SAN FRANCISCO, CA – Medical marijuana activist Dustin Costa finally got his day in court on December 3rd, 2007, when the 9th Circuit Court of Appeals heard argument about the trio of warrants used in his case.
The hearing was a long time coming for Costa, but the 61-year old appellant wasn’t there to see it. Instead, he passed the day inside a Texas prison, where he has been incarcerated since last spring. But being locked away is nothing new for Costa -- counting a series of earlier stays in county jails and federal holding centers, he has not set foot in the free world for nearly two and a half years.
Dustin Costa
Costa was arrested and thrown into Fresno County Jail in August 2005, when county prosecutors in Merced turned his marijuana cultivation case over to the U.S. Attorney. This change of jurisdiction stripped him of the defense he had been using in state court, since federal authorities have refused to recognize California’s laws regarding medical marijuana.
Given the 908-plant garden and the presence of a firearm, the defendant faced substantial prison time if convicted in federal court. Unable to secure bail, he was forced to remain in county jail for the entire 15 months it took for his trial to commence, hindering his ability to prepare his defense.
Though imprisoned, Costa did not take things sitting down. Along with federal defender Robert Rainwater, he fought his case aggressively, and was granted an evidentiary hearing in February 2006. This allowed Rainwater to present witnesses to challenge the warrants used in the bust, and, if successful, have the case dismissed prior to trial. Instead, U.S. District Judge Anthony Ishii let the warrants stand, clearing the path to Costa’s November 2006 jury trial and the guilty verdicts that followed.
Judge Ishii handed down a 15-year prison sentence, and Costa immediately began the process for putting the questionable warrants up for consideration by the appellate court. His hope was that, when presented with the same evidence, a panel of three 9th Circuit Court judges would rule differently on the matter than the trial judge. And Rainwater gave them plenty of reason to do so, arguing the case articulately and fielding questions with confidence during the appeals hearing last Monday.
The defense attorney summarized the investigation of the Costa case back in early 2004, during which time officers used three separate warrants for three different purposes. The first warrant was to obtain Pacific Gas & Electric records in order to establish the levels of energy use at Costa’s residence, the second was for thermal imaging of the property to determine the presence of heat sources, and the third was for the actual search of the location. Affidavits were submitted to the magistrate judge in order to secure these warrants, and the defense attorney zeroed in on five different statements made in those affidavits that were, in his judgment, false and misleading.
First off, Rainwater took issue with a claim made on the affidavits for all three warrants that Costa’s criminal history showed a prior conviction for cultivation and possession of marijuana. The defense attorney maintained that his client had not been convicted on these charges, but instead judgment had been deferred in exchange for Costa’s successful completion of a drug program. The officer who wrote the affidavits for the warrants, Jesus Lopez of the Merced/Mariposa Narcotic Task Force, testified at the February 2006 evidentiary hearing that he had experience reading criminal histories. Based on that fact, Rainwater argued, the officer should have known the difference between a conviction and a referral to drug court, and it was a deliberate misrepresentation to write on the affidavit that Costa had a prior conviction for marijuana cultivation.
The defense attorney made the same accusation of deceptive language when it came to another issue: the use of the term “confidential informant.” In the affidavits for the first two warrants, Lopez wrote that an anonymous citizen informant, which he abbreviated as “CI,” had provided him with the address of a possible indoor marijuana grow and also told him that Costa was living at that address. During the 2006 evidentiary hearing, however, Lopez described receiving the tip in a much different manner, saying the information had come from a fellow officer who received a call from an unidentified source. Lopez also testified to knowing the difference between an anonymous caller, a citizen informant and a confidential informant, even though he identified the tipster inaccurately in the first two affidavits. “A citizen informant implies someone who has no ax to grind in the case, who doesn’t have a prior criminal record,” Rainwater explained. “He testified to putting on the term “CI,” which is commonly referred to as a confidential informant, which happens to have even more credibility.” Rainwater reminded the judges that the source was just an unidentified caller, with less credibility than other informants, but Lopez misrepresented this fact when he used the term “CI” on the affidavits. “I don’t think there’s any doubt that, in warrants one and two, the affiant exaggerated his probable cause.”
