1 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF SAN FRANCISCO, 3 BEFORE HONORABLE, ERIC R. FLEMING, JUKI:FORSED FILED DEPARTMENT 16 4 San Francisco County Superior Court 5 6 THE PEOPLE OF THE STATE OF CALIFORNIA, 7 8 9 Plaintiff, vs. PERRY L. JACKSON, 10 Defendant. 1] ) ) ) ) ) ) ) ) ) ) ) MAR 2 5 2019 By. CLERK OF THE. COURT FRIEL ONGCHANGCO Deputy Clerk No. 19000777 CopY 12 13 Reporter's Transcript of Proceedings 14 Preliminary Examination 15 16 17 March 18, 2019 APPEARANCES: For the People: GEORGE GASCON District Attorney By: KATHLEEN MCBRIDE Assistant District Attorney For the Defendant: MANOHAR RAJU Public Defender By: ILONA SOLOMON Deputy Public Tiefender Court Reporter: IRENE L. TOFFT C.S.R. No. 12913 18 19 20 21 22 23 24 25 26 27 28 2' 1 INDEX OF EXAMINATION WITNESS PAGE 2 3 ROBERT GILSON Direct Examination by Ms. McBride Cross-examination by Ms. Solomon 3 46 4 5 INDEX OF EXHIBITS 6 EXHIBIT MARKED ADMITTED 7 Exhibit 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 Defense 1 Photo of Baggie with Substance Photo of Items CD of Body Worn Camera 29 32 31 34 32 35 3 z 1 Department 16 January 18, 2019 P-R-O-C-E-E-D-I-N-G-S 2 3 THE COURT: On the record in line 25. Appearances please. 4 MS. MCBRIDE: Kathleen McBride for the People. 5 MS. SOLOMON: Ilona Solomon, deputy public defender for Mr. 6 Jackson who is present. 7 8 THE COURT: This matter is here for a motion to suppress and preliminary hearing. Are the People ready to proceed? 9 MS. MCBRIDE: Yes, your Honor. 10 THE COURT: Call your first witness. 11 MS. MCBRIDE: Calling Officer Robert Gilson to the stand. 12 THE COURT: How many witnesses do the People have? 13 MS. MCBRIDE: Just one, your Honor. 14 THE COURT: Thank you. 15 (Whereupon Robert Gilson was sworn and testifies as follows:) 16 17 THE CLERK: State your first and last name and spell it for the record. 18 19 THE WITNESS: My first name is Robert, R-o-b-e-r-t. Last name is Gilson, G-i-l-s-o-n. 20 21 THE COURT: Thank you for coming in and your patience this morning. Please proceed. 22 DIRECT EXAMINATION 23 BY MS. MCBRIDE: 24 Q. Good morning, Officer Gilson. 25 A. Good morning. 26 Q. Please tell the Court what you do for a living? 27 A. I'm a police officer for the City and County of San 28 Francisco. 4 1 Q. How long have you been employed in that capacity? 2 A. Coming up on four years. 3 Q. Have you successfully completed a training course certified 4 by the Police Officers Commission on Standards and Training 5 which includes training in the investigation and reporting of 6 cases and testifying at preliminary hearings pursuant to 7 Section 872(c) of the California Penal Code also known as Prop 8 115 certification? 9 A. Yes. 10 Q. Can you please begin by describing your training and 11 experience with regards to your narcotics investigation? 12 A. 13 Tenderloin district. It's a very high narcotics area. 14 Q. How long did you work in the Tenderloin district? 15 A. About two years. A little bit more. 16 17 That is the majority of my job. My day-to-day in the MS. SOLOMON: Objection. Foundation as to the previous answer. 18 THE COURT: How long been -- 19 MS. SOLOMON: No. The high narcotics area. Foundation. 20 Nonresponsive. 21 THE COURT: Just foundation. Subject to a motion to 22 strike. 23 Q. 24 the city? 25 A. 26 at the Tenderloin station have made a lot of arrests regarding 27 narcotics in all forms and capacities. So from possession of 28 narcotics to possession for sale of narcotics to sale of MS. MCBRIDE: How do you know it's a high narcotics area in I've made a lot of arrests. My colleagues that have worked 5 1 narcotics. We conduct buy-bust operations there on a regular 2 basis in which undercover officers purchase narcotics there. 3 It's a high narcotics area. 4 MS. SOLOMON: Objection. Foundation. Move to strike. 5 THE COURT: Sustained. You need more foundation. 6 MS. MCBRIDE: Okay. 7 Q. 8 discussing your field experience in the Tenderloin. What 9 training and experience have you had in the classroom in regards MS. MCBRIDE: Let me ask you, officer, about -- continue 10 to narcotics investigation? 11 A. 12 post-certified to the introduction to narcotics. 13 Q. 14 academy what other classroom training in terms of follow-up 15 courses or literature you reviewed or anything like that have 16 you participated in? 17 A. 18 on-the-job experience with first-hand experience and working 19 with more experienced officers. 20 Q. 21 situations? 22 A. 23 at the narcotics unit, have been working narcotics for over 24 15 years. 25 Q. 26 had in the investigation specifically in regards to cocaine 27 salt? 28 A. In the classroom standard 40-hour academy course, Okay. After your 40-hour course that you completed in the No formal additional classroom experience. Just mostly Like, were you referring to field training officers type Field training officers but also officers who have worked Can you describe any special training and experience you've I have participated in well over 100 investigations in 6 1 arrests regarding cocaine salt. 2 Q. 3 have been involved in? 4 A. I would say at least a hundred. 5 Q. On the street have you encountered both users and sellers 6 of cocaine? 7 A. Yes. 8 Q. How do you differentiate if you know a difference between a 9 user of cocaine and a peer user and seller of cocaine salt? Can you estimate how many cocaine salt related arrests you 10 A. Narcotics paraphernalia would be a big indicator. 11 Q. Of what? 12 A. Of being a user. In my experience sellers of cocaine salt 13 often don't possess, like, paraphernalia to ingest other drugs. 14 Q. 15 eyes if there are such items? 16 A. 17 narcotics. Amount of cocaine salt. 18 Q. What do sellers have that differentiate from a user in your It depends. A big indicator would be the amount of What about packaging? 19 MS. SOLOMON: Objection. Leading. 20 THE COURT: Sustained. 21 Q. MS. MCBRIDE: What else? 22 A. That the weight is a big indicator but also the manner in 23 which it's packaged. 24 Q. Described that further please? 25 A. Multiple baggies. Another indicator would be users 26 typically don't really care that the police know they have 27 cocaine salt. If it's just a user and it's a personal amount my 28 experience to users in San Francisco know that there is little 7 1 or no repercussion for possessing the drug. However, sellers 2 often try to conceal their narcotics from police officers. 3 Q. 4 salt is? 5 A. Any amount that can be ingested. 6 Q. And about how much cocaine salt do you expect to see on 7 someone who is purely using versus someone who is possessing 8 that for sale to others? 9 A. What do you -- do you know what a usable amount of cocaine That is a tough question to answer. It depends on I guess 10 how bad their addiction is or -- yeah. Lot of factors going 11 into that. 12 Q. 13 you differentiated the seller from the user is the amount. What 14 type of amount are you talking about? Explain in laymen's terms 15 what amount triggers for you the conclusion that someone is 16 selling versus personal -- possessing only for personal use? 17 A. 18 getting into like a couple of grams of cocaine salt, that starts 19 -- raises a red flag that, you know, keep looking to see what 20 else is there. 21 Q. 22 baggies. You talked about amount. What else? What other types 23 of things you expect to be the seller of cocaine have on them or 24 not have on them? 25 A. 26 the location where they are. 27 Q. What do you mean by the location where they are? 28 A. If they are at a high -- in an area that has a high Well, when you are saying that one of the main reasons that I mean, that is not the only indicator. But when you start Okay. So you talked about packaging. Having multiple On them would be money or a scale or other indicators to be 8 1 incidence for narcotics sales that is also an indicator. 2 Q. 3 packaged for sale? You discussed something about baggies. Can 4 you go into that a little further? 5 A. 6 Tenderloin specifically it can vary depending on what block you 7 go to but often times for cocaine salt it's just in a small 8 plastic baggie. 9 Q. Okay. Are you familiar with the way that cocaine salt is That I think it depends on where. Like, if it's in the Are you talking about one those like dime baggies or bigger 10 baggies than that? 11 A. 12 a small coin bags or just little plastic twists, like the corner 13 of a zip lock baggie. Put a small predetermined amount in that 14 corner and then they will twist it off. You can, like, use a 15 wider seal at the one end. 16 Q. 17 that. Have you previously qualified as an expert in the 18 possession of sale of cocaine salt cases? 19 A. Yes. 20 Q. Approximately how many times? 21 A. Cocaine salt, I think at least six times. 22 Q. Is that in this building? 23 A. Yes. It could be in a small coin bag. I've seen cocaine salt in Okay. Are you familiar with the way that -- well, strike 24 MS. MCBRIDE: Based on what Officer Gilson testified to at 25 this point, your Honor, the People would move to qualify him as 26 an expert in possession of cocaine salt for sale for purposes of 27 this hearing subject to cross. 28 THE COURT: Any objection? 9 1 MS. SOLOMON: Yes. Based on the vagueness of the officer's 2 answers. Lack of experience. Inability to pin point numerous 3 factors with any degree of specificity. I don't think that any 4 expertise has been shown. I'd like to voir dire on his 5 expertise. I can do that now or later but I would like the 6 Court to not find him deemed as an expert. 7 8 THE COURT: I'm going to withhold the ruling until after cross-examination. Given his testimony so far. 9 MS. MCBRIDE: Okay. 10 Q. 11 participated personally in over a hundred arrests for the 12 possession of cocaine salt for sale, correct? 13 A. Yes. Either for sale, possession for sales. 14 Q. So both types? 15 A. Three types. Yeah. 16 Q. Active sale, possession for sale or simple possession? 17 A. Correct. 18 Q. So that is over the course of your last two years at the 19 Tenderloin district? 20 A. 21 years in the Tenderloin district but also before that in other 22 parts of San Francisco. 23 Q. What other parts of San Francisco have you worked in? 24 A. I worked in the Fillmore district in the northern. I also 25 worked in the Taraval district and the Richmond district in the 26 sunset. 27 Q. 28 the Tenderloin compare in the amount of narcotics that you see MS. MCBRIDE: You have said, officer, that you have The majority of my experience would be in the last two Compared to those areas that you worked in previously how 10 1 being trafficked on the street? 2 A. They are two different worlds. 3 Q. What do you mean by that? 4 A. The Tenderloin, I see drug deals every day I go to work. 5 didn't see drug deals when I was working in the Taraval or the 6 Richmond or the Fillmore. 7 MS. SOLOMON: I'm going to object at this point on 8 relevance grounds. I don't know why we are still on -- 9 THE COURT: Overruled. You objected regarding high 10 narcotics area in the Tenderloin. So this goes to that issue. 11 Q. 12 for the active sale of cocaine salt, possession for sale of 13 cocaine salt and simple possession of cocaine salt, were you 14 able to identify -- in comparing those three types of arrests 15 that you participated in, were you able to identify the factors 16 that you discussed today in your earlier testimony? Is that how 17 you came to have that opinion about users versus sellers and 18 things like that? 19 A. 20 believe the narcotics in this case were possessed for sales. MS. MCBRIDE: And so having an opportunity to make arrests Yes. Based on my training and my experience, yeah. I 21 MS. SOLOMON: Objection. Foundation. 22 THE COURT: I don't think that was her question. 23 Sustained. Sustained as to the last part of possession for sale 24 in this case but the other part will not be stricken. 25 Q. 26 charges in this case. Were you on duty on January 14th, 2019 27 around 6:02 p.m. in the area of Golden Gate and Hyde Street in 28 San Francisco? MS. MCBRIDE: Moving to the facts forming the basis for the 11 I 1 A. Yes. 2 Q. Just to be very clear, that is in the city and county of 3 San Francisco? 4 A. It is. 5 Q. Did you see anyone in the courtroom today that you 6 recognize from that same date, time and location? 7 A. Yes. 8 Q. Can you point out that person by where they are seated and 9 maybe an item of clothing that they are wearing? 10 A. 11 black jacket with a white T-shirt underneath. 12 13 He's seated to my right. Mr. Perry Jackson. He's got on a MS. MCBRIDE: Your Honor, may the record reflect the witness has identified the defendant? 14 THE COURT: The record will so reflect. 15 MS. MCBRIDE: Thank you. 16 Q. 17 that date and time? 18 A. 19 Hyde Street. I observed Mr. Jackson and another male subject 20 standing -- there is a donut shop on the northeast corner of 21 that intersection of Golden Gate and Hyde. They were just 22 standing there, and as we drove up and got close to them they 23 began walking northbound on Hyde. 24 Q. When you say we drove up, who are you referring to? 25 A. My partners and 1. 26 Q. Were you in uniform? 27 A. Yes. 28 Q. Were you driving a marked patrol car? MS. MCBRIDE: What drew your attention to the defendant on As we were -- my partners and I were driving southbound on 12 1 A. I don't remember if we were or not. 2 Q. It would be marked or unmarked as far as you know? 3 A. Yes. 4 Q. But you were not in plainclothes? 5 A. No. We were not. 6 Q• As you approached you said. you saw the defendant and his 7 companion start to walk away. Describe what happened next? 8 A. 9 Officer Ruetti and I -THE COURT: Can you spell the officer's name for us? 10 THE WITNESS: Yes. Sorry. R-u-e-t-t-i. 11 THE COURT: Thank you. 12 THE WITNESS: Officer Ruetti and I got out of the car to 13 see where they were going. 14 Q. MS. MCBRIDE: Why did you do that? 15 A. Hyde Street, it's unique in that it's a one-way street and 16 a common tactic for drug dealers to avoid law enforcement is 17 walking in the opposite direction since it's a one-way street we 18 can't turn our cars around to contact that person. 19 So walking northbound against southbound traffic is a common 20 indicator for narcotics dealers to avoid the police. So we 21 wanted to see where they were going. 22 MS. SOLOMON: Objection. Move to strike. Speculation. 23 THE COURT: Overruled. 24 Q. 25 that was occurring here? MS. MCBRIDE: Is that what you were you concerned that 26 MS. SOLOMON: Objection. Leading. Calls for speculation. 27 THE COURT: Overruled. 28 THE WITNESS: Yes, I was. 13 1 Q. MS. MCBRIDE: Where did you and Officer Ruetti go? 2 A. We followed Mr. Jackson and the other guy that he was with 3 as they walked north on Hyde Street. 4 Q. And then what did you see? 5 A. They walked -- they crossed from the -- it will be the 6 southeast corner of Hyde and Eddy to the northeast corner of 7 Hyde and Eddy against the blinking red hand and they didn't make 8 it all the way across the street before the red hand turned 9 solid. 10 Q. 11 12 Is that a violation? MS. SOLOMON: Objection. Leading. Calls for legal conclusion. 13 THE COURT: Sustained. 14 MS. MCBRIDE: I have not finished the question. 15 THE COURT: Finish the question. 16 Q. 17 of? MS. MCBRIDE: Is that a violation of any law you are aware 18 THE COURT: Sustained. 19 THE WITNESS: Yes. 20 THE COURT: I sustained. 21 Q. 22 crosswalk with the red hand stopped before they got to the other 23 side? MS. MCBRIDE: What did you think when you saw them in the 24 MS. SOLOMON: Objection. Calls for -- oh, relevance. 25 THE COURT: Overruled. 26 THE WITNESS: That they were walking against the red hand 27 pedestrian single. 28 Q. MS. MCBRIDE: What does that mean to you? 14 1 MS. SOLOMON: Objection. Relevance. 2 THE COURT: Overruled. 3 MS. SOLOMON: Calls for a legal conclusion. 4 THE COURT: Overruled. 5 THE WITNESS: That is a violation of the California Vehicle 6 Code. 7 Q. MS. MCBRIDE: What section if you know? 8 A. 21456, Subsection B of the CVC. 9 Q. What happened next? 10 A. They kept walking, and we just kept walking behind them. 11 Q. And then what happened? 12 A. As I got closer to Mr. Jackson he just turned around, began 13 speaking with me. 14 Q. 15 turned around? 16 A. No. 17 Q. Had you ordered him to stop in any way? 18 A. No. 19 Q. About how close were you to Mr. Jackson when he turned 20 around? 21 A. Just a couple of feet. 22 Q. And when he turned around what happened at that point? 23 A. I saw that he was smoking a marijuana cigarette. 24 Q. Why did you think it was a marijuana cigarette? 25 A. Because I could smell marijuana, and I believe he also 26 indicated that it was marijuana. Had you said anything to Mr. Jackson at the point that he 27 MS. SOLOMON: Objection. Foundation. 28 THE COURT: Okay. Well, the second part does not require 15 1 foundation. Sustained that he was smoking marijuana. And the 2 first part, he could smell marijuana just more foundation. 3 Sustained smell marijuana. 4 Q. 5 training in the recognition of Cannibis? 6 A. Yes. 7 Q. Have you on the street made any -- describe your experience 8 on the street with regards to Cannibis and any arrest you made 9 for possession of Cannibis or for sale in your years in the MS. MCBRIDE: Officer, have you received any classroom 10 Tenderloin district? 11 A. 12 mere possession of marijuana to possession for sale of marijuana 13 to sales of marijuana. 14 Q. How many times have you seen marijuana? 15 A. Thousands. 16 Q. How many times have you smelled marijuana? 17 A. Thousands. 18 Q. Have you smelled it in an unburnt capacity? 19 A. Yes. 20 Q. Have you smelled it in a burnt capacity? 21 A. Yes. 22 Q. How many times have you touched it? 23 A. Hundreds. 24 Q. Have you ever suspected something to be marijuana that it 25 was later confirmed to be by any kind of chemical test or other 26 expert opinion? 27 A. 28 I made numerous arrests for marijuana all the way from just Not that I know of. MS. MCBRIDE: I ask that the officer's answer stands at 16 1 this point. 2 THE COURT: It will stand. Next question. 3 Q. 4 blunt what did you think? 5 MS. MCBRIDE: When you saw Mr. Jackson smoking a marijuana MS. SOLOMON: Objection. First of all, it assumes facts 6 not in evidence as to blunt. Second of all, relevance as to 7 what he saw. 8 9 THE COURT: A blunt cigarette, just change the wording. And then overruled for the other part. 10 Q. 11 cigarette, what did you think? 