could and should have been avoided.
VI. RECOMMENDATIONS
1. Law enforcement officers should tape record critical conversations with informants and other witnesses.
2. Observations of suspected marijuana during aerial surveillance should be photographed in color.
3. While interagency cooperation for marijuana eradication and other law enforcement purposes can be valuable, involved agencies should ensure that they have the legal authority for their investigative actions, including the entry on private property.
4. In preparing search warrant affidavits, law enforcement officers must not compromise their objectivity based upon forfeiture concerns. Regardless of whether a given search warrant may result in the forfeiture of valuable property, officers must ensure that there is adequate probable cause.
5. Whenever possible, search warrants should be reviewed by a deputy district attorney who is familiar with the specialized areas of law that are involved. Prosecutors reviewing search warrants must act as objective evaluators and before approving an affidavit must resolve all questions relating to probable cause.
6. Search warrants should be obtained and served promptly. Specifically, search warrants for growing marijuana should be served quickly during the harvest season.
7. Returns to search warrants should comply with the statutory requirement of listing all of the properly taken pursuant to the warrant.
8. The Sheriff of Ventura County and other sheriffs and police chiefs statewide should review consent agreements entered into pursuant to Penal Gods section 830. 1 to determine how much authority they wish to give to sheriffs deputies from other counties and police officers from other cities. Specifically, they should consider whether they should require notification and the opportunity to participate in the service of search warrants and other specified law enforcement operations within their jurisdiction.
9. Based on the personal involvement of Los Angeles County Deputy District Attorney Larry Longo in this investigation, the referral to the Los Angeles County District Attorney will request that Longo not be given access to the file and will suggest that his conduct in the case be addressed by the District Attorney of Los Angeles County.
10. The Los Angeles County Sheriffs Department should reopen its administrative investigation into the conduct of Deputy Gary Spencer in view of the District Attorney"s findings.
11. The Los Angeles County Sheriffs Department should examine its policies and procedures regarding obtaining and executing search warrants to prevent a recurrence of the events which lead to the death of Donald Scott. Specifically, they must ensure that warrants are supported by probable cause and served in a manner that minimizes the danger to both citizens and officers.
12. The Los Angeles County Sheriffs Department allowed Deputy Spencer to participate in the investigation into the circumstances leading to the shooting of Donald Scott. In view of Spencer"s activity in procuring the warrant and ultimately shooting Scott, his participation in the ensuing investigation was inappropriate. Officers involved in shooting incidents should not participate in investigations of their own conduct.
13. The United States Department of Justice should require its law enforcement agencies, including the Border Patrol, to cooperate with investigations by local law enforcement agencies.
14. The Bureau of Narcotic Enforcement of the California Department of Justice, in conjunction with the Campaign Against Planting Marijuana, should establish criteria, consistent with case law, for determining the sufficiency of an expert opinion regarding the aerial identification of marijuana cultivation.
15. Our file will be forwarded to the Grand Juries of Los Angeles and Ventura Counties, the Sheriffs of Los Angeles and Ventura Counties, the Los Angeles County District Attorney, the Attorneys General of the United Stales arid of California, and the Federal Bureau of investigation for their review. We recommend that those bodies conduct their own investigations to determine what action is appropriate for them to take.
ATTACHMENTS
PERSONS PRESENT WHEN WARRANT EXECUTED
LOS ANGELES SHERIFF"S DEPARTMENT
Boyce, Sgt. Larry M.
Burch, Joy
Cater, John
Copplin, Donna
Dewitt, Lt. Richard
Joblonsky, Joyce
Levy, Sgt. Steve
Marco, Sgt. Harry
Mueller, Sgt. Robert W.
Reichie, Dean (Reserve)
Spencer, Gary
Valentine, Dave
Zenman, S.DRUG ENFORCEMENT ADMINISTRATION (FEDERAL)
Barrett, John
Youngblood, SteveBUREAU OF NARCOTIC ENFORCEMENT (STATE)
McClung, Greg
Petit, WilliamU.S. FOREST SERVICE
Burton, Jim.
Wears, GlenLOS ANGELES POLICE DEPARTMENT CANINE UNIT
Daniel, Charles
Cuessferd, Pat
Lealan, Don
Taylor, Sgt. SteveNATIONAL PARK SERVICE
Simonds, Tim
Sutton, Bryan
Young, TimJET PROPULSION LABORATORY
Yavrouian, Andre
Mintz, FredNATIONAL GUARD
Diaz, Frank
Hicks, Capt. Clay
Russell, RonTAPE FROM SCOTT"S ANSWERING MACHINE
First Conversation: Deputy Joy Burch (JB) to " 911"
JB: _____________ the door.
911: 911 emergency, what are you reporting?
JB: " "kay, is this the Los Angeles County Sheriffs Department? Uh. we have a, uh, we have a gunshot victim here.
911: Yeah, we got you _________ on the air.
JB: Alright, somebody"s in route?
911: Yeah, fire is on the way.
JB: Thank you,
Second Conversation: Neighbor (N) to Deputy Gary Spencer (GS)
N: Hello, is this, uh, uh, Donald?
GS: No, no, it"s a friend of his. Who"s this?
N: Is Donald there?
GS: Uh, he"s busy, what"s up?
N: OK. I Just. I"m Just a neighbor, I just saw a police car go up, wanted to make sure everything is OK. GS: Oh. OK.
N: Everything alright?
GS: Uh, yeah, this is the Sheriffs Department.
N: Oh, OK. Everything OK or what?
GS: Uh, we were serving a search warrant on the property here.
N: Uh, OK, 1 was just checking out...
GS: Yeah...
N: ...and seeing if everything was alright.
GS: Yeah, he didn"t call us, we were serving a search warrant.
N: OK, I"I1 talk to you later.
GS: Alright.
N: Bye, bye.
Third Conversation: Lt. Richard Dewitt (RD) to Capt. Larry Waldie (LW)
(Dial tone and dialing)
Recording: We"re sorry, it is not necessary to dial a 1 or the area code when calling the number. Please hang up and try your call again. (Dial tone and dialing)
LW: Larry Waldie.
RD: Uh, Captain, Dewitt here.
LW: Yeah
RD: I"m on a search warrant with the Hidden Hills crew on this marijuana eradication thing...
LW: Yes...
RD: And they just uh, looks like a 927D here.
LW: At the location?
RD: Yeah.
LW: A dead body"s there?
RD: No, we put him down.
LW: We killed him?
RD: Yeah.
LW: Uh, Where you at?
RD: Hold on a minute... Harry do you have the address here?
Harry: Yeah,
?: Hold on and I"11 get it.
RD: Apparently what happened, they did their knock arid notice for quite awhile, came into the house, the guy was, uh, walking out of the back of the house.., he has some kind of revolver, I don"t know what kind it is, he"s holding in his hand. Told him, put it down... he kinda had it pointing up in the air originally.., as he brought it down he was kinda pointing toward the deputy and I don"t know which deputy it is right now... ?:That"s it.Go to Diagram of House
Got to District Attorney"s letter
Return to Outpost of Freedom Homepage
Return to Journal of the Times 