The Davis Vanguard by David Greenwald, January 6, 2017
Judge David Reed continued a hearing to a later date to decide whether a Pitchess motion should be kept under seal in the matter of Paul Fullerton and his wife Maricel, who are charged with multiple felony counts of possession of marijuana for sale stemming from a raid conducted on February 29, 2016.
Defense attorneys filed the Pitchess motion this past fall in order to obtain information about the arresting officers, who were from at least three different agencies. In a November 30 Fax to the court, the defense then requested “an ex parte hearing (In Camera) regarding the applications to seal the Pitchess declarations.”
Attorney Joseph Tully, representing the couple, told the Vanguard on Thursday that the case has been slowed due to the motions filed by the defense.
He told the Vanguard that, with the passage of Proposition 64 (legalization of recreational marijuana), the nature of this case has fundamentally changed.
“The thrust of this case, the majority of the charges instead of being felonies, are now misdemeanors,” Mr. Tully said. “Where we were looking at a complaint with a lot of felonies on them, those have all been reduced under Prop. 64 to misdemeanors and, along with that, I would hope that the DA's office is going to listen to the will of the people and adjust their pursuits accordingly.”
The raid was conducted following an extensive undercover criminal investigation by the Yolo Narcotic Enforcement Team, or YONET. The YONET team had received information that Mr. Fullerton was allegedly selling marijuana out of his Woodland, CA, business, and then arranged for an undercover YONET informant to purchase marijuana from Mr. Fullerton.
Mr. Fullerton told the Vanguard from the start, “They were overly aggressive pursuing this case.”
According to an affidavit previously acquired by the Vanguard, during the months of January and February, Mr. Fullerton allegedly sold marijuana to an undercover YONET agent, but that information is sealed to “protect the identity of any confidential informant(s), undercover police officer” etc.
The motion to seal the affidavit and quash the search warrant argued that the affidavit of the undercover officer contained “no particular information relating to the investigation of Mr. Fullerton other than a description of his home and business.”
Mr. Tully told the Vanguard, “If the public knew how much money was put into trying to set up Mr. Fullerton, I think they would be pretty upset.”
At the next hearing it will be Mr. Tully, Judge Reed and a court reporter who review the Pitchess motion in the judge's chambers for an “in camera” (private) review of the affidavit itself. They will apparently go through the motion line by line to determine whether the information should be sealed and Mr. Tully will have the opportunity to explain why the defense needs it sealed.
The defense hopes to be able to guard information that they believe that they are entitled to in order to present a strong defense of the Fullertons.
Under California law, a Pitchess motion is a discovery request made by the defense to access personnel information about a law enforcement officer when the defense alleges that the officer either used excessive force or lied about information regarding the defendant's arrest or investigation.
The motion does not give the defense access to the personnel file, but directs the judge to inspect it in camera and provide relevant information about its contents regarding incidents of use of force, allegations of excessive force, citizen complaints, and information gathered during the officer's pre-employment background investigation.
The judge would then rule on the sealing of the motion. “If it's allowed to stand sealed,” Mr. Tully explained, “then he'll rule on the Pitchess motion.”
The judge may rule that it all remain sealed or that they have to un-redact portions of the Pitchess motion. The attorneys for the various agencies, including the Davis Police Department, are the attorneys that defend against the Pitchess motion.
This hearing is scheduled for January 30 and Mr. Tully then anticipates that the attorneys for the law enforcement agencies would get another three weeks to prepare their defense against the Pitchess motion.