1 1 SUPERIOR COURT OF CALIFORNIA 2 COUNTY OF SAN FRANCISCO 3 BEFORE THE HONORABLE BRENDAN CONROY, JUDGE PRESIDING 4 DEPARTMENT NUMBER 25 5 ---oOo--- 6 7 8 9 10 PEOPLE OF THE STATE OF CALIFORNIA,) ) Plaintiff, ) ) vs. ) ) BRYAN KEVIN BLAIR, ) ) Defendant. ) __________________________________) SCN 2502876 Court No. PRELIMINARY HEARING 11 12 13 Reporter's Transcript of Proceedings 14 Friday, November 3, 2017 15 16 17 18 19 20 21 22 23 24 APPEARANCES OF COUNSEL: For the People: GEORGE GASCON, DISTRICT ATTORNEY 850 Bryant Street - Suite 300 San Francisco, California 94103 BY: DAVID KUCHINSKY, Assistant District Attorney GABY LION, Certified Law Clerk For the Defendant: JEFF ADACHI - PUBLIC DEFENDER 555 7th Street San Francisco, California 94103 BY: ANITA NABHA, Deputy Public Defender 25 26 27 28 Reported By: Gena D. Eales, CSR #9176 2 1 I N D E X 2 WITNESS: PAGE: 3 OFFICER ROBERT GILSON 4 Redirect Examination by Ms. Lion .................... Recross Examination by Ms. Nabha .................... 4 7 5 6 7 E X H I B I T S (People) 8 EXHIBIT NO: DESCRIPTION: MARKED/ADMDT: 9 1 Evidence envelope /11 10 1-A Contents of Exhibit 1 /12 11 1-B Lab report for Exhibit 1-A /12 12 13 14 15 E X H I B I T S (Defense) 16 EXHIBIT NO: DESCRIPTION: 17 A No description 18 19 20 21 22 23 24 25 26 27 28 MARKED/ADMDT: /13 3 1 Friday, November 3, 2017 2 THE COURT: 3 Counsel's appearances, please. 4 MS. LION: 5 Line 32, Bryan Blair. Gaby Lion, certified law clerk, supervised by Assistant District Attorney David Kuchinsky, for the People. 6 MS. NABHA: Good morning, Your Honor. Deputy Public 7 Defender Anita Nabha, on behalf of Bryan Blair, present before 8 the Court, out of custody. 9 THE COURT: 10 11 12 13 Good morning again, everyone. Good morning, Ms. Lion, Ms. Nabha, Mr. Blair. back. All right. So my notes just indicate that we were -- the People might have some redirect on Officer Gilson. 14 And is he here, ready to go? 15 MS. LION: 16 THE COURT: 17 Welcome Yes, he is, Your Honor. All right. So why don't we re-swear Officer Gilson. 18 OFFICER ROBERT GILSON, 19 called as a witness for the People, having been first duly 20 sworn, was examined and testified as follows: 21 22 23 24 THE CLERK: Officer, would you please state and spell your name for the record. THE WITNESS: Sure. Robert Gilson. R-O-B-E-R-T, last name G-I-L-S-O-N. 25 THE COURT: All right. Welcome back, Officer Gilson. 26 THE WITNESS: 27 THE COURT: Ms. Lion, go ahead. 28 MS. LION: Thank you, Your Honor. Thank you. 4 1 2 REDIRECT EXAMINATION BY MS. LION: 3 Q. Officer Gilson, thank you so much for being here. 4 I'll just be asking a few questions to clarify previous 5 testimony, and this should not take very long. 6 7 So on the date of the incident, March 5th, 2017, when did you first see the defendant? 8 9 A. As we were -- I was driving a patrol vehicle, we were approaching his house. I observed him standing by the motorcycle 10 in the driveway. 11 Q. Was anyone with him? 12 A. I believe there was a second subject with him. 13 Q. And the address that he was in front of, were you 14 familiar with that address from previous occasions? 15 A. I was -- I had knowledge about 470 47th Avenue, just 16 from prior knowledge, and his step-brother, who lives there, as 17 well. 18 19 20 21 22 Q. And that prior knowledge, what did that involve, if you could give us a brief summary. MS. NABHA: I'm going to object. Asked and answered. This was covered. THE COURT: Well, it's all been asked and answered. 23 If there is something specific about that, that's fine. 24 been some testimony about search warrants or prior contact. 25 26 There's If you have something specific, that's fine, but I didn't need a summary of what he's already said. 27 Go ahead, Ms. Lion. 28 MS. LION: Thank you. I'll move on. 5 1 Q. 2 3 (By Ms. Lion): Let's move to the actual pat search. What information did you have prior to conducting that pat search that led you to conduct that search? 4 MS. NABHA: Same objection. 5 THE COURT: Yes. It's the same. If there is 6 something new, absolutely, but I've read the notes, and this was 7 all gone over. So if it's something specific, please go ahead. 8 MS. LION: 9 THE COURT: 10 MS. LION: 11 Q. Could I have one moment, Your Honor? Sure. Thank you. (By Ms. Lion): All right. When you actually 12 conducted that pat search, what were the actual physical 13 movements that you made when conducting that search? 14 MS. NABHA: Objection. 15 THE COURT: It's overruled. 16 You can answer that question. 