This document and attachments were scanned in by Forfeiture Endangers American Right Foundation, 20 Sunnyside, Suite A-419, Mill Valley, CA 94941. Not responsible for typographical errors. ================================================== OFFICE OF THE DISTRICT ATTORNEY COUNTY OF VENTURA STATE OF CALIFORNIA March 30, 1993 REPORT ON THE DEATH OF DONALD SCOTT MICHAEL D. BRADBURY, District Attorney ========================================== TABLE OF CONTENTS INTRODUCTION THE INVESTIGATION FACTUAL SUMMARY A. Initial Investigation. B. National Park Service Visit C. Arranging the Aerial Surveillance D. D.E.A. Overflight E. Border Patrol Search F. Corroboration G. Fish and Game and Coastal Commission H. Undercover Threat Assessment I. Obtaining the Search Warrant J. Personnel and Preparation for Serving Warrant K. Knock Notice L. Entry M. The Shooting N. After the Shooting 0. The Search P. Weapons Q. Autopsy R. Additional Aerial Observations S. Interview of Plante IV. LEGAL ANALYSIS A. Border Patrol Search B. Land Forfeiture C. Evidence of Marijuana Cultivation D. Validity of Search Warrant E. Service of Warrant F. Shooting V. CONCLUSIONS VI. RECOMMENDATIONS ATTACHMENTS 1. List of Officers 2. Diagram of House 3. Transcript of Answering Machine Tape ====================================== I. INTRODUCTION Donald P. Scott, age 61, owned and lived on a 200-acre property known as the Trails End Ranch, 35247 Mulholland Highway, in the Ventura County portion of Malibu, California. On October 2, 1992, while serving a search warrant at the ranch, Los Angeles County Sheriff's Deputies Gary R. Spencer and John W. Cater, Jr. shot at Scott, resulting in his death. The shooting and the events leading up to it have raised a number of issues of concern to this office, other law enforcement agencies, and the public. This report summarizes our investigation and conclusions. II. THE INVESTIGATION The investigation by this office was conducted by District Attorney Senior Investigator Richard C. Haas. Senior Deputy District Attorney Michael D. Schwartz and Deputy District Attorney Kevin G. DeNoce assisted with the legal research and analysis. During our investigation, we interviewed some 49 witnesses and reviewed statements of approximately 20 additional witnesses. We reviewed hundreds of pages of reports and other documents, including the reports of the Ventura County Sheriff and the internal investigation of the Los Angeles County Sheriff. We also 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. With few exceptions, the individuals and agencies we contacted cooperated with our investigation by being interviewed and providing us with requested documents. We greatly appreciate their assistance. Deputy Spencer was interviewed several times and volunteered to provide us with any information we wanted. He offered to take a polygraph examination, but we declined based on our general concerns regarding the reliability of polygraphs. The United States Border Patrol provided us with written materials but refused to allow its agents to be interviewed. In this report, we have noted some discrepancies in the statements of witnesses. We have done so to give a more complete report of what our investigation has found, with this caveat: it is a common human experience that there will be some variation between witnesses in their perception, recollection and reporting of events. Discrepancies may mean that a witness is lying, or may reflect the witnesses' honest recollection of what occurred. III. FACTUAL SUMMARY A. INITIAL INVESTIGATION Deputy Spencer has been a peace officer for 15 years, including 9 years as a deputy sheriff for the County of Los Angeles. He has been a narcotics detective since late 1989. He has no odor shooting incidents and has a clean service record. Deputy Cater has been a peace officer for 9 years and has been a narcotics detective since early 1990. He also has no poor shooting incidents and has a clean service record. Spencer states that on November 19,1991, an informant told him that Frances Plante was frequenting the Malibu area and acting suspiciously. The informant stated that Plante had a big wad of $1 00 bills, paid for small purchases with $1 00 bills, and tipped heavily. Spencer states that the informant gave him the license number of the BMW Plante was driving, which Spencer states was registered to Donald Scott at the Trails End Ranch. Spencer states that since he was unable to find an address for the Trails End Ranch, he merely filed away this information. However, we found that the vehicle was registered to a Nevada Corporation associated with Plante, with a post office box in Malibu, and cannot determine how Spencer traced the vehicle to Scott at the Trails End Ranch. In September, 1992, Spencer received information from a second confidential informant. The second informant stated that 3,000 to 4,000 marijuana plants were growing on a ranch on Mulholland in Malibu occupied by Frances Plante and Donald Scoff and that Anthony Tomkiewicz was involved in the cultivation. The informant also said that Frances Plante made statements indicating that she had personal knowledge of growing marijuana. Spencer received information from another law enforcement agency that the informant was reliable and had assisted law enforcement in the past. Spencer obtained information from the federal Drug Enforcement 2 Administration (DEA) regarding Frances Plante and her associates' involvement in negotiations to smuggle and sell heroin in 1988 and 1990. Spencer learned that the Trails End Ranch was owned by Donald Scott and was located in the County of Ventura. However, the road leading to the property is in Los Angeles County and the phone at the ranch has a Los Angeles County area code (31 0). Emergency phone calls (91 1) from the property are directed to the Los Angeles County Sheriff. B. NATIONAL PARK SERVICE VISIT The ranch is adjacent to the Santa Monica Mountains National Recreation Area, which is administered by the National Park Service (NPS). On August 11, 1992, Park Superintendent David E. Gackenbach received a telephone call from Plante complaining that hikers in the park were throwing rocks into the waterfall at the ranch. She asked to meet with him and requested he bring a six pack of beer when he came. On August 13, Gackenbach and NPS Ranger Mike Maki met with Scoff and Plante at the ranch in response to the complaint. All four hiked to the waterfall. Although Mald and Gackenbach had no reason to look for marijuana at that time, they did not notice any on the property. Plante had Scott display his "chrome-plated, engraved six shooter." Plante started twirling it in her hand. Scott took the gun from her and admonished her not to play with a loaded gun. Gackenbach states that the meeting was friendly and cordial and that Scott invited him to return to examine some Native American sites on the property. Maki states that Plante invited him to return to the property. C. ARRANGING THE AERIAL SURVEILLANCE On September 9, 1992, Spencer phoned NPS Ranger Tim Simonds. Los Angeles County narcotics detectives had worked with Simonds as part of a Marijuana Eradication Task Force, and Spencer thought that Simonds could assist in the investigation with maps and other resources. Simonds told Spencer about the August 13 visit by the National Park Service employees. 