Rainwater then focused on Officer Lopez’s testimony that, during several stages of the investigation, he had been unable to establish a link between Costa and the address of the suspected grow operation. Lopez had tried to follow up on the informant’s tip that Costa lived at that address, but checks of Department of Motor Vehicles records indicated that Costa resided at a different address. This discovery was omitted from the first two affidavits; however, as Lopez instead wrote that he had been unable to find driver’s license records tying Costa to the address of the suspected marijuana grow. “It’s evidence the magistrate should have considered in deciding to issue the warrant,” Rainwater argued, “whether or not there was information that he lived there, whether or not they were unable to find information that he lived there, or whether they had information that he lived someplace else.”
According to the defense attorney, there were many instances of misleading omissions and false statements being used to obtain warrants in this case. In the affidavit for the second warrant, Officer Lopez was very specific. He wrote that he had talked to Detective Kirschman of the Los Banos Police Department about the electrical usage in a grow Kirschman had investigated, and this usage was 3500 kilowatts per month. But the language changed in the affidavit for the third warrant, with the officer adding that he had spoken with other officers about multiple grow locations. Although the affidavit for the third warrant implied that Lopez had obtained information on electrical records for these multiple grow operations, he admitted during the February 2006 evidentiary hearing that these conversations did not yield any figures about energy usage. He and the other officers had merely spoken about the grow locations in, as he put it, “general terms.” Rainwater argued to the appellate judge panel that the statement on the affidavit was false and misleading, designed to artificially inflate the appearance of probable cause.
Finally, in what may be the defense’s strongest point, Rainwater brought up inaccuracies about the way Officer Lopez had compared Costa’s electricity consumption to the energy use in similar homes without marijuana grows. Lopez wrote in the affidavit for the second warrant that he had checked several PG&E bills of individuals with homes similar in size to Costa’s residence. During the 2006 evidentiary hearing, however, Lopez testified that he had not actually obtained or checked any electric bills of other homes. Instead, the officer admitted, he had simply called up people he knew and asked them about their energy consumption. He never saw any of these bills, nor did he have any way to determine the accuracy of what was reported to him. In addition, Lopez had no way of knowing how comparable these other homes were to Costa’s residence. As Rainwater pointed out, there could easily be variations due to the size of the home, the location of the home, and the season of the billing cycle.
The defense attorney’s argument on this point inspired discussion from the judges, some of whom attempted to draw inferences about Costa’s energy usage. One judge insisted the high rate of use made the property unique, speculating that “some kind of industry or business is being conducted over and above normal living consumption of electric power.” Rainwater answered by returning directly to his declaration that there was no evidence of customary power usage for a comparable residence, due to the shoddy investigatory work in the affidavits.
It was Judge Jerome Farris, however, who had the most fundamental question on the issue. One of the more-widely known judges in the court, Farris was appointed to the 9th Circuit amidst a shower of publicity for being its first African American judge. But that feel-good fame has been overshadowed by darker controversy over the past four years, during which time Judge Farris has made headline after headline in a legal struggle with the City of Seattle. It’s a case that began when Farris’s attempt to enhance his mansion’s view of Lake Washington led to the unauthorized leveling of over a hundred trees from a nearby public park. The saga later climaxed with reports of a half-million dollar settlement, but dragged on as the judge stalled for years to make payments. True to character, Judge Farris approached the Costa hearing in a typical pattern – quick to cut to the heart of the matter, but slow and cyclical after that.
“So, if we say, ‘All right – you’re right,’ then do we say, ‘So, the search warrant must be quashed because there’s not significant basis if you ruled out the false information for issuing the warrant?’” Judge Farris asked in his slow Alabama drawl.
“I’m not saying that necessarily,” Rainwater began, only to be interrupted by a hearty exclamation from the judge.
“I would hope you’re not,” Judge Farris broke in, “because it seems to me that’s what we boil down to. Don’t we have to look at that and say, ‘Is there enough?’ Even if we rule out the false statement, is there enough?”