12 A. 13 which state that you can't smoke marijuana in public. 14 Q. Do you know the code section to that? 15 A. Not off the top of my head. I think the subsection of like 16 11362 or 11363. I don't remember the exact section. 17 Q. 18 was a marijuana cigarette; is that true? 19 A. 20 public and he apologized. 21 Q. What did he do with the cigarette, if anything? 22 A. He put it on the ground and stomped it. Stomped it out. 23 Q. What happened at that point? I'm going to ask a more 24 specific question. Did apart from the statement acknowledging 25 that the cigarette contained marijuana or acknowledging having 26 smoked marijuana in public, did the defendant make any other 27 statements to you of any sort regarding marijuana? 28 A. MS. MCBRIDE: When you saw him smoking a marijuana That he was in violation of the California marijuana laws You said that you recall Mr. Jackson acknowledging that it Yeah. I think I told him he couldn't be smoke marijuana in Yes. After I asked him how much more marijuana he had. 17 1 Q. Okay. So walk us through how that conversation happened? 2 A. I just asked him if he had any more marijuana, and he 3 indicated that he had a sack. 4 Q. What did you understand that to mean, if anything? 5 A. It meant that he had more marijuana. 6 Q. Does the bag have any particular weight or amount to you? A. No. 8 Q. Did you ask Mr. Jackson at any point what -- how much 9 weight in terms of grams of marijuana he had on him? 10 A. Yes, I did. 11 Q. What did he say, if you recall? 12 A. I forget exactly what the phrasing of it but he didn't 13 specify a weight that he said he had. 14 Q. 15 to do? 16 A. I intended to search him for additional marijuana. 17 Q. What happened at that point? Well, let me ask you this. 18 Did the defendant ever make a statement around that same time 19 that you exchanged -- did he ever make a statement inviting you 20 to search him? Okay. And at that point what, if anything, did you intend 21 MS. SOLOMON: Objection. Leading. 22 THE COURT: Sustained. 23 Q. MS. MCBRIDE: Did he ever at that point ascent to a search 24 one way or the other in any way? 25 MS. SOLOMON: Objection. Leading. 26 THE COURT: Sustained. 27 Q. MS. MCBRIDE: What happened at that point? 28 A. Mr. Jackson said that we could check his pockets and then 18 1 Officer Faulkner who was standing to my -- or right next to me 2 in front of Mr. Jackson asked him if we could search him. 3 Q. And what happened at that point? 4 A. Mr. Jackson indicated yes. 5 Q. And what do you mean when he said he indicated yes? 6 A. He kind of put his hands up and started to turn around and 7 said yes to Officer Faulkner. 8 Q. 9 asked if he could search him or it was only after Officer Was the defendant turning around before Officer Faulkner 10 Faulkner asked if he could search him that he turned around? 11 A. 12 he turned around. 13 Q. 14 arms up. Did you or Officer Faulkner order him to put his arms 15 up, if you can recall? 16 A. 17 around Officer Faulkner just told Mr. Jackson to put his hands 18 on top of his head. 19 Q. 20 Officer Faulkner asked him if we could search him and then Okay. So you said he turned around and he sort of had his I think Officer Faulkner asked Mr. Jackson was turning What happened at that point? THE COURT: I want to make sure. So he asked could we 21 search him and then he told him, put his hands on top of his 22 head? 23 THE WITNESS: Um -- Officer Faulkner asked Mr. Jackson if 24 we could search him, and Mr. Jackson kind of already had his 25 hands up and started to turn around with his hands still up and 26 Officer Faulkner just told Mr. Jackson to put his hands on top 27 of his head. 28 Q. MS. MCBRIDE: At the point that Officer Faulkner asked if 19 1 he could search Mr. Jackson, had you mentioned a comment the 2 defendant had made in terms of you can check my pockets. 3 Something like that? 4 MS. SOLOMON: Objection. 5 MS. MCBRIDE: I'm just getting it down in terms of timing. 6 THE COURT: But he never testified that the defendant 7 stated search my pockets. 8 MS. MCBRIDE: I thought he had. 9 THE COURT: One second. I apologize. Statement from the 10 witness. Mr. Jackson said that we can check his pockets and -- 11 sorry. Correct. 12 13 MS. MCBRIDE: That was before the question from Officer Faulkner, defendant made that statement? 14 MS. SOLOMON: Objection. Leading. 15 THE COURT: Overruled. 16 THE WITNESS: Yes, that was before. 17 Q. 18 of the search? 19 A. Officer Faulkner began to search Mr. Jackson. Yeah. 20 Q. Okay. What did you see at that point? 21 A. I saw Mr. Jackson -- Officer Faulkner was still searching 22 Mr. Jackson and Mr. Jackson kind of started to take his hands 23 off his head. So I told him to -- he could just put his hands 24 on the wall I believe or back on his head. I just didn't want 25 him reaching down as Officer Faulkner was searching. And when I 2& told Mr. Jackson to do that he pushed his whole body against the 27 building line. 28 Q. MS. MCBRIDE: Describe what happened at that point in terms Why if at all was that significant to you? 20 1 A. 2 them and when I've seen other officers search subjects. To me 3 that is a red flag that someone has something in their pants or 4 on their front side that they don't want the officer to find. 5 6 I've seen this behavior before on people when I've searched MS. SOLOMON: Objection. Move to strike. Speculation. Lack of foundation. 7 THE COURT: Sustained. Just a little more foundation. 8 Q. 9 Talk to me about in what context and how many times? MS. MCBRIDE: You say you had that happen in the past. 10 A. 11 happened I've recovered firearms and I've recovered narcotics. 12 Q. 13 talking about? 14 A. 15 Numerous times. And in those instances that that has When you say numerous are you talking about —.what are you At least a dozen. THE COURT: Okay. The answer will stand. Next question. 16 Q. 17 Faulkner did or did you participate in any way up to that point? 18 A. 19 yet. 20 Q. 21 after you saw the defendant push his body up against the wall? 22 A. 23 started searching him. 24 Q. What happened at that point? 25 A. I located some marijuana, additional marijuana in his 26 jacket, and I located a prescription bottle of for perform zone 27 that was in the name of a different subject not Perry Jackson. 28 MS. MCBRIDE: Did you -- was this just what Officer At that point I don't think I started searching Mr. Jackson So just describe to us the next thing you remember then I believe I told him to step off the wall and then I MS. SOLOMON: I am going to object as to foundation and 21 1 speculation for Promethazine. 2 THE COURT: Promethazine. 3 MS. MCBRIDE: I can ask him a couple of follow-up questions 4 about that. 5 THE COURT: Okay. So objection is sustained then if you 6 want to ask a couple of follow-up questions. 7 Q. 8 recovered some marijuana. Where did you recover that from? 9 A. MS. MCBRIDE: So let's just talk about, you said you I believe it was in his left jacket pocket where he 10 actually told me it was. 11 Q. 12 we're clear? 13 A. 14 beginning of the contact he told me he had additional marijuana 15 and he had pointed towards his left side jacket pocket. 16 Q. 17 describe to us what that object looked like? 18 A. 19 Like when you get cough syrup from the doctor, whatever it is 20 from the doctor in a liquid form. It's in a dark-colored 21 reddish bottle, it has a white screw cap. 22 Q. Is it labeled with any kind of -- labeled with anything? 23 A. That bottle was, with the person's name who the 24 prescription was under as well as what the prescription was. 25 26 At what point do you mean the he told you that? Just so When I initially started speaking with him. Like the Okay. And what you just referred to as Promethazine, It's a liquid. It's in a liquid like prescription bottle. MS. SOLOMON: I'm going to move to strike as hearsay and speculation. Lack of foundation. 27 MS. MCBRIDE: I don't think -- 28 THE COURT: Overruled. 22 1 Q. 2 Promethazine on the street in that bottle form like that? 3 A. Maybe a dozen times. 4 Q. Where do you know -- well, that is a bad question. Strike 5 that. Did you recover the Promethazine bottle or did Officer 6 Faulkner? 7 A. I did. 8 Q. And where was that from on the defendant's person? 9 A. I believe that was from his right side jacket pocket. 10 Q. At any point during this encounter, encounter meaning the 11 search where you now recovered the marijuana and the bottle, did 12 the defendant ever make a statement to you asking you to stop 13 searching him? 14 A. No. Actually, quite the opposite. 15 Q. What do you mean, quite the opposite? 1.6 A. I just remember Mr. Jackson was very respectful and 17 compliant and very inviting to search him you can say. He said, 18 I don't have anything. You can check me. Like I said, you can 19 check my jacket. I'll do whatever you want. 20 Q. 21 discussed, what happened next in terms of any searching of Mr. 22 Jackson? 23 A. 24 portion of Mr. Jackson's waistband that was clearly not part of 25 his body. 26 Q. Okay. What did you think when you felt that object? 27 A. I could tell that it was in a plastic bag and there was 28 objects inside of it and I suspected that it was narcotics. MS. MCBRIDE: What is -- how many times have you seen Okay. After you recovered the two items that we just I continued my search and felt an object near the front 23 1 Q. Why? 2 A. I asked him what it was. 3 Q. Well, before you asked him what it was, did you suspect it 4 was narcotics? 5 MS. SOLOMON: 6 THE COURT: Overruled. Clarification. 7 THE WITNESS: Yes. Before I asked Mr. Jackson what it was, Objection leading. And asked and answered. 8 I did suspect that it was narcotics. 9 Q. MS. MCBRIDE: Just what about what you felt lead you to TO think that? 11 A. 12 area in which we were in. His behavior when he observed 13 uniformed police officers. The fact that he had one narcotic on 14 him or two narcotics on him, which was the marijuana, the 15 Promethazine and the fact that he had it concealed in his 16 waistband. Just based on my training and experience I believed 1.7 it was a controlled substance, narcotic. All of the indicators that I had mentioned before. The 18 MS. SOLOMON: I'm going to object and move to strike that 19 marijuana is a narcotic. It is a legal substance currently in 20 California it's not a controlled substance. 21 MS. MCBRIDE: Controlled in certain ways. 22 THE COURT: It's still a narcotic. 23 It's just not controlled. 24 MS. SOLOMON: Fair enough. You are right. Okay. 25 THE COURT: Next question. 26 Q. 27 testimony that Mr. Jackson told you something about the object 28 and being narcotics. Explain to us how that conversation went MS. MCBRIDE: You mentioned just a moment ago in your 24 1 down. 2 MS. SOLOMON: I'm going to object as misstates the 3 testimony. The officer testified that he asked him what it was 4 not that Mr. Jackson told him something. 5 MS. MCBRIDE: Well, my mistake. I'll rephrase. 6 Q. 7 me back up. Explain to me how our conversation regarding what 8 the item was that was in his waistband occurred? What was said 9 by both parties, if anything? MS. MCBRIDE: So officer, when you asked Mr. Jackson -- let 10 A. 11 behavior changed and he began to question why we stopped him in 12 the first place. So it kind of changed the topic of discussion. 13 Q. And then what happened? 14 A. I explained to him again why we had stopped him, and he 15 eventually admitted that it was cocaine. 16 Q. 17 what exactly he said and how that exchange happened? 18 A. 19 was. He said, cocaine. And I asked him how much, I believe. 20 And he said like a quarter ounce. 21 Q. At that point what did you do? 22 A. I placed him under arrest. 23 24 I believe when I asked him what it was, Mr. Jackson's And explain to me in a little bit more detail how that -- I forget the exact phrasing of it, but I asked him what it THE COURT: I'm lost. When was the conversation about stopping him? 25 MS. MCBRIDE: In terms of the defendant asking why? 26 THE COURT: Yes. Apparently he wasn't at a stop. He 27 turned around and -- so I don't understand what -- there is a 28 lot of vagueness here of what exactly is taking place and what 25 1 time. MS. MCBRIDE: Okay. 2 3 Q. 4 conversation happened and why you are referring to it as a stop? MS. MCBRIDE: Can you tell the Court at what point that 5 THE COURT: Well, the defendant said stopped. The 6 defendant said -- apparently the defendant asked him why he 7 stopped him. That is what it says here. What the testimony I 8 have. 9 Q. MS. MCBRIDE: Can you expand on that? 10 A. Yes. So I guess to clarify. In the initial -- like, when 11 this whole contact started, Mr. Jackson, he was walking and then 12 stopped and turned around and kind of initiated the whole thing. 13 And then I explained to him why I was -- I was talking to him. 14 Why I was stopping him. So does that clarify? THE COURT: I guess. 15 16 Q. 17 you, officer, is trying to understand how what you are 18 describing as sort of a contact initiated by Mr. Jackson. Why 19 you are referring to it as a stop when you testified that you 20 didn't give him an order to stop or stay with you to the extent 21 that you testified so far? 22 A. 23 before I stopped him and began the contact. 24 Q. 25 So at the time that you felt an object in his pants and asked 26 him about it is when the defendant asked you a question about 27 being stopped; is that correct? 28 MS. MCBRIDE: Okay. I think the question the Court has for Yeah. My intention was to stop Mr. Jackson but he stopped Okay. So just getting the timeline right in my head also. MS. SOLOMON: Objection. Leading. 26 1 THE COURT: Clarification because I don't know either. 2 MS. SOLOMON: And I'm sorry. It's also vague as to time. 3 It does -- the officer just testified that Mr. Jackson was 4 asking him that at the beginning as well. 5 THE COURT: Overruled. Because I think we are all trying 6 to get the correct time frame as to that, the question she just 7 asked him. Do you remember the question? 8 THE WITNESS: No. 9 MS. MCBRIDE: Can I have it read back? 10 (The court reporter reads back.) 11 THE WITNESS: Yes. That is correct. 12 Q. 13 clear about which point. After the defendant endorsed having 14 cocaine on him in the amount that he stated, you placed him 15 under arrest? 16 A. Yes. 17 Q. Is that correct? 18 A. Yeah. After he admitted that is was a quarter ounce of 19 cocaine, I placed him under arrest. 20 Q. 21 point? 22 A. I left it in his pants, I left it in his pants. 23 Q. What happened next? 24 A. Officer Faulkner and another officer transported Mr. 25 Jackson back to Tenderloin Station. 26 Q. 27 suspected -- well at the Tenderloin Station what, if anything, 28 was done? MS. MCBRIDE: So at that point after -- well, I should be What did you do with the suspected cocaine salt at that Okay. And at Tenderloin Station was anything done with the 27 1 2 MS. SOLOMON: Objection. Foundation. Lack of personal knowledge. 3 4 THE COURT: It depends on what the answer is. So overruled as of now. 5 6 THE WITNESS: When I arrived at Tenderloin station Officer Faulkner provided me with the cocaine salt from Mr. Jackson. 7 8 MS. SOLOMON: I'm going to just move to strike and ask that it be suspected at that point. 9 THE COURT: Moving to strike? 10 MS. SOLOMON: Lack of foundation that it is, in fact, 11 cocaine salt because this officer said the cocaine salt, not the 12 suspected. 13 14 THE COURT: Okay. We'll call it suspected cocaine salt at this time but -- 15 MS. MCBRIDE: I understand. 16 Q. 17 retrieved the items, the suspected cocaine salt from? 18 19 MS. MCBRIDE: Did Officer Faulkner tell you where had he MS. SOLOMON: Objection. Calls for hearsay. Motion to strike. 20 THE COURT: Sustained. 21 Q. 22 other -- 23 24 MS. MCBRIDE: Did Officer Faulkner provide you with any MS. MCBRIDE: Well, it can come in for the prelim. Have it come in for that purpose? 25 THE COURT: Okay. 26 Q. 27 retrieved the cocaine salt from the defendant? 28 A. MS. MCBRIDE: Did Officer Faulkner tell you where he had From Mr. Jackson's hand. 28 1 Q. Hand? 2 A. Yes. Officer Faulkner told me that during the transport to 3 Tenderloin Station Mr. Jackson reached in front of his pants and 4 retrieved the suspected cocaine salt. 5 THE COURT: When? 6 Q. MS. MCBRIDE: When? 7 A. During the transport back to Tenderloin Station. 8 9 MS. SOLOMON: So just for the record, this is coming in for preliminary hearing not the motion to suppress, correct? 10 THE COURT: Correct. But are you saying that he is being 11 transported he's not handcuffed? I mean, you left it in his 12 pocket. He's transported -- like how? 13 Q. 14 Court? MS. MCBRIDE: Can you explain how that happened for the 15 THE COURT: If you know. 16 THE WITNESS: Officer Faulkner told me that because Mr. 17 Jackson was handcuffed. Mr. Jackson. Officer Faulkner told me 18 that Mr. Jackson was able to reach his hands around the front of 19 his body and retrieve the suspected cocaine salt from in the 20 front. 21 22 MS. SOLOMON: I'm going to object. Move to strike as lack of foundation and hearsay. Speculation. 23 THE COURT: Overruled in terms of the preliminary hearing. 24 Still, when did this happen? I know you said it was during the 25, transportation. Do you know when? Which part? Before? 26 Middle? During? 27 28 THE WITNESS: It was during the car ride from that location on Hyde back to Tenderloin Station. Just a few blocks. So 29 somewhere in between, I believe, it's the 300 block of Hyde 2 Street back to the Tenderloin. 3 THE COURT: Somewhere in between. 4 THE WITNESS: Yes, sir. 5 Q. 6 apart from what you were handed, in terms of the suspected 7 cocaine salts, did he hand you any other packages of suspected 8 cocaine salt or just that one? 9 A. MS. MCBRIDE: Did Officer Faulkner hand you any other -- Well, it was one bag that had three more baggies of 10 suspected cocaine salt inside. 11 Q. Okay. Let me make this more clear. 12 MS. MCBRIDE: Can I have marked as People's Exhibit 1 13 please? A photograph. I'm showing to counsel. Of what appears 14 to be plastic wrap with some white substance on top of it. 15 There is also a name of Perry Jackson on the plastic bag to the 16 left of the photograph. 17 (Exhibit 1 marked for identification.) 18 Q. 19 depicted in that photograph? 