3 The next day, September 10, Spencer, Deputy John Cater, and Deputy Dave Valentine hiked to the top of the waterfall overlooking the ranch. They could not see any marijuana from that location. Spencer then discussed the case with Los Angeles Sheriff's Sgt. Larry M. Boyce and National Park Service Ranger Tim Simonds. They then agreed that they should conduct aerial surveillance of the property. On September 10, 1992, Simonds arranged for the California Air National Guard to fly over the ranch in an RF-4 jet and take photos between September 13 and 19, 1992. Simonds has informed us that the National Park Service is part of Operation Alliance, which is a marijuana eradication project that can utilize the Air National Guard for aerial photography. From September 14 to 16, 1992, Spencer amended a course on thermal imaging and indoor marijuana cultivation in South Lake Tahoe. The instructor was DEA Special Agent Charles A. Stowell. Stowell has extensive experience in recognizing marijuana from the air. He states that he can identify marijuana because it has a color not found anywhere else in nature. As the Deputy Incident Commander for the California Campaign Against Marijuana Planting (CAMP), he wanted to achieve a better working relationship between DEA and the Los Angeles Sheriff's Department (LASD). While in South Lake Tahoe, Spencer and Los Angeles Sheriff's Sgt. Robert W. Mueller told Stowell that an informant told them that approximately 3000 plants were being cultivated in a remote ranch in Malibu. They agreed to meet on September 22 to discuss the case further.. On September 22,1992, Stowell met in Whittier with members of the Los Angeles Sheriff's Department, DEA and the U.S. Forest Service. No National Park Service employees or Ventura County officers were present. Ranger Mike Alt and Special Agent Laurel Pistel, both of the U.S. Forest Service, were present at the meeting. Pistel states that she was invited by LASD Sgt. Mueller, and that she believed the purpose of the meeting was to discuss a prior marijuana case that the Forest Service and Los Angeles Sheriff's Department had worked together. While in attendance, she learned that the meeting involved the Trails 4 End Ranch. She states that she did not hear asset forfeiture discussed at the meeting. At the meeting, Spencer displayed the aerial photographs of the property taken by the California Air National Guard. However, Stowell stated that he could not identify cannabis plants because the photographs were in black and white. In his report, Stowell states that the photographs show an 'illegal water system" at the property. Forest Ranger Mike Aft stated that it appeared that the water may have come from the National Recreation Area and if so, could be illegal. He said that fact would allow the Forest Service to enter the land, but only if the National Park Service requested their assistance. We obtained enlargements of the Air National Guard photographs. The only "water system" that can be seen is a pipe leading from the waterfall to a water tank, which supplies the water to the area where the buildings are located. The vegetation shown in the photographs is extremely dense, and no cultivated plants or foot paths can be identified. At the September 22 meeting, Spencer stated that LASD intended to get a search warrant for the ranch and requested DEA assistance. Stowell recommended that the area be reflown to confirm that cannabis was growing there. In a report he prepared after the shooting, Stowell stated that it was decided at the September 22 meeting that ground surveillance would be initiated to confirm the results of the overflight. LASD Sgt. Mueller arranged for LASD Deputy David Kitchings to fly his privately-owned, fixed-wing aircraft over the property with Stowell the next day. D. D.E.A. OVERFLIGHT On September 23, 1992, Kitchings and Stowell flew over the ranch for approximately 10 minutes. Stowell reported that he did not see any marijuana until the third "orbit" over the ranch, when he saw approximately 50 marijuana plants, located approximately 75 yards southwest of an outbuilding on the property. He stated that the plants were at staggered elevations, and had light underneath them. The plants were approximately 25 yards north of and parallel to a dirt road in line with the main residence. He also described the location as being directly in line with the barn 5 and out approximately 75 yards. Stowell checked the remainder of the property but did not locate a large cannabis cultivation site. He stated that if there were 3000 plants on the property, they were well hidden or were in an outbuilding. Kitchings then conducted aerobatics to lessen suspicion that they were conducting surveillance. Stowell had a camera in the plane during the September 23 flight but stated that he took no photographs. Stowell and other narcotics officers state that the usual procedure is to take photographs. A review of published cases involving overflights indicates that photographs are frequently attached to the search warrant affidavit. Stowell stated that he should have taken photographs, and could not explain why he had failed to do so (however, in two reports, Stowell states that he was able to "rephotograph" the location in an October 5 flight over the property). Stowell told us that he was flying at an altitude of at least 1000 feet and was not using binoculars because binoculars make him feel sick. Spencer was on the ground one or two miles away on Mulholland Dave. Stowell contacted Spencer via radio during the September 23 flight and by telephone after they landed. Stowell stated that he had seen approximately 50 plants, disbursed in an unusual manner, and told Spencer that he had enough information for a search warrant. Stowell said that he did not believe that there were anywhere near 3000 plants present and that there did not appear to be enough space available for a garden that size. In a later interview by Ventura Sheriff's Detective Pat Buckley, Stowell said that he told Spencer to not be discouraged because more plants might be hidden using sophisticated methods. Stowell states that while flying back to Sacramento, he thought about what he observed. He was unsure about the way the plants were distributed because he had never seen anything like that before. In a written statement, Spencer states that Stowell told him that he, Stowell, was concerned about the discrepancy between his observations and the informant's statements and advised Spencer not to formulate a search warrant until Spencer took 'further steps to eliminate the discrepancy." On September 24, 1992, Stowell contacted LASD Sgts. Mueller and Boyce and recommended or requested that a ground team verify the results of the overflight. 