17 Asked and answered. Q. (By Ms. Lion): 19 A. Please. 20 Q. So when you were conducting the pat search of the 18 I can rephrase that question, if you'd like. 21 defendant, can you please describe how you went about that and 22 your physical movements when you conducted that search? 23 A. I had asked him to put his hands on top of his head. 24 That's how you are taught in the academy to conduct a pat search. 25 It's the standard way. 26 interlocked behind his head, I use one hand to conduct my pat 27 search. 28 Q. As I hold onto his hands, which are When you conducted that search, I understand that you 6 1 did locate an object. 2 What did you feel when you located that object? 3 MS. NABHA: Again, objection. 4 THE COURT: It's overruled. 5 THE WITNESS: Asked and answered. The object, it was -- I could tell that 6 it was in his inner pants, but it felt -- as I was patting him 7 down to make sure he didn't have any weapons on him, I felt 8 something hard in his -- I could tell it was like in his inner 9 pants pocket. 10 Q. 11 (By Ms. Lion): And what did that object feel like to you, if you could expand on it being hard? 12 A. 13 was hard. 14 of weapon. 15 16 I couldn't tell what it was, though. Q. That was when I initially brushed past it, I felt it I decided to squeeze it, make sure it wasn't some type When you first brushed past that object, could you please describe that hand movement? 17 A. I recall it hitting on the outside of my -- I believe 18 that was my right hand, because I had his hands with my left 19 hand. 20 right hand. 21 22 I brushed past it with kind of the outside part of my Q. And when you made that brushing past movement, did you believe that that object might potentially be a weapon? 23 MS. NABHA: Objection. 24 THE COURT: No. 25 You can answer the question. 26 THE WITNESS: 27 28 Q. It's overruled. Yes. (By Ms. Lion): Leading. It was hard. Once you had that belief that that object might have been a weapon, what did you do to confirm your 7 1 suspicions? 2 A. I squeezed it to make sure it wasn't a weapon. 3 Q. And when you squeezed it, what was your initial 4 reaction? 5 A. That it was methamphetamine. 6 Q. So it was immediately apparent to you that it was 7 contraband? 8 A. Yes. 9 Q. And then what did you do with that object, with the 10 11 12 13 14 15 I mean, right away. suspected methamphetamine, after locating it? A. I think I put him in handcuffs first, and then I took it out of his pocket and determined it was methamphetamine. Q. And by placing him in handcuffs, were you placing him under arrest? A. Yes. 16 MS. LION: 17 Thank you. 18 THE COURT: 19 Ms. Nabha. 20 MS. NABHA: No further questions. All right. Yes. 21 Just a few questions. RECROSS EXAMINATION 22 BY MS. NABHA: 23 Q. 24 Thank you, Ms. Lion. Officer, do you recall testifying about a month ago in regards to this matter? 25 A. Yes. 26 Q. And when you testified last month, do you recall that 27 I asked you if when you felt that object that you described as 28 hard, I asked you if you thought it might be a firearm? 8 1 Do you recall that testimony? 2 A. I don't recall it specifically. 3 Q. Okay. 4 Well, I asked you if the -- if you knew -- THE COURT: If you're going to impeach with the 5 transcript, you have to give us a page number, the line number, 6 the other side looks at it, and then read it and ask the 7 question. 8 9 10 MS. NABHA: 28, and -- I'm sorry, page -- yeah, page 54, lines 14 through 28. 11 12 I'm looking at page 54, lines 14 through THE COURT: Twenty-eight is a question. line -- page 55, line 1? 13 MS. NABHA: Yes, going through to that. 14 THE COURT: Got it. 15 16 So is it Q. (By Ms. Nabha): I apologize. And so, Officer, you testified that you touched his leg? 17 THE COURT: Okay. You have to ask him if he recalls 18 the following sequence: 19 through page 55, line 1, and you can ask him whatever you want 20 to after that. 21 statement. 22 Q. Question, answer, question, answer You have to confront him with the sworn (By Ms. Nabha): Do you recall a sequence of questions 23 in which I asked you -- you said you sort of squished and 24 squeezed, and that is when you determined that it felt like 25 something hard and brittle? 26 asked you, You know what a firearm feels like; is that correct? You responded, Yes. And then I 27 A. Yes. 28 Q. And when you touched his leg, you didn't feel -- or 9 1 you would know what the handle of a gun feels like; correct? 