By Alexandra Cline
SACRAMENTO, CA. – It was a strongly contested preliminary hearing here in live-streamed Zoom Sacramento County Superior Court Monday—many preliminary hearings are not too adversarial—but with a full morning of testimony, Judge Ernest Sawtelle overruled protests from defense lawyers to holding two defendants to stand trial.
Belinda Harry and Jeffrey Dunlap faced drug possession and sale charges, probation violation, and child endangerment, all felonies.
Both Harry, represented by Defense Counsel Benjamin Williams, and Dunlap, represented by Defense Counsel Michelle Spaulding, are out of custody and appeared in court from home via Zoom. There were technical difficulties that caused Judge Ernest Sawtelle to pause the hearing and witnesses and attorneys to repeat what they said multiple times.
Arresting Probation Officer Lindsey Fukushima testified that he and another officer searched the defendants’ room in a house they shared while Dunlap was still on probation from a prior charge. Deputy District Attorney Jennifer Gong questioned him for validity, in which he stated he was familiar with identifying drugs, and has tested meth about a dozen times.
In the room that both Dunlap and Harry shared with their five-year-old son, probation officers found a jar of marijuana on a dresser.
There was, Fukushima said, also a purse hanging in the defendants’ room, which allegedly contained three different bags of meth, weighing 12.8 grams, 30 grams, and 27.7 grams, as well as a scale, and letters. Officers also found $773 in cash and a debit card on Dunlap’s person. In the garage, there were allegedly two open double bagged trash bags of marijuana “shake.”
The court wanted to determine who owned the purse, and who had “access and control” of the drugs inside of it. Because Dunlap is on probation, it was necessary to determine whether proximity to the drugs meant that he had “access and control” over them. They also wanted to determine whether the child was put at risk, and whether there was an intent to sell the meth.
Defense counsel Williams argued that since his client, Ms. Harry, was not on probation, the search was not legal. And private defense attorney Spaulding joined the request to have the search thrown 
out.
At the end of the hearing, the judge ruled against them and their clients.
“The officers had the right to go into the room, and they had the right to search the common area,” the judge said, noting that marijuana was in “plain view” in the room and in the garage.
“In a large house you wouldn’t have that right (to search the entire room)—it would go too far. But a small bedroom area is different. The dresser is reachable, there were seven to eight purses on the wall that defendant Harry couldn’t reach without a stool, so it does raise reasonable suspicion,” said the judge.
Both defendants waived their Miranda Rights during their arrests in order to make a statement to the police, said officers.
During the statement that defendant Harry made to Officer Fukushima, she admitted that the purse was hers, but that she didn’t use it because it had a broken zipper. She told him that the weed was hers but that she kept it safely from their five-year-old son. She said that she didn’t know about the meth, and assumed that co-defendant Dunlap owned that, because she was aware of his history of meth use.
Harry also admitted she was working and that Dunlap didn’t contribute much to help their financial issues. She told officers that he got his money from “side jobs,” and that they had prior issues with infidelity. Dunlap admitted that he is a chronic meth user who smoked $200-$300 worth a day, and Harry said she only smokes cigarettes.
Fukushima stated that the bags in the room were set up in a decorative way—as the judge would later agree—hanging on the wall. He admitted that he didn’t search the bag for drugs, because he couldn’t reach the bag—he’s 5 foot 5 inches. The defendant is even shorter, at 5-0 feet tall, but Dunlap, at six feet tall, could easily reach it.
Fukushima believed that the child would be able to reach the drugs on the dresser, as well as the bags of weed in the garage, if he wanted to. When defense counsel WIlliams asked the witness if he thought the son could reach the bag with meth, he admitted that he would not be able to because of his height. He also stated that he was not sure whether the five-year-old would be able to open the clasp on the jar of marijuana.
Officer Fukushima said he used a “Narctec” kit to determine that the substance found in the bag was meth. He described how the test works, when using a single vile. “First, rub the substance on one side of the test, which is like a cotton q tip, and then break the glass side. The fluid from the glass side will permeate into the cotton side,” and if it is an active drug it turns blue or green,” he said.