6 Stowell states that his reasons were that the cannabis plants had an unusual disbursement in trees near a drainage, appeared to be 3 to 4 feet in height, and had an unusual hollow or empty space below them. He stated that the plants were "spiked,' which means that they were planted late in the season to create a thinner, less bushy plant. He also stated that he was concerned that he had only seen approximately 50 plants but that the informant had said there were 3000 plants. Stowell told Mueller and Boyce that he did not want to be used as a source for the search warrant based only on his observations. E. BORDER PATROL SEARCH At the meeting of September 22, Forest Ranger Mike Aft suggested that a reconnaissance team go onto the property to look for the marijuana and stated that a team could be ready within 24 hours. After the aerial surveillance by Agent Stowell, Spencer asked Alt to put the team together. On either September 22 or 23, Alt contacted the U.S. Border Patrol in Bakersfield and asked that the Border Patrol's "C-RAT team assist the Forest Service with reconnaissance on the property. On the evening of September 24, 1992, Aft met at the Sheriff's Department with four members of the Border Patrol, along with Sergeant Boyce and Deputies Cater and Spencer. Border Patrol Agent Ed P. Dubbe was the commander of the mission, which the Border Patrol called "Operation Malibu." The Border Patrol agents were outfitted with climbing gear, cameras, weapons, and other equipment. They all then went in a Sheriff's van to the area of the ranch. Dubbe's report states that they were provided with photographs but not maps. Aft states that they were shown black and white aerial photographs (presumably the photographs by the Air National Guard) and were shown the area in which Stowell had made his observations. However, Deputy Spencer states that he did not have any photographs to show them because he had given the photographs to another deputy to plan a possible SWAT approach to the property. According to Spencer, the team was dropped off at approximately 9:00 p.m. at a dirt road. The Border Patrol agents hiked toward the area where the marijuana was said 7 to be growing. Alt did not feel he could search because he had not received permission from the National Park Service, so he waited on a mountain southeast of the target area. The Sheriff's deputies waited nearby in the van. Dubbe states that the terrain was difficult and required use of the specialized climbing equipment they had. He states that they left the area because the terrain was too dangerous to proceed further. A letter from Border Patrol Chief Patrol Agent W.L. Bonnette, Jr. states that the reconnaissance occurred at approximately 1 1 p.m. on September 24. He states that because of steep terrain and thick underbrush, the team was able to travel only approximately 300 yards from their drop off point, which was about half a mile from the nearest building. Bonnette states that Ranger Aft told them they would be on federal land. However, Aft states that he told them it was private property. The agents left the area at some point between 12:30 and 3:00 a.m., September 25, and returned to the Sheriff's station. At some point between 5:00 and 6:00 a.m. the same morning, they returned to the area of the ranch and started again. Dubbe states the same routes were used during the second attempt. This time, as the Border Patrol agents got close to the residence, the dogs began to bark. According to Spencer, the Border Patrol agents said that four rotweilers were barking and charging. They left the property at some point between 7:30 and 1 0:00 a.m. Spencer reports that Border Patrol agents got close enough to the residence to see the chimney, and may have estimated their distance from the residence at 150 feet. Chief Patrol Agent Bonnette writes that for the second attempt, the team was dropped off at a point where the road came close to the creek bottom, approximately « mile from the nearest building. He writes that they proceeded up the creek bottom until they were able to observe the nearest building about 300 meters away. Spencer states that he is not sure exactly what area the Border Patrol searched. He states that at that point, he still believed the marijuana was growing on the ground and that to the best of his knowledge, the Border Patrol was only looking for marijuana on the ground and not in the trees. He states that they reported that they did not cover 8 all of the property, but were confident they did not see any marijuana plants in the areas they covered. He also states that the Border Patrol reported that ft was extremely unlikely that 3000 plants were present. When we visited the ranch after the shooting, we found the dogs to be friendly and docile. Frances Plante states that several times in September, the dogs at the residence were barking continuously during the night, and that this was most unusual. The Border Patrol entries described above may account for some of this barking. She also states that one dog had its head split open during this period, and that the injury appeared to be caused by a person. It is not known whether the Border Patrol activities caused this injury. The Border Patrol has refused to allow us to interview its agents regarding this case. The written materials they have provided are contradictory and inconsistent as to times and are uncertain as to locations. As a result, we have been unable to determine the exact area that they searched. F. CORROBORATION On September 30, 1992, Spencer phoned Stowell and said that the ground team had been thwarted by dogs and was unable to complete its mission. Spencer said that he then spoke with the informant, and the informant said the expected yield was only approximately 40 pounds of marijuana and that the plants were suspended in the trees by "block and tackle." Stowell said that this would explain the unusual disbursement and the light beneath the plants. Stowell has seen photographs from other cases of marijuana plants suspended in trees. Stowell and Spencer agreed that 40 pounds would be the expected yield for 40-50 plants. Stowell told Spencer that the marijuana could be harvested at any time. Stowell noted in a report that "it was not until I received the above information from Spencer that I consented to allow my observations as part of his affidavit. That is NOT to say I was unsure, as I had seen the plants, but 50 is a long way from 3000 and I felt we could locate the rest of the plants as well." Spencer talked to the informant after the shooting. He states that the informant 9 did not recall making the comment about 40 pounds being the expected yield. We also interviewed the informant after the shooting. The informant denied ever saying anything to Spencer about a 40 pound yield or any other amount of marijuana on the property less than thousands of plants. However, the informant made statements to us which indicated that before the shooting, Plante acknowledged that plants were growing in the area. R is not clear that Plante was referring to plants at the Trails End Ranch. On October 5, after the shooting, Spencer told Stowell that the informant may have been talking about a different piece of property located on Mulholland, which Spencer described. It is not clear when the informant would have made the statements upon which Spencer based this conclusion. As best we can determine, the information from the informant was always that the marijuana was growing on both Scott's property and on other property. On March 4, 1993, Spencer phoned our office and stated that he had found a note of a conversation with the informant which documented the statement about 40 