John Chiv: "Those animals came from other ranchers. Do you believe you have probable cause to go on those other rancher's properties?"

Dec 29, 2021

"Those animals came from other ranchers. Do you believe you have probable cause to go on those other rancher's properties?"

Since my post on December 27 on the defense motion to suppress evidence from the October 2021 federal raid at Ray Christie's property, I have heard from a lot of people, including lawyers from all over California.

The consensus is that Humboldt Superior Court Judge Elvine-Kreis made a ridiculous ruling; an incorrect ruling; the defense could file a writ and definitely appeal the ruling depending on the outcome of the trial.

Many people expressed an interest in reading detailed testimony from Monday's hearing.

The chronological testimony is at the end of the post. I am going to document it in detail in case there is an appeal and for the rest of my California and national readers to see another example of "Humboldt justice."

I took 16 pages of notes at the December 27 hearing I also researched case law on the Fourth Amendment. There is evidence, testimony, case law and Judge Elvine-Kreis picked one case which suited his opinion.

If you haven't read the related post I did on December 27 on the hearing, here is the link.

https://johnchiv.blogspot.com/2021/12/hcso-called-da-during-federal-raid-but.html?m=1

Judge Elvine-Kreis chose the case cited by the People that suited his opinion and made it his tentative and final ruling. Other reasons for his ruling included verbatim comments from the prosecutor.

I mentioned in my previous post about this December 27 hearing that after reading all the testimony, you can draw your own conclusion whether Judge Elvine-Kreis' mind was already made up about the motion before the hearing started.

That is if you have an open mind. People have opinions about Christie and they vary. People who dont know Christie or have an agenda don't want him to get a fair trial or balanced coverage. They don't care about facts or the law. We have a constitution in this Country, due process and the right to a fair trial. They are principles. Are they always applied? Of course not. Humboldt's blatant disregard, selective enforcement and arrogance is the norm; not the exception. What is happening to Christie can happen to you at anytime, simply on the whim of the Humboldt cabal.

If this goes to trial, will Christie have a jury of peers who will listen to all the evidence with an open mind? I am already expecting Judge Elvine-Kreis to deny the January 7 motion to dismiss criminal charges or suppress evidence from the 2018 raid and to deny the defense request for continuance. That is based on Humboldt Superior Court's actions and rulings in this case.

Would another Judge have made a different ruling? A judge who knows the law and that their rulings can be appealed wouldn't be so cavalier. If only Elvine-Kreis' ego actually matched his knowledge of the law.

We have such Judges not only because of the Humboldt way but because of the useless California Judicial Council and California Commission on Judicial Performance. Google the posts I did on them or Google coverage other California media has done on them. The stench of arrogance, rudeness, incompetence, government abuse and law enforcement overreach displayed in the December 27 hearing is systemic in California.

If you haven't read them, I would suggest you search the posts on Judge Elvine-Kreis on my blog, particularly the Ben Erickson posts. I have been overwhelmed becauae so many people have contacted me about Judge Elvine-Kreis, his rulings, their experiences. That happens with many cases, many news tips because just like the lawsuits filed against Judge Elvine-Kreis, the Erickson case and so much more; I cover the news others ignore or don't report.

There are multiple reasons that Judge Elvine-Kreis should recuse himself from this case. Any self respecting Judge would. Elvine-Kreis will never do that; he won't even bother when asked. All this is covered in the recent posts on the Christie case and other posts on Elvine-Kreis.

People v Mazel: (this was a case the defense cited)

Crim. A. No. 12945. Appellate Department, Superior Court, Los Angeles. December 23, 1974.]

THE PEOPLE, Plaintiff and Respondent, v. BERNARD PHILLIP MAZEL, Defendant and Appellant

(Opinion by Marshall, J., with Katz, P. J., and Holmes, J., concurring.) [45 Cal. App. 3d Supp. 2]

COUNSEL

Kenner & Stein and David E. Kenner for Defendant and Appellant.

Joseph P. Busch, District Attorney, Harry B. Sondheim, Chief Deputy District Attorney, and Barry R. Levy, Deputy District Attorney, for Plaintiff and Respondent.

OPINION

MARSHALL, J.

This is an appeal from the order denying defendant's motion to suppress evidence.

