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									1    JEFFREY GORDER SBN 121228
     SHASTA COUNTY PUBLIC DEFENDER
2    MICHAEL HORAN, Sr. DEPUTY [SBN 183610]
     1815 YUBA STREET
3    REDDING, CALIFORNIA 96001
     TELEPHONE:       (530) 245-7598
4    FACSIMILE:       (530) 245-7560
5    Attorneys for Defendant
6

7                   IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8                                IN AND FOR THE COUNTY OF SHASTA
9    THE PEOPLE OF THE STATE OF                          Case No.: 09F5812
                                                         FIRST AMENDED NOTICE OF MOTION
10   CALIFORNIA,                                         FOR DISCOVERY; POINTS &
                                                         AUTHORITIES IN SUPPORT OF MOTION;
11                  Plaintiff,                           DECLARATION OF COUNSEL
                                                         (MURGIA MOTION)
12          vs.
                                                         DATE: May 28, 2010
13   SAUL ARIAS GUZMAN,                                  TIME: 10:30 a.m.
                                                         DEPT: 2
14                  Defendant                            TIME EST.:
15

16          PLEASE TAKE NOTICE that the attached First Amended Motion, points and
17   authorities and exhibits are submitted and intended to replace the “original” motion filed in the
18   Shasta County Superior Court on March 25, 2010 as well as replace the first supplement to the
19   original motion filed with the court on April 2, 2010.
20          At the above date and time the defendant will move for an Order to produce the
21   documents and information listed in Section II of this Motion.
22          This motion will be made on grounds that good cause exists for granting the discovery
23   request, in that the defendant seeks discovery of specific evidence within the possession, custody
24   or control of the Office of the District Attorney that is material to the defense of selective
25   prosecution.




                                        Notice of Motion (Murgia) - Page 1
1           This motion will be based on the notice of motion, the attached declarations,
2    memorandum of points and authorities, on such supplemental memoranda of points and
3    authorities as may hereafter be filed, on all the papers and records on file in this action, and such
4    oral and documentary evidence as may be presented at the hearing of the motion.
5

6                                                   Respectfully submitted,
                                                    JEFFREY E. GORDER
7                                                   SHASTA COUNTY PUBLIC DEFENDER
8
                                                    ________________________________________
9
                                                    MICHAEL HORAN
                                                    SR. DEPUTY PUBLIC DEFENDER
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                                        Notice of Motion (Murgia) - Page 2
1    JEFFREY GORDER SBN 121228
     SHASTA COUNTY PUBLIC DEFENDER
2    MICHAEL HORAN, DEPUTY [SBN 183610]
     1815 YUBA STREET
3    REDDING, CALIFORNIA 96001
     TELEPHONE:       (530) 245-7598
4    FACSIMILE:       (530) 245-7560
5    Attorneys for Defendant
6

7                     IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8                                 IN AND FOR THE COUNTY OF SHASTA
9    THE PEOPLE OF THE STATE OF                           Case No.: 09F5812
                                                          DECLARATION OF COUNSEL IN SUPPORT
10   CALIFORNIA,                                          OF SUPPLEMENTAL MOTION FOR
                                                          DICOVERY
11                   Plaintiff,
12          vs.
13   SAUL ARIAS GUZMAN,
14                   Defendant
15
            I, Michael Horan, declare:
16

17
            1. I am the attorney for the defendant in this action.
18          2. I am informed and believe there is good cause to require the production of the
19                information sought by this motion for the reasons discussed in the body of this motion
                  and its attached points and authorities.
20
            3. Through the criminal discovery process; investigation; the Public Records Act;
21
                  research; sworn testimony; sharing information with private defense attorneys and
22                Federal Defender‟s Office, Sacramento; and consultation with experts I am informed
23                and believe the forgoing information and facts to be true.

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            4. The evidence sought is not otherwise available to the defendant and is material to the
                  defense of discriminatory prosecution in this case.
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                                         Notice of Motion (Murgia) - Page 3
1    5. I am informed and believe all the information contained in the attached Murgia
2       Motion is true or believed to be true.
     6. I am informed and believe that the Shasta County Sheriff‟s Office and/or the Shasta
3
        County District Attorney‟s Office has in its possession and control the information
4
        requested in an Order to be provided after the hearing in this matter.
5    7. On or about October 2008 the SCPDO noticed that a significant number of drug-
6       related arrests had been made on Interstate 5 in Shasta County during the first ten

7
        months of 2008.
     8. Upon a review of SCPDO files for the calendar year of 2008, the SCPDO also noticed
8
        that the drug-related arrests made on Interstate 5 involved a high percentage of
9
        Hispanic arrestees (See Section VII of this motion “Statistical Evidence”).
10   9. I noticed that all the arrests were made after a routine traffic stop.

11   10. During a review of SCPDO files of those arrested on Interstate 5 for drug related
        offenses it was discovered that Shasta County Sheriff‟s Deputies Pat Kropholler and
12
        Chris McQuillan were the arresting officers and/or participated in every incident.
13
     11. The police reports generated by the NSI Cal MMET/DHE team members are easily
14      distinguishable. They are designated on the face page as being “DHE” investigations
15      and are assigned an investigation number that starts “NC”, then the current year, and
        then the incident number for that year. For example, this defendant‟s report is #
16
        NC2009-063.
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     12. In those reports the deputies state the “indicators” that suggest the defendants were
18      engaged in the smuggling of contraband leading to their further detention and search.
19   13. The SCPDO has acquired approximately seventy-five DHE investigation reports

20      beginning in late 2007. Fifty-five of the reports involve the arrest and/or detention of
        Hispanics (see Exhibit “B” “B1” and “B2”).
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     14. The factual basis in the reports surrounding the arrests/detentions has become
22
        increasingly similar in nature (see Section VII of this Motion).
23   15. Deputies McQuillan, Kropholler and others, often, Nolan Guiducci or Deputy Eric
24      Mangrini, would be parked on the side of Interstate- 5 “screening” vehicles, while
        other deputies were actually traveling up and down the same section of Interstate 5
25




                                Notice of Motion (Murgia) - Page 4
1       (see Exhibit “R,” preliminary hearing testimony of Deputy McQuillan in People v
2       Flores 09F 8910, page 12, lines 12-18).
     16. One of the deputies‟ attention would be drawn to a passing motor vehicle. The
3
        deputy would then pull behind the vehicle and initiate a traffic stop based on an
4
        alleged Vehicle Code (VC) violation.
5    17. The defendants would be removed from their vehicles and “questioned about the
6       stop.” Within minutes, there would be three or more deputies at the scene of the

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        traffic stop, including Deputy Kropholler and his drug-sniffing dog Maximus.
     18. The deputies would then state that, based on their training and experience, they would
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        notice “indicators” that the occupant(s) or driver of the vehicle was not acting in a
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        manner consistent with the “innocent motoring public.”
10   19. The narratives of the deputies‟ reports would be remarkably similar to one another

11      (see Exhibit “BB,” a Deputy McQuillan generated report; “CC,” a Deputy Kropholler
        generated report; and section III of this Motion, or Exhibit “E” for a narrative of
12
        Deputy Guiducci‟s report in this case).
13
     20. These “indicators” would be things like: nervousness, the smell of an air freshener,
14      religious icons or symbols, number of keys on a key chain, whether or not the interior
15      of the car was dirty or clean, whether or not the passenger compartment contained
        luggage, etc.
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     21. After being removed from their vehicle, usually within the first two minutes of the
17
        traffic stop, the drivers and/or occupants were questioned about where they were
18      coming from and/or going. They were usually informed of the reason they were
19      allegedly stopped, their license and registration information would be confirmed and

20      as soon as it was confirmed they would be issued a warning citation and free to go.
     22. The deputies would question perceived inconsistencies in the defendant‟s story(s) as
21
        another “indicator” of suspected criminal activity. However, most of the defendants
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        spoke little English.
23   23. It was at this point the driver/occupants were asked if they had any weapons or drugs
24      in the vehicle. The normal response was “no.” The Deputies would then ask if the
        driver would consent to a search of their vehicle and, according to the reports,
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        consent was sometimes provided. If consent was provided, or even if it was not



                                Notice of Motion (Murgia) - Page 5
1              provided, Deputy Kropholler would have Maximus, his drug-sniffing canine, perform
2              a “free air sniff” of the vehicle. Of those arrested, the search would result in the
               location of controlled substances and/or U.S. currency suspected to be profits from
3
               drug sales.
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            24. Often the controlled substances were located in hidden compartments that required
5              an extensive search to locate. In order to facilitate the search, the vehicles often would
6              be removed (driven by an officer) from the Interstate and the search would be

7
               continued at a different location, the search would often be moved to E&J
               Automotive in Shasta Lake City.
8
            25. I am informed and believe that the deputies‟ actions in this case are the result of
9
               unconstitutional and discriminatory practices by members of the Domestic Highway
10             Enforcement Program of the North State Initiative- California Methamphetamine

11             Manufacturing Eradication Team (NSI Cal MMET/DHE).
            26. I reaffirm that I am informed and believe the above and following information to be
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               true.
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            27. I declare under penalty of perjury that the forgoing is true and correct of my own
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               knowledge.
15
     Executed on April 26, 2010 at Redding, California
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     April 26, 2010
17

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                                                   MIKE HORAN
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                                       Notice of Motion (Murgia) - Page 6
1
                                                   I
2                                            INTRODUCTION
3
            In this case, the defendant believes that members of the Shasta County Sheriff‟s Office
4    (SCSO) are acting in an impermissibly discriminatory manner in that they are enforcing the

5    traffic laws of the State of California against certain minorities, largely Hispanics, while
     similarly situated Whites are not being singled out for prosecution and/or the same officers are
6
     initiating traffic stops of a suspect class of people without probable cause.
7
            A criminal defendant may obtain a dismissal of the criminal charges brought by the
8    government on the ground that the prosecution is being conducted in an arbitrary or
9    discriminatory manner. Murgia v. Municipal Court (1975) 12 C3d 286.
            The process in which the government‟s case is challenged involves two motions: first, the
10
     defense may bring a motion (commonly referred to as a Murgia Motion) to obtain discovery that
11
     would prove the government is acting in an impermissibly discriminatory manner; second,
12
     assuming that the discovery establishes that the prosecution is discriminatory, the defendant may
13   then move for a dismissal. A dismissal on discriminatory prosecution is final. Yick Wo v.

