Metropolitan News-Enterprise


Friday, June 3, 2005


Page 1


Supreme Court Narrows Showing Required for Pitchess Motion

Justices Say Defendant Must Show Reasonable Possibility, Not Probability, That Claims of Police Misconduct Are True


By KENNETH OFGANG, Staff Writer/Appellate Courts


A defendant seeking discovery of police personnel records to show officer misconduct need only show facts sufficient to establish that such conduct “could or might have occurred” in order to obtain an in camera review, the California Supreme Court ruled yesterday.

In a 5-2 decision, the justices reversed lower court rulings in favor of the Los Angeles Police Department, which contended that Donald P. Warrick failed to make a plausible showing that officers falsely accused him of possessing drugs that had been discarded by someone else.

Without such a showing, Los Angeles Superior Court Judge Stephen Marcus and Div. Two of this district’s Court of Appeal ruled, Warrick had no right to discover past complaints of misconduct by the arresting officers under Pitchess v. Superior Court and its statutory codification.

Warrick was arrested in April 2002. The police report said that he was observed by officers standing against a wall, looking at a baggie containing what appeared to be cocaine, then ran when he saw the three police officers get out of their car.

The officers saw Warrick discard numerous items as he ran, according to the report, and two of them arrested him while the third retrieved what turned out to be 42 rocks of cocaine. The baggie, the arresting officers said, was still in his hand.

At the time of arrest, the report said, he had $2.75 on his person, along with some porcelain chips, commonly used by burglars to smash car windows. Warrick was on parole for burglary at the time.

Defense Claims

In a declaration in support of his Pitchess motion, Warrick claimed that he was in the area to buy drugs, not sell them. Before he completed the purchase, he declared, the police showed up, chased and caught up with him, and produced the cocaine rocks, saying “You must have thrown theseóthese are yours.”

The defense asserted that by discovering the officers’ personnel records, it could determine whether they had a propensity to engage in aggressive behavior, violence, lying, planting evidence, or other forms of moral turpitude, and could potentially locate witnesses to testify to those traits.

Since-retired Justice Michael Nott, writing for the Court of Appeal, concluded that the motion was properly denied because it was not believable that Warrick, who had less than three dollars in his pocket and was arrested with an empty baggie in his hand, was in the neighborhood to buy drugs rather than sell them.

Nor, the justice said, was it plausible that the supposed seller or anyone else besides the defendant had discarded 42 rocks of cocaine.

Kennard Opinion

But Justice Joyce L. Kennard, writing for the high court, said that while the lower courts were correct in requiring that the defendant allege specific facts to support his motion, they were wrong to conclude that his showing was not “plausible.”

In effect, Kennard explained, the trial judge and Court of Appeal held that the defendant had to present sufficient corroborative evidence to show that his version of the facts was probable, rather than merely possible.

Warrick’s version of the facts, the justice said, is not inherently implausible. The assumption that a would-be drug buyer would have more than three dollars in his pocket, she reasoned, is no more persuasive than the accusation that a man in possession of drugs for sale would have less than three dollars available to make change for his customers.

“Having decided that defendant had too little cash to buy cocaine and that only he would have discarded the rocks of cocaine in question, the Court of Appeal concluded that defendant’s factual scenario was implausible, not because his version of events could not have occurred, but because in the court’s view that version of events was unlikely. In doing so, the Court of Appeal elevated the showing of good cause for Pitchess discovery beyond that required by law.”

Kennard elaborated:

“To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court’s task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally has before it only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion. The trial court does not determine whether a defendant’s version of events, with or without corroborating collateral evidence, is persuasiveóa task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty.”

Chief Justice Ronald M. George and Justices Kathryn M. Werdegar, Ming Chin, and Carlos Moreno concurred in the opinion.

Justice Janice Rogers Brown, joined by Justice Marvin Baxter, dissented. The defendant, she argued, was “utterly unconvincing” in asserting that the cocaine was not his.

Warrick, she noted, was arrested in an area known for “blatant use and sales of narcotics.” His claim that the cocaine did not belong to him, the justice said, was inconsistent with the fact that he ran from the police.

“When the lion culls the slowest, weakest, or unluckiest from the herd, the other gazelles run a safe distance and then return to grazing. No gazelle commits suicide by flinging itself in the lion’s path. These behaviors are instinctive....When the police flashers are activated and one commuter is pulled over, the others breathe a sigh of relief and gradually return to cruising speed. People no more than animals invite calamity when fate has already selected another victim.”

The case was argued in the high court by Deputy Public Defender Mark Harvis for the defense and by Deputy City Attorney Kim Rodgers Westhoff for the LAPD.

The case is Warrick v. Superior Court (Los Angeles Police Department), 05 S.O.S. 2641.


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