2 You answered, Hopefully, yes. 3 Next question, And you didn't feel anything that felt 4 like that? 5 No. I immediately knew it was meth. 6 Do you recall that sequence of questioning? 7 A. I don't recall it specifically. 8 Q. Would it refresh your recollection to review the pages 9 10 of the transcript? A. Sure. 11 MS. NABHA: Should I just have them marked and -- 12 THE COURT: No. 13 You can just show it to him. don't need to mark it if it's just refreshing recollection. 14 For the record, he's being shown part of the 15 transcript of these proceedings. 16 THE WITNESS: 17 18 We Q. I believe I'm refreshed. (By Ms. Nabha): Okay. And so does that refresh your recollection now as to the sequence of the questions? 19 A. Yes. 20 Q. And is it fair to say that when you felt Mr. Blair's 21 pants pocket and felt something that was hard, you knew that it 22 wasn't a firearm; is that correct? 23 A. Not immediately, no. 24 Q. So today your testimony is that when you felt the hard 25 object in Mr. Blair's pocket you thought it might be a firearm; 26 is that correct? 27 A. It could have been. 28 Q. That's your testimony today. 10 1 Let me ask you this: Since you last testified, I 2 noticed that you had an opportunity to speak with Ms. Lion 3 outside of this courtroom this morning; is that correct? 4 A. I did speak with her, yes. 5 Q. And you had a chance to review some of the police 6 report and your testimony; is that correct? 7 A. Not with her, no. 8 Q. All right. 9 So you didn't talk to her at all about this case or your investigation in this case? 10 A. We talked about the Sonoma County fires. 11 Q. Prior to that conversation did you talk at all about 12 this case or your testimony in this case? 13 A. No. 14 Q. And when you were speaking with her, did Ms. Lion 15 inform you of any of the topics that were raised in the briefing 16 that I provided to the Court with regards to this case? 17 A. No. 18 Q. And did Ms. Lion tell you at all the question that she 19 20 was going to ask you during this short redirect testimony? A. If she did, I don't recall it. 21 MS. NABHA: Nothing further. 22 THE COURT: All right. 23 Any redirect? 24 MS. LION: No redirect. 25 THE COURT: All right. 26 Thank you, Ms. Nabha. Thank you, Your Honor. Officer Gilson, thanks so much for your time and coming back again. 27 THE WITNESS: Okay. 28 (Witness excused.) No worries. 11 1 2 THE COURT: All right. People? 3 MS. LION: 4 THE COURT: 5 have to remind myself, as well. No further witnesses. All right. 6 Do the People rest? 7 MS. LION: 8 THE COURT: 9 Any further witnesses for the And so we're in hearing, and I The People rest. Are there any exhibits that have not been put into evidence yet? I believe we have a Motion to Suppress, 10 but I thought there was possibly some exhibits that were marked 11 but not in evidence. 12 MR. KUCHINSKY: I don't mean to interrupt on the 13 record. I think the main segment of the preliminary hearing 14 what we did was enter in the drugs, but then stipulate that 15 Officer Gilson could take them back to property, if I recall 16 correctly. 17 THE COURT: I know that's right. So what we have is 18 People's 1 is an evidence envelope. Leaving aside the 19 suppression issue, any objection to People's 1 coming into 20 evidence? 21 MS. NABHA: No. 22 THE COURT: I'm assuming the People move that in? 23 MS. LION: 24 THE COURT: 25 (People's Exhibit No. 1 was admitted into evidence.) 26 THE COURT: Correct. So People's 1 is in. 1-A was the contents of the envelope, and 27 1B was the lab report, which -- was there a stipulation about -- 28 leaving aside the Fourth amendment issue, any objection to 1-A 12 1 and 1B? 2 MS. LION: 3 MS. NABHA: No. 4 THE COURT: I'm assuming the People want to move 5 No. those in? 6 MS. LION: 7 THE COURT: 8 (People's Exhibits Nos. 1-A and 1-B were admitted into 9 evidence.) 10 THE COURT: And Defense A? 11 MS. NABHA: I am seeking to admit that. 12 THE COURT: The People have rested. 13 Yes, please. Those are both in. We have all their exhibits in, I believe. 14 Any evidence at this hearing for the defense? 15 MS. NABHA: 16 There was one issue which was that Mr. -- or Officer No, Your Honor. 17 Gilson was qualified as an expert subject to my motion to strike 18 after cross, so I just want to preserve that issue, that we are 19 moving to strike his testimony with regards to possession for 20 sales. 21 He testified on the grounds. THE COURT: Why don't we do this. 22 with Defense A first, in terms of exhibits. 23 body-worn camera. Why don't we deal That's the 24 Do you want that in evidence? 