14   Hopkins (1886) 118 U.S. 356, 373-374:
            The procedures set out in Penal Code §§ 1054-1054.7 do not apply to Murgia Motions
15
     because Murgia Motions are constitutionally based, non-statutory motions (see Penal Code §
16
     1054 (e).
17          Counsel may establish the defense by discovering two kinds of evidence: direct proof of a
18   plan to discriminate (Murgia v. Municipal Court, supra) or statistical data on prosecutorial
     conduct that proves discriminatory intent. Griffin v. Municipal Court (1977) 20 C3d 300;
19
     People v. Municipal Court (Street) (1979) 89 CA3d 739.
20
            The party making the Murgia Motion has the burden of proving “some evidence” of
21   discriminatory effect and discriminatory intent and credibly showing that similarly situated
22   persons could have been but were not prosecuted. People v. Superior Court (Baez) (2000) 79

23   CA 4th 1177.
             If discovery is granted by the trial court, the order will be affirmed on appeal in the
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     absence of an abuse of discretion. People v. Baez, supra.
25




                                        Notice of Motion (Murgia) - Page 7
1           The burden for the subsequent motion to dismiss is by a preponderance of the evidence.
2    People v. Smith (1984) 155 CA3d 1103.
            The Shasta County Public Defender‟s Office (SCPDO) is informed and believes the
3
     following information to be true and is seeking to obtain the following items in Discovery
4
     pursuant to Murgia v. Municipal Court, supra.
5                                    II
          DISCOVERY SOUGHT PURSUANT TO PEOPLE V. MURGIA AND THE U.S.
6
                               CONSTITUTION
7
       Copies of all North State Initiative California Methamphetamine Manufacturing Eradication
8          Team (Cal MMET) „warning citations‟ issued by SCSO Deputies Chris McQuillan, Pat
        Kropholler, Nolan Guiducci, Sean Robinson or any SCSO Deputy on Interstate 5 during the
9      calendar years of 2008, 2009 and 2010. (See Exhibit “A;” copy of NSI Cal MMET „Warning
                                                    Citation‟)
10       1      Copies of all traffic citations issued by SCSO Deputies Chris McQuillan, Pat
                Kropholler, Nolan Guiducci, Sean Robinson or any other SCSO deputy on Interstate
11              5 during the calendar years of 2008, 2009 and 2010.
         2      Any and all existing DVDs of traffic stops initiated by Shasta County Sheriff
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                Deputies on Interstate 5 during the calendar years of 2008, 2009 and 2010.
         3      Copies of all SCSO Cal MMET/DHE investigation reports for the calendar year of
13
                2008, 2009, 2010, excluding report number identified in Exhibits “B,” “B1” and B2.
14       4      Any and all letters received by the SCSO from other local law enforcement agencies
                regarding the Cal MMET/DHE program, including the Shasta County District
15              Attorney‟s Office.
         5      Any and all letters sent by the SCSO to other local law enforcement agencies
16              regarding the Cal MMET/DHE program, including the Shasta County District
                Attorney‟s Office.
17       6      Any and all letters sent by the Shasta County District Attorney‟s Office regarding its
                policies, procedures, descriptions, or observations of the SCSO Cal MMET/DHE
18              program.
         7      Any and all letters received by the Shasta County District Attorney‟s Office from
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                local law enforcement, citizens, or other governmental agencies in regards to the
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                SCSO Cal MMET/DHE program.
         8      Any and all training materials provided to the SCSO deputies who received “special
21              training” to patrol Shasta County‟s major highways (see Exhibit “C” Report to Shasta
                County Board of Supervisors).
22       9      The law enforcement policies and practices employed by the SCSO when engaging in
                domestic highway operations, including those supported by the Eastern District US
23              Attorney‟s Office and Shasta County District Attorney‟s Office (see Exhibit “C”).
         10     Any and all reports prepared by Mike Baker related to Cal MMET/DHE programs.
24       11     Any and all reports prepared by Brett Hayslett related to Cal MMET/DHE programs.
         12     Any and all SCSO meeting “minutes” that reference Cal MMET/DHE programs,
25
                including the meeting referred to in Exhibit “D,” (see exhibit “D” copy of October



                                      Notice of Motion (Murgia) - Page 8
1               28, 2008 letter from Chief C.D. Jenkins, California Highway Patrol to Shasta County
                Sheriff Tom Bosenko).
2       13      A copy of the Memorandum of Understanding (MOU) between the CHP and Cal
                MMET program signed on May 21, 2007 and terminated on October 31, 2008.
3
        14      Any all MOU, with local law enforcement agencies, including the Department of
4
                California Highway Patrol (CHP) and/or the Shasta County District Attorney‟s Office
        15      Any and all SCSO memorandums that relate to Cal MMET/DHE programs.
5       16      Any and all SCSO e-mails that relate to Cal MMET/DHE programs.
        17      Copies of the training records, maintenance log entries pertaining to the SCSO K-9
6               “Maximus.”
        18      Any and all documents in the possession of the SCSO that relate to the
7               implementation and utilization of the SCSO DHE program, including training
                manuals, policies and guidelines.
8       19      Than names of the training programs attended by NSI Cal MMETT/DHE personnel
                and the names of the course instructors (see Exhibit “I,” page 5, “training”).
9
        20      Any and all communications with the Drug Enforcement Agency regarding
                SCSO/DHE program.
10
        21      Any and all complaints to the SCSO regarding traffic stops or other SCSO contact
11              with civilians on Interstate 5 during the calendar years 2008, 2009 and 2010.
        22      Any and all letters from the Office of Emergency Services regarding the SCSO/DHE
12              program, including any disciplinary actions taken against the program or its personnel
                or complaints against the program or its personnel.
13      23      Any and all information compiled and/or kept by the SCSO regarding persons that
                have been stopped or contacted by the SCSO on Interstate 5 during the calendar years
14              2008, 2009 and 2010, including those that have been arrested, ticketed, cited, warned
                or had personal information gathered about them.
15      24      Any and all information in the possession of the SCSO related to the assignments and
                job duties of law enforcement, SCSO personnel, Redding Police Department
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                personnel and contracted personnel who have participated in the DHE program
17              during the calendar years 2008, 2009 and 2010. This would include but not be limited
                to Nolan Guiducci, Sean Robinson, Lee James, Mike Wood, Jeff Foster, Brett
18              Hayslett, Mike Baker, Chris McQuillan, Pat Kropholler, Tyler Thompson and
                Maximus.
19      25      The names and titles of any law enforcement officers, civilians, or others who have
                been employed by the SCSO to assist the NSI Cal MMET/DHE program in Shasta
20              County.
21                                                  III
                                                  FACTS
22

23
             Shasta County Sheriff‟s Deputy Nolan Guiducci, wrote the following investigation
     report, NC2009-063, which purports to describe the stop, detention and arrest of Saul Arias
24
     Guzman for violating Health & Safety Code §§ 11378 and 11379(A).
25




                                      Notice of Motion (Murgia) - Page 9
1           “On July 25, 2009 at approximately 1135 hours, I was clearing an enforcement stop along
2    northbound I-5 near Fawndale Road. I was operating my marked Sheriff‟s vehicle, which has
     been previously calibrated for speed and accuracy. I was dressed in full department utility
3
     uniforms, which are clearly marked with department insignias.
4
            I saw a gold Jeep Cherokee, (CA Lic. #4ZEGO87), in the number one lane of northbound
5    I-5. The driver of the SUV stared straight ahead in a posture, which appeared to be tense, with
6    both hands on the steering wheel in the ten and two position as he passed me. The SUV appeared

7
     to be traveling faster then the posted 65 mph speed in the area. I pulled out and followed the
     vehicle. The Jeep changed lanes in to the number two lane directly behind a truck towing a
8
     sailboat and slowed. The Jeep followed the truck for approximately one half mile to the area near
9
     the Bridge Bay exit. While in this area it continued to follow the truck and boat too closely and
10   stayed within one car length the entire time, violating section 21703 CVC). I saw the SUV pass

11   the truck towing the boat and then change lanes back into the number two lane ahead of the truck
     towing the boat. The jeep then began to slow to approximately 58 MPH and began to impede
12
     traffic in the area. I counted at least seven vehicles behind the Jeep. Based on my training, and
13
     experience, this driving behavior and body posture are consistent with subjects who are nervous
14   with the presence of law enforcement.
15          “I activated my emergency lights and stopped the vehicle along northbound I-5 at the
     Turntable Bay Rd off ramp. The vehicle yielded in this area: however the driver hesitated to pull
16
     off the off ramp and continued to the stop sign at the end of the off ramp. The driver continued
17
     his nervous behavior and stopped and indicated a right turn after pulling to right shoulder. The
18   driver then pulled through the stop sign and made a right turn onto Turntable Bay Rd. The driver
19   finally yielded approximately fifty yards east of the exit on Turntable Bay Rd. The manner in