An agent of the Federal Bureau of Investigation (FBI) submitted an affidavit to the United States District Court requesting that a warrant be issued to search the premises at 5335 West 146th Street, Lawndale, California. The agent sought illegal reproductions in violation of the federal law of copyright-protected sound recordings. The warrant was issued directing "any such agent of the Federal Bureau of Investigation to search for evidence of violation of 17 U.S. Code, section 1, 101(e) and [45 Cal. App. 3d Supp. 3] 104." The search occurred on October 18, 1973. At the instance of the agent, two employees of A & M Records, a plaintiff in a civil action against the defendant in the state courts, participated. The affidavit in support of the warrant, however, made no mention of them. fn. 1

Special FBI Agent Altpeter notified the Los Angeles County Sheriff that tapes which allegedly violated state law were on the premises at 5335 West 146th Street. Sheriff's deputies thereupon went to that address and conducted a search without the assistance of the FBI agents but with help from the A & M Records employees. No state warrant was procured. During the search, FBI agents were on the premises; in fact, they were there all day (October 18) and part of the early evening. The deputies seized a number of tapes and left a receipt for them on the premises.

[1] Here we find that two searches occurred on the same day by two separate governmental units, one state and the other federal. The federal search was under the authority of a warrant, whereas the state search was not. The existence of a federal warrant does not metamorphose the state search into one with a warrant. A closely comparable situation is reported in United States v. Carney (M.D.Tenn. 1973) 356 F. Supp. 855, 857, except that the state agency in that case had secured the warrant and the federal authorities had not. The court in United States v. Carney stated: "... it [the federal search] cannot borrow from the state search's legality in order to establish its own legality because it cannot be said, on these facts, that the ATF [federal] agents were merely assisting in a state search." (356 F.Supp. at p. 857.) In the present case, as in Carney, we, too, cannot say that the state officers were "merely assisting" in the federal search.

Therefore, the search by the sheriff must be treated as warrantless and, per se, unreasonable (Coolidge v. New Hampshire (1971) 403 U.S. 443, 455 [29 L. Ed. 2d 564, 576, 91 S.Ct. 2022]). We find no exigent circumstances which would exclude this case from the ambit of the general rule inasmuch as the FBI occupied the premises all day, and the sheriff had ample time to apply for a warrant. (People v. Sirhan (1972) 7 Cal. 3d 710, 743 [102 Cal. Rptr. 385, 497 P.2d 1121]; see Coolidge v. New Hampshire, supra, pp. 471-478 [29 L.Ed.2d pp. 586-590]; Vale v. Louisiana (1970) 399 U.S. 30, 35 [26 L. Ed. 2d 409, 413-414, 90 S. Ct. 1969]; Warden v. Hayden (1967) 387 U.S. 294 [18 L. Ed. 2d 782, 87 S. Ct. 1642].) [45 Cal. App. 3d Supp. 4]

The rule that contraband found during a search for items which were specifically mentioned in a warrant may be seized does not assist the People. The seizure in this case was not by federal agents; although the items were discovered by the federal agents, they were seized by the sheriff's deputies. This point distinguishes the instant case from United States v. Green (5th Cir. 1973) 474 F.2d 1385 fn. 2 a case relied upon by the People. In Green, the search was conducted under exigent circumstances by firemen and a fire marshal, all urgently seeking the cause of a fire, during which investigation counterfeit plates were discovered. Federal agents, then contacted by telephone, identified the plates and "took custody" of them from the marshal. The court pointed out (p. 1390) that it was the duty of the fire marshal to seize the plates, and that he then had the right to turn them over to the federal agents. In actuality that is what occurred; the federal agents conducted no search for the plates but merely confirmed the belief of the marshal that they were in reality counterfeit plates. On the other hand, the sheriff's deputies did search in the case sub judice and that is the nub of the matter.

The People's reliance on Skelton v. Superior Court (1969) 1 Cal. 3d 144 [81 Cal. Rptr. 613, 460 P.2d 485] is misplaced. In that case, a valid search warrant had been issued to the officers who, in their search for the items described in the warrant, found others. Here no warrant had been issued and the sheriff's deputies cannot borrow the authority of the federal warrant.