25 MS. NABHA: I do. 26 THE COURT: Is there any objection? 27 MS. LION: 28 THE COURT: No objection. Why don't we hear the Fourth Amendment 13 1 issue, and then decide where we're at in terms of a holding 2 order at this point. 3 Okay. So there is a Motion to Suppress that's been 4 filed. I have read and considered the People's opposition to 5 the original motion and the defense' original motion, and then 6 I'd like to thank both of the parties. 7 work. 8 supplemental points and authorities for the preliminary hearing 9 conducted on October 2nd, 2017. It's really a lot of There are two supplemental briefs filed, the People's I've read and received that by 10 Mr. Kuchinsky and Ms. Lion. 11 points and authorities in support of Mr. Blair's Motion to 12 Suppress. 13 transcript from both parties. 14 I've read that. And then the defense supplemental And I received a copy of the Thank you. So this is a lot of work. I really appreciate it. 15 I've read the whole transcript. So with that, the People have 16 the burden on the Motion to Suppress. 17 anything that you would like to add to your brief, I suspect 18 maybe a lot of it was written by you, because Mr. Kuchinsky is 19 very busy, but if you have something to add or something you 20 want me to really focus on, that is fine, but I have read and 21 considered it, so let me know. So Ms. Lion, if you have 22 A is in evidence. 23 (Defense Exhibit A was received in evidence.) 24 MS. LION: I would like to take a brief moment, Your 25 Honor, to quickly go through the sequence of events and 26 emphasize those, because I think they are very critical here. 27 So the facts that Officer Gilson had before conducting 28 the pat search was, first, the leather canister that was found a 14 1 mere two to three feet away from defendant's motorcycle that the 2 defendant had just dismounted. 3 methamphetamine and a crack pipe. 4 That canister contained The officers had reasonable suspicion to believe those 5 items belonged to defendant. 6 belief was factually inaccurate, they still had that reasonable 7 suspicion in order to connect those drugs to defendant. 8 9 Even if their assumption -- their There is a known relationship between weapons and drugs, which the officers are aware of. One court referred to 10 it as weapons and drugs being a lot like remoras and sharks and 11 the symbiotic relationship between those creatures. 12 Not only does Officer Gilson know about all of those 13 things, he also conducted a records search in his patrol vehicle 14 while Officer Demkowski was with the defendant. 15 search; one, confirmed that the registration on defendant's 16 motorcycle was many years expired. 17 had prior arrests for having a concealed weapon and for 18 possession for sale of drugs. 19 This records It also confirmed that he He also knows that the house in front which defendant 20 was located is a known drug house. 21 search warrants executed on that house and multiple police 22 reports in relation to that address. 23 There have been previous Not only that, but defendant also wore very baggy 24 clothing. He wore not one, but two pairs of pants. He had a 25 very thick motorcycle jacket on that easily could have concealed 26 anything within it. 27 obvious bulges within that clothing, the clothing, itself, was 28 large enough that it could conceal a weapon. Even though the officer didn't see any 15 1 So he had all of these things in mind, and a 2 reasonably prudent person in the officer's position would have 3 believed that he or his partner officer might have been in 4 danger, and that defendant was armed and dangerous. 5 So the pat down search, itself, was very much lawful. 6 And I have nothing further on that, and I don't have anything 7 further to add to my brief. Thank you. 8 THE COURT: 9 Ms. Nabha, anything you'd like to add to your 10 All right. Thank you, Ms. Lion. supplemental brief and your moving papers? 11 MS. NABHA: Your Honor, the only thing -- and, 12 frankly, I don't think that the Court would need to get to this 13 point, but the only thing that I would add is obviously my brief 14 addresses the manipulation issue of the pat search in reference 15 to the testimony that I had, the testimony that was made on 16 October 2nd, and what I think was fairly clear testimony that 17 Officer Gilson said that he felt an object that was hard, that 18 he squeezed it, and that upon that manipulation determined it to 19 be methamphetamine. 20 And at the time that he testified on October 2nd, he 21 said that he did not think that that hard object felt like a 22 firearm. 