pounds. We obtained a copy of the note, which contains names, phone numbers, doodlings and other information. Spencer explained that the note contained information from at least two different conversations with different people regarding the case. The note includes "$3000 lbs" and directly next to it, "40 lbs." We are unable to confirm when this note was written. G. FISH AND GAME AND COASTAL COMMISSION On September 25, 1992, California Coastal Commission Program Analyst Mark Capelli and Fish and Game Warden John Wilcox went to the stream at the Trails End Ranch to check out objects which had been dumped into the stream below the ranch and to do a stream survey. Capelli was in plain clothes and Wilcox was in uniform. They started hiking up the stream from Mulholland. When they were approximately 100 to 150 yards from the residence, the dogs started barking. They report that Mrs. Scott was initially agitated and irate that they were on the property, but later calmed down and even served them refreshments and invited them and their 10 families to return. Mr. Scoff was calm and receptive to their being there to protect the creek and the environment. It appeared that Donald Scott was having trouble seeing, and he said that he had undergone eye surgery two or three days before. Neither Capelli nor Wilcox were aware of any drug investigation and did not observe anything which appeared to be marijuana. Wilcox observed a large water tank on a hill with many irrigation pipes running down from R. Mrs. Scott insisted on accompanying Capelli and Wilcox on the ranch, and escorted them down the road until they were off the property. During our interview of Frances Plante, she stated that Capelli and Wilcox had come up the creek to the area near the creek house. She stated that she yelled at them, "Get out of here, you're on private property and you're trespassing." She stated that Wilcox said he had a badge and could go wherever he wanted and then put his hand on his gun. She stated that things calmed down when Donald came out. She said that the officers claimed they were doing a steelhead trout survey but that Donald pointed out that there was no water in the creek. There is no evidence to suggest that the visit by Fish and Game and the Coastal Commission was related in any way to the drug investigation. H. UNDERCOVER THREAT ASSESSMENT On or about September 22 or 24,1992, LASD Sergeant Bill Marsh met with Spencer regarding possible SWAT entry on the house during execution of the search warrant. NPS Ranger Maki was contacted because he had been on the property in response to the complaints about rocks being thrown, and because Plante had invited him to return. Maki phoned Plante and made arrangements to meet on the property on the pretext of Marsh wanting to buy a puppy. On September 27, 1992, Marsh went to the ranch with Maki. Maki reports that they were greeted by Scott and Plante, both of whom were friendly. They walked up to the falls and several other areas, and Scott went up a hill to show them an old generator. It did not appear to Maki that Scott was having any difficulty with his vision on that date. 11 Marsh reports that Plante gave them a tour of the property near the waterfall. Marsh said he did not see any of the remote areas on the ranch. Marsh describes Scoff as nice but smelling of alcohol. Scoff told Marsh that two Fish and Game officers had been on the property and said they were doing a fish count in his stream and ponds. He also said that he was shown a badge, but he didn't really trust them. Plante said that Scott was good with a gun. At Plante's urging, Scott gave a demonstration of his expertise in quick-drawing using an engraved, chrome-plated .45 caliber revolver. Marsh told Spencer that he felt the threat from the Scotts was minimal and that SWAT would not be necessary. Marsh drew a diagram of the property and wrote on ft "Dogs are friendly." He said that the threat was so low that they could just drive up to the house, and the Scotts would let them inside. I. OBTAINING THE SEARCH WARRANT 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). 12 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 property. 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 license plate #21 1 CUJ. Suspicion was aroused when Plante was seen flashing a very large bundle of currency and paying with $1 00.00 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 property 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 printout of Scott's drivers 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 Maki's visit on September 27. 13 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 1 00 plants on the property and that Spencer therefore expected to find approximately 50 to 1 00 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. I 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. Judge Curtis reports that about a week after he signed the warrant, Spencer 14 returned to the judge's chambers to talk to him. Spencer apologized and said that he knew that no judge wants to sign a search warrant that results in someone being killed. Spencer assured Curtis that everything contained in the warrant was true. He showed Curtis some maps and charts and discussed the unsuccessful attempts to verify the presence of marijuana from the ground before the warrant was issued. J. PERSONNEL AND PREPARATION FOR SERVING WARRANT At 7:00 a.m. on Friday, October 2, 1992, the officers who were to serve the search warrant gathered at the Los Angeles Sheriff's's Malibu Station and were briefed. Present were 30 law enforcement officers (13 from the Los Angeles Sheriff's's 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). A list of persons present is attached to this report. In addition, two researchers from the Jet Propulsion Laboratory (JPL) in Pasadena were present. They state that they were there to conduct research. Los Angeles Sheriff's's Sergeant Robert W. Mueller invited them to be present when the warrant was served. One of the researchers was a reserve officer for the Los Angeles Police Department, but was at the scene on behalf of JPL and not on behalf of the police department. Two of the Los Angeles Sheriff's's deputies were from the asset forfeiture unit. They state that it is customary that forfeiture personnel be notified several days before service of a search warrant and accompany narcotics officers serving the warrant to seize cash and documents which may lead to other assets. The forfeiture deputies in this case were notified a week or less before the warrant was served. As is customary, they did not begin any investigation before the warrant was served. Spencer states that BNE agents were present as part of CAMP and were assigned to assist with locating and harvesting marijuana plants. Spencer states that the canine handlers were assigned to look for evidence of narcotics hidden in buildings or cars and that the LAPD canine unit was used because Sheriff's's canines 15 were not available. An officer with the LAPD narcotics canine unit told us that they brought dogs trained to detect cocaine, heroin, and methamphetamine, as well as dogs trained to detect marijuana. The Los Angeles County Sheriff's Department Shooting Evaluation states that two unidentified Los Angeles