The order denying motion to suppress evidence is reversed.

https://law.justia.com/cases/california/court-of-appeal/3d/45/supp1.html

People v Miller: (this was a case the People cited)

GEK =Gregory Elvine-Kreis

RR = Rick Richmond

SS = Steven Steward

MC = HCSO Sgt. Josh McCall

CP: CDFA Investigator Chad Parker

TR= HCSO Deputy Travis Rogers

My observations in italics.

December 27 hearing (chronological):

This is how Humboldt Superior Court Judge Gregory Elvine-Kreis started the hearing. "I do not intend to... evidence from Mr. Christie's cell phone.

There is no statement from Mr. Christie so no Miranda (violation). As for state agents, no evidence."

Had GEK even read the documents?

RR: "There are several issues raised regarding the second raid. Our briefings are sufficient except on one issue; the role of state agents. They did collect a lot of evidence. Unless the People have completely changed their position."

SS: "The only evidence the People intend to use is testimony from Sgt. McCall." Reports and photos Sgt. McCall took.

RR: "It is a 14 page report. All the information he gathered was unconstitutional and illegal. We are absolutely opposed to it. Everything they did from 8 a.m. to 1 p.m. was unconstitutional and violated the 4th amendment."

As I mentioned in the December 27 post, this was a sudden, last minute development and yet another win for the defense.

SS: Raised issues with the witnesses subpoenaed and asked for proof regarding all 15 witnesses. "My concern is this hearing will become a deposition/fishing expedition."

GEK: "I will be asking for offers of proof for all witnesses. It is unusual to subpoena a prosecutor unless you want to impeach him or the DA."

For those who have not read the recent coverage, there was a dispute about when MC gave the report to SS.

There was a stipulation to accept the declaration of two federal agents instead of all federal agents appearing. I have a previous post with details from these declarations. Exhibit 1 declaration of Anitra Mackie and Exhibit 2 declaration of Mindy Orr was entered into evidence. It was a federal warrant and the declaration by lead agent Mackie states multiple times HCSO and State were not authorized to do what they did.

RR: "On October 13, from 7 a.m. to 8 a.m. for the first hour, Humboldt County Sheriff did what they were supposed to do. The property was secured. There was no authority for HCSO to do anything else. They spent the next four and a half hours taking photos and evidence they were not authorized to take. That is the evidence the People intend to use.

SS: "There is no case law that when local law enforcement is assisting that they have exceeded the scope of the warrant if they see evidence of criminal conduct. They saw a number of dead cows; similar to 2018."

RR: "The people said the officers acted in good faith. They did not act in good faith and did not conduct a separate investigation."

There was a motion to exclude witnesses.

This apparently did not apply to Elvine-Kreis' buddy, former Deputy DA, former prosecutor on Christie's case and currently Deputy Public Defender Adrian Kamada. He has been subpoenaed for the January 7 hearing. Kamada had time to idle and sit in this hearing. Read posts I have done on Elvine-Kreis to get the buddy/PD reference.

MC took the stand.

RR: "Are you familiar with the Humboldt County Sheriff Policy Manual? If you violate policies, you will be disciplined."

MC: "Yes."

RR: "The policy requires you to comply with constitutional rights. On October 4, 2021 you were contacted by Captain Bryan Quenell about assistance with a federal search warrant. Did Captain Quenell say anything about animal cruelty or any state investigation?"

MC: "No." MC said his understanding was assistance with serving of the federal search warrant."

RR: "How did you get the case number because it was not on the search warrant?"

MC: "I got the case number around lunch from Agent Mackie."

MC said at the briefing by the federal agent there was no mention of animal tags or carcass or animal cruelty. He could not answer Mr. Richmond why switching of tags, non compliance, national organic brand was relevant on October 13.

MC was not aware of the Mackie declaration. He didn't ask to look at the federal search warrant. Mr. Richmond read the 6 things HCSO was authorized to do in assisting the federal agents. 1. request for marked units, 2. HCSO was to escort federal agents to Christie's property 3. establish a perimeter 4. firearms tracing 5. clear barn area near cattle gate 6. check Navy base property to see if anyone was living there.