23 he didn't testify, though, it could have been, perhaps, illicit; 24 that it might have been some other weapon, that he was concerned 25 about a knife or some other object that could cause them harm. 26 And, of course, today he provided a different story, I think he said I didn't know anything like that. 27 and I found that frankly to not be credible, in light of his 28 prior testimony. And Be that as it may, I think that even on the 16 1 totality of the circumstances if the Court gets past the 2 detention issue and the nexus question, I don't think there was 3 a specific and articulable specific reasonable belief that 4 Mr. Blair was armed and dangerous. 5 The Court had previously raised the issue of whether 6 there was sufficient nexus between the canister and Mr. Blair. 7 I took that to mean to justify a probable cause search, meaning 8 if the officers believed that the canister belonged to Blair, 9 then they could search anywhere that they thought drugs could be 10 found on Mr. Blair, not as a sort of bolstering to a pat search, 11 just because I -- and perhaps I'm wrong, but my reading of the 12 case law is that the courts have seen a strong nexus between 13 narcotic sales and weapons such that when there are observations 14 of hand-to-hand sales or indicia of narcotic sales, that there 15 is a reason to believe that someone may be armed and dangerous. 16 But that a canister that is, you know, on the ground, that has a 17 small amount of drugs, wouldn't necessarily add to the belief 18 that Mr. Blair is armed and dangerous. 19 So in interpreting that issue as to whether or not it 20 would give probable cause to search him, irrespective of the pat 21 search issue, I think the facts suggest there was an 22 insufficient nexus between that canister and Mr. Blair to 23 justify the search, and those arguments and the prolonged 24 detentions arguments I made in the briefs. 25 I'll submit. 26 THE COURT: 27 Ms. Lion, any final word? 28 MS. LION: Thank you, Ms. Nabha. If I could respond, thank you. 17 1 THE COURT: 2 MS. LION: Yep. First of all, I do believe Officer Gilson's 3 testimony here today was perfectly consistent with his testimony 4 in the first part of this preliminary hearing. 5 When Officer Gilson testified, he said that he felt a 6 hard object. That hard object could have been a weapon, and in 7 order to dispel those fears, he had to confirm and determine 8 what that object might be. 9 and pulled it off defendant's person in order to confirm that it And at that point he felt the object 10 was not any kind of weapon that could harm Officer Gilson or 11 Officer Demkowski. 12 that he provided to us about a month ago. 13 That testimony doesn't contradict anything Second of all, drug sales. There is evidence that 14 defendant might have been involved in drug sales. 15 didn't need to have proof beyond a reasonable doubt that he was 16 involved in drug sales, but the house that he was in front of 17 was a known drug house. 18 The officers As I mentioned, search warrants had been executed on 19 his record. 20 of drugs. 21 believing that defendant might be involved in drug sales and 22 that, therefore, their safety was at danger. 23 There was a prior arrest for possession for sales So the officers were perfectly reasonable in Again, I'll also address the prolonged detention that 24 defense counsel brought up in her moving papers. Here the 25 officers originally were investigating a traffic violation. 26 motorcycle had a registration that was many years expired. 27 the process of investigating that incident, they developed 28 additional reasonable suspicion to believe that he was involved The In 18 1 in the second crime of possession of that methamphetamine and 2 the crack pipe, so they were perfectly reasonable in extending 3 their detention of defendant in order to investigate those 4 potential crimes. 5 And with that, I will submit. Thank you. 6 THE COURT: All right. 7 All right. In looking through my notes of the Thank you, Ms. Lion. 8 transcript I just wanted to confirm that when the officers say 9 they were investigating and the reason why he was detained and 10 told to sit down, was they were investigating an expired 11 registration. 12 I mean, certainly after that was a pat search, and 13 they then seized some narcotics -- suspected narcotics, then 14 there was a narcotics investigation, but I don't see any 15 evidence that it was that kind of investigation up until then. 16 And, in fact, there is some question about whether he was 17 arrested for the contents of the cylindrical object, and the 18 answer was, no, they were investigating the registration issues. 