County Probation Officers were also present. No personnel from Ventura County Sheriff's's Department, which has the primary law enforcement authority and responsibility for the area, was present or notified that the warrant was going to be served. The briefing was conducted by Spencer and Sgt. Boyce. According to National Park Service Rangers Bryan Sutton and Tim Simonds, they were told at the briefing that there were weapons in the house, but that no problems were anticipated. According to Simonds, they were told that the warrant was for the property rather than the people and there would not be a quick entry. Simonds also recalls that a deputy stated that the ranch would be seized if they found 14 or more plants. According to Bureau of Narcotic Enforcement Agent Greg McClung, someone said at the briefing that they would look into seizing the property if marijuana plants were found. K. KNOCK NOTICE The personnel from the briefing assembled at the ranch at approximately 8:30 a.m. According to Spencer, it took approximately 5 minutes to cut a padlock on a gate at the edge of the property in order to enter. Plante confirms that the lock was cut. The "entry team" of five Los Angeles County Sheriff's's Deputies went to the front door of Scott's residence. Spencer was wearing black shoes, olive green pants, an olive drab entry vest with a 3-inch cloth Sheriff's's star and 'SHERIFF" written across the front in 4-inch yellow letters, and an olive green windbreaker underneath with painted Sheriff's shoulder insignia. Cater was wearing a uniform shirt with patches on both shoulders, an entry vest with a cloth star on the left breast and the Sheriff's's emblem on the back, green fatigue pants, black boots and a web vest holster. 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 16 roadway below the residence. At approximately 8:35 a.m., Deputy Cater knocked on the front door. Cater states that he beat loudly on the door with his fist and yelled repeatedly, 'Sheriff's's Department. We have a search warrant. Open the door.' The knock-notice was heard by at least 12 Sheriff's's deputies and other officers outside the house, including National Park Service Rangers and a DEA agent. These witnesses include entry team members standing at the front door, as well as witnesses who were some distance away from the house. While the witnesses are not identical in exact quotes or sequence of the knock-notice, it is clear that both Spencer and Cater knocked on the door loudly and yelled at least 6 to 1 0 times some variations of "Sheriff's's Department. We have a search warrant. Open the door." Estimates of the duration of the knock-notice range from 60 seconds to 4 minutes. Spencer states that he saw a crack of light between the door and the jam go black, which indicated to him that someone inside the house was coming forward toward them. It then appeared to Spencer that the person went back inside. Spencer reports that a male officer yelled, "Open the door, ma'am. It's the Sheriff's's Department," and then said, 'She's going back inside" or "she went back inside. Spencer states that he went to a window toward the rear of the house and yelled, "Don! It's the Sheriff! You're going to have to open the door or were gonna have to break it open Spencer states that he was constantly calling Donald and Frances' names, stating they had a search warrant and would have to break open the door if they refused to open it. He heard constant movement in the house and a man's voice in the house. Spencer told the rest of the team, "Well, let's go ahead and take it down." In addition to Spencer, at least seven Sheriff's's deputies and National Park Service rangers heard a woman's voice inside the house, and three also heard a man's voice inside the house. Deputy Burch states that Spencer went by the window and stated at least twice, "Donald, this is the Sheriff's's Department, we have a search warrant, open the door. Open the door. If you don't open the door, we're going to knock it down. Sgt. Boyce 17 reports hearing "Open the door we have a warrant, open the door we have a warrant. If you don't open it, we're going to break it in." Deputy Cater states that he, Cater, yelled out, "Donald, open the door. Sheriff's's Department. Frances, open the door." Frances Plante told us the following: She and Scott 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 sifting 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's" 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." Spencer denies that there were statements as to who would go first. He states that the order of entry was determined in advance. L. ENTRY The deputies forced the door open. According to Sgt. Boyce and Deputy Valentine, because the door opened outward, a battering ram was used against a crow bar (which they call a "pick"), and the door opened immediately. Ranger Simonds, who was at least 50 yards away, heard several loud bangs as if the door were being rammed. However, Deputy Spencer says they used the crow bar without the ram. The entry team then entered the house. According to Sgt. Boyce and Deputy Cater, they entered in the following order: Spencer, Cater, Valentine, Burch, and Sgt. Boyce. (Valentine and Burch report that Burch was in front of Valentine.) Spencer states that when he entered the house, the following occurred: He did not see anyone and called out, "Sheriff's Department! We have a search warrant!" He then saw Plante come from the living room to the kitchen, buttoning a white blouse. 18 He said, 'Sheriff's's Department. We have a search warrant. Come out here." Plante hesitated. Spencer repeated, "Come on out." Plante said, "You're scaring the heck out of me." Spencer stated in a calming voice, 'I know.' He repeated that they had a warrant and approached her. He grabbed her left wrist and pulled her backward to the team members behind him. She did not yell anything and did not say, "Don't kill me!" or anything similar. From at least 50 yards away, Ranger Simonds heard deputies continue to identify themselves in loud, clear voices after they entered the residence and heard a woman's voice inside the building. Deputies Cater and Valentine confirm that Plante was walking in the kitchen toward the deputies and that when Plante was passed back to Deputy Burch, Burch searched Plante with her left hand and then passed her back to Sgt. Boyce. Valentine remembers that Plante was talking, but does not know what she was saying. Valentine and Boyce state that Boyce then took Plante outside. Boyce states that he had Plante stand facing a wall outside the house, and that they did not reenter the house until after the shooting. Spencer told us that he did not look back to see where Plante went, but is confident that she was not in the living room at the time of the shooting. Frances Plante said that as she was approaching the door to open it, several people broke through the door, holding guns. She still did not know who they were, and had not heard any statements identifying them as "sheriff" or otherwise. She did not see uniforms at that time, but just focused on the guns, which she described as black and pointed up. She states that she started backing into the living room, screaming, "Don't shoot me. Don't kill me.' She stated that she was not moved outside before the shooting, but was standing in the living room when Scott was shot. M. THE SHOOTING Deputy Spencer gives the following account of what occurred next: He walked forward to the doorway between the kitchen and the living room. As he passed into the living room, both he and Cater called out "Sheriff's's Department, we have a search 19 warrant." He looked to the night into the living room and saw no one. He stepped forward and looked around the door to the left and saw Scoff in the doorway on the west side of the living room. Scott was 8-10 feet to Spencer's left. Scott was holding a gun in his night hand, with his palm and fingers around the cylinder rather than around the buff. 