20 A. Yes. 21 Q. What do you recognize that -- I'm not asking for an opinion 22 on what the substance actually is, but what do you recognize 23 this to be? 24 A. 25 Faulkner provided to me and stated this is what Mr. Jackson 26 retrieved from the front of his pants. 27 Q. 28 containing, you said multiple different baggies, did Officer MS. MCBRIDE: Officer Gilson, do you recognize what is This is a photograph of the item or items that Officer Did Officer Faulkner ever give you apart from that bag 30 1 Faulkner give you any other suspected cocaine salt? 2 A. No. 3 Q. Did Officer Faulkner give you anything he claimed to have 4 seized from the defendant or just that? 5 A. 6 noteworthy or.that or that is strikes my mind right now. 7 Q. 8 were given by Officer Faulkner compare in terms of size and 9 shape to the item that you felt in the defendant's waistline? I believe it was just this. I don't remember anything of Okay. How does this item depicted in People's 1 that you 10 MS. SOLOMON: Objection. Leading and speculation. 11 THE COURT: Overruled. Let's see what type of foundation 12 he can lay. Overruled as of now. 13 14 THE WITNESS: When I felt it I believe that was what was in Mr. Jackson's front waistband. 15 16 THE COURT: Sustained. Q. Q 17 MS. MCBRIDE: Why do you say that? I'm asking -THE COURT: Sustained following the earlier objection. 18 Q. MS. MCBRIDE: My question was, if you can describe how does 19 this item compare in terms of size and shape and feel to the 20 item that you felt in Mr. Jackson's waistband previously when 21 you searched him? 22 A. 23 tough question for me to answer. 24 Q. 25 this photograph fairly and accurately depict the suspected 26 cocaine salt as you recall it looking on the day of this 27 incident? 28 A. I didn't really manipulate it a whole lot. So that is a Okay. Thank you. I should ask you foundationally. Does Yes. 31 1 MS. MCBRIDE: And while we are on the subject of this 2 photograph I would like to mark People's Exhibit 2, the 3 following photograph, and I am showing to counsel. 4 (Exhibit 2 marked for identification.) 5 MS. MCBRIDE: May I approach the witness? 6 THE COURT: Yes, of course. 7 Q. 8 three small baggies containing different items. The one on the 9 -- the item on the left appears to be a bottle. I'm going to 10 MS. MCBRIDE: There appears to be in People's Exhibit 2 direct your attention to, Officer Gilson. 11 Can you tell is if you recognize -- well, do you recognize as 12 a whole what is depicted in People's Exhibit 2? 13 A. Yes. 14 Q. What do you recognize the item in the left most hand of the 15 page to be? 16 A. That is the Promethazine that I located on Mr. Jackson. 17 Q. Does that photo fairly and accurately depict the way that 18 that item looked on the date of this incident? 19 A. Yes. 20 Q. And just so the Court knows, what are the other items in 21 that photograph? 22 A. 23 discussing. As well as some -- there is Suboxene strips or 24 suspected Suboxene strips that were not located on Mr. Jackson. 25 I was told by the other officer that these Suboxene strips were 26 located on the other subject that Mr. Jackson was with. 27 Q. 28 There is the suspected cocaine salt that we have been Does this photograph fairly and accurately depict -MS. SOLOMON: I'm sorry. Move to strike as to suspected 32 1 Suboxene strips found on another individual. I don't believe 2 that is relevant to the facts or issues in this matter. 3 THE COURT: It's overruled. He said -- overruled. Next 4 question. 5 Q. 6 depict those items as you recall them appearing on the date of 7 this incident? 8 A. 9 10 MS. MCBRIDE: Does this photograph fairly and accurately Yes. MS. MCBRIDE: Now I am asking People's 1 and 2 be admitted into evidence in light of the officer's testimony. 11 THE COURT: Any objection? 12 MS. SOLOMON: Foundation. 13 THE COURT: Objection overruled. Exhibits 1 and 2 will be 14 admitted into evidence for the purposes of the preliminary 15 hearing to limit the portion of the motion to suppress. 16 (Exhibits 1 and 2 admitted.) 17 Q. 18 any point at the station? 19 A. I don't recall. 20 Q. Would it help to refresh your recollection to take a look 21 at your statement? 22 A. MS. MCBRIDE: Did you weigh the suspected cocaine salt at Yes. 23 MS. MCBRIDE: Your Honor, may I approach the witness? 24 THE COURT: Of course. 25 MS. MCBRIDE: His statement is in the incident report. 26 THE COURT: Yes. 27 THE WITNESS: I have copy of it here. 28 Q. MS. MCBRIDE: Go ahead. If you can review that and then 33 1 look up when you are done. Let us know if your recollection has 2 been refreshed. 3 A. My memory is refreshed. 4 Q. Go ahead, officer, can you answer the question? 5 A. Yes. I did weigh it. 6 Q. And what was the result of you weighing that item depicted 7 in People's 1? 8 A. I believe it came out to 15.4 grams gross. 9 Q. Did you conduct a Prop 115 interview with a criminalist 10 from the crime lab about the suspected cocaine salt used in this 11 case? 12 MS. SOLOMON: Your Honor, I'm going to object on discovery 13 grounds. I did not receive a lab report nor have I received a 14 Prop 115 form in this case. 15 MS. MCBRIDE: I did that this morning. 16 Q. MS. MCBRIDE: Correct, did you do that this morning? 17 A. Yes. 18 19 THE COURT: Can we give defense counsel a copy of the 115 form? 20 MS. SOLOMON: Is there a lab report? 21 THE COURT: Is there a lab report? 22 MS. MCBRIDE: I don't have a lab report. I have a 115 form 23 24 I can provide her. THE COURT: We'll take our lunch break. I hoped this was 25 only going to take an hour. But I guess it's taking a little 26 bit longer. Officer, you will be excused until 1:30. Counsel, 27 can remain for a quick second. Are you available at 1:30. 28 THE WITNESS: Yes, sir. 34 1 2 3 THE COURT: See you then. Is there any BWC, body worn camera footage? MS. SOLOMON: Yes, there is. I was going to suggest -- I 4 have it here ready. I was going to move it into evidence 5 anyway, if there is a stipulation by Ms. McBride. I can perhaps 6 provide it the Court over the lunch break to save time. 7 THE COURT: What would you like to do, Ms. McBride? 8 MS. MCBRIDE: That is absolutely fine with me. 9 THE COURT: So we will mark that as Defense 1. 10 (Defense 1 marked for identification.) 11 MS. MCBRIDE: I guess inquire where it starts and stops. 12 MS. SOLOMON: There is both Officer Faulkner and Officer 13 Gilson body worn camera video in full is on this CD as well as 14 the JPEG -- the file that shows the name of the file in which 15 officer it corresponds to. I can tell the Court that 16 information. I think it's 17 18 THE COURT: Why don't you pull it up real quick? Why don't you see to make sure it begins for the beginning? 19 So to be clear, the body worn camera footage is coming in. 20 The defense is bringing in the body worn camera footage in. No 21 objection from the People? 22 23 MS. MCBRIDE: No, your Honor. I would have used some of it myself, but I don't have a transcript. So I didn't think that 24 25 THE COURT: Well, any objection? 26 MS. MCBRIDE: I don't have an objection to her giving it to 27 28 the Court if it's helpful to the Court. THE COURT: Okay. And this is coming in then for the 35 1 purposes of the motion to suppress also? 2 MS. SOLOMON: Yes, your Honor. 3 MS. MCBRIDE: Sure. 4 THE COURT: All right. I'll see you both at 1:30. Thank 5 you. 6 (Defense 1 admitted.) 7 (Lunch recess taken.) 8 THE COURT: Back on the record in the preliminary hearing 9 matter of Mr. Jackson. The People versus Perry Jackson. Both 10 sides are present. Mr. Jackson is present. Please retake the 11 witness stand. Remember, you are still under oath. Ms. 12 McBride, your witness still. 13 MS. MCBRIDE: Thank you, your Honor. 14 Q. 15 your conversation with the criminalist this morning. Do you 16 recall that? 17 A. Yes. 18 Q. Did you ask what that person's name and job title was? 19 A. Yes, I did. 20 Q. And what was the response? 21 A. Her name is Penny Ritter (phonetic). She is a criminalist. 22 Q. Did you ask of where she was an employee of? 23 A. Yes. And I have all these things written down on a Prop 24 115 form but -- 25 Q. 26 that form to refresh your recollection potentially. Do you 27 recall what she said in regards to where she was an employee of? 28 A. MS. MCBRIDE: Officer Gilson, we left off talking about If you don't recall her answer let us know and you can use The Alameda County Sheriff's Office Crime Lab. 36 1 Q. 2 substances as defined by the Health and Safety Code? 3 A. Yes. 4 Q. And what was her response? 5 A. I have to look at the sheet. 6 Q. If it would help refresh your recollection go ahead and 7 look up when you are done. 8 A. Sorry. What was your question again? 9 Q. Q. I asked if you asked her if she regularly tests for Did you ask her if she regularly tests for controlled 10 controlled substances as defined by the Health and Safety Code? 11 A. I did. And she said, yes. 12 Q. Did you ask her what education she has received that is 13 relevant to her job duties. 14 A. I'll have to look at the sheet here. 15 Q. Don't read off the sheet, Officer. Look up when you are 16 done. 17 A. 18 from Cal. State University, Sacramento. 19 Q. 20 testing is and the number of years? 21 A. I did. And she said approximately ten years. 22 Q. Did you show her an evidence envelope marked with the 23 signifier L19012-1? 24 A. No. Actually it's L19-0192-1. 25 Q. Q. Thank you. For that correction. And also, SFPD lab 26 No. 304421? 27 A. Yes. 28 Q. Did you recognize that analyzed evidence envelope as being All right. A BS in forensic science. A minor in chemistry Did you ask her what her work experience in narcotics 37 1 related to this case? 2 A. Yes. 3 Q. How did you recognize it being connected to Mr. Jackson's 4 case? 5 A. 6 lab number associated with this incident. 7 Q. Did you ask her if she recognized the envelope? 8 A. I did. 9 Q. And what did she say? 10 A. I have to look at the sheet. She said, yes. 11 Q. Did you ask her how she recognized the envelope? 12 A. I did. And she said her initials were on the seal. 13 Q. Did you ask her if when she received the envelope it was in, 14 a sealed condition? 15 A. I did. And she said, yes. 16 Q. Did you ask her if she had a present recollection of the 17 test results in this case? 18 A. I did. And she said, no. 19 Q. Did you ask if she personally tested the evidence in this 20 case? 21 A. I did. And she said, yes. 22 Q. Did you ask her if she routinely writes a record of the 23 test results that she has used? 24 A. 25 said, yes. 26 Q. 27 immediately after performing the test in this case? 28 A. His name is on the envelope as well as the case number and I did ask her that and I have to look at the sheet. She Did you ask her if she recorded the test results I did. And she said, yes. 38 1 Q. Did you ask her where she records these test results? 2. A. I did. And she said in their computer data base. 3 Q. Did you ask her if she recognized her signature on the 4 crime lab examination report in this case and did you show it to 5 her? 6 A. 7 Yeah. I'll have to look at the -MS. SOLOMON: I'm sorry. I'm going to object, your Honor. 8 So as to the 115 interview, my big concern here is that we're 9 talking about a lab report that I don't have, which is a 10 statement of this witness that is being 115'ed and I think that 11 is a problem. 12 13 THE COURT: So it's a discovery issue. But does the prosecution have a copy of the lab report yet? 14 MS. MCBRIDE: I don't have a copy of the report. 15 MS. SOLOMON: Well, then how did the officer show it to the 16 17 18 witness if you don't have it? MS. MCBRIDE: The officer may have gotten it. I do not have it. 19 THE COURT: So do you have a copy of the lab report? 20 THE WITNESS: I don't know if this is what the lab report 21 looks like but when it gets back from the lab it has this on it. 22 THE COURT: Show it to the People. 23 MS. MCBRIDE: That looks like a lab report. 24 THE WITNESS: Okay. 25 THE COURT: Okay. 26 MS. MCBRIDE: I'm happy to copy it after the hearing. 27 Defense isn't entitled to every piece of discovery pre- 28 preliminary hearing. And it's a no time waiver case. 39 1 THE COURT: Okay. Well, let's copy it. 2 When you finish your direct we'll have a copy of it made 3 and given to the defense before she begins cross-examination. 4 Q. 5 signature on that form we were just indicating? 6 A. I did. And she said, yes. 7 Q. Did you ask her if that writing, again, on the form you 8 were just indicating was a true statement of the results in this 9 case? MS. MCBRIDE: Did you ask her if she recognized her 10 A. I did. And she said, yes. 11 Q. Did you ask her if she used her standard operating methods 12 to test this evidence? 13 A. I did. And she said, yes. 14 Q. Did you ask her how she knew -- how she knows as today that 15 she used her standard operating method? 16 A. 17 that is routine with every case and that is what is in her 18 notes. 19 Q. 20 this method to test this type of drug? 21 A. 22 her that. She said thousands of times. 23 Q. 24 the relevant scientific community? 25 A. I did. She said, yes. 26 Q. Did you ask her if both presumptive and confirmatory tests 27 were performed in this case? 28 A. I have to look at the sheet. I did ask that. And she said Did you ask her approximately how many times she has viewed Yeah. I did. I'll have to look at the sheet. I did ask Did you ask her if these testing methods are accepted in I did ask her that and I'll have to look at the sheet. So 40 1 she said that for Item 1A, which is the suspected cocaine salt, 2 she did both tests for item lB which was the Promethazine she 3 just did the confirmatory test. 4 MS. SOLOMON: I'm going to object as to assumes facts not 5 in evidence as to lA and 1B. 6 Q. 7 MS. MCBRIDE: How do you know what lA is versus 1B? THE COURT: Wait. Wait. Wait. That will be sustained. 8 What is lA and what is 1B? 9 Q. MS. MCBRIDE: How do you know what 1A is versus 1B? 10 A. That is what is on the, I guess, this is the lab report 11 that is labeled on the front of the lab report 1A, is the 12 cocaine and lB is what she told me was the Promethazine. 13 14 MS. SOLOMON: Objection. Assumes facts not in evidence and foundation. 15 THE COURT: Overruled. So for the purposes of so far as 1A 16 according to the lab analyst is an item that she called cocaine 17 and let's see what the results were. And 1B was the item she 18 called Promethazine. Let's see what the results are. 19 MS. MCBRIDE: Thank you. 20 Q. 21 received as a result of your tests were both valid and 22 unexceptional? 23 A. I did. 24 Q. And what did she say? 25 A. Yes. 26 Q. Did you ask her what she recorded as the result for her 27 test of item 1A? 28 A. MS. MCBRIDE: Did you ask her if the results that she 'Yes. 41 1 Q. What was that? 2 A. She said it was 4.60 grams net weight and that item was 3 determined to be positive for cocaine. 4 Q. 5 what was submitted or just a portion of it? 6 A. I did not specify that with her. 7 Q. Do you know if -- you testified earlier on direct that the 8 weight of the items that as you weighed them was 15 to .7 grams, 9 do you recall that? And did she indicate whether she tested the entirety of 10 A. I do recall that. 11 Q. And the testimony you just stated was that Ms. Ritter 12 tested item 4.60 grams positive for cocaine? 13 A. Yes. 14 Q. Is that right? 15 A. Yes. 16 Q. How do you reconcile that? 17 A. From my past experience dealing with criminalists and 18 interviews, they only test a small portion of the narcotics. 19 They don't test the entirety of the narcotics. 20 21 MS. SOLOMON: Objection. Move to strike speculation. Lack of foundation. 22 THE COURT: Sustained. No. Overruled based on his own 23 personal experience. Still doesn't answer the question. 24 Overruled. 25 MS. MCBRIDE: Sorry, your Honor. 26 Q. 27 bags that were submitted in this case? 28 A. MS. MCBRIDE: Do you khow if Ms. Ritter tested all of the She did not test all of the bags in this case. She only 42 1 tested a substance from one of the bags. 2 Q. 3 People's 1? 4 A. Yes. 5 Q. The photograph of the suspected cocaine salt? 6 A. Yes. Cocaine salt. 7 Q. And as to 1B, did you ask her if she recorded the result of 8 that test? 9 A. 10 MS. SOLOMON: Objection. Move to strike. Speculation probably. And lack of foundation. 13 14 I did. She said that it was negative for a controlled substance and it was probably Promethazine. 11 12 Okay. So is that a substance from one of the bags in MS. MCBRIDE: A criminalist at the lab. I think she can give that opinion and testify under 115. 15 THE COURT: What is it based on? Probably Promethazine? 16 Based on what? The label? 17 Q. MS. MCBRIDE: Do you know? 18 A. I don't know. 19 Q. Okay. She said it was probably Promethazine but didn't 20 expand upon why or what other comments did she make to you, if 21 any? 22 A. 23 common controlled substances they test for and that it was 24 probably Promethazine. 25 Q. 26 Promethazine? 27 A. I didn't ask her that. 28 Q. Did you ask her if Promethazine is one of the things that She only said that it screened negative for any of the Did she tell you whether or not her lab regularly tests for 43 1 they can test for? 2 MS. SOLOMON: Objection. Asked and answered. 3 THE COURT: Overrule. 4 THE WITNESS: I did not ask her that. 5 Q. 6 item 1A, the cocaine salt. Could you please tell the Court 7 based on. MS. MCBRIDE: Okay. So turning your attention just to the 8 MS. MCBRIDE: I understand that, your Honor, there is a 9 caveat that actually can be the subject to some cross as the 10 court -- as the ruling stands now. But I am going to ask him 11 for an opinion. 12 Q. 13 purpose the cocaine salt in People's lA was possessed? 14 A. I believe it was possessed for purpose of sales. 15 Q. And I would like you to -- 16 MS. MCBRIDE: Do you have an opinion as to -- for what MS. SOLOMON: Just for the record, I realize that this 17 issue I'm going to cross on it, but I'm going to make my 18 objection now. THE COURT: Objection noted. 19 20 Q. MS. MCBRIDE: Tell me every factor that went into your 21 opinion that that cocaine was possessed for sell? 22 A. 23 area. Mr. Jackson's behavior and actions. 24 Q. 25 of his behavior and actions? 26 A. 27 the flow of traffic as I have seen dozen of times upon seeing 28 uniformed police officers. The area in which we were in. Extremely high narcotics Let me pause you there. Can you expand upon that in terms The fact that he walked northbound on Hyde Street against 44 1 2 MS. SOLOMON: Objection. Foundation. That is speculation as to seeing, what Mr. Jackson did or did not see. 3 THE COURT: Overruled. 