19 All right. So this is the way the Court sees it on 20 the Fourth Amendment issue. Well, the initial encounter appears 21 to be a consensual encounter. 22 that the defendant walked up to the police car. 23 consensual encounter, and very, very quickly it turns into a 24 detention, because the officer said he had specifically seen the 25 defendant on the motorcycle within a reasonable amount of time, 26 within days previous, and the tags were long expired, and so the 27 casual encounter very quickly turned into a detention, a stop, 28 and he was detained. In fact, there is some evidence He wasn't free to leave. So it's a That wasn't 19 1 tantamount to arrest, but he was told not to leave. He was told 2 to be on the ground, and one or the other of them kept an eye on 3 him while that investigation was ongoing for the registration. 4 I think it went on for about seven minutes or so, I think is 5 what I understand for the pat search. 6 time I think there had been some indication about halfway 7 through, within two and a half minutes, I think it was, maybe, 8 the officer sees this canister, picks it up, and somewhat 9 surprisingly hands that to the suspect in the course, just hands Somewhere in between that 10 that to him. 11 color the Court's view of whether or not the officer, for 12 officer safety purposes, conducted a pat search when, in fact, 13 at the scene, within a few minutes of it, while the defendant 14 was detained, they gave a canister, which they didn't know what 15 was inside it, they gave it to the defendant and asked him to 16 open it. 17 The reason why I bring that up is because it does Now, this isn't a huge object. I didn't see it, but 18 the way it was described doesn't strike me as it contained a 19 handgun, even, but who knows what was in there, and he handed it 20 to him. 21 veracity and reliability of the officers' view that they needed 22 to pat search him for officer safety purposes five minutes 23 later. So it kind of colors the Court's view as to the 24 Also, in terms of preserving evidence and making sure 25 there is no transfer of DNA and fingerprints, why would you had 26 that to him? 27 think it begs the question that they felt they were in some type 28 of fear of the defendant, given they had handed him an object, I don't really know. Anyway, they did so. I do 20 1 they had no idea what was inside of the object, and asked him to 2 open it. 3 So apparently, from the evidence, the detention goes 4 along for some seven minutes, and at that point the officers -- 5 the officer decides to search the defendant. 6 knew at that point for the pat search, the testimony initially 7 was that he had numerous contacts for weapons and narcotics. 8 the hearing developed and as the questioning developed, it turns 9 out that the -- it looks like it was a contact in 2013 and a What the officers As 10 contact in 2010, the 2010 being for weapons, I believe, and the 11 2013 for narcotics. 12 weren't significantly remote from the time of the encounter, but 13 they weren't recent, and they were just contacts. 14 So they were, you know, remote. They And in terms of whether or not the defendant lived at 15 the house, I don't know that that was established. 16 the transcript is they had seen the defendant there, at or near 17 the house, with his brother, Scobie, S-C-O-B-I-E, in front of 18 their house, is what the officer testified to, but I don't think 19 there was any other testimony that made it absolutely clear that 20 Mr. Blair lived in the house. 21 My view of There were some references to police contacts with the 22 house. They were pretty vague. And given just kind of 23 detailing what the officers knew before they did the pat search, 24 what they also knew but had curiously not put in the police 25 report was Mr. Blair was standing next to someone else, who 26 walked off when the police arrived. 