20   which the driver yielded to my emergency lights is not consistent with the innocent motoring
     public and his behavior is consistent with subjects engaged in criminal behavior in an effort to
21
     limit office safety and attempt to minimize their exposure.
22
            I approached the driver‟s side of the vehicle. I contacted the driver, later identified as
23   Saul Arias Guzman. Saul appeared in a state of shock. His posture was rigid and his face lacked
24   any expression. His face was pale in color. I explained the reason for the stop to Saul and
     requested his driver‟s license and registration. I could smell the overwhelming odor of a masking
25
     agent coming from the interior portion of the vehicle. The interior of the vehicle appeared to be



                                       Notice of Motion (Murgia) - Page 10
1    very clean and recently detailed. The dashboard of the vehicle appeared to be recently cleaned
2    and had a shiny surface. I could see there were two small hand bags behind the front seats and a
     case of Corona Beer in the cargo area. About this time Agent McQuillan and Kropholler arrived
3
     to assist me.
4
            “Based on the driving behavior and his body language I had Saul exit the vehicle. Agent
5    Kropholler and I spoke to Saul near the front of my vehicle. I found that Saul spoke limited
6    English but seemed to answer my questions appropriately with the use of agent Kropholler‟s

7
     limited Spanish. Saul said he was traveling from Sacramento, CA to Portland Oregon. Saul
     handed me his California driver‟s license. When he did I could see he was extremely nervous,
8
     which was evident by his hand visibly trembling (h)as he handed it to me.
9
            “Based on my training I have personal knowledge the criminal organizations often utilize
10   third party registered vehicles to smuggle contraband. Based on case studies and intelligence

11   research on smuggling methods, conducted by U.S. Department of Justice Drug Enforcement
     Administration, it is a common practice for criminal organization to use recently purchased,
12
     registered vehicles or third party vehicles to traffic their contraband, therefore minimizing law
13
     enforcements ability to track their operational methods and tactics.
14          “I noticed Saul continued to show signs of extreme nervousness, which was evident by
15   him rubbing his face several times while standing with me. I began a license and warrants check
     of Saul with the use of my MDC. While waiting on the return of his warrants and license status
16
     Agent Kropholler asked Saul if he was responsible for everything in the vehicle. Saul said, “yes.”
17
     Agent Kropholler asked him if he had any cocaine, marijuana, methamphetamine, heroin or large
18   sums of currency. Saul said “no” to each. I asked him if I could search his vehicle Saul said,
19   “Yeah.” Agent McQuillan then cleared the vehicle for hazards while Agent Kropholler retrieved

20   his detection dog Maximus to expedite the search.
            “Agent Kropholler told me, Maximus made an active alert to the passenger side dash area
21
     of the vehicle, detecting the odor of controlled substances. Based on the active K-9 alert to the
22
     vehicle, I had Saul sit in the rear of my patrol car without handcuffs.
23          “Agent McQuillan and I searched the vehicle and during the search Agent McQuillan
24   found a sheet metal screw in the passenger side dash airbag. This is not consistent with factory
     assembly, however this is consistent with a false compartment when coupled with a dog alert in
25
     the same area. After Agent McQuillan noticed the area, Agent Kropholler removed the center



                                       Notice of Motion (Murgia) - Page 11
1    portion of the dash behind the stereo. Agent Kropholler saw black carpet inside the dash he also
2    saw a large amount white crystal substances loosely spread in the compartment. I tested the
     substance with a Nark II test kit, which gave a presumptive positive result for methamphetamine.
3
     For officer safety we moved the location of the stop to E&J Automotive in Shasta lake City to
4
     process the vehicle.
5           “After arriving at E&J we were able to retrieve most of the methamphetamine from the
6    compartment. The compartment was accessed by removing the factory bolts that held the entire

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     dash. The bolts were secured to the firewall. The bolts showed signs of heavy wear.
            The methamphetamine was later weighed and found to have a gross field weight of 2.3
8
     ounces. The vehicle was taken to NSI CAL-MMET secure evidence storage, where it was stored
9
     for further processing by the Shasta County Sheriff crime lab team.” (See Exhibit “E” Report
10   Number NC2009-063).

11          On Saturday, March 6, 2010 Mr. Guzman and his wife, Yolani Reyes, were driving from
     their home in Portland Oregon to Shasta County for Mr. Guzman‟s March 8, 2010 court date in
12
     this matter. Mr. Guzman was driving and Ms. Reyes was the passenger. Shortly after entering
13
     Shasta County, and while traveling southbound on I-5, Mr. Guzman was pulled over by Deputy
14   McQuillan for speeding. Deputies Kropholler and McQuillan had been parked together on the
15   side of I-5, upon noticing Mr. Guzman pass their position Deputy McQuillan pulled on to I-5 and
     subsequently stopped Mr. Guzman and Ms. Reyes, allegedly for speeding. (See Declarations of
16
     Saul Guzman and Yolani Reyes; Exhibits “F” and “G”). Mr. Guzman was issued a “warning
17
     Citation on this occasion. (See Exhibit “H” „warning citation‟).
18
                                      IV
19
        PENAL CODE SECTION 1054 DOES NOT APPLY TO MURGIA MOTIONS FOR
20                                DISCOVERY.

21          Discovery in criminal actions is governed by Penal Code §§ 1054-1054.7 except for
     express statutory provisions and as mandated by the United States Constitution (Penal Code §
22
     1054 (e). While the statute does not require the prosecution to disclose information that could
23
     support a discriminatory prosecution defense, the constitutional basis for such discovery is found
24   in the equal protection clause.
25          Murgia Motions are based on the U.S. Constitution, (Murgia v. Municipal Court, supra).
     Because discovery is needed to support the Motion to Dismiss, and because it does not involve


                                       Notice of Motion (Murgia) - Page 12
1    discovery of trial witnesses or their possible testimony, Murgia discovery can be ordered by the
2    Court without requiring compliance with the Penal Code § 1054.5 (b) rule that Court
     enforcement cannot be sought until 15 days after an informal discovery request is made.
3

4
                                     V
5     A PROSECUTION THAT IS BASED ON UNJUSTIFIED STANDARDS RESULTS IN
      DISCRIMINATORY ENFORCEMENT OF THE LAW AND VIOLATES THE EQUAL
6
         PROTECTION CLAUSE OF THE STATE AND FEDERAL CONSTITUTIONS
7
             The origin of the doctrine of discriminatory prosecution is found in Yick Wo v. Hopkins,
8    118 U.S. 356, 373-374:
9            “Though the law itself may be fair on its face and impartial in appearance, yet, if it is
     applied and administered by public authority with an evil eye and an unequal hand, so as
10
     practically to make unjust and illegal discriminations between persons in similar circumstances,
11
     material to their rights, the denial of equal justice is still within the prohibition of the
12
     Constitution.”
13           This principal was applied by the California Supreme Court in Murgia v. Municipal

14   Court, 15 Cal 3d. 286, 290:
             “If an individual can show that he would not have been prosecuted except for such
15
     invidious discrimination against him, a basic constitutional principal has been violated, and such
16
     a prosecution must collapse upon the sands of prejudice.”
17           “We of course agree with petitioners the Constitution prohibits selective enforcement of
18   the law based on considerations such as race. But the constitutional basis for objecting to
     intentionally discriminatory application of the laws is the Equal Protection Clause, not the Fourth
19
     Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment
20
     analysis.” Whren v. U.S. 517 U.S. 806.
21           Despite contrary case law that “pretext” stops are not unlawful in the context of Fourth-
22   Amendment search and seizure challenges, traffic stops that are based on race can be

23
     constitutionally challenged.
                                    VI
24    THE DEFENDANT HAS THE BURDEN OF PROOF TO SHOW “SOME EVIDENCE”
               TO JUSTIFY GRANTING THE DISCOVERY REQUESTS.
25




                                         Notice of Motion (Murgia) - Page 13
1           The United States Supreme Court has held that to justify a request for discovery a
2    defendant must demonstrate (1) that the prosecution results in a discriminatory effect; and (2)
     that it is motivated by a discriminatory purpose. Proof of discriminatory effect requires a
3
     showing that similarly situated individuals of a different class or group were not prosecuted. U.S.
4
     v. Armstrong, 517 U.S. 456. However, a defendant is not required to demonstrate that the
5    government has failed to prosecute others who are similarly situated. The defendant is only
6    required to demonstrate that “some evidence tending to show the existence of the essential

7
     elements of the defense,” of discriminatory effect and discriminatory intent. United States v.
     Berrios 501 F2d. 1207, 1211. Nor does it undermine the defense‟s motion that 100% of those
8
     detained and/or arrested were not Hispanic: allowing the defendants (the police) “to escape
9
     liability for discriminating against Hispanics simply because they occasionally mistreat white
10   motorists would dismantle our equal protection jurisprudence.” Chavez v. Illinois State police

11   (2001) 251 F.3d 612.
            California has adopted these federal standards and requires the defendant to establish
12
     “some evidence” of discriminatory intent by the prosecution to support a defendant‟s discovery
13
     request. People v. Superior Court (Baez), 79 Cal. App 1177.
14          It should be noted that the burden of proof for the subsequent Motion to Dismiss, should
15   the evidence support a finding that the conduct was intentional and invidious, is by a
     preponderance of the evidence. Therefore, it would stand to reason that the Motion for Discovery
16
     and the defense burden of supplying “some evidence” of “discriminatory effect and
17
     discriminatory intent and credibly showing that similarly situated persons could have been but
18   were not prosecuted” should be substantially lower then by a preponderance of the evidence
19   because it is the evidence sought that may create the preponderance. This is simply a preliminary

