ANOTHER VERY GOOD PITCHESS DECISION

On March 27, 2003 the Second Appellate District, Division Two in Los Angeles issued its decision on the denial of a Pitchess motion in Warrick v. Superior Court (City of Los Angeles Police Department)(2003 Cal.App.Lexis 576). In this decision for the first time a court specifically attaches importance to the phrase from Pitchess law, "plausible factual foundation," and will be a very useful case in opposing Pitchess motions in the future.

Warrick was seen by two Los Angeles police officers standing against a wall looking at a clear plastic baggie he held in his left hand. The officers noted that the baggie contained an off-white substance that resembled cocaine. They got out of the car and Warrick began running on the sidewalk. The officers chased him and as he ran, Warrick discarded numerous rocks that were later determined to be cocaine. Warrick stopped running and the two officers took him into custody. Forty-two rocks of cocaine were recovered from the ground where Warrick had discarded them. And the police recovered a clear plastic baggie from Warrick's left hand. He was arrested and charged with possession of cocaine for sale with several enhancements being added because of his prior record.

He filed a pre-trial Pitchess discovery motion requesting information from the personnel records of the officers involved in his arrest, and specifically requested records of excessive force, race bias, filing false police reports and dishonesty. Warrick's counsel filed a declaration on information and belief stating, in part, that Warrick ran when he was confronted by the police because he had an outstanding parole warrant, and after he was apprehended, about 50 to 100 feet away from where the pursuit began, he and the officers heard a commotion behind them and saw people pushing and kicking and fighting each other while picking up rocks from the ground. He claimed that an officer told the individuals to leave while the other officers stayed with Warrick and arrested him. The officers then started picking up rocks from the ground. After they picked up a certain number, they said to the crowd that they could have the rest. The officers then told Warrick that it must have been he who threw these to the ground and so they must have belonged to him.

Warrick claimed that he did not possess any rock cocaine when he was seen by the police, did not discard any away, and did not possess cocaine for sale on the day of his arrest. Instead, he was there to buy cocaine from another person who was at the scene when police arrived, but who did not run away. His claim was that it must have been somebody else that threw rock cocaine down at the scene, but that it wasn't he and the officers falsely claimed that they had seen Warrick do it.

LAPD opposed the motion citing, among other grounds, that Warrick's factual scenario was implausible and, therefore, did not support any Pitchess discovery. The trial court agreed with that and denied the motion. Warrick filed a writ which was initially denied and then the California Supreme Court issued an order requiring the Court of Appeal to hear and determine the matter.

After again analyzing the Pitchess discovery scenario under Evidence Code 1043, and again acknowledging, as so many courts have in the past, the officers just claim to confidentiality in their personnel files, the Appellate Court analyzed whether defense counsel had stated good cause for discovery of information from the officers' files.

The court noted that Warrick's factual scenario admitted everything in the police report was true except that he had the cocaine when he was observed by the officers and that he was the person who threw the forty-two rocks onto the ground. Looking at the first phrase in the good cause Pitchess analysis, the court said that Warrick's version of the events was sufficiently specific to constitute a "specific factual scenario" as that phrase is used in many Pitchess decisions. The problem came when the court analyzed the second prong of the Pitchess good cause analysis; whether Warrick had established a "plausible factual foundation" supporting his desire for the discovery. Warrick asserted the police misconduct had been alleged with sufficient plausibility. However, the court disagreed with that claim and agreed with the trial court that Warrick's factual scenario was implausible.

The court explained that Warrick's factual scenario was based on the assertion that he was about to buy drugs and not sell them when the police arrived. Warrick states that he was standing in back of a prospective seller when the police arrived, but he does not dispute a materially inconsistent fact with that contention. That materially inconsistent fact was the total funds he had on his person was $2.75.

The court noted other facts concerning his claim that added to the implausibility of the scenario. It noted that any person in Warrick's vicinity when the police arrived was out of harm's way once the officers began running after Warrick. Thus, it would have been unreasonable for any other person to discard forty-two rocks of cocaine after the police had passed, and it would have been even more unreasonable to do so in full view of other bystanders. It also defied belief that a person would have followed behind Warrick and the pursuing police in order to discard the cocaine in Warrick's proximity in the middle of the street. The court found that on this record the trial court could reasonably find that Warrick's scenario was not objectively plausible, i.e., that no reasonable person would find it plausible.

The court found that "plausible" means "seemingly true," "having an appearance of truth or reason; seemingly worthy of approval or acceptance; credible; believable: a plausible excuse; a plausible plot." "It denotes a degree of reasonable probability, a degree of apparent credibility greater than mere possibility." The court found that Warrick's factual scenario did not meet this standard. A determination of plausibility is a necessary element in the trial court's evaluation of good cause.

The petition was denied and the decision of the trial court in denying the Pitchess motions was upheld.

SO WHAT DO WE DO NOW?

Utilize this case when you can determine that a claim made by a defendant in support of his request for Pitchess discovery contains defects when compared to the facts recited in the police report that make the claims made by the defendant seeking discovery to be hard to believe. Look for improbability factors in the defendant's statement of good cause. If you can find enough of them, as was found in this case, you can argue this case for the premise that the defense's assertions are implausible, and therefore, do not rise to the level of a plausible factual scenario supporting the discovery request. Determine if the defense claim is something that "has an appearance of truth;" is "seemingly worthy of approval;" and "credible." If it is not and you can articulate the implausibility, a court should deny the motion

Many agency counsel around the state have been lamenting the fact that in some jurisdictions individual defendants and defense counsel were able to obtain Pitchess motion discovery of records of past dishonesty simply by making a blanket statement that everything in the police report is not true and denying everything in the police happened. This has been especially true where the case of People v. Hustead was decided and where that case has been followed. Warrick analyzes People v. Hustead and distinguishes it by separating out the two elements of good cause, specific factual scenario and plausible factual foundation as two separate elements, both of which must be demonstrated by the defense. For those of you who have been troubled by the granting of Pitchess discovery on a general denial that everything in the police report is true under People v. Hustead, this case should give you more ammunition to argue that it is not enough to make a simple general denial of the facts in the police report, but that more is required to establish that plausible factual foundation for the misconduct alleged.

Be sure to consult competent legal counsel before deciding how to proceed on any matter to which these cases may be applicable.