27 at the hearing, but was never in the police report, which is 28 kind of a curious fact not to put in there, when it looks like And that fact was developed 21 1 there is a discarded object on the driveway, and based on the 2 investigation, that there could not be, that could explain why 3 that person walked off was not mentioned in the police report, 4 why the officers didn't immediately arrest Mr. Blair for what 5 was inside the canister, why they said they just continued the 6 investigation of the motorcycle tags, because I guess 7 inferentially they didn't think there was a nexus between 8 Mr. Blair and the object in the canister, otherwise I don't know 9 why they would despoil that evidence by handing it to him for 10 11 his fingerprints and his DNA. Anyway, I think that's kind of the universe of 12 information that all had. All officers have generalized 13 information that at times people who are dealing in drugs or 14 trafficking in drugs may be armed. 15 that, but there is no Fourth Amendment exception that all drug 16 dealers automatically get searched, and there is some very 17 colorful language in the cases, and the cases cited by the 18 People were right on, but there is no blanket exception. 19 part of the totality of the circumstances at the time. They can certainly consider It's 20 So I do find that given the amount of time that went 21 by, that this was an overly long detention, and that they were 22 investigating a Vehicle Code violation at that point, and the 23 detention went on for an overly long time. 24 explanation as to why it went on so long, why he wasn't simply 25 given a citation for the registration problem. 26 There is no Even if it was not an overly long detention, we next 27 get to the issue of the pat search and then the scope of the pat 28 search, and I've already indicated some reasons why I have 22 1 doubts about whether or not there was a good faith belief on the 2 part of the officer that he was armed or that they were -- there 3 were officer safety reasons. 4 that. 5 every person who comes in contact with the police for a Vehicle 6 Code violation, which is what they were investigating, still, is 7 a basis for a pat search. 8 suspicion. I've cited some of the reasons for So I don't find there is a basis to pat search him. 9 Not There has to be some articulable I don't find that the pat search was justified. Taking it to the next step, if, in fact, the pat 10 search was justified, the query is what's the scope of the pat 11 search? 12 copy a couple of pages of the transcript. 13 there's a discussion regarding knowing that Mr. Blair lived at 14 the address, but I find that to be a conclusion. 15 And I did think it was an important issue, and I did Starting at page 16 Anyway, we are holding to the pat search, and focused 16 on that, because he lived at the address. 17 "Numerous drug-related reports including search warrants, which 18 I knew prior to that history of -- excuse me -- I have no 19 details on that." 20 drug arrests and numerous weapons arrests." 21 not true, and he knew it wasn't true. 22 in 2010 and 2013. 23 On page 16 he said, And then he says "Based on the numerous prior It turned out to be He only had two contacts, And it says more than one weapon. That turned out not 24 to be true. I didn't hear anything about more than one weapons 25 arrest. 26 and he says, "As I was doing the pat search, I felt his right 27 front pants pocket, and as I squeezed it, I felt a large bag of 28 what I immediately thought was methamphetamine." The officer says, "I decided to conduct a pat search," And indicated 23 1 in the next question, "When you squeeze meth, it feels like tiny 2 little shards of glass that are kind of punching against one 3 another." 4 5 That's what he said on direct. On cross he said, "Q. Where you located the suspected methamphetamine? 6 "A. Yes. 7 "Q. You said you sort of squished it and squeezed, 8 and that is when you determined that it was -- you felt 9 something hard and brittle? 10 "A. Glass-like, yes. 11 "Q. Okay. And you never felt anything that felt 12 like -- well, you know, what a firearm feels like; is that 13 correct? 14 "A. Yes. 15 "Q. Okay. And when you touched his leg you didn't 16 feel -- you would know what, like, a handle of a gun feels like; 17 correct? 18 "A. Hopefully, yes. 19 "Q. Okay. 20 "A. No. 21 Well, I appreciate Ms. Lion's advocacy, but that's not You didn't feel anything like that? I immediately knew it was meth." 22 what he said here today. 23 his testimony was that he brushed the object, and that he felt 24 it was hard, and that it could have been a weapon, so that's why 25 he went back to it and manipulated it and squeezed it and felt 26 it was methamphetamine. 27 28 He changed his testimony today. Today So obviously this is an important issue, the reason why I pulled out some of the testimony, and the People returned 24 1 to it because it was important, and it's more than a little 2 troubling that he changed his testimony today. 