20   motion requiring “some evidence.”
            The rationale behind the “some evidence” burden is that requesting the government to
21
     produce the required documentation can be burdensome on the prosecution. However, there must
22
     be a balancing defendant‟s interest in avoiding selective prosecution and the burden on the
23   prosecution and its resources. U.S. v. Armstrong, 517 U.S. 456. The defense of selective
24   prosecution is likely the only viable defense available to Mr. Guzman. NSI Cal MMET/DHE, the
     agency which the SCPDO suspects may be engaging selective prosecution, is a well funded
25
     entity created for the singular purpose of patrolling the Shasta County highways. The defendant



                                       Notice of Motion (Murgia) - Page 14
1    in this case is an indigent Hispanic male accused of having 2.3 ounces of methamphetamine.
2    Once the defendant established a prima facie case of selective prosecution the costs to the NSI
     Cal MMET/DHE should not be a consideration, it would not be unduly rigorous on the
3
     government and is one that can be easily accommodated by the NSI Cal MMET/DHE. All the
4
     information sought should already be in existence and likely on sight. It simply needs to be
5    retrieved and copied.
6           If the defense shows a prima facie justification for the discovery, the prosecution has the

7
     opportunity to oppose the motion at an evidentiary hearing. People v. Moya (1986) 184
     Cal.App 3d 770, 776. Therefore, the Motion may be supported by Declaration of counsel
8
     stating, under penalty of perjury, what information and belief counsel is relying to support the
9
     motion.
10                                   VII
      AN OVERVIEW OF THE SHASTA COUNTY SHERIFF’S OFFICE, Cal MMET AND
11     THE DIVISION OF HIGHWAY SAFETY; AND THE CENTRAL VALLEY HIGH
                      INTESITY DRUG TRAFFICKING AREA.
12

13          In May, 2007 the Sheriff‟s Offices of five northern counties, Shasta, Tehama, Butte,
     Glenn and Colusa, entered in to a Memorandum of Understanding (MOU) along with the
14
     Redding Police Department (RPD), Drug Enforcement Administration (DEA) and California
15
     Highway Patrol (CHP) which has subsequently ended it participation (See Exhibit “D”) to
16   collectively continue their participation in the North State Initiative of the California
17   Methamphetamine Multi-jurisdictional Enforcement Team (NSI Cal MMET) and its “Domestic

18
     Highway Enforcement”(DHE) program (See Exhibit “I” MOU).
            The DHE program is modeled after Federal DHE programs. The main funding for the
19
     DHE program comes via a grant from the Office of Emergency Services (OES), Cal MMET
20
     division. The DHE receives additional funding for its program through the Drug Enforcement
21   Administration (DEA), United States Forest Service (USFS) and the Central Valley High

22   Intensity Drug Trafficking Area (CV HIDTA) which is administered through the Sacramento
     County Sheriff‟s Office. According to the OES only two other Counties in California have a
23
     DHE program/team.
24
            NSI Cal MMET is governed by a “steering committee” and has three main goals:
25          1)      Target methamphetamine manufacturers and dismantle clandestine labs.




                                        Notice of Motion (Murgia) - Page 15
1           2)      Focus on the safety and well being of children who have been exposed to illicit
                    drugs, etc.
2           3)      Domestic Highway Enforcement to target drug traffickers.
3           Those are noble and worthwhile goals. However, if it is done in an unconstitutional or

4
     otherwise impermissible manner it cannot be tolerated and must be stopped.
             The current Cal MMET grant to the SCSO of $933,634.00 expires June 30, 2010.
5
     During the Fiscal year of 2008-2009, at least an additional $137,000.00 was received by the
6
     SCSO from the CV HIDTA program. At least $37,000.00 of the CV HIDTA grant was used to
7    reimburse the overtime of two “specially trained officers” (Deputies Pat Kropholler and Chris

8    McQuillan) for the patrol of the major highways in Shasta County .
            The following personnel are listed as part of the Shasta County Cal MMET team:
9
            1       Jeff Foster/ SCSO; Lieutenant/Executive Director
10          2       Chris McQuillan/SCSO; Deputy/Agent
            3       Kathy Fontes/SCSO; Accountant Auditor II
11          4       Janice Breese/SCSO; Administrative Secretary II
            5       Lee James/Redding PD; Deputy/Agent
12
            6       Pat Kropholler/SCSO; Deputy/Agent/K-9 handler (Maximus)
            7       Brett Hayslett/Contracted Associate; Intelligence Analyst.
13
            8       Mike Baker/Contracted Associate; Investigator/Agent
14          9       Mike Wood/Redding PD; Sergeant/Task Force Commander
                    (See Exhibit “J” 2009/2010 Progress Report).
15
            It is clear that the NSI Cal MMET/DHE Deputies and Agents are acting under the color
16   of law enforcement.
17           NSI Cal MMET acknowledges that methamphetamine affects everyone from “soccer

18   moms” to “motorcycle gangs” However, as methamphetamine labs have declined in its five-
     county region, production has increased in Mexico. The Cal MMET/DHE team members have a
19
     scheduled Tuesday morning meeting “to allow for an open forum for communication and
20
     exchange of information regarding enforcement efforts and new intelligence on drug trafficking
21   agencies.” The intelligence analyst has “intelligence, names, instruments, and usable court
22   documentation on drug trafficking organizations and link charts describing the above” (see
     Exhibit “K” “Project Narrative” and NSI Cal MMET organizational chart).
23
            The SCPDO is informed and believes that evidence of discriminatory enforcement is
24
     discussed in the “steering committee” meetings and/or the Tuesday morning meeting (or
25   whatever day they may be held on). The SCPDO further is informed and believes, based on the
     “project narrative,” prior testimony, statistical data and other information provided in this


                                       Notice of Motion (Murgia) - Page 16
1    motion, that the training and sharing of information provided to, and among the officers, “target”
2    Hispanics as drug traffickers and as a result Hispanics are being singled out by members of the
     NSI Cal MMET team on Interstate 5.
3
     A) SHASTA COUNTY PUBLIC DEFNEDER’S OFFICE OBSERVATIONS OF NSI CAL
4    MMET/DHE PROGRAM

5           In October 2008 the SCPDO noticed that a significant number of drug-related arrests had
6    been made on I-5 in Shasta County during the first ten months of 2008.

7
            After reviewing our files I noticed that the drug-related arrests made on Interstate 5
     involved a high percentage of Hispanic arrestees (See Section VIII of this Motion “Statistical
8
     Evidence”). The investigation reports in these incidents were all generated by NSI Cal
9
     MMET/DHE officers. The reports are easily distinguishable. They are designated on the face
10   page as being “DHE” investigations and are assigned an investigation number that starts “NC,”

11   then the current year, and then the incident number for that year. For example, this defendant‟s
     report is # NC2009-063. It was then noticed that the same deputies either authored the reports or
12
     were significantly involved in all the investigations.
13
            The SCPDO has acquired approximately 75 NSI Cal MMET/DHE investigation reports
14   generated since August 2007. (A breakdown of the year, the report number and the suspect’s
15   race are in Exhibit “B,” “B1” and “B2.”) If the reports follow a sequential order there are
     approximately 250 reports that are unaccounted for.
16
            All the investigations start with a traffic stop for an alleged vehicle code violation. Most
17
     of the stops occurred on I-5 in Shasta County, a few in Tehama and Glenn Counties. As time
18   passed the overwhelming amount of the traffic stops were occurring on I-5 just north of Redding.
19   By late 2008 the NSI Cal MMET officers could be seen sitting on the side of I-5 near

20   Wonderland Blvd. on a regular basis; usually Tuesday through Sunday from early morning until
     early afternoon. Often one deputy would be parked on the southbound side I-5, another parked
21
     on northbound I-5, and yet another driving up and down that section of I-5 all at the same time.
22
            Also as time passed the investigation reports became increasingly identical to one-
23   another. Most of the alleged traffic offenses were for violations such as: following too close,
24   speeding, unsafe lane change, or another violation that could only be substantiated by the
     deputies‟ observations. All the reports would list “indicators” that made the deputies suspicious
25
     that the drivers/passengers were not acting “consistent with the innocent motoring public” (see



                                       Notice of Motion (Murgia) - Page 17
1    Section IX of this Motion for discussion). In many cases the deputies reported they had made
2    visual contact with the driver prior to the traffic stop (see Exhibit “CC,” Affidavit of Special
     Agent Dennis Hale in Support of a Criminal Complaint requesting a Warrant for Arrest).
3
            Once a traffic stop was enforced two, three or more deputies would arrive within minutes
4
     of the stop, including Deputy Kropholler‟s drug-sniffing canine Maximus. This would create an
5    overwhelming and intimidating police presence. The suspect would be asked, within minutes of
6    the stop, to exit his vehicle and stand on the side of I-5. The suspect(s) would be questioned

7
     about their travel plans and at some point be asked for consent to search their vehicle. Whether
     or nor consent was given Maximus would conduct a “sniff” of the vehicle and the car would be
8
     searched. If the suspects were not subsequently arrested for drug offenses they were often issued
9
     a Traffic Citation/Notice to Appear (see Exhibits “E,” “BB,” BB1,” and “BB2” and Section III
10   of this Motion, for examples of the above described reports: These exhibits were chosen to

11   represent the similarity of the reports authored by different Deputies an different occasions and
     demonstrate Deputies’ knowledge that driver was Hispanic prior to the traffic stop).
12
            After reading 75 reports, conducting interviews, court hearings, investigation and
13
     collaboration it became obvious that the number of Hispanics being detained and arrested on I-5
14   was not a coincidence. The odds of Mr. Guzman (see Exhibit “F”) or Jorge Villa (see Exhibit
15   “Z”), both of whom are out –of-state residents, being be pulled over twice by the same Deputies
     on I-5 in Shasta County on separate occasions is not consistent with non-discriminatory law
16
     enforcement techniques.
17
     B) FEDERAL DEFENDER’S OFFICE PRIVATE INVESTIGATION
18          On January 10, 2010 the Federal Defender‟s Office, Sacramento, CA hired a private
19   investigation firm to conduct surveillance of Deputies McQuillan and Kropholler on the section

20   of I-5 where most of the above-mentioned traffic stops occurred. The private investigator,
     Conrad Cota, spent parts of 11 days on I-5 conducting surveillance, on six days he was unable to
21
     locate the officers whose activities he was asked to monitor. On five days he was able to locate
22
     and monitor the officers.
23          During those five days Cota was able to observe the officers make 22 traffic stops, all
24   stops occurred on I-5 between the Pine Grove exit and the Bridge Bay exit. Cota was able to
     obtain video footage of some stops. Of the 22 stops 17 resulted in a search of the persons and
25
     vehicles stopped.