For Rainwater, there was no doubt on the matter. “Even if we include the false statement, I think there’s not enough, ” the defense attorney said with certainty. “The relevance of the false statements is we must first exclude them and then we analyze the warrant.”
Dustin Costa, U.S. Marine
But it was more challenging to explain why the district court judge had upheld the warrants, even after the 2006 evidentiary hearing convinced him that the affidavits did indeed contain false statements. Attempting simplicity, Rainwater chalked it up to a misunderstanding of the law on Judge Ishii’s part. “The district court found that it was not false in the sense that it was intended to mislead the magistrate,” the defense attorney said. “But I think that is an incorrect understanding of the falsity necessary under Franks. Basically, it only requires the affiant knowingly or recklessly misleads the judge with false information… If it misleads the judge, then it’s a Franks violation and should be excluded from the warrant.”
The government predictably argued otherwise, relying heavily on the district court’s ruling. Assistant U.S. Attorney Karen Escobar, who prosecuted the case during trial, filed a voluminous opposition to the appeal. And though the tone of the written argument conveyed a sense of assurance, Escobar presented a less confident image during her time before the appellate judges last Monday.
Escobar began by noting to the judges that the trial had been “emotionally-charged,” although she did nothing to explain what would make feelings run high in a case such as this. Instead, the prosecutor went quickly to justifying the statements made by Officer Lopez in the affidavits. As she presented her side, she alternated between rushed recitations of her notes and episodes of nervous hesitation.
On the issue of the misrepresentation of Costa’s criminal record, Escobar maintained that the affidavits were truthful. There may be tiny technical differences between legal terms here, she conceded, but the result was the same in the end. “As this court has indicated, not long after the sentencing of the defendant in this case, in June of this year, such crimes where there is a guilty plea or a no lo contendre plea, successful participation in a drug program, even though there’s a dismissal, it is a conviction. So the officer was not wrong.”
The prosecutor also denied that Lopez had falsely implied that he discussed with other officers the electricity usage at various grow operations. “Officer Lopez testified that, between the time he obtained the search warrant for the thermal imaging and the time he obtained the warrant to actually search the residence, he talked to four other officers, and he named them in the Franks hearing,” Escobar explained. “He named them by name, other narcotics officers, and compared what would be normal kilowatt usage for other indoor grows.”
The real difficulty for the government, though, was defending Lopez’s misstatement about checking other PG&E bills of comparable homes. Nonetheless, the prosecutor gave it a go. “The basis of that statement was that he obtained verbal information – he talked to homeowners of homes of comparable size. The government would argue that that statement is subject to interpretation,” Escobar attempted. “I would argue that it was inarticulate, it was perhaps negligent, how he stated what he did, but in any event I don’t believe that it arises to the level of deliberate misrepresentation.”
Having made an effort at championing Officer Lopez, the prosecutor then did some work at insuring her position. “If the statements were false, this court is of course allowed to excise them from the warrant to determine whether or not the remaining factors still establish probable cause,” Escobar said.
As to what those factors were, however, the judicial panel had a few questions, and the soft-spoken Judge Sidney Thomas took control of the inquiries. Though Thomas’s voice was pleasant and soothing, the content of his questions left the prosecutor flustered. When Escobar found herself unable to produce the case authority that the judge sought, her poise disintegrated even further. She clung onto a few weak claims like a life preserver, repeating them over and over again, but in spite of her mantras and her floatation devices, it was clear the prosecutor was drowning.
“I assume you’re not contending that high energy usage, coupled with an anonymous tip, is enough to establish probable cause,” Judge Thomas asked. “Right?”
Escobar submitted that those two factors would not be enough to support a warrant, and went on to list the other elements of the case that, in her view, established probable cause. She mentioned surveillance done on the property that revealed two exhaust fans atop a metal cargo container, as well as material that concealed the property from view, such as sheet metal atop a high fence and a blue tarp on a wooden out-building. Ultimately, however, the prosecutor got cut off by the judges’ questions about relevance.
“That’s not enough,” Judge Thomas declared. “Concealment by a fence is not enough. A blue tarp’s not enough. So what tips this over?”
“The totality of the circumstances,” Escobar answered vaguely, starting to stammer.