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. Scoff was holding the gun with the barrel pointing upward, as if he were going to hit someone with it rather than shoot it. Spencer states that he then crouched down on one knee behind the door. He states that he leaned to his night, so Cater could squeeze in and be able to see. Spencer states that he yelled, 'Donald drop the gun!" and pointed his Biretta at Scoff. Spencer repeated, "Drop the gun! Drop the gun!" This took approximately 4 seconds. Spencer states that he recognized Scott's gun to be a .38 caliber snubnose with a heavy barrel with a matte finish. Spencer states that he did not verbally identify himself after seeing Scott. Deputy Cater makes the following statements: As he and Spencer moved through the kitchen toward the living room, they were continuously yelling 'Sheriffs Department. We have a warrant. Sheriff's Department.' Spencer squatted down at the door on one knee and looked to the left. Spencer shouted, "Sheriff's's Department. Stop! Drop the gun! Drop the gun! Donald, drop the gun Donald drop the gun!" Cater could not see Scott at that time. Deputies Valentine and Burch confirm that Spencer stopped at the doorway entry to the living room with Cater right behind him. Valentine and Burch were standing side by side in the kitchen, behind Spencer and Cater. Valentine states that Spencer yelled 'Drop the gun!" several times, 'loud and clear," and identified himself. Burch states that Spencer yelled two times "Drop the gun," a three second pause, and then said "I said drop the gun!" Ranger Sutton states that he heard, from 60 - 100 feet away from the house, "Put the gun down," followed by a one to two second pause. He then heard, "Put the gun down. Sheriff's Department, put the gun down." At least six other officers outside the 20 house, including another park ranger and Sgt. Boyce, heard several commands to drop the gun. Spencer reports that the following then occurred: Scott slowly rotated the barrel downward and to the night until it was pointed directly at Spencer. As Scott slowly rotated the gun in his hand, he adjusted his grip on the gun so that his finger was on the trigger. Scott was looking directly at Spencer and Spencer was looking down the barrel of the gun. Spencer thought Scott was going to shoot him and was in fear for his own life. The gun was pointed at Spencer's eye level for almost a second. Spencer went through a mental process as to whether he should shoot or not and concluded that he had no choice but to shoot first to stop Scott from shooting him. Spencer fired a round from his 9 mm Beretta. While Spencer was shooting, Cater was standing above him and fired his weapon. Less than half a second later, Spencer fired again. Cater's statement is as follows: He leaned forward, glanced to his left, and saw Scott standing in doorway. Scott was looking at Spencer and Cater, holding the handgun in a conventional grip and was slowly bringing it up from a 45 degree angle. (This conflicts with Spencer's statement that Scott was bringing the gun MM.) Cater. shouted, "Sheriff's Department, Sheriff's Department," and thought Scoff was going to shoot Spencer or Cater. As Scott pointed the gun toward them, Spencer fired a round, Cater fired a round, and Spencer fired a round, in quick succession. At least ten other officers heard the shots. They most commonly reported hearing three shots, although estimates ranged from two to four shots. Several officers reported a slight pause between the second and third shots. Ranger Simonds estimates that there was a 4 to 5 second pause between the commands to put the gun down and the shots. DEA Agent Youngblood estimates the time from the first knock on the door to the shots as two to three minutes. According to Spencer, 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?" 21 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." When we interviewed Frances Plante, she stated that she saw Scott enter the doorway of the living room from the hall with his gun pointed straight up in the air. She could not see how he was gripping it because the house was too dark. According to Plante, he said, "Frances, are you all right?' She reports that she was in the living room, between the television and the fireplace. Somebody screamed "Put your gun down' three times. She states that Donald was lowering his gun when she heard three shots. She states that Scott dropped to the ground, saying nothing, and that she saw blood. This statement is inconsistent with her statement to Ventura Sheriff's Sgt. Fadler less than four hours after the shooting. Fadier asked if Scott had a weapon. Plante replied, "I'll tell you if he did I'm sure he would have shot them first, if he did." This suggests that Plante did not actually see the shooting and therefore did not know if Scott had a gun. N. AFTER THE SHOOTING After the shooting, Spencer remained with Scott's body while the rest of the entry team checked the house and found no additional people present. Boyce and Spencer recall that Boyce came into the house with Plante, and Spencer told Boyce to take her outside. An ambulance was requested over the police radio and by phone. Deputies Valentine and Burch spoke to Spencer after the shooting. He said he was a little slow in responding to the gun pointed at him, and could have been killed. LASD Reserve Deputy Reichle and Sgt. Marco watched Plante for approximately half an hour after the shooting. She was seated on the patio, handcuffed and calm. She said something like it's stupid to grow marijuana on your own property when there's government land so close. Sgt. Boyce reported that the only thing she complained about were her feet being cold and that she wanted shoes. 