4 THE WITNESS: The fact he had cocaine salt concealed in his 5 pants. The amount of the cocaine salt. The manner in which 6 they were packaged. The fact that he lied about having any 7 narcotics in his pants. 8 9 There are a lot of factors going into this opinion so I am just trying to get them all out there. I didn't find any 10 narcotics paraphernalia on his person. Yeah. That is what I 11 come up with right now. That I remember right now. 12 Q. 13 sure we got all of the details. Was there any other behavior on 14 the part of Mr. Jackson apart from walking northbound on Hyde 15 against the flow of traffic that factors into your opinion 16 today? 17 A. Other than what I just described, no. 18 Q. Q. Okay. What about the amount of cocaine salt triggered for 19 you an opinion that this drug was possessed for sale? 20 A. 21 cocaine salt would possess. And it's also twice the amount that 22. Mr. Jackson admitted to having. He told me this is about a 23 quarter ounce of cocaine and this is more than half an ounce of 24 cocaine. 25 Q. 26 it's packaged factored into your opinion? 27 A. 28 within another separate baggy. That is not typical of how a MS. MCBRIDE: Was there any other behavior, just to make This is far more than what typical user, a heavy user of Explain if you could for the Court what you mean by the way It's packaged in three separate baggies that are knotted 45 1 regular user would just possess for cocaine salt. 2 Q. 3 pants relevant to your opinion that as an expert that it is 4 going to be possessed for sale? 5 A. 6 tenderloin district users of narcotics and drug addicts 7 typically face very few consequences when it comes to possessing 8 drugs. 'So in my experience when I deal with the users they 9 don't care about hiding their narcotics. They know it is kind 10 Why was the fact he lied about having narcotics in his I talked about it earlier, but in my experience in the of a nonissue -- 11 MS. SOLOMON: I'm going to object and move to strike as 12 what they typically face or consequences as lacking in 13 foundation. 14 15 THE COURT: Sustained. I don't think it's really relevant in terms of -- 16 MS. MCBRIDE: I would ask for it just to be admitted for 17 the limited purpose that people who are commonly are users that 18 he contacted more freely admit to the location of their 19 narcotics and not why because they don't pay serious 20 consequences or things that get into a speculative area. 21 THE COURT: Okay. Accept that first part. 22 Q. 23 you based on your previous answer about the amount of cocaine 24 salt here but is the amount of cocaine salt in this case a 25 usable amount? 26 A. 27 28 MS. MCBRIDE: Just a final question. Maybe it's obvious to Yes. A usable amount. MS. MCBRIDE: I don't think I have anything further on direct. 46 1 THE COURT: Cross-examination. 2 CROSS-EXAMINATION 3 BY MS. SOLOMON: 4 Q. Good afternoon. 5 A. Good afternoon. 6 Q. You wrote a statement in this case, correct? 7 A. Yes. 8 Q. And that statement, you wrote it soon in time after this 9 incident? 10 A. Yes. 11 Q. You are trained in how to write statements at the academy? 12 A. Yes. 13 Q. And you signed your statement under penalty of perjury? 14 A. Correct. 15 Q. And you reviewed your statement before coming to court 16 today? 17 A. Briefly. 18 Q. And did you notice anything that was incorrect? 19 A. No. 20 Q. You were on patrol in a marked police vehicle on 21 January 14th, correct? 22 A. Yes. 23 Q. And as you were driving southbound on Hyde Street you 24 observed two African American men standing at the corner of 25 Golden Gate and Hyde, correct? 26 A. I wasn't driving. 27 Q. Okay. So you were in the passenger's seat? 28 A. Yes. 47 1 Q. 2 American men standing on the corner of Golden Gate and Hyde, 3 correct? 4 A. 5 Golden Gate and Hyde. 6 Q. 7 driving in kept driving past that corner or did you park and 8 start to get out of the car at that point? 9 A. At what point? 10 Q. The point at which you saw them? 11 A. No. 12 Q. No what? 13 A. I did not get out of the car as soon as I saw them. 14 Q. Okay. So you continued to travel as a passenger in the 15 vehicle southbound on Hyde? 16 A. I believe so. 17 Q. And you had not been dispatched regarding any incident to 18 this corner related to Mr. Jackson, correct? 19 A. No. 20 Q. You didn't stay and do any surveillance at that point, the 21 patrol car kept traveling, correct? 22 A. 23 define surveillance but we watched them walk away on Hyde. 24 Q. 25 and another male -- well, sorry. Excuse me. Several African 26 American males standing there on the corner, correct? 27 A. 28 by themselves. I don't remember them being directly in a group So from the passenger's seat you observed two African I observed multiple African American men standing near Okay. And at that point did the patrol car you were I mean, we watched them walk away. I don't know how you So when you initially drove past you observed Mr. Jackson I remember Mr. Jackson and the other subjects were kind of 48 1 of other guys, but I remember seeing other African American 2 males on that corner. 3 Q. 4 cross-examination about observing two African American males on 5 that corner and you indicated that there were several. So that 6 is why I asked about the group. Well, when I initially asked you at the beginning of my 7 But back to Mr. Jackson, he was just standing on the corner 8 when you drove past, correct of when you drove past, correct? 9 A. I don't think he was on the corner. 10 Q. Okay. So when you testified on direct examination that you 11 observed Mr. Jackson and another male standing there on the 12 northeast corner of Hyde that is not true? 13 A. I don't believe that is how I phrased it. 14 Q. Okay. In your police statement -- well, actually back up. 15 As you continue to travel down Hyde you testified that they 16 started to walk northbound on Hyde; is that correct? 17 A. Sorry. Say that question again. 18 Q. As your patrol vehicle continued to travel you observed Mr. 19 Jackson and the other black male start walking northbound on 20 Hyde Street, correct? 21 A. 22 walking northbound on Hyde. 23 Q. So that is correct. What I just asked you? 24 A. I phrased it in a way that made sense to me. 25 Q. You had intended to -- well, let me back up. So you got 26 out of the car with Officer Ruetti at that point, correct? 27 A. Yes. 28 Q. Because you were concerned about them walking northbound on We're driving by. They looked at our car and started 49 1 Hyde, correct? 2 A. 3 No. 4 Q. 5 about them walking, that is not true? 6 A. 7 that is what I was concerned about. 8 Q. 9 Street? I wasn't concerned about them walking northbound on Hyde. So when you testified on direct concerned, I was concerned Well, it's an indicator of typical drug involvement. So So you were concerned about them walking northbound on Hyde 10 A. 1.1 how I'm trying to get my point across. 12 I mean, I think that is a very dumbed down statement for The way I described and I thought I did a pretty good job in 13 discussing typical drug dealers walking against the flow of 1.4 traffic north on Hyde, that is what I was concerned about. I 15 wasn't concerned about Mr. Jackson walking. 16 17 MS. SOLOMON: I'm going to object and move to strike as nonresponsive. 18 19 THE COURT: Overrule. He explained what he was concerned about. 20 MS. SOLOMON: Okay. 21 Q. 22 walking northbound. You get out of the car and start following 23 them, correct? 24 A. Yes. 25 Q. And you observed them enter a crosswalk and cross from the 26 southeast corner of Hyde to the northeast corner of Hyde at 27 Eddy, correct? 28 A. MS. SOLOMON: So Mr. Jackson and another black male start Correct. 50 1 Q. And when they entered the crosswalk red hand was not solid, 2 correct? 3 A. Correct. 4 Q. As they proceeded to cross at some point it became solid 5 before they reached the other side of the street; is that 6 correct? 7 A. Correct. 8 Q. Q. And based on that observation you decided to detain Mr. 9 Jackson, correct? 10 A. Not on that alone. 11 Q. Officer Gilson, how many white people have you detained for 12 jaywalking? 13 MS. MCBRIDE: MS. MCBRIDE: Objection. Objection. Argumentative. Argumentative. 14 THE COURT: Sustained. 15 MS. MS. SOLOMON: SOLOMON: Your Your Honor, Honor, it's it's Penal Penal Code Code Section Section 13519.4. 16 It's the racial profiling statute, and I believe that racial 17 profiling is relevant for the motion to suppress based on this 18 penal code section, which I have a copy of it if the Court wants 19 to see it. 20 THE COURT: First of all, the testimony wasn't that he 21 detained them when he crossed the street. The testimony was 22 that he turned around. 23 MS. SOLOMON: understand, your your Honor. SOLOMON: II understand, 24 THE COURT: And watched the body worn camera footage too. 25 MS. SOLOMON: Your Honor, I just want to clarify that he MS. 26 indicated he was going to detain them. That was my question. I 27 didn't say detained them based on that. 28 THE COURT: Why does that matter if based on the body worn 51 1 camera footage which you put into evidence, alleged defendant 2 here turns around by the way with his driver's license out. He 3 shows it to the officer. All the officer said up to that point, 4 what is up? 5 MS. MS.SOLOMON: SOLOMON: Okay. Okay. 6 THE COURT: So I am going to sustain the objection. Next 7 question. 8 Q. Q. 9 you indicated you didn't order him to stop at that point, MS. When you you start start walking walking behind behind Mr. Mr. Jackson as MS. SOLOMON: SOLOMON: When 10 correct? 11 A. No. 12 Q. No, that is not correct? 13 A. No. I did not order him to stop. 14 Q. Okay. However, you intended to detain him for jaywalking, 15 correct? 16 MS. MCBRIDE: Objection. Relevance. 17 Sustained. THE COURT: COURT: Sustained. 18 MS. Your Honor, Honor, it's it's relevant. relevant. II have have case law MS. SOLOMON: SOLOMON: Your 19 to this point. It's relevant. 20 THE THE COURT: COURT:Well, Well, offer offer of of proof. 21 MS. SOLOMON: My offer of proof is Rodriguez versus United 22 States, 135 S Court, 1609 which holds that a police stop 23 exceeding the time needed to handle the matter for which the 24 stop was made violates the constitution, shields against 25 unreasonable seizures. 26 THE COURT: That is different. That is different in terms 27 of exceeding because -- I understand that is going to be an 28 argument. How long allegedly detained after maybe it was a 52 1 consensual encounter or not but in terms of his intent to detain 2 him at the time, objective intent based on objective factors so 3 overruled. Sustained objection. 4 MS. SOLOMON: Okay. Well, I am interested in this Court 5 sustaining that objection, because I objected on relevance to 6 what the officer was thinking various times during direct 7 examination and those objections were overruled. So I think 8 it's relevant since it was elicited. 9 THE COURT: So you objected to -- 10 11 MS. SOLOMON: Officer, what were you thinking when you observed such and such. 12 THE COURT: You are correct, Ms. Solomon. I'm going to 13 overrule my objection. Objection overruled. She's correct. 14 Q. 15 jaywalking, correct? 16 A. Yes. 17 Q. And as you approached him from behind, is it fair to say 18 that he seemed to notice that you were approaching him from 19 behind and turned around? 20 A. 21 around. So, yeah. 22 Q. You initially -- well, he handed you his ID, correct? 23 A. I believe so. At what point? 24 Q. Immediately upon turning around and observing you behind 25 him, he handed you his ID? 26 A. 27 marijuana first but yeah, he did hand me his ID. 28 Q. MS. SOLOMON: So you intended to detain Mr. Jackson for I don't know. I mean, I guess that is why he turned I think we had a conversation about him smoking the Okay. So he handed you his ID and he said quote, I didn't 53 1 do a mother fucking thing, correct? 2 A. 3 remember him saying something to that effect. 4 Q. You were wearing body worn camera that day? 5 A. Yes. 6 I don't remember if that is what he said exactly but I MS. SOLOMON: Your Honor, I'm not going to ask to refresh 7 the officer's recollection since the body worn camera is in 8 evidence but -- 9 THE COURT: Here is the issue with the body worn camera. 10 Ms. McBride is correct. There is a local rule that does require 11 a transcript. I understand that both sides wanted the body worn 12 camera footage to come into evidence. So I did listen to it. 13 The suspect is hard to hear at times compared to the officers. 14 So I guess the best thing to do is you can try to cross him 15 like you just did, if he doesn't remember. I know it's on the 16 body worn camera footage, and I'll let you argue how you want to 17 argue it. MS. SOLOMON: I believe the local rule, your Honor, where 18 19 an audio comes into evidence a transcript may be prepared within 20 five days. THE COURT: But then the completion of the proceedings -- 21 22 well -- let's keep going. 23 Q. 24 cooperative, correct? 25 A. Yes. He was cooperative. 26 Q. And he didn't try to flee at any point, correct? 27 A. No. He did not try to run away or -- 28 Q. At no point did he threaten you? MS. SOLOMON: So as you indicated Mr. Jackson was extremely 54 • 1 A. No. 2 Q. You called in on your radio after you have Mr. Jackson 3 against the wall you are standing in front of him. You then 4 call in your radio to say that you have people detained, 5 correct? 6 A. I just put us out at that location. 7 Q. And at that point Officer Faulkner walks up and he is 8 standing next to you between Mr. Jackson and the street, 9 correct? 10 A. 11 was there. 12 Q. 13 Officer Faulkner are standing more or less in the front of him, 14 correct? 15 A. 16 know if that is the exact make up of how we were situated. 17 Q. 18 him saying to he didn't do anything, you stated, you are smoking 19 marijuana, correct? 20 A. I don't remember how the conversation went, ma'am. 21 Q. Well, he said something, like, it's legal. And you said 22 not in public. Do you remember that? 23 A. Vaguely. 24 Q. Do you remember that at one point you went -- after you 25 tell him something about the marijuana not being legal to smoke 26 he put it on the ground and you indicated that he actually put 27 it out, correct? 28 A. I don't exactly remember Officer Faulkner's location but he So Mr. Jackson is standing against the wall and you and I honestly I think we're kind of moving around. I don't Okay. You then say something to Mr. Jackson in response to Yes. 55 1 Q. 2. tries to put his hand in his pocket and you said don't reach. 3 Get your hands out of your pocket. Do you remember that? 4 A. I vaguely remember that. 5 Q. And at that point you informed Mr. Jackson that he's being 6 detained for jaywalking and smoking marijuana in public, 7 correct? 8 A. I don't know that I ever told him that he was detained. 9 Q. Well, when he said, I'm not doing shit. You said, you are Do you remember that -- at that point -- at one point he 10 smoking marijuana in public and you crossed the crosswalk when 11 the light wasn't completely 12 you remember that? 13 A. Yes. 14 Q. Okay. So at that point you chose not to take out your 15 citation book and give him a citation jaywalking and smoking 16 marijuana in public, correct? 17 A. Correct. 18 Q. In fact, at no point did you take out your citation book, 19 correct? 20 A. It never got to that point. 21 Q. So the next thing that happens after you detain him, is you 22 ask him some questions like if he's on probation or parole, 23 correct? 24 A. I don't remember that. 25 Q. Again, an offer of proof that it is in the video. Since 26 you had Mr. Jackson's ID you called in his information over 27 dispatch, correct? 28 A. I believe I did. when the red hand went on. Do 56 1 Q. And you asked him if he had ever been arrested before? 2 A. I usually do so. I believe I did. 3 Q. How many white people have you asked if they have been 4 arrested before if they are on probation or parole? 5 MS. MCBRIDE: Same objection. 6 THE COURT: Sustained. 7 Q. 8 questions like where he lives. Do you remember that? 9 A. I believe I did. 10 Q. You asked Mr. Jackson whether he had any more marijuana in 11 his person, correct? 12 A. Yes, I did. 13 Q. And he responded that he just had a small stack, correct? 14 A. I don't remember him describing it as small. 15 Q. Okay. He said he had a stack, correct? 16 A. I believe so, yes. 17 Q. And you said, what is the weight? How much weight? Do you 18 remember that? 19 A. 20 how I phrased it. 21 Q. 22 remember that? 23 MS. SOLOMON: So at that point you then ask him some other I remember asking him how much he had. I don't remember And he said it's not weight, as in there is not a lot MS. MCBRIDE: Objection, your Honor. That calls for 24 speculation as to what the defendant meant and also misstates 25 the evidence. 26 THE COURT: Her question said not -- he said something 27 about doesn't weigh -- not a lot. Remember that. I remember 28 him stating he doesn't either. It's hard to understand. 57 1 Doesn't deal with weight or something of that nature. So I 2 think the question phrased. Re-ask your question. 3 Q. 4 didn't have weight. Do you remember that? 5 A. Something to that effect. I remember that. 6 Q. Okay. So you then -- at this point you are there and. 7 Officer Faulkner asked to search Mr. Jackson, correct? 8 A. Yes. 9 Q. And Mr. Jackson actually pointed to the pocket to tell you MS. SOLOMON: My question was, he said to you that he 10 where his sack of marijuana was, correct? 11 A. 12 Officer Faulkner asked him -- or if he could search him. 13 Q. 14 pointing to his right jacket pocket -- or his left jacket 15 pocket. Excuse me. Correct? 16 A. I believe he told me that. 17 Q. Okay. And at that point Officer Faulkner asked if he could 18 search Mr. Jackson, correct? 19 A. It was shortly thereafter, yes. 20 Q. And Mr. Jackson puts his hands up and starts turning 21 around? 22 A. 23 around. 24 Q. 25 you see searches, pats down Mr. Jackson, correct? 26 A. 27 Faulkner's search. 28 Q. I don't believe at that point. I thought that was before Okay. So he told him this is where the marijuana is, T think they were kind of already up and he started to turn Okay. And so this is the first search and Officer Faulkner To be honest with you I don't really recall all of Officer Do you recall that you ordered Mr. Jackson to face the 58 1 wall? 2 A. I don't remember that. 3 Q. So you saw Officer Faulkner search Mr. Jackson, correct? 