                                       Notice of Motion (Murgia) - Page 18
1             Seventeen of the vehicles stopped were occupied by Hispanics only; one vehicle was
2    occupied by a Hispanic, Black and a White; two vehicles were occupied by Blacks only; one
     vehicle was occupied by a Black and a White; and one vehicle was occupied by a White only.
3
              Thirteen of the Hispanics only stops resulted in searches of the persons and vehicles; both
4
     of the Blacks only stops resulted in searches of the persons and vehicles; the Hispanic, Black and
5    White stop resulted in a search of the persons and vehicle; and the Black and White stop resulted
6    in a search of the persons and vehicle. The White only stop did not result in a search. None of the

7
     traffic stops resulted in an arrest of the drivers or passengers. About 50% of those stopped
     received some type of citation (see Exhibit HH, a copy of Coat‟s investigation report). (For
8
     additional information on “citations” see Section IX, part “A” of this motion.)
9
              Some of the more curious observations made by Cota were the fact that in many stops
10   despite a police canine present at the scene Cota never saw the canine employed. The only all

11   White stopped was of a vehicle that had United States Government license plates and was driven
     by a male in a military uniform. That stop lasted approximately two minutes.
12
                                         VIII
13            STATISTICAL EVIDENCE OF DISCRIMINATORY EFFECT AND INTENT

14            Statistical evidence can be used to establish discriminatory intent. In People v. Moya 184
15   Cal.App.3d 1307, the defense‟s statistical argument was denied based on defendant‟s weak
     showing of statistical information to support its claim. Frank Moya was prosecuted for violating
16
     Penal Code § 4502, possession or manufacturing of a weapon while in custody. Moya was an
17
     inmate at San Quentin. The defense claimed the prosecution was discriminatory in that of the 21
18   defendants represented by the Marin County Public Defenders Office for similar charges during
19   1982 and 1983, 15 were “racial minorities,” approximately 71%. However, the evidence showed

20   that prison population was 60 % non-white and the court found that the disparity between the
     prison population and the persons prosecuted was not strong enough statistical evidence to
21
     support the Murgia Motion.
22
              In Chavez v. Illinois State Police (2001) 251 F.3d 612 the Court addressed the issue of
23   the use of statistics to show discriminatory effect. The facts in Chavez are similar to this case. In
24   Chavez, plaintiffs brought a civil suit against the state police based on their drug interdiction
     unit‟s practice of stopping and detaining motorist based on their race without legally sufficient
25
     cause.



                                        Notice of Motion (Murgia) - Page 19
1           The Chavez Court notes “the Supreme Court has long noted the importance of statistical
2    analysis „in cases in which the existence of discrimination is a disputed issue.‟ citing Int’l Bhd
     of Teamsters v. United States, 431 U.S. 324. “While few opinions directly acknowledge that
3
     statistics may be used to prove discriminatory effect, the Court has repeatedly relied on statistics
4
     to do just that. Yick Wo v. Hopkins, supra. The Court states that parties may not prove
5    discrimination merely by providing statistical evidence. The statistics must address the crucial
6    question of whether or not one class is being treated differently than another similarly situated

7
     class. The Court points out that statistics are not irrefutable and may be rebutted,. Their
     usefulness depends on all the surrounding facts and circumstances, Teamsters v. U.S., supra.
8
     The Chavez Court also points out that allowing the defendants (the police) “to escape liability for
9
     discriminating against Hispanics simply because they occasionally mistreat white motorists
10   would dismantle our equal protection jurisprudence.” Therefore it does not undermine the

11   defense‟s Motion that 100% of those detained and/or arrested were not Hispanic.
             In this matter the available statistics are very telling revealing and support the
12
     defendant‟s claim. However, they are just one element, albeit a very strong element, that the
13
     defendant is asserting to support his claim of discriminatory prosecution.
14          The SCPDO has obtained approximately 78 DHE investigation reports (does not include
15   traffic tickets or warning citations, those are items being sought by this motion) beginning after
     May 2007 (the date of the MOU attached as Exhibit “I”) and continuing through February 2010.
16
     All 77 of the NSI Cal MMET/DHE reports were generated as a result of traffic stops. Of those
17
     reports of approximately 57 were Hispanic drivers; eight were Black drivers, ten were White
18   drivers and 3 were “others”; or 73% Hispanic drivers.
19          As indicated above, the percentage of the drug related arrests made on Interstate 5 by the

20   Cal MMETT agents were abnormally high in regards to Hispanics. In January 2009, the SCPDO

21   started compiling information on all Cal MMET arrests made on Interstate 5 during 2008 and

22   continued to monitor the arrests through 2009 and continues to monitor the arrests in 2010.

23          The SCPDO made every effort to obtain all the “DHE” investigation reports related to

24   Cal MMET detentions on Interstate 5 during the above time periods whether or not the case was

25   assigned to the SCPD.




                                       Notice of Motion (Murgia) - Page 20
1           The SCPDO also obtained information from the U.S. Census Bureau and learned the
2    following:
3           Hispanics constitute 36.6% of California’s population.
            Hispanics constitute 8% of Shasta County’s population.
4           Hispanics constitute 9.8 %of Washington State’s population.
            Hispanics constitute 11% of Oregon’s population.
5
            (See Exhibit “L,” “L1,” “L2,” and “L3” US Census Bureau statistics)
6                    Of those 77 investigation reports 15 of those detained were driving vehicles with

7    Oregon license plates;. 27 of those detained were driving vehicles with Washington State license
     plates. The above numbers only reflect cases in which reports were filed, either for arrest
8
     purposes or drug related asset forfeiture purposes. They do not include traffic citations, traffic
9
     warning citations, or verbal warnings.
10          However, through investigation and observation the SCPDO is aware that the NSI Cal
11   MMET/DHE team has made numerous traffic stops on I-5 during the above-mentioned time
12   frame. It is extremely difficult to obtain information on those who were stopped and not
13   arrested/detained due to the transient nature of traffic on I-5. It appears many of those who were
14   stopped were not cited for CVC violations but simply issued a Cal MMET “warning citation”
15   (see Exhibit “A”). Therefore the only entity that is controlling that flow of information is NSI
16   Cal MMET/DHE. The SCPDO is informed and believes that the information accumulated on
17   those warning citations is used to establish a data base within Cal MMET/DHE. Those warning
18   citations would lead to relevant information that would help answer the questions presented in
19   this matter in that they contain data regarding the race, reason and contact information for those
20   persons who were stooped and searched but not arrested.
21          The SCPDO has been able to, through the Public Record Request Act, receive data on
22   other local law enforcement agencies concerning statistical evidence related to their 2008 and
23   2009 arrests.
24

25




                                       Notice of Motion (Murgia) - Page 21
1    A) CALIFORNIA HIGHWAY PATROL:
2           The CHP is charged with enforcing the traffic laws on California‟s highways. There is a
3    division of the CHP assigned to the Redding area.
4           In 2008 the Redding Area CHP issued 21,558 traffic citations. The number of Hispanics
5    cited was 1,635. This translates to .076% of the citations issued by the Redding Area CHP in
6    2008 were to Hispanics. By contrast if 70% of the CHP citations in 2008 were issued to
7    Hispanics the Redding Area CHP would have issued citations to 15,090 Hispanics in 2008.
8           In 2009 the Redding area CHP issued 19,374 traffic citations. The number of Hispanics
9    cited was 1,462. This translates to .10% of the citations issued by the Redding Area CHP in 2009
10   were to Hispanics. By contrast if 70% of the CHP citations issued in 2009 were issued to
11   Hispanics the Redding Area CHP would have issued 13,561 citations to Hispanics. (see Section
12   IX of this Motion for discussion of NS! Cal MMET/DHE Warning Citations) (see Exhibit “M”
13   Redding Area CHP statistics).
14   B) SHASTA COUNTY SHERIFF’S OFFICE:
15          In 2008 the SCSO made approximately 1,555 arrests of juveniles and adults combined.
16   The SCSO tracks the “race” of all arrestees. Of the 1,555 arrests made in 2008, non-whites
17   accounted for 231 Of the 231 there were 108 Hispanics arrested, 69 American Indians arrested,
18   36 Blacks arrested, and 18 “others” arrested. The SCPDO has calculated that 6.6% of those
19   arrested by the SCSO in 2008 were Hispanic, 7.6 were American Indian, 1.5% Blacks, and .8%
20   were “others.” Whites accounted for 83.3 % of those arrested.
21          In 2009, the SCSO made approximately arrest of 829 juveniles and adults combined. Of
22   the 829 arrests made in 2008, non-whites accounted for 138 of those arrested. The SCPDO has
23   calculated that 6.9% of those arrested by the SCSO in 2009 were Hispanic, 4.4% were American
24   Indians, 2.3% Black, and 1% “others.” Whites accounted for 85.2% of those arrested. The
25   SCPDO is not sure whether or not these SCSO statistics include Cal MMET/DHE arrests; but