22 She was also concerned about her dogs and asked to see the waterfall on the property- Spencer states that Plante said there was no marijuana present, and that Scott thought they were process servers trying to serve papers on him from his ex-wife. According to Cater, Plante said, "God, he thought you guys were there to serve him papers from his ex-wife." Boyce heard Plante say, "We thought you were here to serve Donald some papers from his ex-wife." These statements are ambiguous as to whether Scott and Plante knew that sheriff's deputies were present or thought they were civilian process servers. The executor of Scoff's estate, Nicholas Gutsue, told Det. Pat Buckley that Plante said that when she and Scott were getting dressed, Scott was complaining about "those goddamn process servers." We contacted Scott's ex-wife, Karen Scott. She states that the last time she had Scott served with papers was in December, 1991. However, around the beginning of September, 1992, she talked to Donald about the possibility of serving him with papers regarding visitation rights. When interviewed by our office, Plante denied saying that she thought people were there to serve papers. She said that while she was outside after the shooting, someone asked her where the drugs were, and she said, "We don't have any drugs." He asked where the plants were, and she said, "I'm the only Plante here and that's my name." She said that a man (presumably an officer of some sort) got on his knees and buttoned her shirt and while doing so touched her breasts. Initially, members of the Los Angeles County Sheriff's homicide bureau, Los Angeles County Coroner's Office and Los Angeles County District Attorney's office responded to the scene. The Ventura County Sheriff's Department was not notified until 9:35 a.m., about an hour after the shooting. Ventura County Sheriff's deputies and personnel from the Ventura County Medical Examiner-Coroner's office and District Adam's office then went to the ranch. Although the Los Angeles County Sheriff's Department said they would conduct the investigation, the Ventura County Sheriff's Department asserted authority over the investigation because the shooting 23 occurred in Ventura County. Ventura County authorities then took over the investigation and the homicide investigators, coroner's office and District Attorney personnel from Los Angeles County left the scene. A neighbor of the Scott's, Patrick Doheny, told a Ventura County Sheriff's deputy that he knew for a fact that Frances had tape-recorded the entire incident, including the shooting. However, Doheny later told us that he had heard only about a tape of phone calls after the shooting. Scott's attorney, Nicholas Gutsue, told detectives that the Scott's had a tape running during the raid which included orders to drop the gun and the shooting. He said that the sheriff would need a court order to obtain the tape. He arranged to meet detectives to play the tape, but played a tape only of phone calls after the shooting. He denied saying that the tape included orders to drop the gun. No such tape was found during execution of the search warrant, and it seems unlikely that such a tape ever existed. A transcript of the tape we received is attached to this report. The first call is for an ambulance. The second call is from a neighbor in which Spencer at first states that he is a friend of Scott's. This was done in compliance with the search warrant, which instructed officers to "answer the telephone and converse with callers who appear to be calling in regards to drug sales and note and record the conversations without revealing their true identity.' The third call is from LASD Lt. Dewitt to LASD Capt. Walde. 0. THE SEARCH After the shooting, law enforcement personnel searched the buildings and grounds for the 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. 24 There is a large cable between two trees near the house. It appears that the function of this cable may be to keep the trees from growing into the electric lines above them. No other wires or ropes were seen in the 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. The phone bills included calls to Thailand. On advice of counsel, Plante refused to tell us if Scott knew anyone in Thailand. Seized during execution of the warrant was a 1990 notice from General Telephone which stated that it had received a request from the Drug Enforcement Administration for Scott's phone records from June 28, 1984 through November 30, 1987. In a written statement by Spencer, he states that tools such as shovels were missing. Frances Plante told us that there were shovels and other old gardening tools on the property, and we saw such tools on the property during a visit several months after the shooting. A quantity of old dynamite was present on the property. If officers saw it on October 2, they did not seize it or mention it in their reports. Plante called the county days after the shooting and had it removed. We looked through the property which Spencer said was taken pursuant to the search warrant and found a cigar box with what appeared to be several marijuana stems, two burnt empty remnants of paper that appeared to be the remains of marijuana "roaches," and some flecks of green material that appeared to be a minute quantity of marijuana. Interestingly, these items were not listed in the deputies' reports or in the return to the search warrant. Neither Spencer, nor Sgt. Marco, who signed the Search Warrant Property Record incorporated into the return to the search warrant, could state who had seized the box or had any idea where it had come from. Sgt. Marco states that he does not list contraband on the property receipt, but only lists property that at some point might be returned to the owner. However, the search warrant return, signed by Spencer under oath as "a true and detailed account of all of 25 the property taken by me pursuant to the search warrant," incorporates Marco's Search Warrant Property Record as the list of property taken. P. WEAPONS Ventura County detectives located three 9 mm casings in the living room. Spencer and Cater each stated that they had 16 rounds in their pistols. Spencer's weapon and its magazine were examined and were consistent with two shots fired. Cater's weapon and its magazine were also examined and were consistent with one shot fired. Ventura County Sheriff's detectives traced the paths of the bullets, and concluded that one of the shooters must have been about a foot past the opened door into the living room. One flattened bullet was stuck in the sleeve of a sweater which, had been hanging behind Scott next to the door frame. One bullet with a copper jacket was removed from Scott's back at the autopsy. A silver-colored bullet, which appeared to be from an old wound, was removed from his left lower leg.- Ballistics tests determined that the two rounds which struck Scott came from Spencer's Biretta, and that a round removed from the wall was fired from Caters Biretta. Scott's gun, found on the floor, was a Colt Detective Special revolver which was found to operate properly and was loaded with six .38 special rounds. The ammunition was old and of mixed manufacturing. The round which was under the hammer had a small impact dimple on the primer, which indicates that the hammer was released at a very short distance from the primer with the trigger in the rear position. It cannot be determined whether this dimple was caused on the morning of October 2 or on some earlier occasion. Neither Spencer nor Cater reported that Scott attempted to pull the trigger or cock the hammer at the time of the shooting. Scott's gun was traced to a friend of Scott's, who stated that he sold or gave Scott the gun some time in the 1970's. Q. AUTOPSY The autopsy of Scott's body was performed by former Ventura County Medical 26 Examiner-Coroner F. Warren Lovell, M.D. He reported that the decedent was wearing a t-shirt and blue jeans with a belt at the time of death. Dr. Lovell concluded that one bullet entered the right arm and traveled under the