3 So in terms of the -- where that leaves us is we have 4 two different stories, one that he felt a hard object, and then 5 followed up with it to feel and determine what it was, and then 6 knew it was methamphetamine, or his testimony a month ago, which 7 was that he squeezed it, which is a manipulation of the case 8 law, and determined at that point that it was methamphetamine 9 because of its distinctive shard-like nature. 10 The Court finds that the testimony is not reliable as 11 to exactly what he did during the pat search, given the 12 conflicting nature of his testimony. 13 getting there past the two other issues I've already found. 14 But, again, we're only I don't find that the People, by a preponderance of 15 the evidence have justified the search based on the overly long 16 detention; number two, based on no need or no justification for 17 the pat search; number three, for the People's inability to meet 18 the standard regarding the scope of the pat search, given the 19 conflicting information that's been provided here today by the 20 officer. 21 So with that, the Court is going to grant the Motion 22 to Suppress the items that were seized from Mr. Blair's person 23 and any statements that he made after that. 24 suppressing the item found in the canister -- the canister and 25 the items found in the canister, in that that looks like it's 26 property on the ground, it was in plain view, it didn't have 27 anything to do with the search of the defendant. 28 People feel they can make a nexus between that, that's the The Court is not And if the 25 1 People's decision, and I'm not suppressing that. 2 that clear. 3 I want to make Would the People like to be heard regarding a holding 4 order on the Motion to Suppress? 5 thing -- because I don't know where the hypodermic needle -- 6 there are two of them right there -- was something -- I forgot 7 what was in the case. 8 his person; right? 9 It appears that the only But the hypodermic needle was found on MR. KUCHINSKY: 10 THE COURT: 11 MR. KUCHINSKY: Your Honor, may I just jump in here? Yeah. Sure. I think that given the Motion to 12 Suppress ruling, and given the charges, that the People will now 13 no longer be able to sustain our burden of proof as to an 14 overall assessment of the case, so the People are going to take 15 a dismissal on this case pursuant to Penal Code Section 1385, in 16 light of the Court's ruling on the Motion to Suppress. 17 THE COURT: All right. So that motion will be 18 granted, and the matter is dismissed. It's a first dismissal. 19 And I don't know if there is any bail, but bail will be 20 exonerated, and we'll release back to the People the evidence in 21 the case. 22 And is there anything else that we need to do? 23 MR. KUCHINSKY: 24 MS. NABHA: 25 26 27 28 I don't think so. Sorry, Your Honor. I lost track -- I'm sorry -- of one thing that you said. My understanding is that all the items that were seized on Mr. Blair's person were suppressed? THE COURT: Correct. 26 1 MS. NABHA: Okay. 2 THE COURT: But that will just be noted, because it's 3 one of those cases where there are some items -- I have no idea 4 whether it's a prosecutorial decision, but I'm not suppressing 5 the canister or the contents of the canister. 6 MS. NABHA: Understood. 7 THE COURT: That will be the order. 8 there. 9 work. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thank you. We'll go from Thank you for the arguments and all the hard Thank you. (Proceedings concluded.) 27 1 State of California 2 County of San Francisco ) ) ) 3 4 5 I, Genevra D. Eales, Official Court Reporter in the State of California, County of San Francisco, do hereby certify: 6 That I was present at the time of the above proceedings; 7 That I took down, in machine shorthand, notes of all 8 9 10 11 proceedings and testimony given; That I thereafter transcribed said shorthand notes with the aid of a computer; That the above and foregoing is a full, true, and correct 12 transcription of said shorthand notes, and a full, true, and 13 correct transcript of all proceedings had and testimony taken, 14 all done to the best of my skill and ability; 15 16 17 18 That I am not a party to the action or related to a party or counsel; That I have no financial or other interest in the outcome of the action. 19 20 21 Dated: SEPTEMBER 20, 2018 22 23 24 25 ________________________________ 26 Genevra D. Eales, CSR #9176 27 28