                                      Notice of Motion (Murgia) - Page 22
1    they do not include boat/vessel citations. (See Exhibit “N” for sample of the data provided by
2    the SCSO; the entire package of information consists of hundreds of pages of data.)
3    C) REDDING POLICE DEPARTMENT:
4           According to information provided from RPD to the SCPDO in 2009, RPD arrested or
5    issued citations to 8,750 people, including juveniles and adults. Of the 8,750 people, 1008 were
6    juveniles;(6.3% Hispanic, 8.9% were Black, 78.3% were Whites). Of the 8,750 arrests/citations
7    7,742 were adults;) 4.7% were Hispanic; 4.2% Black; 85.1% were Whites). The overall
8    percentage of Hispanics arrested/cited was 4.9% ( 4.7% were Black; and 84.3% were White).
9           According to information provided from RPD to SCPDO, in 2008 RPD made 9565
10   combined arrest/citations of juveniles and adults. Of the 9565 arrests/citations juveniles
11   accounted for 1,159. Of those, 9.6% were Hispanic, ( 6.3 % were Black; 77.9% were Whites).
12   Of the 8,406 adults arrested/cited in 2008, 5.7% were Hispanic, ( 4.5% were Black; 84.2% were
13   White. The total percentages for 2008 were 83.5% White; 6.1% Hispanic; and 4.7% Black (see
14   Exhibit “O” RPD statistical breakdown of arrests).
15   D) ANDERSON POLICE DEPARTMENT:
16          According to information provided from APD to the SCPDO in 2009, APD arrested or
17   issued citations to 1,439 people, including juveniles and adults. Of the 1,439 people, 125 were
18   juveniles ;( 5.6% Hispanic, 3.2% were Black, 86.4% were Whites). Of the 1,439 arrests/citations
19   1314 were adults; (7.6% were Hispanic; 2.4% Black; 85.3% were Whites). The overall
20   percentage of Hispanics arrested/cited was 7.4% (2.5% were Black; and 85.4% were White).
21   (See Exhibit “P” APD arrests statistics.)
22          According to information provided from APD to the SCPDO in 2008, APD arrested or
23   issued citations to 1,404 people, including juveniles and adults. Of the 1,404 people, 98 were
24   juveniles ;( 4.1% Hispanic, 3.1% were Black, 90.8% were Whites). Of the 1,404 arrests/citations
25   1306 were adults; (6.1% were Hispanic; 3.3% Black; 86.8% were Whites). The overall




                                       Notice of Motion (Murgia) - Page 23
1    percentage of Hispanics arrested/cited was 6.0% (3.3% were Black; and 87% were White). (See
2    Exhibit “P1” APD arrests statistics.)
3    E) SHASTA INTERAGENCY NARCOTICS TASK FORCE:
4           Shasta Inter Agency Narcotics Task Force (SINTF), through the DOJ, denies keeping
5    racial statistics despite the fact it is clearly reflected in all SINTF reports. SINTF was the only
6    law enforcement agency who refused to release such information (see Exhibit “Q” DOJ letter
7    dated April 5, 2010).
8

9                                   IX
        THE COURT SHOULD CONSIDER ALL RELEVANT CRIRCUMSTANCES IN
10
      DETERMINING IF THE DEFENSE HAS MET ITS BURDEN OF SHOWING “SOME
11
       EVIDENCE” OF DICRIMINATORY EFFECT, DISCRIMINATORY INTENT AND
     CREDIBLY SHOWING THAT SIMARILY SITUATED PERSON COULD HAVE BEEN
12                       BUT WERE NOT PROSECUTED

13          The Court should not limit its analysis to the pre-traffic-stop observations and the

14   statistical evidence. Evidence that occurs after the stop is relevant to the deputies‟ discriminatory

15   intent and motivation to detain the defendant(s) as opposed to others who are similarly situated

16   but not being pulled over and detained. The Court should look to the investigation reports

17   generated as result of the traffic stops by NSI Cal MMET/DHE members, prior testimony of the

18   officers, the deputies‟ procedures, conduct and use of “indicators” after the traffic stop. Finally

19   the Court should consider NSI Cal MMET practice of issuing “Warning Citations” and the

20   intent behind them.

21          To establish discriminatory intent, the defendant must produce some evidence tending to

22   show the law enforcement officer acted with discriminatory purpose specific to his own case and

23   must support an inference that racial consideration played a part in his treatment. U.S. v Mesa-

24   Roche 288 F.Supp.2d 1172 [key cite 22]. In the Mesa-Roche decision, the Court likened a

25   challenge to a specific officer(s) act(s) to a claim of racial discrimination in the use peremptory

     challenges in a jury trial. “In such a case, the Supreme Court has instructed that the court should


                                        Notice of Motion (Murgia) - Page 24
1    consider all relevant circumstances, including the prosecutor‟s pattern of strikes against certain
2    jurors, the prosecutor‟s questions and statements, which may support or refute an inference of
3    discriminatory purposes. Similarly, a police officer‟s pattern of traffic stops and arrests, his
4    questions and statements to the person involved, and other relevant circumstances, may support
5    an inference of discriminatory purpose in this context.”
6           The SCPDO believes that members of the NSI Cal MMET/DHE program, specifically
7    Deputies Guiducci, McQuillan and Kropholler, who were all present in this case, are enforcing
8    traffic laws on I- 5 in Shasta County against members of a suspected class, primarily Hispanics,
9    and not enforcing the traffic laws against others who violate the same traffic offenses in the
10   officer‟s presence.
11          The questions asked of the defendants and the deputy‟s observations infer a
12   discriminatory purpose; mainly to provide justification for detaining, searching and documenting
13   Hispanics on the I-5 corridor as they pass through Shasta County.
14          If the detainees are not found to possess contraband, they are provided “Cal MMET
15   Warning Citation” and their information is documented and goes in to a Cal MMET database for
16   additional purposes.
17          In addition to the statistical evidence presented above the defense has obtained a letter
18   dated October 28, 2008 from C.D. Jenkins, Chief of the CHP, Northern Division, addressed to
19   the SCSO and Sheriff Tom Bosenko. The letter is titled: “SUBJECT: NOTICE OF
20   TERMINATION” The letter refers to a previous meeting between the CHP and Cal MMET. The
21   letter thanks Sheriff Bosenko for his “candor” and informed the SCSO that Chief Jenkins
22   believes that it would not be in the best interest of the CHP to continue its participation in Cal
23   MMET/DHE, therefore terminating its participation effective October 31, 2008. This is a letter
24   of particular interest in that the agency charged with enforcing traffic laws on Interstate 5 does
25




                                        Notice of Motion (Murgia) - Page 25
1    not want to continue to participate in what it calls a “worthwhile effort” after a “candid” meeting
2    with the SCSO (see Exhibit “D”).
3           The above inference and the crux of this motion are put into context by Deputy
4    McQuillan during a preliminary examination in People v. Flores (09F8910):
5            “I was parked, facing west on the shoulder of Interstate 5 there at Oasis, monitoring
6    traffic. You have to remember I sit in these areas commonly and we screen literally thousands of
7    vehicles. And normally, every vehicle that will pass us, most people will look in our direction.
8           When Mr. Flores passed me, he was driving slower then the flow of traffic, in the number
9    two lane. It is a three-lane road there, northbound. And when he went past me, he was very intent
10   on looking straight ahead, as if he were evading me, seeing me.” (See exhibit “R” preliminary
11   hearing TX of People v. Flores 09F 8910; page 12, lines 12-18).
12          The question must be asked, and answered. “What are they screening for?” The statistics
13   answer that question and the picture of intent starts to become clearer. That statement alone is
14   evidence NSI Cal MMET/DHE members are screening cars for persons who fit a profile, and
15   selectively enforcing the traffic laws in hopes of uncovering narcotic traffickers. That is the
16   stated goal of the DHE (see Exhibits “I” and “K”). As a result many innocent Hispanics are
17   being detained and having their constitutional rights violated, including the right to travel. There
18   is little doubt that certain people ARE being targeted, prior to being stopped based on their
19   appearance, and similarly situated people who do not fit the profile are NOT being stopped and
20   detained (see Exhibit “DD,” text message from Deputy Kropholler on February 12, 2009).
21          This intent is further evidenced in the preliminary hearing conducted in People v.
22   Cabrera-Banegas 10F0581 through Deputy Sean Robinson‟s testimony. Deputy Robinson
23   testified that he has been assisting Deputies McQuillan and Kropholler for the last two years on
24   Interstate 5. He further testified that virtually all his training and experience has come in the field
25   through Deputies McQuillan and Kropholler. Deputy Robinson estimates that during that time he