During cross-examination of Officer Fukushima, defense counsel Spaulding first asked if he saw any baby gates in the house when he was there. He stated that he saw a gate in front of the bathroom door, but he wasn’t sure if it was for a child or a dog.
There were also no obstacles blocking the path to the garage, he said, adding he could not recall whether the garage door had a lock; but he claimed there was a doorknob, and that the door was open when he arrived at the scene.
Spaulding questioned Fukushima’s ability to identify meth. He said that it looked like rocks with a crystalized aspect to it. He stated that he could not tell if the drugs had an active ingredient just by sight.
Defense Counsel Spaulding also quizzed Fukushima on whether he knew that the test would also be positive for over 80 other cleaning chemicals, as well as meth. He agreed that the test could never be completely accurate, but that, in his opinion, the drug was meth. He also admitted that a scale at a scene does not necessarily indicate drug sales, as users have scales as well.
The physical evidence that was used to support a drug sale charge were text messages, that were over a 2-3 day span, and the scale.
Spaulding quipped “if that’s all there were (there) it doesn’t sound like a successful (selling drugs) enterprise.”
Defense counsel Spaulding questioned whether Officer Fukushima knew the difference between hemp and marijuana. While he described what he had learned during training, he admitted he would personally not be able to differentiate by viewing or smelling it, and that hemp could look like shake. She also asked about specific harm that the marijuana would cause to the child, and he could not give an exact answer.
Spaulding asked Fukushima if he saw any step stools or tools to hang purses in the room. He said he did not look for any. He could not tell whether each bag was used for a personal reason or as decoration.
The prosecution argued that because the drugs were accessible and controlled by Dunlap, it qualifies as a violation of his probation. The defense argued that living with someone who is on probation does not give authorities the right to search roommates’ property. Judge Sawtelle disagreed.
There were also screenshots of texts put into evidence that potentially implied drug dealing. Both defense counsel objected to these being put into evidence, citing foundation and hearsay. Judge Ernest Sawtelle overruled the objection.
The second expert witness called Monday was Daniel Garbutt, a criminal investigator for seven years at the Sacramento District Attorney’s Office and a sworn peace officer for over 24 years. He said he has 200 hours of training for narcotics sales, and served as an expert witness at least 40 times before.
Garbutt confirmed that the average dose of meth is between 1/10 of a gram to ¼ of a gram, and that taking that much would leave someone high for 6-8 hours. He testified that the 68.2 gram of meth found in the room of Dunlap and Harry were equal to 272-680 doses. The street value of meth is $100 per gram, he added, estimating the street value at $6,800.
Garbutt testified that dealers sometimes smoke their stash, and that Dunlap’s usage was more than an average user. The most that an average user would have is a quarter of a gram. Garbutt’s opinion was that the amount of meth, the way it was packaged, and the cash found on Dunlap indicated that the meth was intended to be sold.
During cross-examination, defense counsel Williams confirmed that, for the record, Garbutt is employed with the same agency that filed the charges. He testified that it is typical for dealers to use. He admitted that meth users would develop tolerance and need to take more in order to feel high.
Defense counsel Spaulding asked how Garbutt characterized an average user. He explained that an average user takes meth 1-3 times a week, while a chronic user would use almost every day.
“Isn’t it true that users can buy larger quantities if they get a better deal,” Spaulding asked Garbutt, suggesting that Dunlap didn’t need to be a meth dealer to have that much of the drug in his possession.
Garbutt admitted that it can be the case that meth users buy in higher quantities if there is a good deal to avoid getting, as Spaulding described it, “ripped off.”
Before the judge ruled, defense counsel Williams asked him to reduce felony charges against defendant Harry to a misdemeanor. The judge refused after noting that, apart from all the other evidence provided from the search, that Harry, during her search at the jail, was found with a “bag of meth inside her bra.”
Judge Ernest Sawtelle ruled that the charges remain the same. Arraignment is scheduled for June 19, at 8:30 a.m. in Department 63 at the Sacramento Superior Court.
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