MC was not aware the federal agent were looking for alleged mail fraud or wire fraud. He thought they were looking for possible fraud. MC was shown the federal search warrant in court.

I am not going to type all the questions Mr. Richmond asked about the pre briefing and his attempts to get MC to answer. MC was evasive or did not recall. I am not even going to get into the different dates about when the DA received the report versus what MC said on the stand.

In court, the bombshell was dropped that MC called SS on the phone while he was at Christie's property for the October 13 raid. This was only after repeated questions whether he talked to anyone in the DA's office and different time frames. MC mentioned he may have talked to DA Investigator Alan Aubochon.

MC said he called SS on October 13 because "this raid may have some impact on Mr. Christie's (Humboldt) case."

MC: "I advised him we were there and my observation about carcasses and asked if there was anything in particular he wanted us to do while we were there."

RR: "Did you say to Deputy District Attorney Steward, 'This is a problem. I haven't been authorized. Did you say anything about limitd on your authority by Anitra Mackie."

MC: "No."

RR: "It took you 19 days to write the narrative part of your report?"

The People objected to this question and the objection was sustained. GEK sustained way more objections for the People and then made a different ruling for the defense on the very same objection and reason. GEK cut off RR mid sentence, was curt and interrupted him mid argument.

MC mentioned who was at the briefing by the federal agents before the raid. Some of the local law enforcement who assisted in the October 13 federal raid were not at the briefing.

MC could see federal agents at Christie's door and that Christie wasn't armed but apparently he did not see the federal agents with guns drawn running up to Christie's door.

Too bad they were all on security camera and video. A photo of them with guns drawn is in two recent posts.

MC testified that he told Agent Mackie he was going to accompany CP.

RR: "Wasn't it you who asked Chad Parker if you could go with him?"

MC" "Yes."

After talking to Deputy District Attorney Steven Steward, MC made observations about animal cruelty and carcasses.

Mr. Richmond said there was no state warrant; only a federal warrant and that CP and MC were not authorized to collect evidence.

MC claimed "our agency is the only one on a local level with the authority to document."

MC said he told HCSO Lt. Kevin Miller he would be going around with Chad Parker to observe animals. MC said HCSO Deputy Travis Rogers was with him "majority of the time." MC said he took all the photos in his report.

The federal evidence was in two boxes. MC did not tell Agent Mackie about evidence collected by HCSO. Judge Elvine-Kreis did not think this was relevant to the motion to suppress. GEK also did not think it was relevant that SS had a summary given to him shortly after the raid when there is a dispute about the timeline and SS has made statements in court.

SS's cross examination of MC was brief. He asked MC when he arrived at the property and about securing the property.

SS's next question was, "Did you see any evidence of what you believed was a crime?"

MC said while securing the area "to the rear of the main residence structure, there were animals/cows. Several.of them appeared to be down/dead."

RR: "You know Mr. Christie buys animals that are sick/dead."

MC: "Yes."

RR: "Those animals came from other ranchers. Do you believe you have probable cause to go on those other rancher's properties?"

MC: "If someone else was bringing in several cows, however seeing a cow or two with otherwise healthy cows, I judge it on that level."

RR: "While you were on Mr. Christie's property, did you see hundreds of healthy cows?"

MC: "Yes."

RR asked how many were "downed. A very small percentage compared to healthy cows?"

MC: "Yes, lower percentage."

RR: "At the very end of your report, you saw no evidence of animal cruelty that warranted prosecution."

MC answered no probable cause.

RR: "No emergency that would justify you going around the property?"

GEK: "Why did you take the pictures?"

MC: "I took pictures/videos to document observations."

CDFA Agent Chad Parker testistified next. He still works part time with the Tehama County Sheriff. As a brand inspector, he determines ownership of the cow.

RR: "You can't tell from the brand if the cow is organic/not organic."

CP: "Agreed."

CP and Agent Mackie communicated via phone and email. CP said he became aware of the declarations by the federal agents that day, in court. CP admitted he was not called to be at the federal raid for his expertise about animal cruelty and carcasses. He was to assist in locating "items of interest" in the federal warrant.

CP participated in the 2018 raid at Christie's which led to charges in the criminal case for the upcoming trial. That 2018 raid was an "operation conducted by the Humboldt County Sheriff's Office." CP said he was aware of Christie's 2018 case and charges. CP is also subpoenaed for the January 7 hearing.