4 A. Yes. I just don't remember what kind of search it was. 5 Q. You saw him search Mr. Jackson, correct? 6 A. Yes. 7 Q. And after that search was completed he had not located 8 anything of import, correct? 9 A. I don't remember if he did or not. 1.0 Q. Okay. 11 MS. SOLOMON: Again, I'll refer the Court to body worn 12 camera. 13 Q. 14 Mr. Jackson to face the wall again for a second search, correct? 15 A. I don't remember doing that. 16 Q. Okay. He said to you, T have nothing. Do you remember 17 that? 18 A. Yeah. He said that several times. 1.9 Q. And he 20 time to search him yourself this time. Do you remember that? 21 MS. SOLOMON: After this search was complete you then order you didn't order him to face the wall a second MS. MCBRIDE: Objection. Vague as to time. And also 352. 22 The Court has the body worn camera. So I don't really 23 understand why we need to go through the minutia of everything 24 that was said when the Court has it. 25 THE COURT: I understand the Court has it but she has a 26 right cross-exam regarding what he remembers at the time. If he 27 doesn't remember, he just doesn't remember. 28 MS. MCBRIDE: Okay. Then my objection is that that is 59 1 vague as to time when Officer Gilson asked him to turn around 2 and be searched. 3 THE COURT: Okay. Sustained as to that on those grounds. 4 MS. SOLOMON: Okay. 5 Q. 6 actually, I believe, four total searches of Mr. Jackson standing 7 on Eddy Street or Hyde Street? 8 A. 9 Officer Faulkner was helping search and I was helping search. Since Ms. McBride raised this, isn't it true that there I don't remember. It was all kind of one search to me. 10 Q. So Officer Faulkner searched and then you searched, right? 11 A. Yes. 12 Q. And Mr. Jackson -- you testified that you did find a small 13 amount of marijuana in the pocket that Mr. Jackson had told you 14 that it was actually in, correct? 15 A. Yes. 16 Q. And then after finding the marijuana that he told you was 17 in his pocket you continue to search yet again, correct? 18 A. 19 just one search and he told me that it was okay to check him. 20 Q. 21 to search him after you located the small amount of marijuana in 22 his pocket, correct? 23 A. 24 search. It was all just one search I believe. 25 Q. 26 located the small amount of marijuana in his pocket? 27 A. Oh, yes. 28 Q. You also ordered him to open his jacket, remember that? I don't think it was a separate time. I think it was all So that wasn't my question. My question was, you continued I thought you made it sound like I did another separate So did you or did you not continue to search him after you 60 1 A. I don't remember that. 2 Q. And throughout this whole time Mr. Jackson was respectful 3 and compliant, correct? 4 A. Yes. 5 Q. And then finally the last time you search him you tell him 6 to go against the wall yet again. Do you remember that? And 7 you order him to put his hands on his head? 8 A. No. I don't remember that. 9 Q. You -- this is -- the last search is the one where you 10 search all the way down into his pants, correct? 11 A. Again, I thought it was only one search. 12 Q. So this last search you stated that you felt something that 13 you did not believe to be part of his body, correct? Is that 14 correct? 15 A. 16 it was only one search and it was at that -- 17 18 Yeah. I just want to make it clear that I'm saying I think THE COURT: Counsel, don't cut him off. Let him finish his response. 19 THE WITNESS: In finding the object that I felt was not 20 part of his body. It was towards the latter end of the search. 21 Q. 22 you knew immediately it was not a weapon, correct? 23 A. Yes. 24 Q. Thereafter you repeatedly asked Mr. Jackson about what is 25 in his pants, correct? 26 A. I think I asked him a couple of times. 27 Q. And he repeatedly said he had nothing there, correct? 28 A. I do remember him saying something to that effect. Okay. And at that point what you felt you did not feel -- 61 1 Q. 2 Why are you doing this to me? Remember him saying that? 3 A. Yes, I do. 4 Q. And then you again reiterated that it had to do with 5 marijuana and jaywalking, correct? 6 A. I believe so. I think I testified to that earlier. 7 Q. And then you asked him how much dope is in your pants and 8 he said there is nothing in my pants, correct? 9 A. Initially he stated that, yeah. 10 Q. And again, you asked him a few times, right? Do you 11 remember that? 12 A. I do remember asking him a few times. Yes. 13 Q. Do you remember then threatening him with a strip search? 14 You said, if you don't tell me what is in your pants I'm going 15 to take you to the station and strip search you? 16 17 18 19 Then, do you remember him repeatedly saying, what did I do? MS. MCBRIDE: Objection as to the form of the question. Argumentative. THE COURT: Sustained. Sustained. I don't remember him using the word "strip search." 20 MS. MCBRIDE: Or threatened. 21 MS. SOLOMON: Your Honor, may I actually have the disk? 22 23 Does the Court have it? THE COURT: Yes. I have it eight minutes in. I thought he 24 said, if you want to go that route, we can go that route and 25 give it to me and maybe it will just be an admonishment. 26 27 28 I don't recall him saying stripped search. So if you do please point it out to the Court. MS. SOLOMON: I will. I will. In just a minute. So just 62 1 ask my question I didn't get an answer. 2 Q. 3 strip search? 4 5 MS. SOLOMON: Do you recall threatening Mr. Jackson with a MS. MCBRIDE: I'm going to object to that question as argumentative. 6 THE COURT: Sustained as to threatening. Well, no. If 7 it's on there it's overruled. That was the words that he used. 8 If he used strip search. Overruled. 9 THE WITNESS: I don't remember that. 10 MS. SOLOMON: May I approach. 11 THE COURT: Yes, you may. Let the witness see it. If he 12 remembers. So the time? 13 MS. SOLOMON: Seven minutes. 14 Q. 15 threatened -- that you told him you would take him to the 16 station and strip search him if he didn't tell you what he had 17 in his pants? 18 A. 19 friendlier than that. 20 Q. 21 you what he had in his pants that you would take him to the 22 station for a strip search; is that right? 23 MS. SOLOMON: Does that refresh your recollection that you That is not my interpretation of that. I think it was lot So you were friendly in telling him that if he didn't tell MS. MCBRIDE: Objection, your Honor. 352. Asked and 24 answered. Argumentative. 25 THE COURT: We already had his response. We've heard the 26 statement. Next question. 27 Q. 28 saying you would take him to the station for a strip search and MS. SOLOMON: So only after multiple questions and you 63 1 then saying well, it might not even be real. It could be fake. 2 Tell me what you got. Only then after multiple questions of 3 that nature did Mr. Jackson finally tell you, after you said you 4 might have not admonished him, you said he had cocaine in his 5 pants, is that right? 6 A. 7 was just trying to get him truthful. 8 Q. 9 Jackson about what I saw near his groin and he admitted that he I remember it did take more than one time asking him. So in your police report where you said I confronted 10 had a quarter ounce of suspected cocaine inside his pants, is it 11 fair to say that you omitted that fact that he repeatedly did 12 not tell you that and it was only after you mentioned the strip 13 search and that you would just admonish him that you finally 14 said that he did have something; is that correct? 15 A. Is what correct? 16 Q. That the statement in your police report that you asked 17 Jackson what you felt he and he admitted that he had a quarter 18 ounce, doesn't capture the multiple times where he denied that 19 he had anything and where you threatened to take him to the 20 station for a strip search or promised him an admonition if it 21 was just a small amount that he finally said something? 22 23 MS. MCBRIDE: Objection, your Honor. That question is incredibly compound. 24 THE COURT: Compound. Argumentative. Sustained. Next 25 question. 26 Q. 27 confronted him about what you felt and he said, he admitted he 28 had a quarter ounce of suspected cocaine inside his pants. Is MS. SOLOMON: In your police report you said that you 64 1 that what you wrote in your report? 2. A. Yes, because that is what happened. 3 Q. So you omitted the strip search threat in your report, 4 correct? 5 6 MS. MCBRIDE: Same objection, your Honor. Argumentative. 352. 7 THE COURT: We have the CD. It's in evidence. Sustained. 8 Q. 9 was for personal use, correct? 10 A. MS. SOLOMON: Mr. Jackson also told you that what he had I don't remember that. 11 MS. SOLOMON: Your Honor, 12 THE COURT: It's on the. disk. 13 MS. SOLOMON: Okay. 14 Q. 15 for a little less than four years; is that correct? 16 A. Yes. 17 Q. Do you remember testifying in the matter of Brian Blair 18 (phonetic) in Court No. 2502876 on October 2nd of 2017, in a 19 bifurcated preliminary hearing that continued on November 3rd of 20 2017? MS. SOLOMON: So officer, you said you've been an officer 21 MS. MCBRIDE: Objection. Relevance. 352. 22 MS. SOLOMON: 23 24 25 26 Your Honor, it's impeachment I can make an offer of proof. THE COURT: Make an offer of proof -- have the officer step down outside for a second please. Offer of proof. MS. SOLOMON: Your Honor, I have two transcripts here from 27 two cases in the matter of Brian Blair. This officer testified 28 during a bifurcated preliminary hearing, during the first time 65 1 he testified he said he gave one explanation for what he felt 2 and that he knew it wasn't a weapon during a pat search. And 3 then we he came back for a bifurcated prelim hearing, he then 4 said, well, T thought it could be a weapon. Judge Conroy 5 granted the motion to suppress and made a finding that the 6 testimony is not reliable. This officer's testimony was 7 unreliable. That violated the fourth amendment. 8 9 In another transcript Court No. 18010992, the officer detained two Latino males for allegedly loitering and was told that 10 standing on the street corner was not loitering. The motion to 11 suppress was granted in that case. I believe there is a pattern 12 and practice of this officer. He's been an officer for less 13 than four years. I have two transcripts in which motion to 14 suppress was granted because he violated People's fourth 15 amendment right. So that is my offer of proof and I ask the 16 Court to take judicial notice. I can provide the Court with a 17 transcript. They are both matters -- 18 19 THE COURT: I'll take judicial notice of them I'm not going to allow cross-examination this issue. 20 MS. SOLOMON: 21 THE COURT: Bring the officer back in. 22 MS. SOLOMON: 23 THE COURT: Yes. Next question. 24 MS. SOLOMON: That is fine. Does the Court want those transcripts. Okay. Shift gears to the area of expertise 25 and voir diring on that. 26 Q. 27 amount of time in the tenderloin in your job, correct. Two 28 years, correct? MS. SOLOMON: Officer, you testified you spent a fair 66 1 A. 2 'Q. Approximately two years. And isn't it true that the Tenderloin is a low income 3 neighborhood of. San Francisco? 4 A. 5 Tenderloin as low income. 6 Q. There is a lot of poverty and homelessness, correct? 7 A. The Tenderloin has a lot of issues and that is certainly 8 one of them. 9 Q. 10 I think it's fair, to describe the majority of the That also has the highest percentage of minorities, individuals who live there, correct? 11 MS. MCBRIDE: Objection. Relevance. 352. 12 THE COURT: You are just voir diring now on his expertise. 13 MS. SOLOMON: Well, -- 14 THE COURT: You already laid your foundation regarding any 15 race in this issue in terms of his two cases. Let's go to his 16 expertise. 17 18 MS. SOLOMON: I'm voir diring him when he said that it was a high crime area that is what I was asking about. 19 THE COURT: So let's go straight to that. 20 Q. 21 Tenderloin, correct? MS. SOLOMON: So there are a lot of people who live in the 22 MS. MCBRIDE: Same objection. 23 THE COURT: Sustained. 24 MS. SOLOMON: There are a lot of businesses in the 25 Tenderloin, correct? 26 MS. MCBRIDE: Same objection. 27 THE COURT: Sustained. 28 Q. MS. SOLOMON: So you took the 40-hour class that all police 67 1 officers take at the academy, correct.? 2 A. Yeah. 3 Q. Regarding narcotics? 4 A. The narcotics course. Yes. 5 Q. And that is a one-week class that covers every different 6 kind of narcotic that you might encounter on the street? 7 A. They go over the most frequently observed narcotics. 8 Q. How much time did you specifically spend on cocaine salt? 9 A. I don't remember. 10 Q. You indicated that you have no other formal training as 11 aside from the class that everyone takes; is that fair to say? 12 A. Like classroom education, correct. 13 Q. Okay. So with regard to your experience, you are less than 14 four years on the job, correct? 15 A. Yeah. It's approximately four years. 16 Q. In which you participated in about a hundred or so arrests 17 involving cocaine or suspected cocaine? 18 A. Yeah, and I would say that is on the low end. 19 Q. Okay. You mentioned that in your experience one of the 20 things that distinguishes users and seller is paraphernalia, 21 correct? 22 A. Correct. 23 Q. So cocaine, you aware you typically snort it most 24 regularly? 25 A. Most commonly cocaine salt is snorted. 26 Q. Right. And so paraphernalia would be like a dollar bill, 27 right? 28 A. Could be. 68 1 Q. 2 correct? Along with the receipt for the phone you just bought, 3 remember that? So when -- you found money in Mr. Jackson's pocket, A. Which part? 5 4 Q. The you located United States currency, dollar bills or 6 bills of some sort in Mr. Jackson's pocket, do you remember 7 that? 8 A. 9 that you just referred to. Well, I remember the money. I don't remember the receipt 10 Q. 11 correct? 12 A. 13 when you see narcotics paraphernalia it's already rolled up and 14 there is residue on it. I didn't see that. 15 Q. 16 correct? 17 A. Where? 18 Q. On any of the bills in Mr. Jackson's possession? 19 A. I don't remember seeing any. 20 Q. You just testified you did see bills in his possession? 21 A. You are talking about residue. So no, I did not see any 22 residue. 23 Q. 24 correct? So he did actually have paraphernalia on his person, Possibly could have used that to be rolled up but typically And you didn't search to see if there was any residue, Okay. Because you didn't search for residue either, 25 MS. MCBRIDE: Objection. 352. Asked and answered. 26 THE COURT: Sustained. 27 MS. SOLOMON: I don't think it was asked and answered. 28 THE COURT: Sustained. 352. 69 1 MS. SOLOMON: You mentioned that the location of where 2 something had taken place could be an indicator of sales; is 3 that correct. 4 A. It can be an indicator, yes. 5 Q. And isn't it fair to say that where. one -- something is 6 sold is also a commonly where something is purchased? 7 MS. MCBRIDE: Objection, your Honor. Very overbroad. 8 THE COURT: Sustained. 9 10 Q. MS. SOLOMON: Well, if a location is indicative to a sale is it also indicative to a purchase? 11 MS. MCBRIDE: Objection, your Honor. Vague. 12 THE COURT: Sustained. I'm not following you right now, 13 Ms. Solomon. 14 Q. 15 believe that narcotics are commonly sold, is that where 16 individuals commonly go to purchase narcotics as well by 17 definition? 18 A. 19 them there. So, yes, that is where drugs are purchased. 20 Q. 21 purchaser buyer and user, correct? 22 A. 23 drugs. 24 Q. 25 purchases, correct? 26 A. I mean, to me it's semantics. Yes. I guess so. 27 Q. You -- all of your training regarding cocaine comes from 28 being a police officer, fair to say? MS. SOLOMON: So if there is a neighborhood where you Yeah. If they are sold there then that means people buy So the location can be indicative of both a seller and a Yes. Because that is where drug buyers go to buy their Okay. The location can be indicative of either sales or 70 a 1 A. Yes. 2 Q. You don't have any specific training working in social work 3 or social with individuals who use cocaine? 4 MS. MCBRIDE: Objection. Relevance. 352. 5 THE COURT: Relevance, counsel? 6 MS. SOLOMON: Your Honor, they are proffering him as an 7 expert on possession for sale. And I'm merely asking what the 8 basis of his knowledge is and cross-examining him on the 9 limitations thereof. 10 THE COURT: I'll let you maybe one more question on social 11 aspects. We'll see. 12 Q. MS. SOLOMON: Do you remember the question? 13 A. No. Please repeat it for me. 14 Q. A11 of your knowledge about cocaine use comes from your 15 work as a police officer and not any work that you -- well, does 16 the bulk of your knowledge come from work as a police officer? 17 A. Yes. 18 Q. So you don't have any training working with drug addicts in 19 a rehab center, for example? 20 A. 21 don't work in a rehab center. I'm around drug addicts every single day that I work. I 22 MS. SOLOMON: Objection. Nonresponsive. Move to strike. 23 THE COURT: Sustained. 24 MS. SOLOMON: My question was whether you have any 25 knowledge based on any -- have you ever worked in a rehab 26 center? 27 A. No. 28 Q. So the information that you possessed about how much a user 71 1 of cocaine might use based on your experience arresting and 2 detaining and searching users of cocaine? 3 A. And speaking with users and sellers of cocaine. 4 Q. In your work as a police officer? 5 A. Right. 6 Q. So how much in your experience would you say that a user of 7 cocaine uses at any given time? 8 A. It depends. 9 Q. Yeah, it does. It depends. So there is not an amount that 10 is a usual amount for a user to have, fair to say? 11 MS. MCBRIDE: I'm going to object, your Honor. Move to 12 strike the beginning of Ms. Solomon's nonquestion comment that 13 she made. 14 THE COURT: The comment will be stricken. 15 MS. MCBRIDE: And also the question is vague and 352. 16 Q. 17 any given time varies based on the user, correct? 18 A. 19 Their size. Their weight. Things like that. 20 Q. 21 did you actually see Mr. Jackson with any cocaine salt visibly 22 in his hand or elsewhere, correct? You indicated that Officer 23 Faulkner handed you something, right? 24 A. Handed me the cocaine salt. 25 Q. So you did not see Mr. Jackson possessing it in plain view, 26 fair to say? 27 A. Correct. 28 Q. You indicated that it's your opinion -- I'm sorry. You MS. SOLOMON: Okay. So the amount that a user can use at Yeah. Like equates to alcohol. Like their tolerance. Okay. So at no point -- let me just back up. At no point 72 1 testified as an expert on possession for sale of cocaine salt 2 six times about you said? 3 A. Said approximately six times. 4 Q. And in those six times every single time you opined that 5 the individual possessed the item for sale and not for personal 6 use, correct? 7 A. Correct. 8 Q. So you have never opined that someone possessed something 9 for personal use, correct? 10 THE COURT: Well, at a trial. 11 Q. MS. SOLOMON: In court in testimony? 12 A. Right. 13 14 THE COURT: I just don't find that relevant unless facts of those cases. Next question. 15 MS. SOLOMON: All right. 16 Q. 17 for your opinion that the cocaine salt in this matter was 18 possessed for sale are the area, Mr. Jackson's behavior, the 19 amount of packaging and the lack of paraphernalia; is that 20 correct? Was that some of your opinion on direct examination? 21 A. Yes. 22 Q. And with regard to the behavior that was based on the fact 23 that Mr. Jackson walking northbound on Hyde against the flow of 24 traffic for one, correct? 25 A. I said upon seeing uniformed police officers. 26 Q. And so he didn't wish to have any interaction with the 27 police, that was your impression? 28 MS. SOLOMON: So you indicated that the reason -- the basis MS. MCBRIDE: Objection. Calls for speculation. 73 1 THE COURT: No. Overruled. Because that was one of the 2 factors he used in determining whether or not an individual was 3 engaging in illegal activity he said based on previous 4 experience when people walk the opposite way show that they 5 don't want any contact with the police. 6 MS. MCBRIDE: Your Honor, I would also object vague as to 7 time because the defendant later affirmatively turned around and 8 interacted with the police officers. So I guess at the time he 9 is walking in the opposite direction on Hyde it's the officer's 10 impression the defendant didn't wish to be contacted. 11 THE COURT: I think we all know that he's talking about 12 leaving a patrol car. Sustained. Just make sure we're clear. 13 Q. 14 through. We already talked about the area. 15 MS. SOLOMON: Officer, so the factors that we have gone With regard to Mr. Jackson's behavior, which you opined was 16 one was the basis for your opinion that the cocaine was 17 possessed for sale, that was based on the fact that he walked 18 northbound on Hyde against the flow of traffic upon you coming 19 to the area and you -- potentially him seeing you; is that 20 correct? 21 A. 22 other parts as well. 23 Q. 24 your opinion about possession for sale versus personal use that 25 Mr. Jackson did not wish to have any contact 26 walk away from you, a police officer? 27 A. Yes. 28 Q. And then when you came up behind Mr. Jackson for purposes That was one of the parts of his behavior. There were So it's the fact that you thought it was significant in was trying to 74 1 of detaining him, he turned around and handed you his ID and was 2 cooperative, correct? 3 MS. MCBRIDE: Objection. Compound. 4 THE COURT: Sustained. 5 Q. 6 not wish to have police contact you nevertheless came up behind 7 him, right? 8 A. I was walking behind Mr. Jackson. Yes. 9 Q. And then after you did that with the intent to detain at MS. SOLOMON: So although Mr. Jackson initially appeared to 10 that point he turned around and was cooperative, right? 11 A. Yes. As I stated before he was cooperative. 12 Q. So that doesn't impact your opinion at all, right? 13 A. What? Him being cooperative? 14 Q. Yes. 15 A. No 16 Q. Okay. Are you qualified to do an 11550 evaluation? 17 MS. MCBRIDE: Objection. Relevance. 352. 18 THE COURT: Sustained. 19 Q. 20 Jackson? MS. SOLOMON: Did you do an 11550 evaluation on Mr. 21 MS. MCBRIDE: Same objection. 22 THE COURT: Sustained. 23 Q. 24 to sale these drugs that he possessed, the cocaine? MS. SOLOMON: So in your opinion when was Mr. Jackson going 25 MS. MCBRIDE: Objection. 26 THE COURT: Sustained. Speculation. 27 Q. 28 intended to sale these drugs? MS. SOLOMON: Where do you believe that Mr. Jackson 75 1 MS. MCBRIDE: Same objection. 2 THE COURT: Sustained. Relevance. 3 Q. 4 was possessed for sale or just some of it? 5 A. 6 all packaged similarly. 7 Q. 8 cocaine? 9 A. MS. SOLOMON: Is it your opinion that all of the cocaine I believe all of it was possessed for sale. Since it was So your opinion is that he didn't intend to use any It's tough to say. He may have wanted to. I don't know. 10 In my opinion the cocaine salt as it stands was possessed for 11 sale. 12 MS. SOLOMON: No further questions. 13 THE COURT: Any redirect. 14 MS. MCBRIDE: No. 15 THE COURT: May this witness be excused? 16 MS. MCBRIDE: Yes, your Honor. 17 THE COURT: You are excused. Thank you very much. Let's 18 start with argument on the motion to suppress. Defense, your 19 motion. 20 MS. SOLOMON: It is my motion, your Honor. But I wrote it 21 in a lot of the time before the initial hearing, and I never 22 received an opposition which is a violation of the rules of 23 court. 24 So I don't even know what theory the prosecution is proceeding 25 on. I started to write -- and I notice this is unusual but 26 based on the issues in this case, I actually did start to write 27 a supplemental briefing that I intended to file had I been 28 notified of what the actual alleged justification for the search 76 1 2 3 4 is in this case. So I actually would ask that the prosecution be ordered to respond first. THE COURT: And I'll say this then. In terms of the motion 5 to suppress the issue is, I think defense counsel has a pretext 6 stop, is that right? Is that your argument? 7 MS. SOLOMON: So your Honor, let me say a couple of things. 8 I actually still want them to respond first. I'm not saying 9 solely -- it is a pretext stop but as we know the Supreme Court 10 has said in Whren that a pretext stop is not nonetheless 11 unreasonable as long as there is an actual violation of the law. 12 13 14 THE COURT: Correct. So California Court of Appeal, 17 Cal., App., 4, 917, People versus Miranda. So let's go beyond the pretext stop part. 15 MS. SOLOMON: Right. So I'm awaiting the justification 16 thereafter. I mean, I'm happy to go forward but I just -- I 17 don't even know what they are arguing right now. 18 THE COURT: Okay. It's the defense motion. The People 19 must -- okay. The defense show there is no warrant. The People 20 must show justification for the stop beyond the fact there is 21 any issue regarding the pretext stop. 22 So the next question is whether or not he gave consent to 23 search. Looking at the video twice he said you can search me. 24 The first time the officer said, I believe Officer Faulkner, 25 very low, but you can distinctively hear, say, okay that I 26 search you? That is 2 minutes and 30 seconds in the video. And 27 at that time he turns around and he puts his hands on his head. 28 He was actually told to put his hands on his head. His hands 77 1 are already kind of up in the air, because he's been reaching 2 into his pockets a couple of times. 3 So the officer says stop reaching into your pockets. So then 4 he puts his hands up. So now he turns around, puts his hands on 5 his head and the search begins. 6 And then four minutes in when they are still questioning him 7 after he says, I ain't got shit, he says search the jacket, bro. 8 I ain't got shit. 9 10 MS. SOLOMON: Okay. THE COURT: Please don't cut me off. So four minutes in. 11 Then another search of the jacket. Then clearly on the body 12 camera six minutes in, the officer -- and you got to realize 13 each area doesn't appear to be searched every time. So clearly 14 he has a heavy jacket on. And they search the jacket and then 15 he opens up the jacket and then they search inside of the 16 jacket. 17 Six minutes in the officer searchs his waist. And you can see 18 the officer testify that they have a smile after searching his 19 waist. Appears -- and then he tells the guy to sit down. And 20 then after he says that, he says how much you got in your pants? 21 So this is 6 minutes and 24 seconds in. The defendant says, I 22 ain't got nothing. 23 Then the officer tells him the reason. Doesn't say stop you. 24 I can't really hear what the defendant said. You can fill me 25 in. And he goes 6 minutes and 41 seconds in. He was smoking 26 marijuana in public. He walked against the red hand. 27 The defendant does not deny any of those things. Then the 28 officer says at 7 minutes and 3 seconds, how much dope you got 78 1 in your pants because I felt it? At 7 minutes and 55 seconds he 2 says, how much is it? 3 4 5 Then he said at eight o'clock -- not eight o'clock -- then eight minutes in there is the question regarding a strip search. So up until then with the strip search, the officer felt what 6 he believes to be cocaine or something, some narcotics in the 7 individual's waistband. 8 The Court does -- I will say, the Court -- so it's clear as if 9 a consent search, and I think the question becomes once he feels 10 the alleged something, dope he calls it. He says how much dope 11 you got in your pants. Then the question becomes at that time 12 why isn't there probable cause to arrest? And how is this then 13 a prolonged detention? How has it been unreasonable because 14 when you look at the pretext if there is an alleged pretext the 15 Court says. Has the officer done more than he is legally 16 permitted regardless of the subjective intent in which it was 17 done? Are the arrest and the search, are they objectively 18 reasonable and constitutionally proper? 19 20 MS. MCBRIDE: Let me just put on the record what I think sort of shortens the Court's view of the facts a little bit. 21 I think that there is probable cause to arrest and search 22 incident to arrest when the officer finds the Promethazine. 23 He's finding what is a violation of Health and Safety Code 24 Section 11350(a). The Promethazine bottle is labeled that way. 25 The officer has seen it a dozen times at least on the street. 26 He recognizes it that way. The defendant's name is not on the 27 bottle. So just because he didn't choose to arrest him at that 28 point, I don't think is legally significant for the Court's 79 1 analysis here. He could have arrested him at that point. He 2 searched him incident to arrest and we're done. 3 THE COURT: Defense? 4 MS. SOLOMON: Here is where I want to go. I want to start 5 and go in order because it's easier for me. I will respond to 6 that. 7 So as regards to detention in that I indicated Whren, 8 W-h-r-e-n. Obviously allows a potential stop as long as there 9 is some basis for it. Here the basis is allegedly jaywalking 10 and smoking marijuana. But the problem with that is that the 11 bounds of the detention completely exceeded that. And that is 12 where I cited to the court, Rodriguez versus United States. In 13 that case the officer detained somebody who is driving and then 14 after they do all of the usual stuff, run for warrants and issue 15 a citation then he says can I search your. car? He says no. And 16 he orders the dog sniff and it's only six minutes. And that is 17 found to be an unlawful search because the basis for the ticket 18 -- he issued him a ticket. And what the Court says is that the 19 officer doesn't get to keep prolonging the seizure for the 20 traffic violation beyond the time reasonably required to 21 complete the mission of issuing a ticket for the violation. 22 Here the officer at no point does any of those things. He 23 doesn't ever take out his citation book. He has no intention of 24 citing Mr. Jackson for jaywalking or smoking marijuana. 25 Mr. Jackson who is credited compliant and cooperative. And 26 what I want to say about the subsequent conduct and the Court 27 gave issue of consent, consent, first of all, is a legal 28 question and the consent has to be valid. There has to be -- 80 1 it's an objective question of what a reasonable person would 2 understand. And in addition, so the consent cannot be a product: 3 of duress or coercion expressed or implied. 4 And in addition and most relevant consent is limited. There 5 is a scope issue. And what you see in the video, is you see Mr. 6 Jackson point to the pocket where the marijuana is. He says, 7 you can search that pocket. He doesn't say you can search every 8 part of my body. He doesn't agree to a strip search. He 9 doesn't agree to any of those things. He says, I have a small 10 11 amount of marijuana in this pocket. And what video shows is that they searched him no less than 12 four times. The first time they don't find anything. The 13 second time they don't find anything. The third time they find 14 the marijuana only. The officer continues to search him and at 15 this point the consent is over because Mr. Jackson is now 16 protesting repeatedly about why are you doing this to me. What 17 did I do? And again, I already told you what you did. You 18 jaywalked and you're smoking marijuana in public. 19 So at this point I don't think you can say that there is 20 consent to do any of these things. There is Mr. Jackson agreed 21 to, if anything. I don't even know that it is a voluntarily 22 consent based on the way this went down. 23 But the officer -- he agreed that he could look for the 24 marijuana in that pocket. That is it. He didn't say, search my 25 whole body. I don't think Terry pat down is even an issue here. 26 But I also want to point out Minnesota v. Dickerson, 508, U.S. 27 at page 378. That case says that an officer might -- once he 28 pats him down -- what he actually says is that he didn't -- he 81 1 felt something that he did not believe was part of his body. 2 That he knew immediately wasn't a weapon. 3 He also said -- and this was on direct not on cross -- that he 4 didn't manipulate the object at all. He just felt something 5 that he knew was not that was not a part of Mr. Jackson's 6 anatomy. 7 8 9 So based on Minnesota v. Dickerson, that is it. You don't get to pull it out. You don't get to do anything more than that. This is why this case is so complicated. And with that I was 10 sad I didn't get a -- or disappointed not to have an actual 11 objection to the motion to suppress or opposition to answer. 12 I also want to say that Mr. Jackson's admission to possessing 13 a small amount of marijuana is not justifiable search of his 14 person. And there I would cite the Court -- I. know the Court is 15 very familiar with this issue. In re, DW the 2017 case, 13, 16 Cal., App., 5th, 1249. You don't get to search someone who has 17 a legal amount of marijuana. So on the off chance that they 18 might have more than is legal. 19 So for all of those reasons I think that there is a problem 20 here that goes far beyond. He says the Promethazine is found 21 after -- during third or fourth search after the marijuana has 22 already been located and Mr. Jackson has withdrawn his consent 23 clearly. 24 THE COURT: So it's found 5 minutes and 44 seconds in. At 25 that time they already found the dope in his jacket. I mean, 26 the marijuana in his jacket. 27 28 MS. MCBRIDE: At that time -- sorry. What is the Court's question? 82 1 THE COURT: So why didn't the officer keep searching? 2 They haven't found the bottle yet. You said the bottle was 3 4 incident to arrest and found the other. MS. MCBRIDE: So I think we just need to take a step back 5 because Ms. Solomon is saying things about a third and fourth 6 search and where the marijuana was found and that is just so 7 clearly not true based on the body worn camera footage. 8 9 THE COURT: In a way it's kind of -- I mean, it's not one continuous search. 10 MS. MCBRIDE: But even so 11 THE COURT: Ms. McBride, please don't cut me off. And then 12 13 you can address my issue. So it appears the he was searched. Then they stop. They talk 14 him some more. Search again. Stop. Talk to him some more. 15 Search again. Stop talk to him some more. 16 It's clear that they are looking for something. It's clear 17 and it's pretty clear to this Court he's suspected of being a 18 drug dealer, and they are looking for more drugs. 19 I understand they can do a pretext stop, but this is clearly a 20 drug stop looking for drugs on the individual. The individual 21 does have a lot of clothing on and they want to keep searching 22 and according to the factor here. 23 He does actually point to where the marijuana is. And then 24 they find the marijuana. Then they search some more. Open up 25 his jacket. Then they find the bottle. Then one thing the 26 officer didn't state is why -- and I know I am mixing issues now 27 -- but didn't state why he felt like it was dope in the 28 waistband. Clearly says it on the body camera worn footage but 83 1 2 he doesn't say it here why he thought it was dope. So I think the first question is, why they are allowed to 3 continue to search after they found the marijuana? 4 (Whereupon a brief recess was taken.) 5 THE COURT: Back on the record. The People versus 6 Mr. Perry Jackson. So Ms. McBride, did you want to respond? MS. MCBRIDE: Yes, your Honor. So before the break I was 7 8 going to say that -- well, I'll assume for the sake of argument 9 that there are multiple let's say mini searches that occur. I 10 11 12 13 can break those down as to timing. The Promethazine is found during the second search and I think that is beyond dispute based on the BWC. The way that I see it, is going back and making sure we have 14 everything perfectly in order. And I notice I have the time 15 down a little bit differently than the Court does. I'm not sure 16 why my machine plays it differently. 17 But starting from the beginning I think the first moment, 18 potentially the first two minutes of the interaction, we are 19 talking about a consensual contact where the defendant turns 20 around, gives the officers his ID. Offers it up freely. There 21 is some conversation with Officer Gilson about you are smoking 22 marijuana. Not in public it's not. And one minute in the 23 defendant says check my pockets I probably got like a stack. 24 And so shortly after that, maybe a minute and 30 seconds after 25 that I think there is some conversation from Officer Gilson 26 about well, why I explained to you the reason that we stopped 27 you. So I think that at about 2 minutes and 50 seconds I am 28 going to start assuming for the sake of my argument that this 84 1 has sort of turned into a gray area between consensual contact 2 and an actual detention because there is some talk of the 3 officer stopping him. 4 But during the point where the defendant first starts 5 interacting with Officer Gilson and gives that first verbal 6 consent to search, the contact is consensual in every respect. 7 8 9 10 11 12 13 14 THE COURT: What time do you have on your computer that begins? MS. MCBRIDE: So I have 35 seconds in -- 30 seconds he turns around. THE COURT: No. No. What point do you have, okay. Can I search you? MS. MCBRIDE: That is for the defendant says it one minute in, check my pockets. I probably got, like, a stack. 15 THE COURT: Okay. 16 MS. MCBRIDE: So that is the first verbal affirmation that 17 the officer can search him but they don't at that point. There 18 is still some back and forth in conversation. At three minutes 19 and nine seconds by my account, the defendant says, quote, you 20 can go in my pocket right here. Puts his arms up in the air. 21 And starts to turn before Officer Faulkner even says, is it okay 22 if I search you? And the defendant turns around in an obvious 23 show of continued compliance to what he had been previously 24 stating about, it's okay. You can go in my pocket or check my 25 pocket. So that is search number one. Where the defendant has 26 said two things affirming the officers can search him. That at 27 316 Officer Faulkner actually says, is it okay if I search you 28 and then that begins. 85 1 And then there is nothing found on the defendant at that 2 point. And that is the search that sort of is limited to the 3 discussion about the pocket. It's after that search happened at 4 4:34, the defendant said very compliantly, quote, I'll do 5 whatever you want me to do. Then Officer Gilson says, okay. 6 Just unzip your jacket for me and the defendant does that. 7 THE COURT: We'll get there. So what do you make of at 8 4 minutes and 24 seconds and the officer says, we don't want 9 people to lie to us? Do you think that is relevant at all? MS. MCBRIDE: Not particularly in light of the statement 10 11 the defendant continues to make after that fact. And most 12 specifically at 4:48 search with the jacket. THE COURT: Would you agree though at this time at 4 13 14 minutes and 35 seconds I have them saying unzip your jacket? 15 MS. MCBRIDE: Uh-hum. 16 THE COURT: Would you agree at this time when the say, we 17 don't want you to lie to us and unzip your jacket that they are 18 continuing to search for drugs because that is what they looking 19 for? 20 MS. MCBRIDE: I would say the officers are engaging in a 21 consensual, continued search for other likely narcotic 22 contraband. 23 24 25 THE COURT: So you are saying at this time it's not a detention? MS. MCBRIDE: I think this is a separate issue between 26 whether it's a detention and whether there is a consent to 27 search as part of that detention. 28 THE COURT: Okay. 86 1 MS. MCBRIDE: I think likely at that point we are getting 2 more into the world of detention but even assuming there is a 3 detention of the defendant at that point, he can still give 4 verbal consent to search and the officers can act on that. 5 6 So Officer Gilson has him unzip his jacket after he says, I'll do whatever you want me to do. 7 THE COURT: So I think there is that part. 8 MS. MCBRIDE: That is at 4:34 on my count. 9 THE COURT: Thank you. 10 MS. MCBRIDE: And then at 4:48, the defendant after that 11 conversation about his chain the defendant is wearing, the 12 defendant opens both sides of the jacket and says, search 13 through the jacket, bro. And he doesn't say search through the 14 jacket for marijuana. He doesn't say, stop searching once you 15 found it. Just go in there and get the stack. He doesn't say 16 check my pockets. He says search through the jacket, bro. And 17 based on that consent to search his entire jacket, Officer 18 Gilson then finds not only the stack of marijuana but he finds 19 the Promethazine. 20 THE COURT: So let me ask you, and I think especially 21 especially for you, Ms. Solomon, talking about scope of the 22 search, it does appear that he says numerous times, search the 23 jacket. And so they find the bottle in the jacket. Then 24 anything from that could be incident to arrest. 25 My question though from you, Ms. McBride, is that before they 26 find -- and I get your point when he is saying you can search 27 the jacket -- but before they find the jacket they find the 28 marijuana and they go there it is. Am I correct that they find 87 1 the marijuana at that time, when they say there it is? And that 2 is 5 minutes and 24 seconds in. 3 MS. MCBRIDE: They find the marijuana first. 4 THE COURT: Before the bottle. 5 MS. MCBRIDE: But the consent is to the whole jacket. And 6 Officer Gilson doesn't know if the defendant is being truthful 7 about the amount of marijuana or where it is. 8 So I think that the consent extends far beyond look in the 9 pocket for the marijuana, which may have been what it was at 10 first but it changes. 11 THE COURT: Well, -- 12 MS. MCBRIDE: The defendant says, check my pockets, plural, 13 at one point, that is the first consent. He says, you can go in 14 my pocket right here, is the second. And then I'll do whatever 15 you want me to do. Search through the jacket, bro. And the 16 conversation is not just about marijuana at that point. There 17 is no marijuana necessarily being referenced. Certainly not 18 being referenced by the defendant at that point. So I think 19 that the officer reasonably relied on the defendant's statement 20 that he can check everywhere in that jacket. 21 THE COURT: Ms. Solomon, I think that is the issue. That 22 is a strong point from the People that he appears to give. If 23 you want -- your argument is that there is a limited scope. It 24 appears that that limited scope if it does exist, is to the 25 jacket. And then the question is was this, did it take too long 26 or are they outside of the scope? Do you think that once they 27 find the marijuana they cannot search the jacket any more? 28 MS. SOLOMON: So I do think that. And I'm looking again, I 88 think that there is a pretty major break in time when all this happens. Where at 6:10 that is when the officer pulls out -the cell phone is coming out first. He is still searching. And he is still searching long after the marijuana is found, and I think there is a break. There is this break where he actually puts the ID back in my client's pocket. And then he continues to search. And at this point Mr. Jackson is getting increasingly frustrated. Like, I already told you. I already told you. So yeah, I think that there is an issue with the continued search at that point because it's becoming -- he's obviously feeling harassed and he continues to say that. He gets frustrated. He says you already searched me. And I think this issue about whether or not there is a detention I find it shocking. It's obviously a detention when the officer says right at the beginning I stopped you for jaywalking and marijuana and calling it in. I mean, he's obviously detained at that point. THE COURT: I mean, once again in terms of the detention sometimes the officers it's not really about the subjective intent, the subjective factors. And here he clearly turns around, hands him the ID. That could be construed as trying to avoid any possible detention or search or something of that nature or distraction or to change the officer's focus whatever it may be. But's it's clear that he turns around. Makes the effort. Having asked for the ID. Gives him the ID. It's not a detention. It's a consensual contact. Yes, it becomes a detention. And the question, I don't think it's really relevant 89 1 to this Court to when it becomes a detention. I think what is 2 relevant is at the time if there was a detention before they 3 searched the jacket, did he give them consent? That appears to 4 this Court when you think about the scope of intent, the Court 5 wants to look at it as a reasonable officer test, which means 6 that the officer may search every place and thing they 7 reasonably believe the suspect authorized them to search. That 8 is People versus Crenshaw, 1992, 9 Cal., 4th, 1403. United 9 States Supreme Court explains, standard measuring the scope of a 10 suspect's consent under the fourth amendment is that objective 11 reasonableness. What was a typical reasonable person that 12 understood by the exchange between the officer and the suspect? 13 That is going to be cited Florida versus Jimeno, J-i-m-e-n-o, 14 1991, 5, U.S. 248, 251. 15 The suspect may expressly limit the search by telling the 16 officers what he will permit them to search or by telling him 17 what places or things are off limit. 18 19 2. 0 Here he never said what is off limit. That is going to be 58, Cal., App., 41507, People versus $48,715, cite 1977 case. I know you -- then the suspect also implies a limited search 21 because he tells them where the evidence they are seeking is 22 located. In which case he would have authorized a search of 23 that location only. And for example, the officer told the 24 suspect they were looking for drugs and the suspect told them 25 that the drugs were in a container located in a certain room. 26 It may be reasonable inference to infer that he authorized he 27 can go into that room and search the container but not anymore 28 Here he does say, look for the marijuana in the jacket pocket 90 1 and he points to it. However, if he gave no other consent after 2 that then there might be an issue. But after that he still says 3 search my jacket. You can search my jacket, bro. That means 4 the whole jacket. That means for sure the pockets in jacket. 5 That means for sure where they find the bottle. Once they find 6 the bottle and it doesn't have his name on the prescription 7 there is probable cause to make an arrest there. Everything 8 after that would be incident to arrest. 9 MS. SOLOMON: So actually, your Honor -- so a couple of 10 things. The first thing I want to say is that I think that the 11 break after the marijuana is found. See that is it. That is 12 the point at which the consent ends. Because Mr. Jackson is 13 getting increasingly frustrated at that point. And it's clear 14 the officer was saying he was looking for marijuana. 15 So -- and there is a big break. It's not immediately 16 thereafter they continued searching the jacket. There is a big 17 break from when the marijuana is found to the continued search 18 of the jacket. So I think that is one thing that I think is of 19 concern. The second thing is -- 20 THE COURT: I'm going to let you go to the next thing but 21 the question is that break too long or coercive in any manner? 22 And it might be a big break in terms of a minute or two but a 23 minute or two is not like 15 minutes or 20 minutes which the 24 Court has found that is too long in terms of doing a quick 25 search for possible contraband. Next point. 26 MS. SOLOMON: So -- there is also a big -- there is no such 27 thing as a search incident to a citation. While there is a 28 search incident to arrest, you have to actually have an arrest 91 1 to have the search. So we have another problem which is even if 2 they have this bottle that is not actually probable cause of a 3 crime. For one, he specifically tells him it's his girlfriend 4 and I don't think it's a crime to bring -- if I pick up my 5 partner's prescription am I in violation of a law just based on 6 that? 7 THE COURT: When you look at the factors though, the 8 factors that the officer had in front of him, that it's a high 9 narcotics area. That the individual is smoking marijuana. The 10 individual has -- I understand independently these factors may 11 be innocent. The individual had marijuana in his pocket. The 12 individual had -- the individual gave him consent and then if 13 you look, when they find the bottle, do you see how your 14 client's expression changes? His whole demeanor changes. It 15 changes from someone that is being cooperative to someone who 16 has now become worried. That is a pretty objective factor once 17 they find the bottle. At that time whether he says it's is 18 girlfriend's or not, the officers have probable cause to believe 19 that he could be carrying contraband on some type of narcotics 20 substance on him. It's labeled that way. It doesn't have his 21 name on there. All of these objective factors there is probable 22 cause to arrest at that time. Okay. Next point. 23 MS. SOLOMON: So even assuming that we get that far, I 24 think that there is a problem with whether or not there is 25 probable cause to arrest, that doesn't allow the officer to 26 continue to pat search down Mr. Jackson's pants. And in 27 addition, your Honor, I think this is the bigger problem for the 28 Court, is that you are not allowed to badger -- if he was under 92 1 2 arrest you can't badger a suspect without Mirandizing him. When an officer detains someone on suspicion of a robbery 3 because they match the description, they don't say, did you just 4 rob that guy up to the block? They wait for a cold show. 5 Because they know those questions are designed to elicit an 6 incriminating response. 7 THE COURT: That is different. There might be a Miranda 8 issue in terms of bringing in a statement where he says, he has 9 one quarter ounce of cocaine. Especially if he is in custody at 10 that time. It might not be an arrest but the show of officers 11 around him, whether or not he is free to leave. I don't have to 12 make that decision. But the statement regarding the cocaine and 13 the weight of the alleged cocaine salt is not really relevant to 14 this Court in determination as to whether or not he gave them 15 consent to search. 16 MS. SOLOMON: Okay. Let me back up for a second though 17 your Honor. Because I think that the key difference that I want 18 to point out is this case Knowles versus. Iowa, K-n-o-w-i-e-s, 19 Iowa. Trying to find the citation. U.S. Supreme Court case. 20 And what it says is that there is no such thing as a search 21 incident to citation. 22 And the Court cannot assume that someone was going to be 23 arrested especially in light of the way this officer treated Mr. 24 Jackson. I mean the officer said if only he had a small amount 25 that he'd give him an admonishment. So to suggest that somehow 26 he was going to arrest him merely because he had -- he could 27 have. Here it is 525, U.S., 113. And basically what it says 28 is, that there is no such thing as a search incident to 93 1 citation. 2 So if the officer -- he didn't arrest him at that point. He 3 did not place him under arrest for the suspected Promethazine, 4 whether or not he could have. And that is right there another 5 break point at which everything thereafter becomes illegal 6 because he is not under arrest and the officers already told him 7 he's not going to be arrested thereafter after he says, he 8 claims to feel something that is not anatomical. There is no 9 weapons alleged. There is no indication that this person might 10 have been armed and dangerous. We talk a lot about how 11 cooperative he was. So to suggest that based on them finding 12 the Promethazine they are then entitled to continue to search 13 him and then question him repeatedly and threaten him with 14 taking him to the station for a strip search. 15 THE COURT: But that will all go to the Miranda issue. 16 MS. SOLOMON: Well, -- I'm sorry to interrupt. The last 17 thing I'll say about that. I think that is also another 18 stopping point. So the Court could find potentially, 19 hypothetically that the Promethazine, suspected Promethazine 20 which by the way there is no evidence is, in fact, Promethazine 21 based on the issue for the prelim not for the motion to 22 suppress. But even up to that point we are okay, we then have a 23 fourth search and that is a violation of fifth amendment right 24 that leads to what happens thereafter. 25 So the Court could find that everything after the Promethazine 26 being found is a violation because at that point there is 27 clearly no consent. He is not under arrest. And the search is 28 continuing and then the harassment of the repeated badgering. 94 1 THE COURT: Okay. In terms of the alleged repeated 2 badgering, the officer, before making the alleged comment 3 regarding the strip search and at that time the officer has 4 already done the search of the waistband. The officer has 5 already believes he feels something that is narcotics. The 6 officer like I stated earlier, there is a smile on the officer's 7 face that I found a narcotic. Well, maybe I'm speculating. 8 9 Clearly after he strips strip searches his waistband. He has the suspect sit down. He goes how much cocaine do you have? He 10 actually calls it marijuana or rock cocaine. And the suspect 11 wants to make sure the officer knows it's not rock cocaine. And 12 the suspect calls it cocaine salt. This is before any comment 13 regarding the strip search if I am not mistaken. Is it after? 14 MS. SOLOMON: No. It's far after. I wrote it down. He 15 says why are you violating me. I am not doing nothing. That is 16 after the sitting down. Sits down. They smoke cigarette. And 17 how much dope do you have? I felt it. He says, how did you 18 feel it? Then something about grabbing my balls. And then I 19 don't got nothing. Then there is the strip search threat twice. 20 THE COURT: But he does say, it's the officer's objective 21 belief that he felt narcotics. At this time we don't have why 22 the officer felt that there were narcotics because the officer 23 said he didn't manipulate it but at the time the officer 24 believes that there is narcotics in the waistband. Up until 25 this point the question is, is there probable cause to arrest? 26 Should the motion to suppress to be granted? It is denied 27 because up until to this point because of the Promethazine which 28 is labeled -- the evidence code section deals with an item that 95 1 is labeled for it to be what it is labeled as. 2 At that time like I stated your client's demeanor changes. 3 There is this belief as if he has just been caught and does not 4 have his name on the bottle. 5 The badgering as you refer to call it definitely is not taking 6 place up to this point. It says your client is being very 7 cooperative. Wants them to search the jacket. It appears to 8 have the contents of the search located to the jacket and 9 specific about using the word "jacket." They search the jacket. 10 They find the bottle. This is not citation. I understand in 11 your argument that incident to citation would not be legal. 12 However, the People made an argument -- argument, carries great 13 weight that there is probable cause objectively, whether or not 14 the question is objectively. Did the officer objective signs to 15 make an arrest at the point when he finds the bottle? The 16 answer to that is yes according to the facts that have been 17 alleged here. He has a good faith belief that this would be a 18 crime based on the objective facts that are here. So based on 19 that the motion to suppress is going to be denied. 20 Now in terms of the holding, do you want to make argument 21 whether or not possession for sale and then argument regarding 22 Promethazine. 23 MS. SOLOMON: Sure. I think it's clear there is no 24 evidence for Count 2. I don't know if the prosecution wants to 25 concede. Count 2 at this point. But there is no evidence that 26 this is, in fact, a controlled substance or that it's 27 Promethazine. The officer testified 1.15 that it's not a 28 controlled substance and they didn't test it. So I don't think 96 1 there is any evidence that it is, in fact, Promethazine. So I'm 2 asking the Court to discharge Count 2. 3 With respect to Count 1, I think that the officer is not an 4 expert in any sense of the word. And in fact, much of what he 5 said applies to both to possession and possession for sale. 6 And, in fact, the area as he willfully conceded is both an area 7 that one can purchase and sale narcotics. Thus the area is 8 completely irrelevant because you could arrest someone with 9 narcotics in a, quote, high narcotics sale area who had just 10 11 purchased them. So it doesn't make it more likely to be sales. With regards to the other factor, the fact that the 12 paraphernalia as the officer conceded was paraphernalia for 13 snorting cocaine comes in the form of dollar bills. Which the 14 Court can see was pulled out of his pocket. He had money in the 15 body worn camera. He didn't have paraphernalia. 16 He also after much harassment during the badgering questioning 17 says that he has it for personal use. He does say that, that is 18 clear. He tells him it's for personal use. 19 This isn't a huge amount. It's not even close to a huge 20 amount and the officer couldn't even give an example of what a 21 regular amount is because he says it varies from person to 22 person. 23 So there is zero indication that this is possessed for sale 24 whatsoever. And his opinion should be given no weight. Should 25 the Court even determine to qualify him as an expert. 26 So I'm asking that the Court hold only as to an 11350 based on 27 the prior ruling as to Count 1 only and discharge Count 2 based 28 on no evidence. 97 1 THE COURT: People? 2 MS. SOLOMON: I'm sorry. One other thing. During my 3 motion to suppress argument, I provided the Court with those 4 transcripts -- 5 THE COURT: Yes. 6 MS. SOLOMON: -- I think that those are relevant as to a 7 pattern and practice that I think the Court should take into 8 account. I did not argue that but the Court did take judicial 9 notice and I ask that the Court take those into account with 10 regards to the motion to suppress. I don't know if the Court 11 did do that. 12 THE COURT: Yes. The Court did that. The information is 13 on the body worn camera footage. So the body worn camera 14 footage speaks for itself. However, the Court would note and 15 the Court understands that making a report and testifying is 16 sometimes last second. It is summarizing. But before looking 17 at the body worn camera footage the impression from the witness 18 was that an individual turned around and put his hands up right 19 away. Was told that they wanted to -- was told why they were 20 being stopped. That person said you can search me and then 21 found cocaine and the person said it was cocaine salt. That is 22 kind of how the testimony came out. There is a lot missing in 23 between the testimony. Just like there is a lot missing in the 24 report. 25 There is suspected missing is the searches that occur. 26 Search, search, search. He's denying, denying, denying having 27 anything on him several times and then finally admitted to 28 having cocaine. It didn't come out that way. It came out I 98 1 found cocaine. I felt something. He told me it was cocaine. 2 Yes, that is true. But the body worn camera fills in the 3 details, and I understand we are at preliminary hearing and just 4 a probable cause standard. I understand he is summarizing the 5 report. But the testimony just left out a lot that is in the 6 body worn camera footage. That is I believe very important in 7 this Court making a determination regarding the consent to 8 search. Was there a limited consent? All of those things are 9 missing. 10 The Court does take judicial notice of the two transcripts. 11 However, the body worn camera footage does show a consensual 12 stop. The Court will -- it's pretty clear that it's a 13 consensual stop but it becomes a detainment or investigation of 14 drugs. And especially when the individual says we don't want 15 you to lie to us. 16 So a high narcotics area. Everyone understands that the 17 police officer is investigating drug sales but let's call it 18 what it is. 19 20 21 22 23 24 25 In terms of the officer's qualification of being an expert, Ms. McBride, anything you want to put on the record? MS. MCBRIDE: I just want to -- I know we have been here a long time. I just want to make a couple of quick comments. THE COURT: You can address anything I said if you want to explain. Please go ahead. MS. MCBRIDE: I completely understand the Court's feeling 26 and want to put certain things on the record about you know the 27 statement versus the way that the Court heard the testimony 28 today. You know, I would just say defense -- this is not his 99 1 arrest report. He's writing a statement. And so necessarily 2 those are much less -- in my experience much less inclusive than 3 a narrative of the initial incident report. 4 So I'm sure that at times he is being succinct and the Court's 5 points are well taken that he at times was more succinct about 6 facts than would have been helpful to this Court in 7 understanding how the intricacy of this situation went down. 8 But Officer Gilson isn't a lawyer. He is not thinking like a 9 lawyer and I don't think that anything I read in his statement 10 11 is inaccurate. THE COURT: That is clear. That is clear. It just jumps 12 from one part to another part to another part, and I understand 13 now from the body worn camera footage they know that everything 14 on the body worn camera footage, they don't have to put 15 everything in their report. 16 MS. MCBRIDE: That is also true. 17 THE COURT: However, before testifying I don't know if the 18 officer had an opportunity look at the body worn camera footage 19 but it probably would have been prudent because I know one thing 20 that goes to his factor for expert is that he is making numerous 21 narcotics arrests. So he can't keep all of the details of each 22 arrest. 23 So maybe if you are going to write a report that is very 24 extremely succinct, then he probably should have looked at the 25 body worn camera footage because you are going to be 26 cross-examined on it but the Court will also need to know all of 27 the factors that are important in the decision making process. 28 MS. MCBRIDE: Thank you, your Honor, for your comments. 100 1 They are well taken. And in terms of his expertise, Officer 2 Gilson's expertise to be -- to testify as an expert in the 3 possession of cocaine salt for sale, the Court I'm sure 4 remembers and knows well that any witness who has a level of 5 understanding about a certain issue that goes beyond that of a 6 lay person's, it's helpful to the Court in assessing a given 7 scenario when you qualify as an expert. 8 9 Officer Gilson has participated in, he defines them as the three different types of arrests involving cocaine salt and that 10 is possession for personal use, possession for sale and actual 11 active sale of cocaine salt. He knows what the factors are 12 differentiating one from another. He said that his estimate 13 that he's participated in hundred or above a hundred arrests was 14 on the low-end. 15 So I think that that level of interaction, the time he spent 16 in the Tenderloin, what he observed every day, he said he 17 observed drug sales and also addicts on a daily basis, I think 18 that he far exceeds the threshold for what is required to 19 testify as an expert and I think his opinion that the cocaine 20 salt here, I believe he testified far exceeds what you would 21 expect a user to have on them in terms of the 15 grams gross is 22 indicative of sales along with the other factors that he 23 testified about including the area, the defendant's behavior, 24 suspected walking into traffic on Hyde Street so that the 25 officers can't turn and follow as he has seen many other dealers 26 of drugs do. 27 28 The packaging. The admission to smaller amounts of narcotics are less serious and the lack of -- I understand he has dollar 101 1 bills, but they are not rolled up, the lack of narcotics is 2 paraphernalia, I think that that all satisfies the People's 3 burden for purposes of preliminary hearing as to Count 1. 4 Count 2 requires really a scintilla of evidence to be certified. 5 This is a misdemeanor count of 11350 for possession of 6 Promethazine. I certainly would not argue that there is the 7 trial level of evidence before the Court on the nature of that 8 substance. However, the officer recognized the bottle of he 9 believed Promethazine. The defendant did not protest that it 10 was anything but. He simply said that it was a prescription for 11 his girlfriend. So that is sort of a tacit admitting to the 12 nature of the substance in the People's view. 13 That officer has seen this kind of distinctive bottle about 12 14 times or at least 12 times he testified. And then there is the 15 evidence code that the Court cited that an item that is labeled 16 with a certain prescription label as here is presumed to be what 17 the label states that it is. 18 I think that the Court should have or I'd ask the Court now to 19 take the criminalist's 115 testimony that the substance is 20 probably Promethazine into evidence. I know that -- 21 THE COURT: I just can't. 22 MS. MCBRIDE: Well, I think it goes to weight. 23 THE COURT: I don't know why she said, probably. In other 24 words it could be based on the label, based on the color. I 25 have actually no idea why she said, probably. 26 27 28 MS. MCBRIDE: I think that is precisely why it goes to weight. THE COURT: Okay. I'm giving it zero weight. 102 1 2 MS. MCBRIDE: Okay. I understand. I still think it's enough to certify Count 2. 3 MS. SOLOMON: First of all, the officer has no extra 4 training than any other officer. He did a 40-hour course. So 5 by that rational every single police officer in San Francisco is 6 an expert. 7 THE COURT: No. No. He spent two years in the Tenderloin. 8 He's seeing drug deals every day. He's made over a hundred 9 arrests. So it would be different if he was 40 hours in the 10 academy and then he went and did his time in another part of the 11 city where there is hardly any narcotics activity. 12 MS. SOLOMON: A couple of other points. I think that as 13 far as the officer's demeanor while testifying, I think that 14 really reflects his credibility. The hostility, frankly, he 15 showed reflects poorly on his credibility. 16 THE COURT: I did not make a comment about hostility 17 whatsoever. I just talked about what was just missing from his 18 testimony from what was in the body worn camera footage. 19 MS. SOLOMON: I agree. I wasn't referring to the Court's 20 comments. I'm making my own comments. I agree. The Court 21 didn't say that. 22 THE COURT: I did not see hostility. 23 MS. SOLOMON: Well, I had asked numerous questions multiple 24 times and I couldn't get a straight answer which I think is 25 relevant. 26 THE COURT: I think what was clear is that there was -- the 27 officer had not seen body worn camera footage and did not 28 remember everything that occurred, but I could be speaking for 103 1 the officer but it just came out. 2 3 MS. MCBRIDE: I would say, he had not seen all parts of it. I'm aware he reviewed certain small parts. 4 THE COURT: We don't really know. It was just clear he had 5 to have his memory reminded a lot regarding the whole testimony. 6 So I think he just didn't even remember even when the People 7 were doing direct examination. So he wasn't being hostile of 8 course there. 9 MS. SOLOMON: Okay. So other points. I think the basis 10 for the opinion is, I don't know how to put this any other way 11 then. You can't have your cake and eat it too. Apparently 12 because my client walked away and he didn't wish to have police 13 contact, that is proof of somehow possession for sale as opposed 14 to personal use. But he was so cooperative and compliant. Gave 15 all this great consent that permits him to get searched. So 16 that somehow isn't factor in whether or not it was possessed for 17 sale. 18 This concept that -- so I think there is a problem there. I 19 don't think there is enough to say possession for sale based on 20 -- I don't think the officer demonstrated expertise. And I 21 don't think that his -- in addition to the impeachment the Court 22 has based on those transcripts as well as some of the bias 23 shown. 24 And with regard to the Promethazine, the last thing I want to 25 say is, if the testimony has been it wasn't tested and all we 26 had was Promethazine on the bottle I would still be arguing 27 insufficiency of the evidence based on the fact that the 28 criminalist tested it and said it contained no controlled 104 1 substances. That right there is evidence for which the Court 2 must discharge Count 2. 3 So I am asking that the Court give no weight, little to no 4 wait to this officer's opinion about possession for sale based 5 on the fact there was nothing but the actual substance itself. 6 THE COURT: So are you saying Promethazine is not a 7 8 9 controlled substance? MS. SOLOMON: I am saying that there is no evidence that it actually is Promethazine because the 115 testimony that came in 10 was that it was tested and that there is no controlled 11 substance. So presumably if it had come back positive for 12 Promethazine it would say that but it doesn't. 13 14 15 THE COURT: But now you are giving weight to her argument when she said the lab criminalist says probably Promethazine. MS. SOLOMON: No. What I'm saying is there was 16 confirmatory tests done and the only thing we know about it, 17 literally the only thing we know is that it is negative. We 18 don't actually have any other evidence beyond that it didn't 19 test positive for anything. So that is all. 20 THE COURT: Okay. 21 MS. SOLOMON: So I am not giving weight to that because I 22 agree with Court's interpretation that it shouldn't come in. 23 But I think the fact that there was a test done and there is no 24 evidence that that substance actually is that based on the test. 25 That is significant. 26 27 28 MS. MCBRIDE: There was a test done and the criminalist still said it was probably Promethazine. MS. SOLOMON: Which was struck. 105 1 MS. MCBRIDE: Well, that is -- 2 THE COURT: You cannot have your cake and eat it. to, Ms. 3 Solomon. If you don't want to give any weight to it then 4 basically based on your argument this is what the Court is going 5 to do. 6 The Court tested it. A criminalist tested it. Did not come 7 back to controlled substance but the criminalist believes it's 8 Promethazine. So now we get some weight based on your argument. 9 If you look at the bottle itself though, it says Promethazine 10 6.25 milligrams, 5 milliliters. A criminalist believes that 11 this was Promethazine after conducting other tests on the 12 bottle. 13 Based on the following the Court is going to -- it appearing 14 to the Court production of satisfactory evidence that the 15 following crimes have been committed. A violation of Health and 16 Safety Code Section 11351 as alleged in Count 1. In that there 17 is reasonable and probable cause to believe-the defendant 18 Mr. Perry Lee Jackson has committed this offense. And now order 19 of the Court that the defendant is held for trial before the 20 Superior Court, State of California in and for the City and 21 County of San Francisco. 22 The Court is also going to certify sufficient and competent 23 evidence that the misdemeanor in Count 2, a violation of Health 24 and Safety Code 11350, Subdivision A has been committed by the 25 defendant and therefore the misdemeanor is certified to superior 26 court for trial. 27 28 The defendant is hereby ordered to appear in Department 22 on April 2nd, nine o'clock a.m. for arraignment. Is he on bail? 106 1 MS. SOLOMON: On bail. 2 THE CLERK: Posted bail. 3 THE COURT: Bail remains the same. Thank you. 4 MS. MCBRIDE: May the exhibits be returned to the offering 5 parties? 6 THE COURT: Yes. 7 MS. MCBRIDE: I would also like to put on the record that 8 the defendant's pre-preliminary hearing offer of a 32 9 misdemeanor for court probation is withdrawn. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Matter adjourned.) 107 1 STATE OF CALIFORNIA 2 3 5 4 ss. COUNTY OF SAN FRANCISCO I, IRENE L. TOFFT, CSR, HEREBY CERTIFY: That I was the 6 duly appointed, qualified shorthand reporter of said court in 7 the above-entitled action taken on the above-entitled date; that 8 I reported the same in machine shorthand and there after had the 9 same transcribed through computer-aided transcription as herein 10 appears; and that the foregoing typewritten page contain a true 11 and correct transcript of the proceedings had in said matter at 12 said time and place to the best of my ability. 13 I further certify that I have complied with CCP 237(a)(2) 14 in that all personal juror identifying information has been 15 redacted if applicable. 16 DATED: March 25, 2019, 17 18 19 20 21 22 23 24 25 26 27 28 C.S.R. NO. 129.13