Plausibility of a Defense Claim in a Declaration in Support of Pitchess Discovery is Not Required

Warrick v. Superior Court (City of Los Angeles)
2005 Cal. LEXIS 5782
(June 2, 2005)

            The Supreme Court has finally decided the case of Warrick v. Superior Court (City of Los Angeles). In a seven to two decision, the majority of the California Supreme Court overruled the Court of Appeal in Los Angeles on the issue of whether a declaration in support of a discovery request on a Pitchess motion is required to be plausible. The Court of Appeal for the County of Los Angeles (2nd Appellate District) upheld the denial of a pitchess motion when the defense claim was that he was not at the location of arrest to sell narcotics, he was only there to purchase narcotics and somebody else must have dumped forty-two rocks of cocaine on the ground as he was running away from the police. The Court of Appeal found this claim utterly implausible because nobody would throw down forty-two rocks of cocaine on the ground when the police had decided to focus on another individual who was running away from the area and Warrick couldn’t have been there to purchase cocain because he only had $2.75 in his pocket when he was arrested. Based on that, the Court of Appeal upheld the denial of the pitchess motion because the claim made was implausible.
            The Supreme Court reversed this case and held that implausible or not, it was a sufficient factual showing to warrant granting the pitchess motion and conducting an in-camera review of the officer’s record.
            The Supreme Court traced the origins of the phrase “plausible factual foundation” as that language has been used in a number of Pitchess cases since the original pitchess superior court case was decided in 1974. The Supreme Court indicated that the phrase actually predated Pitchess but the trend concluded as criminal discovery expanded into the Pitchess arena.  After tracing that history, the Supreme Court held that “regardless of how the materiality inquiry is described, however, a showing of good cause requires the defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.  This court has long required that the information sought must be described with some specificity to ensure that defendant’s request is not so broad as to garner “all information which has been obtained by the people and their investigation of the crime, but is limited to instances of officer misconduct related to the misconduct asserted by the defendant.”
            In the declaration filed by Warrick in this matter, his defense attorney claimed that he was charged with possessing cocaine base for sale and that the defendant denied that he had any narcotics for the purpose of sale on the date of his arrest.  He further denied that the defendant had discarded any rocks of cocaine and, instead, claimed that he was simply at the scene to buy cocaine, and his reason for flight from the officers was because he feared arrest on an outstanding parole warrant.  He claimed that when he ran past the actual seller of the cocaine, it must have been he who discarded the rocks of cocaine.  That being so, according to the Supreme Court, “defense counsel postulated two explanations – either the officers did not know who had discarded the rocks of cocaine and they falsely accused defendant of having so, or they knew who had discarded the cocaine but falsely accused defendant.  Under either theory, defense counsel asserted the officers falsely arrested defendant and made false statements in the police report to support his arrest.  Even the Court of Appeal concluded that this factual scenario was specific as required by case law.  The Supreme Court agreed with that finding.  However, the Supreme Court held that the Court of Appeals further conclusion that the defendant’s factual foundation was not plausible was not supported by the evidence.  The Supreme Court said that the defendant’s “proposed defense to the charge of possessing cocaine base for sale was straightforward: he asserted that he did not possess, and therefore could not have discarded, the forty-two rocks of cocaine.  By denying the factual assertions made in the police report – that he possessed and discarded the cocaine – defendant established a reasonable inference that the reporting officer may not have been truthful.  For the Court of Appeal to go beyond what was clearly stated in the declaration and draw inferences that it could not have been somebody else who threw the forty-two rocks of cocaine, and he simply could not have been there to purchase cocaine with only $2.75 in his pockets, was the court unreasonably drawing inferences from a straightforward set of facts.  The court is not allowed to do that on a Pitchess inquiry.  The court must accept as factual the claims made in the declaration in support of a Pitchess motion, and so long as it could be shown that it could or might have occurred that way and is factually specific, a Pitchess motion should be granted.  However, implausible those facts may be.
            The Supreme Court said to show good cause defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges and it must articulate how the discovery sought may lead to relevant evidence or may itself be admissible, direct, or impeachment evidence.  Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct.  That factual scenario, depending upon the circumstances of the case may consist of a denial of the facts asserted in the police report.  We conclude that a plausible scenario of officer misconduct is one that might or could have occurred.  Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.  A defendant must also show how the information sought could lead to or be evidence potentially admissible in trial.  Such a showing puts the court on notice that the specific officer misconduct will likely be an issue at the trial.  Once that burden is met, the defense is shown materiality under Section 1043 of the Evidence Code.
            A set of questions was suggested for courts to follow: 
(1) Has the defense shown a logical connection between the charges and the proposed defense.   (2) Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct.
(3) Will the requested Pitchess discovery support the proposed defense or is it likely to lead to information that would support the proposed defense.
(4) Under what theory would the requested information be admissible at trial.
            If defense counsel’s affidavit in support of the Pitchess motion adequately responds to these questions, then good cause has been shown for the discovery and an in-chambers review should occur. 

            Justice Brown authored a dissent to the majority opinion which was joined by Justice Baxter in which she said that “both the trial court and the Court of Appeal found defendant’s story that someone else spilled the cocaine utterly unconvincing.  And no wonder. When the lion culls the slowest, weakest, or unluckiest from the herd, the other gazelle’s run a safe distance and then return to grazing.  No gazelle commits suicide by flinging himself in the lion’s path.  These behaviors are instinctive, and we encounter them in our everyday experiences. When freeway commuters who are traveling faster than the posted speed limit spot a police cruiser in their rearview mirrors, they slow inconspicuously, avoiding any sudden changes that might draw police attention.  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.”
            No matter how artfully worded her opinion, in this regard, was the minority and will likely be one of the final dissenting opinions authored by Justice Brown having recently been confirmed to the Federal Court.

SO WHAT DO WE DO NOW?

            While this case decision is obviously disappointing, nothing much has changed from the way it was before.  When Warrick came down from the Court of Appeal, we advised our subscribers to watch for facts stated in a declaration which could be argued as implausible; which seemed incredible or difficult to believe.  These arguments were proposed to be made in addition to all of the generally accepted requirements of lack of specificity, lack of factual support, etc. 

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