No federal charges have been filed against Christie.

The cell phone and business records taken by federal agents were returned to Christie.

CP claimed he had authority to conduct an investigation and cited Code 408.

RR: "Why did you pick October 13?"

CP: "Because I was there."

CP said he did not tell Agent Mackie what he was doing. CP's response to Mr. Richmond was that he believes he can go anywhere and do whatever he wants.

CP said he saw "what appeared to be green tags that had been removed. CP said he "saw dead animals/animals unable to stand who should have been euthanized." CP said he did not take any evidence or photos and was only present when MC took evidence.

CP: "I was looking at animals and he attached himself to me." CP started to say MC did this, "after a phone call" and SS immediately objected.

CP answered he did not know who MC spoke to but it was "someone at the DA's office." CP said MC was "interested in the livestock. We were attempting to count on how many livestock were on that property."

Right before breaking for lunch, SS said the People do not intend to use any other testimony other than MC's report and testimony. SS said nothing from state agents or HCSO animal control would be used.

After lunch, defense said based on what the People said about not using evidence from HCSO Animal Control that Megan Nims, Andre Hale and Taylor Pedersen were released from the subpoenas. Mario Avelar was no longer being called as a witness.

CP's boss at CDFA is John Romano. CP told Romano that federal agents "had requested our assistance."

SS asked CP one question. CP responded the "emergency was downed animals in poor condition."

RR on re-direct said, "Rather than go to a judge for a warrant, you just did the search."

Parker reiterated that as an investigator hecan do whatever wants.

RR asked CP if he had seen the federal warrant.

CP did not recall. "I believe it was read to me."

RR: "Are you saying Agent Mackie read this entire warrant?"

Parker responded, "on the phone."

RR: "Every herd of cattle has sick/dead cattle."

CP: "Yes."

RR: "Is that an emergency?"

GEK said he was focusing on Sgt. McCall.

RR: "He was entwined with Sgt. McCall."

RR: "One or two downed animals among hundreds is an emergency? You are aware Mr. Christie buys sick/downed animals?"

CP: "I have been told that."

TR's testimony and questioning was brief.

GEK said he will give his tentative. Then snarked, "we have something going on every week," in reference to the Christie case being on the calendar.

Why has already been documented in previous posts so I will not waste time on that immature remark by GEK.

GEK summed up what he thought Miller and Maizel said and then proceeded to repeat what MC, SS had said in court, kept going on and on about Miller.

GEK: "The State was there to assist Was outside the scope for Sgt. McCall to take pictures of animal in distress? I don't believe it was exigent circumstances; it is plain sight."

"I would deny the motion to suppress."

Then GEK said he was going to give each attorney 5-10 minutes for argument.

Addressing Mr. Richmond,"Many of your arguments are good for a jury. I am not here to decide that today. I don't see a violation when the officer has been invited."

RR: "Did the County exceed their authority? The scope of their authority was clearly defined. In their testimony, the County and State were all over the place about what their authority was. Agent Mackie directly contradicts what HCSO/State says."

GEK interrupted RR during his argument,"That is irrelevant. I am focusing on whether there was good faith; I think it was; I didn't see any bad faith."

RR: "Mr. Christie has a target on him. He has received negative press. What never comes out is that Mr. Christie buys sick/dead animals. The animals could have been unloaded that day. I think they are looking for excuses. They piggybacked on the federal warrant. I don't think it is fair for them to help the DA with what is a weak trial."

SS: He brought up the Miller case. Said there was potential for a further crime. "The federal warrant does include tags" and they were in the barns.

RR: "In affadavits, three ranch hands said the County would not let them tend to animals. It's those animals that Sgt. McCall/Investigator Parker use as probable cause."

GEK: "Those affadavits are not in evidence unless there is a stipulation. If they are begging to help animals; that cuts both ways."

RR: "It should be noted that feed was placed in front of animals. The animals were unable to move. Sgt. McCall was unable to document whether they came in that condition."

GEK: "I am finding it is not an illegal, unwarranted search. If this evidence makes it to trial; these will be good arguments."

Court minutes 12/28/21: