Defense Seeks to Suppress Evidence, Alleging Illegal Search in Davis Drug Arrest

The defense has filed a Pitchess motion and a motion to suppress, in the case of Kathryn McEachern.  She is accused of possession of drugs, stemming from an arrest at CVS Pharmacy on West Covell in Davis, on January 30 at 2:30 am when Ms. McEachern had entered the pharmacy in need of taking care of her menstrual cycle that had come on suddenly and unexpectedly.

In his report, Sgt. Doug Bates indicated that he, Officer Franti and Sgt. Rod Rifredi were dispatched to the CVS on West Covell regarding a suspicious circumstances call.  An employee had called in about observing a male and female in the store apparently preparing to shoplift.

“McEachern stated that she didn’t really think it was that big a deal and didn’t intend to cause a problem,” he wrote.  “I explained that a lot of theft has occurred at the store and that shoppers with backpacks are a source of concern for the employees. McEachern stated that she understood.”

Sgt. Bates asked her if she had ever been arrested and then asked her if she had any drugs.  He said, “McEachern began to mutter and appeared to get very nervous.”  She at first denied using drugs but then “she nodded her head up and down in an affirmative manner.”

According to the filing by the defense, she asked Sgt. Bates, “Can I take care of my medical issue?”  Sgt. Bates replied, “No, I need to talk to you.”

The defense writes, “A brief conversation then ensued where Ms. McEachern informed Sergeant Bates that she had entered the CVS to purchase some pads because she was on her period, had not stolen anything inside, and had denied the CVS employee’s request to leave her backpack up front after she entered because she did not want to leave it unattended.”

The defense argues Sgt. Bates would learn that no crimes had occurred within the CVS, however, he then “began to ask Ms. McEachern if she had ever been arrested; if she had any drugs, pipes, or other contraband on her.”

Deputy Public Defender Joseph Gocke writes, “Sergeant Bates continued this line of questioning of Ms. McEachern in front of the CVS multiple times. Ms. McEachern, upset and overwhelmed due to having an unexpected period, motioned to her pants several times to try to indicate to the officer her need to get to a restroom to take care of her medical situation. Instead, Sergeant Bates continued to interrogate her as to whether or not she had any drugs or drug paraphernalia.”

He adds, after asking her multiple times about a search, he conducted a search and found 0.2 grams of meth in an espresso bean canister in her right front pants pocket.  At this point he arrested her and found 0.25 grams of marijuana, a methamphetamine smoking pipe, a marijuana grinder, a marijuana smoking pipe, and a concentrated cannabis smoking pipe.

The defense moves to suppress the evidence on the grounds that there was no consent to search the defendant and the search was conducted without a warrant.  He cites case law that notes, “Where there is coercion there cannot be consent.”

A Pitchess motion is an attempt to discover, or gain access to, the personnel records of police officers accused of misconduct.  It carries a “”relatively low threshold for discovery.” Defendants meet the standard of good cause for section 1043 discovery when they “demonstrate the materiality of the information to the pending litigation” and state “upon reasonable belief’ that the police agency has the records at issue.”

As the defense notes: “To demonstrate materiality under section 1043, defense counsel’s supporting affidavit must propose a defense to the pending charges and articulate how the requested discovery would lead to admissible evidence in support of the defense, or otherwise impeach the officer’s version of events.”

“Rather, a factual scenario is plausible ‘when it asserts specific misconduct that is both internally consistent and supports the proposed defense,’ ” the defense argues.  “The defense need only demonstrate that the factual scenario “might or could have occurred.”

Here the defense argues, “Ms. McEachern indicated to Sergeant Bates right away that she was on her period and needed to get to the bathroom.”  They write, “Ms. McEachern never indicated that she had methamphetamine in her pants pocket but instead, while upset and  frustrated due to the fact that she felt she needed to deal with her medical issue, [never nodded her] head up and down in indicating that she had drugs on her person, never stated that, [but] indicated by motioning to her pants with her hand that she had a medical issue (bleeding from her period) that she needed to attend to.”

They specifically state, “Ms. McEachern never nodded her head up and down in indicating that she had drugs on her person, never stated that she had drugs for personal use, and never stated that she used methamphetamine by eating it.”

In a  Pitchess motion, the agency that is the custodian of the police personnel records acts as legal counsel.  In this case, that is the city of Davis and Harriet Steiner, Kimberly Hood and Irene Zurko of Best, Best and Krieger.

They write, “Defendant does not refute she was in possession of these drugs. Rather, her only defense appears to be to the basis for the search itself. Defense counsel’s supporting declaration, however, fails to proffer a specific, consistent, or complete factual scenario surrounding her arrest.”

“Sergeant Bates provided a detailed account of the conversation and events that lead to the search and discovery of Defendant’s drugs – an account corroborated by a recording from his in-car camera video,” they argue.  “Similarly, the supporting declaration contains no allegations of officer misconduct to either explain or support its broad request for information in the categories involving falsifying or altering reports and/or evidence.”

“Any arguments regarding the reasonableness of the search itself will go to the merits of a motion to suppress, but without more, the defense has failed to satisfy the Pitchess good cause standard,” they argue, “Without admitting to the existence of documents that may be relevant to Defendant’s motion, the City objects to disclosure of the records sought and respectfully requests that the Court deny Defendant’s motion.”

Deputy DA Jared Favero would argue that Ms. McEachern consented to a search.

He writes, “Here, McEachern was approached by Officer Bates. After a short exchange of words, during which McEachern admitted to possessing methamphetamine and indicated that it was in her front-right pants pocket, Officer Bates asked if he had McEachern’s permission to take the methamphetamine from McEachern’s pocket.”

“Officer Bates had informed McEachern that she could say ‘no’ to the search if she wanted to. McEachern told Officer Bates to do ‘whatever will make this over faster’ and to ‘do whatever you [Bates] want to do … ‘ In this case, Officer Bates wanted to search McEachern’s pocket in order to remove the methamphetamine. He clearly made that point by repeatedly asking McEachern’s permission to remove the methamphetamine.”

“When McEachern told the officer that he could ‘do whatever [he] want[ ed] to do’ the reasonable person in Officer Bates’s position would expect this to give him consent to conduct the search for which he was asking permission. Further, a reasonable person in McEachern’s position would draw the same conclusion. Therefore, the search of McEachern’s pocket was lawful and the evidence was obtained as a result of the lawful search,” Mr. Favero writes.

He writes, “Officer Bates did not threaten McEachern, nor did he promise leniency or reward for a truthful statement. After McEachern denied possessing any contraband, Officer Bates told her that he could tell that she was lying and told her to be truthful. He did not promise that things would be easier or better for McEachern if she told the truth. Officer Bates simply urged McEachern to be truthful, which does not render a subsequent confession involuntary. Therefore, McEachern’s admittance that she was in possession of methamphetamine and a pot pipe were voluntary.”

Judge Fall would grant the Pitchess motion, and the hearing on the motion to suppress has been set for August 29.

—David M. Greenwald reporting

Categories: