20 May ***CIVIL FORFIETURE** PART TWO OF TWO
***CIVIL FORFIETURE***-HOW GOVERNMENT AGENTS AND OFFICIALS WENT TO DONALD SCOTT’S HOME TO STEAL HIS PROPERTY AND ENDED UP KILLING HIM.
PART TWO OF TWO
On October 1, 1992, at Spencer’s request, Ventura County Municipal Court Judge Herbert Curtis III issued a search warrant for the Trails End Ranch. Pursuant to Ventura County practice, Spencer first presented the warrant and supporting documents to a Ventura County Deputy District Attorney for review. Because no prosecutor assigned to search warrant duty was available, Deputy District Attorney John Vanarelli agreed to review the affidavit.
The search warrant was based upon an affidavit signed by Spencer which incorporated a Statement of Probable Cause. The Statement, typed in capital letters, related Spencer’s training and expertise regarding drug offenses, followed by the following:
“On September 23, 1992, your affiant, Gary R. Spencer (hereafter referred to as “I” or “me”) spoke via telephone to Charles A. Stowell, who is known by me to be a special agent employed by the United States Drug Enforcement Administration, and who had previously provided me with an affidavit detailing his experience and expertise (See Attachment #1).
Agent Stowell told me that today while conducting cannabis eradication and suppression reconnaissance he was flying over the Santa Monica Mountains in a single engine fixed wing aircraft. While abiding by F.A.A. regulations and using binoculars Stowell noticed that marijuana was being cultivated at the Trails End Ranch 35247 Mulholland Highway in Malibu.
Specifically Agent Stowell saw approximately 50 plants that he recognized to be marijuana plants growing around some large trees that were in a grove near a house on the properly. While Stowell was still in the air I was able to verify from the ground that the location the marijuana plants were growing in was the Trails End Ranch.
I recalled that approx. 1 year ago I received anonymous information that a woman named Frances Plante was seen in the Malibu area driving a silver or gray BMW with Nevada lic plate #211CUJ. Suspicion was aroused when Plante was seen flashing a very large bundle of currency and paying with $100.00 bills for very small purchases. When I checked the license number, I learned that it was registered to Donald Scott, Trails End Ranch, in Malibu. (Please see Attachment #2)
I went to the Ventura Co. Tax Assessors Office and learned that the property at Trails End Ranch has been owned by Donald P. Scott since 1969 with no subdivisions or changes of ownership since then. Although the entrance leading to the properly is in Los Angeles County and has an L.A. County post office address, the entire ranch is in Ventura County.
Based on the above it is the opinion of your affiant that marijuana under cultivation will be found near the house at the Trails End Ranch and an authorized search of the ranch and buildings will yield those plants and evidence of their cultivation and preparation for use or sale.”
Attached to the Statement of Probable Cause were a summary of Stowell’s training and expertise and a computer print-out of Scott’s driver’s license information. The statement did not give a particular altitude of the flight. No reference was made to the visit by the National Park Service on August 13, Spencer’s attempt to view the property on September 10, the Border Patrol entries, or Marsh and the Forrest Ranger’s visit on September 27.
Neither the Statement of Probable Cause nor the attached documents made any reference to information from the second informant. Spencer told Deputy District Attorney Vanarelli that an informant corroborated that marijuana was being cultivated on the property. Even though Stowell had only reported seeing approximately 50 plants, Spencer told Vanarelli that Stowell had seen between 50 and 100 plants on the property and that Spencer therefore expected to find approximately 50 to 100 pounds of marijuana on the property. With reference to the information from the informant, Spencer did not indicate that any particular quantity of marijuana had been reported. Spencer said that he did not want to mention the informant in the search warrant affidavit because he felt it might endanger the informant. Spencer earlier had told Stowell the same thing. Vanarelli agreed that it was unnecessary to mention the informant because Stowell’s observations constituted sufficient probable cause for issuance of the warrant.
Vanarelli felt that two issues needed to be clarified in the Statement of Probable Cause. First, there was nothing to establish that the marijuana was being cultivated as opposed to growing wild. Second, there was nothing to indicate how close the marijuana was to the main house. In order to address these issues, Spencer made the following handwritten addition to the Statement of Probable Cause:
“Upon further inquiry, Agent Stowell told me that the marijuana plants he saw growing would be found if I walked from the house toward the barn and then continued in the same direction past the *barn for approx. 75 yards. He added that the plants appear to be suspended from the large trees. 1 recognized this method as one occasionally used to hide cultivated marijuana from casual aerial detection or infrared photographic detection. *The barn appears to be 30-50 yards from the house, with automobile parking and a dirt road between the two structures.”
After Vanarelli approved the affidavit, Spencer presented it to Judge Curtis, who issued the search warrant. Judge Curtis states that he checked to make sure that the warrant had been approved by the district attorney’s office, and since it had, felt that he could rely on Spencer’s representations.
At 7:00 a.m. on Friday, October 2, 1992, the officers who were to serve the search warrant gathered at the Los Angeles Sheriffs Malibu Station and were briefed. Present were 30 law enforcement officers (l3 from the Los Angeles Sheriffs Department, 5 from the Los Angeles Police Department canine unit, 3 from the National Guard, 3 from the National Park Service, 2 from the U. S. Forest Service; 2 from the California Bureau of Narcotic Enforcement (BNE), and 2 from the federal Drug Enforcement Administration). In addition, two researchers from the Jet Propulsion Laboratory (JPL) in Pasadena were present. They stated that they were there to conduct research.
Also present that morning were two Los Angeles Sheriffs deputies from the asset forfeiture unit. The briefing that morning was conducted by Spencer and another Sargent. They told those in attendance that there would be weapons in the house, but they didn’t anticipate any problems. Spencer also stated during the briefing that the warrant was for the property and not the people, and there would not be a quick entry. He also stated that if they found 14 or more plants that the ranch would be seized.
At approximately 8:30 A.M. the officers and agents arrived at the ranch. They cut a padlock at the edge of the property in order to enter the gate. Within five minutes all personell were in their prescribed locations ready for entry. The “entry team” consisting of five L.A. County deputies went to the front door of the residence. Seven officers from various agencies surrounded the barn and garage area down the hill from the residence. Six officers were behind their vehicles on the roadway below the residence.
At approximately 8:35 A.M. Deputy Carter knocked on the front door of the Scott home and shouted, “Sheriffs Department. We have a search warrant. Open the door!”
Frances Plante (Scott) recalls the following: She and Don had gone to bed at approximately 2 or 3 a.m. They were asleep in bed and were awaken by their 22 dogs barking and the house shaking. She quickly pulled on a pair of overalls, backward, and got up to see what was going on. She does not remember what either she or Scott said. She was putting on a shirt as she walked toward the door. Scott was sitting on the side of the bed in a t-shirt. She believes that he was putting on a pair of pants. She states that she did not hear knocking on the door or anyone say “Sheriff” or “search warrant.” She states that she did not know that law enforcement personnel were involved. She saw a man”s face in the window by the front door looking at her and yelling “Let me go first.” Another voice replied, “Yeah, let Gary go first.”
Deputies used a battering ram and broke down the front door of the Scott home. The men rushed into the home and found a startled and scared Frances Plante backing into the living room away from the door screaming, “Don’t’ shoot me, don’t kill me!”
As officers moved through the living room they noticed Don Scott in the doorway of the west side of the living room. Scott was holding a gun in his right hand, with his palm and fingers around the cylinder rather than around the butt. Scott’s elbow was at his side with his forearm straight out or slightly up, his hand turned up with the barrel of the gun pointing at a 45 degree angle toward the ceiling. Scott was holding the gun with the barrel pointing upward, as if he were going to hit someone with it rather than shoot it.
Deputy Spencer ordered Don to “drop the gun”. As a bewildered Scott began to lower his arm and the gun he was holding, Spencer continued to shout. Next, Spencer fired a round, Carter fired a round and Spencer fired a round in short succession.
Scott flinched backward, staggered forward, dropped to his knees and fell forward, Spencer states that Scott said something like “You got me,” “Oh you hit me” or “Oh God, you shot me.” Cater reports that Scott said something like, “Oh God, what have you done?”
Spencer saw blood pouring from Scott’s chest. Spencer squatted down but felt no carotid pulse. Either Burch or Valentine used a flashlight to find Scott’s gun behind the door. Cater called out “Shots fired. Man down. No deputies hurt.”
After the shooting law enforcement personell searched the grounds of the ranch extensively for evidence listed in the warrant. No marijuana was found growing and no evidence was found to indicate that marijuana had been growing or cultivated on the property. National Park Ranger Simonds states that he searched very thoroughly the area in which Stowell reported seeing marijuana. Simonds described it as very dense, no irrigation pipes, no well-worn trails. He states that the area is unique in that there are a lot of sycamore trees mixed in with oak trees.
The return to the search warrant filed with the court indicates that the only property seized consisted of telephone bills, photographs, miscellaneous paperwork, and, inexplicably, a California State Park uniform jacket.
At approximately 10:30 on the morning of the shooting, U.S. National Forest Ranger Jim Burton and BNE Agent Greg McClung new over the property in a helicopter for approximately 30 minutes to look for marijuana. They new over the property at approximately 250 to 500 feet. McClung spotted one area which he described as questionable as to the presence of marijuana plants, and they descended to 10 feet above the trees. The area was 25 to 50 feet from the area in which Stowell had reported seeing marijuana. McClung directed -several agents on the ground to the area, and they found that the vegetation was ivy rather than marijuana. They did not observe any other suspicious areas.
Obviously an investigation was called for to answer questions surrounding the death of Donald Scott. The District Attorney’s Office for Ventura County reviewed all of the evidence leading up to and including the day of the shooting at the Scott Ranch. They interviewed some 40 witnesses and reviewed statements of approximately 20 additional witnesses, reviewed hundreds of pages of reports and other documents, visited the ranch and reviewed dozens of photographs, audio tapes of phone calls and interviews, and a video tape of the scene of the shooting.
The District Attorney made some striking conclusions and the following is the unedited version of the conclusion of their report:
“Based upon the evidence in this case, the District Attorney is of the opinion that the following occurred:
Upon receiving information from the informant, Deputy Spencer originally thought that thousands of marijuana plants might be growing at the ranch. Efforts to confirm the presence of marijuana were unsuccessful. He was unable to see marijuana from the top of the waterfall and the Border Patrol did not see any plants during two attempts to do so. Agent Stowell claimed to see only a relatively few plants, based solely on their color, but was unwilling to be the basis for a search warrant without corroboration.
It is inherently unlikely that Agent Stowell could see marijuana plants suspended under trees in a densely vegetated area through naked-eye observation from 1000 feet. His failure to take photographs is unexplained, and when the warrant was executed, no evidence- of cultivation was found. Based on all of the evidence, it is the District Attorney’s conclusion that there was never marijuana bang cultivated on the property as reported by Stowell.
Spencer learned that the name of Plante and her associates had come up in investigations of heroin smuggling and other narcotics violations. Spencer knew that if he could put together a search warrant for marijuana cultivation, he could get onto the ranch and also search for other drugs, and had arranged to do so. He also knew that if marijuana were found growing, or if narcotics were found in sufficient quantity, it was possible that a very valuable piece of real estate would be forfeited to the government with proceeds from a sale of the property going to the Los Angeles Sheriffs Department.
Spencer could not get Stowell to agree to the search warrant without corroboration. When the Border Patrol failed to find marijuana, Spencer told Stowell that the informant now expected a yield of only 40 pounds of marijuana. The informant denies telling Spencer about 40 pounds, which raises the possibility that Spencer fabricated this information in order to induce Stowell to agree to use his name in the search warrant affidavit. We are unable to resolve the discrepancy between the statements of Spencer and the informant. However, other law enforcement officers have vouched for the informant’s credibility.
The Border Patrol entered the property to look for marijuana and not to look for illegal aliens. Their recent claim that they entered the property in a search for illegal aliens is unconvincing and unsupported by the evidence. Because we do not know exactly where they went, we cannot determine whether all of their actions were within the “open fields” exception to the Fourth Amendment.
The affidavit upon which the search warrant was based contains material misstatements that the BMW was registered to Scott at the Trails End Ranch and that Stowell used binoculars. It also omits material information, including the failure of the Border Patrol and others to see marijuana on the property, the altitude of Stowell’s flight, the very limited basis for Stowell’s opinion that he saw marijuana, and the manner in which Stowell was convinced to agree to the warrant. The misstatements and the omissions make the warrant invalid. While we were misled by Spencer into approving the warrant affidavit, further inquiry by this office might have uncovered the defects in the warrant. Because it cannot be proven that Spencer knowingly lied in the affidavit, there is an insufficient basis for a perjury prosecution,
It is the District Attorney’s opinion that the Los Angeles County Sheriffs Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government. While the National Park Service could indirectly obtain this land, there is no evidence that it instigated or played a significant role in the forfeiture plan. Based in part upon the possibility of forfeiture, Spencer obtained a search warrant that was not supported by probable cause. This search warrant became Donald Scott’s death warrant.
When the warrant was executed, the deputies sufficiently identified themselves and demanded entry to the residence in compliance with law. The evidence does not establish that Donald Scott intended a shoot out with the deputies. Nor is there any evidence to suggest that the deputies went to the ranch with the hope of killing Scott. When Deputy Spencer ordered Scott to lower his gun, Scott did so in a way that Spencer says caused him to fear for his life. There is no evidence to disprove Spencer’s version of how the shooting occurred. For that reason, we must conclude that Spencer and Cater were justified in shooting Scott in self-defense. While there is a conflict in the evidence as to whether Plante was in the room during the shooting, her report of the shooting itself is substantially the same of that of Deputy Spencer. The invalidity of the warrant does not form a sufficient legal or evidentiary basis for a homicide prosecution.
This case involves numerous individuals and agencies and is fertile ground for speculation as to the motivations of each of them. What we cannot forget is that Donald Scott’s death could and should have been avoided.”
The Los Angeles County Sheriff’s Department issued their own report in response, clearing everyone involved of wrongdoing, and Spencer sued District Attorney Bradbury for defamation. The court ruled in favor of Michael Bradbury and ordered Sheriff Spencer to pay $50,000 in Bradbury’s legal bills.
Scott’s widow, the former Frances Plante, along with four of Scott’s children from previous marriages, subsequently filed a $100 million wrongful death suit against the county and federal government. For eight years the case dragged on, requiring the services of 15 attorneys and some 30 volume binders to hold all the court documents. In January 2000, attorneys for Los Angeles County and the federal government agreed to settle with Scott’s heirs and estate for $5 million, even though the sheriff’s department still maintained its deputies had done nothing wrong.
I believe that D.A. Bradbury was courageous to point out that officers lied, were motivated by greed to take Mr. Scott’s property, and set in motion events that led to the avoidable death of Donald Scott. However, I disagree that the actions of the officers do not warrant a prosecution. Deputy Spencer and all the other officers and agents involved are responsible for the murder of Donald Scott. The authorities did not have legal cause to enter the property on October 2nd, and were committing the crime of burglary. They broke and entered into the home of Donald Scott with the intention of stealing from him, and in the process they killed him in furtherance of their crime.
All this in the name of civil forfeiture.
“You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, nor his male servant, nor his female servant, nor his ox, nor his donkey, nor anything that is your neighbor’s.” –The Tenth Commandment Exodus 20:2-17