                                        Notice of Motion (Murgia) - Page 26
1    has assisted in approximately 80 traffic stops on I-5 all with Deputies Kropholler and McQuillan.
2    Twenty of those stops have resulted in arrests for narcotic offenses and all twenty arrests
3    involved Hispanics (see Exhibit “S” preliminary hearing TX; page 22, line 10 through page 23,
4    line 14 of preliminary hearing TX People v. Cabrera-Banegas 10F0581).
5    A) WARNING CITATIONS
6           When the SCPDO first noticed the NSI Cal MMET/DHE activity on I-5 we were able to
7    find Traffic Citations/Notices to Appear for a few people who had been stopped but not arrested

8
     (see Exhibit “T”, copy of SCSO Notice to Appear issued on I-5 by Deputy McQuillan). At some
     point after January 2008, the NSI Cal MMET/DHE team started to issue “Warning Citations”
9
     (WCS) on I-5 to citizens who were pulled over for alleged traffic violations. The WCS are not a
10
     Judicial Council of California approved form (unlike actual Traffic Citations/Notices to Appear)
11   but rather a form created by the NSI Cal MMET/DHE team, exclusively for NSI Cal

12   MMET/DHE use (see Exhibit “A”).
            On the bottom the CWS is the following language:
13
                    “THIS IS A WARNING ONLY for an infraction of the traffic laws committed to a
14
            minor degree or with extenuating circumstances present. No penalty will be assessed and
15
            no further action on your part necessary other than to comply with the traffic laws in the
16
            future. This does not become part of your driving record.
17
                            “This warning is given to you in an effort to secure your cooperation in
18
            better observance of the traffic laws thus helping to prevent traffic accidents. This
19
            department believes that good citizens will comply with traffic laws when reminded of
20
            their provisions and importance of strict compliance with them.
21
                    “I declare under penalty of perjury under the laws of the State of California the
22
            foregoing is true and correct.”
23
            However, unlike a traffic citation, the WCS do not become a public record. The WCS
24
     might not become “part of your driving record” but rest assured this information is going
25   somewhere and the recipients are unaware and misled as to their purpose. Why wouldn‟t a
     traditional verbal warning be enough. The WCS documents the „warned‟ person‟s name, address,


                                       Notice of Motion (Murgia) - Page 27
1    driver‟s license number, physical description, whether or not they were searched and
2    Race/Ethnicity. The SCPDO office is unaware of any statute(s) that provides the NSI Cal
     MMET/DHE program the authority to create a “Warning Citation” that can be executed under
3
     penalty of perjury as required by Penal Code § 118.
4
            Clearly, the goal of the NSI Cal MMET/DHE is not to enforce or remind citizens of the
5    traffic laws as indicated on the WCS (see Exhibits “I” and “K”). This is simply another part of
6    the unconstitutional conduct and intent of the NSI Cal MMET/DHE program as implemented by

7
     the deputies. The NSI Cal MMET/DHE program is not paying three, four or five deputies, some
     on overtime, and a police canine to sit on I-5 and remind citizens of the provisions and
8
     importance of the traffic laws. The deputies are on I-5 looking for drug traffickers and
9
     “screening” cars for individuals who fit their profile and pulling them over, the main target
10   happens to be Hispanics. The WCS are a veiled attempt to document and monitor Hispanics, and

11   others who may be targeted, on I-5 in Shasta and neighboring counties by providing that
     information to Brett Hayslett, Mike Wood or others to develop. Further, the SCPDO believes the
12
     WCS act as device enabling the deputies to further delay Hispanics, and others, who are being
13
     stopped selectively because of what they look like and not because of their driving. This allows
14   the deputies time to develop “indicators” and have other deputies on I-5 respond to their location,
15   often a traffic WCS stop may involving five or more officers.
             I have personally been told by an officer who participated in traffic stops on I-5, with
16
     Deputies McQuillan and Kropholler, that the method of operation is to sit on the side of I-5, or
17
     drive up and down I-5, looking for people who the deputies believe fit a criteria and when
18   possible enforce a traffic stop on that person(s). This officer did not use the term “Hispanics” but
19   did say it was usually a car that was occupied by one or two males that they would want to stop.

20           The “screening” of vehicles by the NSI Cal MMET/DHE team is selective enforcement,
     is discriminatory and unconstitutional. The effects of which are demonstrated in Section X of
21
     this motion (Discriminatory Effect).
22
            The WCS do not have any legal significance; they are not entered in to any public data
23   base, including the judicial system; and are issued to a transient group of people (i.e. people
24   traveling through Shasta County and/or California. The SCPDO has yet to find one local resident
     who has been pulled over on I-5 by the NSI Cal MMET/DHE deputies). The information
25
     collected on the WCS is not available to the public and therefore lacks transparency or scrutiny



                                       Notice of Motion (Murgia) - Page 28
1    of any kind and are issued mainly (if the SCPDO assertions are correct) to a group of people who
2    speak limited or no English. This alone should be enough to send red and American flags to any
     citizen.
3
                Further the SCPDO has obtained JALAN printouts documenting the number of actual
4
     judicial council approved traffic citations issued by Deputies McQuillan and Kropholler between
5    April 15, 2009 and March 29, 2009. Deputy McQuillan has filed with the Shasta County
6    Superior Court a total of three citations (see exhibit II, JALAN printout of citations filed with

7
     court). Deputy Kropholler has filed with the Shasta Superior Court a total of one citation (see
     exhibit II1, JALAN printout of citations filed with court).
8

9

10   B) NARCO-SAINTS

11              In NC 2009-055 Deputy Kropholler explains that Malverde is a Mexican icon and folk
     hero who is referred to as the “Narco saint” of Sinaloan drug cartels and that many drug
12
     smugglers possess his likeness for good luck. The defendant in this case is Rigoberto Oseguera-
13
     Perez, a 23 year-old Hispanic male. In report NC2008-033, one of the “indicators” was that at
14   numerous religious “disclaimers” were discovered in the passenger compartment. The defendant
15   in that case was Osbaldo Silva, a 24 year-old Hispanic male. In report NC2009-018 one of the
     “indicators” was that several religious “disclaimers” were on the defendant‟s dashboard. The
16
     defendant in that case was Santiago Alverez Flores, a 28 year-old Hispanic male. In report NC
17
     2010-007, Deputy McQuillan states that the display of religious artifacts is common for drug
18   smugglers who pray to a number of illegitimate saints, including Jesus Maleverde and Santa
19   Muerte. The defendant in that case is Luis Cabrera-Banegas, a 24 year-old Hispanic male.

20   During a preliminary hearing in 10F0581, Deputy Robinson testified that if he is involved in a
     traffic stop and sees a Catholic Saint(s) or indicia this is an indicator of criminal activity (see
21
     Exhibit “S” page 21, lines 23-26). During the Motion to Suppress Evidence in 10F0581 Deputy
22
     McQuillan testified that he has had training in identifying religious saints who are worshipped in
23   areas of Mexico (see Exhibit “U,” page 12, lines 8-15), and that “they” will pray or use religious
24   artifacts to help safe passage of their illegal wares” (see Exhibit “U” page 9, lines 23-24). When
     asked on cross-examination who “they” were, Deputy McQuillan answered: “usually Hispanic
25
     culture involved in drug trafficking” (see Exhibit “U” page 24, lines 22-24). However, during



                                        Notice of Motion (Murgia) - Page 29
1    his testimony Deputy McQuillan could only name two-and-a-half so-called “Narco-saints.” He
2    also testified that none of the religious indicia he could see in Cabrera-Banegas‟ vehicle depicted
     any Narco-saints known to him but that the mere presence of catholic symbolism is indication
3
     that the displayer may be a drug trafficker. (See Exhibit “U” page 23, lines 1-23). There are an
4
     estimated 1.3 billion Catholics in the world and over 10,000 named saints. It is understandable
5    to be able to articulate a small number of Saints who are worshipped as “Narco-saints,” but to
6    generalize that any Catholic icon is synonymous with drug smuggling is extremely broad and

7
     biased towards Hispanics (especially coupled with the attitude “they” usually display them) in
     the sense that Hispanic Catholics are numerous and often outward in their faith. Yet even without
8
     identifying a religious icon as being one of the “Narco-saints” (even rosary beads are an
9
     “indicator”) and you are Hispanic, you will be considered a likely drug smuggler if driving
10   through Shasta County. The bias of these revelations is apparent and relevant to the deputies‟

11   intent to conduct the initial traffic stop.
     C) LANGUAGE BARRIER/NERVOUSNESS
12
             In most all NSI Cal MMET/DHE reports the suspects are said to be extremely nervous
13
     and this is an “indicator” they are not acting consistent with the innocent motoring public. In
14   numerous reports the suspect is said to not speak fluent English but answers questions
15   appropriately. The deputies do not speak Spanish. In approximately five of the stops the SCPDO
     has viewed the audio/visual recoding of the stop and the lack of communication is extremely
16
     apparent. This is demonstrated in NSI Cal MMET/DHE investigation NC 2009-065 (United
17
     States v. Ruben Acosta Lugo; 09CR356). The deputies‟ then state one of the “indicators” is the
18   suspect changes his story as he is questioned. The problem is that no one really understands what
19   the other is truly saying or meaning. This scenario is repeated over and over. Using someone‟s

20   language barrier against them creates another discriminatory bias and further demonstrates the
     deputies‟ intent behind the traffic stop and manipulation of the suspect‟s vulnerabilities. This
21
     bias is further demonstrated in Deputy McQuillan‟s prior testimony that someone with a Spanish
22
     accent must be Mexican (see Exhibit “U” page 24, lines 2-21).
23           Additionally, who would not be nervous, confused and disoriented when pulled over for a
24   traffic stop and suddenly two, three or four police vehicles arrive, a police dog is barking, you
25   are being removed from your vehicle, and asked questions unrelated to the stop in your second




