Evidentiary Hearing Set in Matzat Vandalism Case Following Judge’s Denial of Motion to Suppress Warrant

On Wednesday, the trial of Tomas Matzat, facing multiple charges of vandalism on the UC Davis campus as part of the Occupy protests, was moved to Judge David Rosenberg’s court, as Judge Tim Fall recused himself without explanation.

Attorney Tony Serra moved to suppress a search warrant of Mr. Matzat’s campus residence, arguing that it “was unreasonable under the Fourth Amendment in that it was a fishing expedition, subject to a facially deficient warrant that was not based on reasonable or probable cause.”

Mr. Serra argued before Judge Rosenberg that the warrant was not based on reasonable or probable cause in that in part it was based on a surveillance camera that reportedly captured Mr. Matzat going in and out of a campus restroom during a time period when graffiti occurred within that restroom.

He argued that the video only shows Mr. Matzat going in and out of the restroom for a period of time consistent with normal “bodily functions.”  He argued that the graffiti term “parasite” is generic.

The DA had also connected the graffiti, “parasite,” to Los Rios College four years prior, where Mr. Matzat was in attendance.  Mr. Serra argued that there was no evidence of his client’s involvement in the use of the term “parasite” at the previous location four years prior.

Judge Rosenberg says that the affidavit from the investigator, Sgt. Donald Malloy, indicated that Mr. Matzat walked out of the bathroom and looked up at the ceiling.  He implied that this action was consistent with looking for the surveillance camera and he could not imagine another reason for having done so.

Judge Rosenberg argued that the burden was on the defense to challenge the probable cause affidavit and he argued that it was unique graffiti, it fit the time frame, Mr. Matzat was identified going in and out of the restroom at a time consistent with the graffiti, and that provides opportunity.

He argued that the action of stepping out and looking up raises suspicion.

Judge Rosenberg did agree that the connection to Los Rios college was tenuous, and therefore said he did not consider that prior incident in his decision to deny the motion to suppress.

It is important to understand that the court did not review the video itself, only the affidavit by Sgt. Malloy.

After a lengthy conference with his client, Mr. Serra requested an evidentiary hearing, arguing that he disputed that the video showed his client going in and out of the restroom and looking up at the ceiling.

The hearing will take place on August 10 in Judge Rosenberg’s courtroom.

Thomas Matzat is charged with five counts in violation of Penal Code section 594(a)(b)(1) (Vandalism, damages exceeding $400.00); fourteen counts in violation of Penal Code section 594(a)(b)(2)(A)(Vandalism, with damages less than $400.00); and one count in violation of Penal Code section 594.2(a), possession of tools or marking substance, with the intent to commit vandalism.

These charges stem from the search of Mr. Matzat’s campus residence pursuant to a search warrant affidavit authored by UC Davis Police Department, Sergeant Donald Malloy.

In a surveillance video, Courtney Robinson, Assistant Director for Policy and Conduct with UC Davis Student Housing, determined that a student entered the restroom for approximately twenty-five minutes.

The affidavit states that Ms. Robinson later identified the student in the surveillance video, entering the restroom, as Thomas Matzat.

Sergeant Malloy contacted the Los Rios Police Department, and Officer Frank Smith of the Los Rios Police Department remembered taking a report of graffiti involving the word “parasite.”  However, the officers could neither locate a report number nor find Mr. Matzat’s name in their computer system.  The incident that Officer Smith recalled may have occurred up to four years ago.

In the written motion that he filed, Mr. Serra argued that “probable cause that gave rise to the issuance of the search warrant was lacking on its face in that it was premised on a stale incident and stale investigation at another school, occurring up to four years prior to the present search warrant request.”  Furthermore, “Probable cause that gave rise to the issuance of the search warrant was lacking on its face in that it was based on mere surveillance of innocuous activity, to wit: the defendant entering and exiting a bathroom.”

“Sergeant Malloy’s affidavit in support of the warrant is fatally weak on its face,” Mr. Serra argued.  “Moreover, had the Honorable Judge Paul Richardson considered the banality of the activity set forth in support of the warrant, and the staleness and irrelevancy of the information, no warrant would have been issued.”

The warrant yielded a number of supplies consistent with the materials and supplies an art student would have.

“Mr. Matzat asserts that the present search warrant affidavit is facially deficient of facts to support a probable cause finding for the issuance of the present search warrant because mere surveillance of the defendant entering a bathroom, where graffiti was discovered, and a stale recollection of a possible investigation at another school, is insufficient to establish probable cause,” Mr. Serra writes in his motion.

Mr. Serra argues, “Despite the staleness of the reports and remoteness of the incident previously under investigation, Sergeant Malloy utilized this information as a substantive basis to connect Mr. Matzat to the political graffiti and vandalism. None of this information provided any evidence that the search of the Webster Dorm Room 212A would procure evidence of any illegal activity under investigation on the UC Davis campus.”

Mr. Serra also argues that there is a lack of connection between the alleged activity of Mr. Matzat and his residence.

On March 9, 2012, UC Davis Police Officer Guerrero reported vandalism over a urinal at the Segundo Services Center, on the UC Davis campus.

Surveillance tapes and subsequent identifications from campus personnel allegedly place Mr. Matzat entering and thereafter exiting the same restroom.

However, Mr. Serra argues, “There is no surveillance of him spray painting, marking, or vandalizing any property at any time. There is no evidence of him purchasing, or otherwise obtaining, material commonly used by graffiti artists or in cases of vandalism.”

He adds, “There is no evidence of him bragging, stating, or otherwise admitting that he vandalized, marked, or in any way defaced any property.”

“Rather, the evidence is limited to video footage of Mr. Matzat walking in and out of the restroom, where the vandalism was discovered. The indicia of illegal activity pointed to by the police is capable of innocent explanation,” Mr. Serra argues.  “Simply stated, he may have been using the restroom to relieve himself. The fact that he entered the same restroom where vandalism was discovered is simply not indicative of any criminal activity”

However, as Judge Rosenberg notes, Mr. Serra makes no accounting for looking at the ceiling, which may not prove anything by itself, as the judge argued, but given the limited burden for the purpose of the affidavit, he could not come up with a reasonable explanation as to why that would occur.

Mr. Serra is now challenging the video, which the court will have the opportunity to evaluate at the August 10 evidentiary hearing.

—David M. Greenwald reporting

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