“Besides that,” the judge said, dismissing the prosecutor’s attempt. “Take it one at a time. So you have – you know a tip’s not enough, energy usage is not enough, fencing’s not enough…”
“Well, I think you can consider energy usage,” the prosecutor argued. “But even if you excise that out, you still have a criminal history that the defendant, Dustin Costa, was involved in cultivation in the past, of marijuana.”
“I’m trying to get down to the specifics of your argument,” Judge Thomas explained, his gentle voice still betraying skepticism. “Are you saying that criminal history, then, coupled with all that, is enough?”
Escobar again emphasized Costa’s record, as well as the efforts he made to conceal his activities from public view. But the prosecutor also decided to add a new factor to her argument, speaking about the significance of the country setting in determining probable cause. “The fact, even, that it’s in a rural environment, out in Winton, California – a little farming community, tucked away, which the state judge was well aware of that particular area—”
Judge Thomas interrupted the prosecutor here. “Living in a rural area can’t be indicia of probable cause,” he corrected. “Otherwise, my whole state’s in trouble.”
There were muted titters of laughter in the courtroom. If Escobar had expected a panel of city slickers as the audience for her theory, she had forgotten about the Montana born-and-bred Judge Thomas. “No…no…but I think the all the factors and—”
The judge didn’t let her get very far, and his comment was incisive. “It seems to me the only one you’ve come up with that’s unique is the exhaust fan.”
Escobar tried to regroup. “No, the tall fence, in a community where, really, there are no fences, out in the country, you know, I think, draws suspicion.”
But Judge Thomas wanted citations. “What’s your best case that says fencing is enough?”
“You know, this case has a unique set of factors,” the prosecutor mused, looking pained. “I can’t point to—”
“Does that mean there’s no case?” the judge asked pointedly.
“Perhaps there is,” Escobar managed. “I don’t—”
“I don’t mean to interrupt,” Judge Thomas said, blatantly interrupting. “I gather you don’t have a case that says fencing is important. True?”
“There are cases that, that I may have cited to you, cases that say that steps taken to conceal may be considered.” The prosecutor was clearly disconcerted. She attempted a reiteration of her previous assertions about criminal records, and spoke about the importance of according deference to the judgment of officers trained and experienced in narcotics investigations. Summing up, Escobar subtly tried to slip in the suggestion that the court might not have jurisdiction to decide the matters it had been discussing. “The credibility, again, of Officer Lopez is a matter that is generally reserved for the district court, and he found – Judge Ishii found – that Officer Lopez was not lying, was credible, did not make any deliberate misinterpretations.”
Escobar came fully back into her own when given the chance to make a final statement, which she used as an opportunity to attack Costa’s integrity. “The government believes that the only deliberate misrepresentation in this case was the defendant’s presentation of a personal use defense, knowing full well that the 908 marijuana plants found in this case, and the 8.8 pounds of marijuana that were seized from his residence, were intended for distribution,” she said with zeal.
Dustin Costa hisself
“As we’ve indicated in our brief, when this case was at state level, before it was adopted for federal prosecution – and we have submitted this before the court – a list of all the people to whom he was distributing for medicinal marijuana purposes. There was also lots of evidence found within the residence that we submitted, obviously, at trial, indicating that the marijuana was not for personal use, and this included, besides packaging material, and triple – uh, digital scales, and that sort of thing, there were labels that were used on little bottles for distribution that stated: ‘grown by D.C. hisself.’ Dustin Costa, hisself!” Escobar seemed to hurl the appellant’s own name at him like a weapon, even though Costa was obviously nowhere in sight. Then, she wrapped up her speech very primly by repeating the thesis, “That, we would submit, is the only deliberate misrepresentation.”
It was an odd use of the otherwise dignified platform of addressing a panel of appellate judges, but the cattiness appeared to enliven Escobar, and she finished with a fresh glow of vibrancy. The attorneys were then thanked and excused, left to wait in months of suspense for the deliberation and the ruling. But even with the reform community watching the case with eager eyes, and even with loving family members tying their hopes to the appeal, no one will wait for the ruling with greater anticipation than Costa hisself.
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