                                         Notice of Motion (Murgia) - Page 30
1    language? A review of the videotapes demonstrates the use of the language barrier and
2    misunderstandings to support the deputies‟ assumptions. In the video of the traffic stop in
3    investigation NC 2009-060, Deputy McQuillan is telling the suspect, Felipe Galeana, a 26 year-
4    old Hispanic male, to relax while Maximus is directly behind Galeana, barking at the him while
5    being restrained by Deputy Kropholler.
6            Another curios feature of the video/audio tapes is Deputy McQuillan controls the audio
7    potion of the tape from a button on his waistband. The listener can hear the conversations
     between the deputies and the defendants and other times, at the Deputies choosing, we cannot
8
     hear the conversations. An example of this is in NC2009-060 case number 09F5811; People v.
9
     Galeana, and in the U.S v Oseguero-Perez (which is currently being prosecuted by the Federal
10   Government, case number 09CR0310).
11   D) MISCELLANEOUS INDICATORS

12
            A) Keys- In report NC2009-090 one of the “indicators” was that the defendant only had

13
     one key on his key chain. The defendant in this case was Ruben Flores, a 31 year-old Hispanic

14
     male. In report NC2009-074 one of the “indicators” was the defendant only had two keys on his

15
     key chain. The defendant in this case Ignacio Macias-Hernandez, a 42 year-old Hispanic male. In

16
     report NC2010-016 one of the “indicators” was the defendant had a small amount of keys on his

17
     key chain. The defendant in that case is Juan Lupercio-Ramirez, a 28 year-old Hispanic male. In

18
     NC2008-105 one of the “indicators” was the defendant had an ignition key, two keys to a “bell”

19
     lock and a small flashlight on his key ring. The defendant in that case is Geraldo Deras, a 38

20
     year-old Hispanic male. During a Motion to Suppress in People v Cabrera-Banegas 10F0581

21
     Deputy McQuillan testified that there “are quite a few cars out there that are single key vehicles”

22
     (see Exhibit “U,” page 25 line 20-27). Evidently the number of keys that are suspicious is

23
     subjective and more likely to a factor if your are Hispanic?

24
            B) Messy car- In reports NC2008-033, NC2008-092, NC 2009, NC2009-014 and

25
     numerous other DHE investigation reports, one of the indicators was that the car contained fast

     food wrappers, snack wrappers and energy drinks throughout the vehicle. However, Deputy


                                       Notice of Motion (Murgia) - Page 31
1    Robinson testified in the preliminary hearing in 10F0581 that people who are driving messy cars
2    are not likely to be involved in criminal activity, and that a “clean” car is one of the items that
3    suggest criminal activity (see Exhibit “S” page 20 line 27 through page 21, line 10) So, if you
4    have a “messy” car or a “clean” car, you have an “indicator” you are involved in criminal
5    activity.
6            C) Third party registered vehicles - In report NC2010-016, one of the “indicators” is that
7    a person driving a third-party owned car, a newly purchased car, or a rental car may be
8    smuggling contraband. In report NC2009-038, one of the “indicators” was that the defendant
9    could not provide the paperwork or the name of the registered owner of the vehicle. In this case
10   (09F5812) one of the “indicators” was the car was not registered to the defendant, Saul Guzman.
11   However, the vehicle was registered to Jose Guzman (see exhibit “V” Vehicle report and part of
12   NC 2009-063) Deputy Guiducci noted in his report that “based on case studies and intelligence
13   research on smuggling methods conducted by the U.S. Department of Justice Drug Enforcement
14   Administration, it is common practice for criminal organizations to use recently purchased,
15   registered vehicles (this is the statement in the report not a typo) or third-party vehicles to traffic
16   their contraband, therefore minimizing law enforcements‟ ability to track their operational
17   methods and tactics.” However, Deputy McQuillan could not testify as to what percentage of
18   cars on the road were registered to third parties making that “indicator” meaningless and
19   evidently, suspicious even if the car is registered to someone with your same surname.
20           There is just too much inconsistency and contradiction here not to leave an outsider
21   wondering what is an “indicator”? Mr. Guzman would like to know, is it being Hispanic while
22   driving through Shasta County or are there other legitimate factors working against him? If we
23   are wrong , so be it. If we are right, it is unconstitutional and unacceptable.
24           D) Training – Shasta College offers, as part of its curriculum, a POST Certified Modular
25   Format Police Training. The instructors for those classes are former and/or current local law




                                        Notice of Motion (Murgia) - Page 32
1    enforcement officers. In the segment “laws of arrest” during the Fall of 2009 semester RPD
2    Officer, Wes Reynolds, taught the class that officers often monitor traffic on I-5 looking for
3    Hispanics to pull over for traffic violations in anticipation of seeking consent to search or
4    developing other “probable cause” to search for drugs.
5

6                                    X
          DISCRIMINATORY EFFECT ON THE “INNOCENT MOTORING PUBLIC.”
7
            The SCPDO has made contact with five individuals who were not arrested as a result of
8
     their stop and detention on I-5 by members of the SCSO Cal MMET/DHE program. They have
9    been detained, searched and left wondering why they have been violated to such an extent during
10   a routine traffic stop. They all are Hispanic, with exception of one, Rodi Quiticuit, who is

11
     Filipino and states he often is mistaken for Hispanic. He was detained and his motor home
     emptied on the side of I-5 as the deputies searched for contraband. Quiticuit called the
12
     experience “the worst day of my life,” (see Exhibit “W” Declaration of Rodi Quiticuit).
13
            David Galaviz, a Hispanic male, was detained and his car was emptied and searched on
14
     the side of I-5 by a number of officers who “kept arriving one after another.” Galaviz stated that
15
     he felt bullied, harassed and made to feel like a criminal as his belongings were thrown on the
16
     side of I-5. Galaviz was traveling with his mother at the time (see Exhibit “X” Declaration of
17
     David Galaviz).
18
            Felipe Santillan, a Hispanic male, was detained and searched while traveling with his
19
     (See Exhibit “Y” declaration of Felipe Santillan).
20
            Jose Zorraquin, a Hispanic male, was pulled over and detained on his way to relatives
21
     for the Christmas holidays. His belongings were also splayed on the side of I-5 before he was
22
     released with a Cal MMET Warning Citation (see exhibit “A”).
23
            Jorge Villa, a Hispanic male, came to Shasta County two times in a two week period for
24
     personal business and was pulled over both times by the same deputies on I-5 (see “Z”
25
     declaration of Jorge Villa, to be filed separately).



                                       Notice of Motion (Murgia) - Page 33
1           Jose Talevara, case number 09F3510 who was placed in the Sheriff‟s Chevy Tahoe
2    when he was arrested told the SCPDO that taped inside the Tahoe on bottom of the passenger
3    side windshield was the word “Malverde” (see Exhibit “AA”).
4           Those who are stopped and released or warned are members of the “innocent motoring
5    public” they are not local or identifiable without the information possessed by the NSI Cal
6    MMET/DHE. These factors are very convenient for law enforcement and an impediment to the
7    SCPDO investigation. Without the discovery requested in this motion it will not be possible to
8    vigorously defend Mr. Guzman.
9    Gilberto Ramos-Hererra, a Hispanic male was a passenger in a car stopped on I-5 by Deputy
10   Kropholler on January 29, 2010. The driver, a Hispanic male, and Ramos-Hererra were detained,
11   searched and arrested for possession of cocaine. Both the men were released by the Shasta
12   County jail after going through the booking process. On march 17, 2010 Ramos-Hererra was
13   again driving on I-5 when he was stopped again by Kropholler near the exact same location of
14   the January 29, 2010 traffic stop and arrest (see exhibit JJ, declaration of Gilberto Ramos-
15   Hererra).
16

17                                                XI
                                              CONCLUSION
18
            The evidence suggests that the numbers are not coincidence The defense only need
19
     present “some evidence” to support its motion. The statistical evidence is overwhelming. The
20
     intent is substantially inferred by the deputies‟ statements and actions, “You have to remember I
21
     sit in these areas commonly and we screen literally thousands of vehicles. And normally, every
22
     vehicle that will pass us, most people will look in our direction.” The inference is not that “we”
23
     are looking for traffic violators but individuals who fit a description and then enforcing the laws
24
     in an intentional and invidious manner. The intent can be inferred circumstantially from other
25
     law enforcement actions. This supported by the investigation reports, the deputies prior


                                       Notice of Motion (Murgia) - Page 34
1    testimony and statements of others, both law enforcement and citizens. The CHP letter of
2    10/28/2008 has a dubious air about it that cannot be ignored.
3             The discriminatory effect has been undeniable to those travelers who were detained and
4    searched without contraband being found. There could be literally hundreds of similar stories yet
5    to be uncovered and without the requested discovery they will never surface. We ask the Court to
6    keep in mind the purpose of this motion is to seek evidence that would be relevant to a Motion to
7    Dismiss, a motion that has a “preponderance of the evidence” burden. This is simply a stepping
8    stone to that end and the defense has provided substantial evidence to justify and warrant the
9    granting of this most important motion.
10            When the surrounding facts and circumstances are taken into consideration, it is
11   undeniable that the defense has met its burden of offering „some evidence” and “credible”
12   evidence to support the granting of the motion and Order that all the requested information be
13   provided to the Public Defender‟s Office.
14

15

16

17
     Dated:                                                          Respectfully submitted,

18
                                                                     Michael Horan.
19                                                                   Attorney for defendant

20

21

22

23

24

25




                                       Notice of Motion (Murgia) - Page 35

								
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