skin without actually entering the biceps. It proceeded into Scott's right side, broke a rib, and lodged in Scott's back. Dr. Lovell concluded that to match the wounds from this bullet, the shoulder must be pulled down slightly and the arm brought slightly forward and probably rotated slightly outward. The other bullet entered the right upper chest at a 35 degree downward angle, punctured the aorta and lungs, ran downward at a 15-20 degree angle and exited through the left side of the back. It appears that this is the bullet found in the sweater hanging next to the hallway door. Analysis of Scott's blood showed a blood alcohol level of 0.13% by weight. For purposes of comparison, in California, the driver or a vehicle is presumed to be under the influence if his blood alcohol level is 0.08% or higher. R. ADDITIONAL AERIAL OBSERVATIONS At approximately 10:30 on the morning of the shooting, U.S. National Forest Ranger Jim Burton and BNE Agent Greg McClung flew over the property in a helicopter for approximately 30 minutes to look for marijuana. They flew 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 1 0 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. On October 5, 1992, Stowell and Kitchings flew over the ranch again and Stowell reported that the plants were gone. Stowell photographed the area from the plane. They also flew over the nearby property which Spencer had said the informant may have been referring to, Stowell did not see marijuana on that property either. A commercial aerial photography company, Pacific Western, does periodic 27 photographic surveys of all of Ventura County. During the preparation of this report, we learned that Pacific Western photographed the area including the Trails End Ranch on September 19, 1992, only four days before Stowell's original flight. We had enlargements made of the photograph at scales of approximately 200 feet = 1 inch and 132 feet = 1 inch. Without saying when the photograph was taken, we showed the enlargements separately to McClung and Stowell. Nether could determine whether they showed growing marijuana. Stowell stated that objects in the photograph appeared smaller than what he observed from the plane, and that the photograph was not large enough or close enough to determine if marijuana was present. McClung stated that one enlargement was similar to what would be seen at an altitude of 1,000 feet. He stated that he did not observe any color in the photograph that appeared to be marijuana, but stated that the time of day is important because if the light is not right, marijuana may not be visible in a photograph. Like Stowell, McClung stated that he does not use binoculars because they make him feel sick. He stated that he can spot marijuana with the naked eye at 1,000 feet or higher. He stated that marijuana is not always detected on the first pass over it, but that a "flash" of green can be seen which contrasts with the surrounding vegetation. He also relies upon factors such as the location of the plants in relation to the residence and signs of irrigation systems. He stated that he was trained to take photographs of the suspected marijuana with a telephoto lens, which he would use as an exhibit attached to the search warrant. We also spoke with Forest Service Ranger Mike Alt. He has spent hundreds of hours doing aerial surveillance for CAMP. He stated that it would be highly unlikely that "spiked" marijuana plants could be seen from the air at 1000 feet, and that to do so would be similar to "seeing a corn dog sticking out of the ground." He stated that the color of marijuana cannot be distinguished from other green bushes and that he always obtains corroboration for his aerial observations before seeking a search warrant. In March, 1993, we visited the area identified by Agent Stowell and found the 28 vegetation to be dense and the area almost inaccessible. We found no trails leading to the area, which makes it unlikely that anyone was tending plants in that area. The dense canopy of the trees makes it unlikely that any plants growing in them could be seen from the air. S. INTERVIEW OF PLANTE Several days after the shooting, Ventura Sheriff's Sgt. Pat Buckley went to the ranch to interview Plante. She was hostile and refused to be interviewed. United States Pretrial Services Officer Michael D. Morgan was present and suggested she contact her attorney. Plante then called a neighbor, Los Angeles County Deputy District Attorney Larry Longo, who advised her not to talk to the detective. When Sgt. Pat Buckely later contacted Longo to ask about why he had given this advice, Longo quizzed Buckley about the investigation. After numerous attempts to set up an interview with Plante, she failed to appear at our office at the scheduled time. The attorneys representing her in her wrongful death case stated that she was too upset from court proceedings that day regarding the validity of her marriage. We later interviewed her at her attorneys' office, where she answered some questions and refused to answer others on advice of counsel. She particularly refused to answer most questions about Tomkiewicz and individuals who have been investigated in connection with narcotics offenses. Larry Longo was also present at the interview, giving advice to Plante and asking us questions about the investigation. He stated that he was there as a friend of Scott and Plante and not in an official capacity. Longo has also unsuccessfully attempted to be appointed as a co-executor of Scott's estate. As noted above, Longo earlier had interfered with Sgt. Buckley's investigation by advising Plante to refuse to talk to Buckley. In our opinion, this course of conduct is unprofessional and incompatible with Longo's employment as a Los Angeles County Deputy District Adam. (See Government Code section 26543, which prohibits the district attorney from acting as counsel for a private plaintiff in an action against a political subdivision of the state; Section 55 of the Los Angeles County Charter, which prohibits a deputy 29 district attorney from engaging in the private practice of law; and Penal Code section 148, which prohibits obstructing a public officer or peace officer in the attempt to discharge his duties.) Frances Plante admitted that Anthony Tomkiewicz was a friend of Scott and was living in the bunk house at the ranch at some time between January 1991 and the shooting. Court records show that in 1974, Tomkiewicz was convicted of possession of marijuana for sale and transportation of marijuana. The conviction was later dismissed pursuant to Penal Code section 1203.4, which allows the court to dismiss a case after the probation period has been completed. A dismissal pursuant to this section relieves the defendant of certain penalties and disabilities resulting from the conviction but does not purge the defendant's guilt or obliterate the fact that the defendant was convicted. (Adams v. County of Sacramento (1 991) 235 Cal.App.3d 8729 877-878.) We also obtained records which show that in 1977, Tomkiewicz was arrested in Connecticut for possession of 8 ounces of cocaine and marijuana plants, but failed to appear in court to answer charges. IV. LEGAL ANALYSIS A. BORDER PATROL SEARCH 1. What is the legal authority of the Border Patrol to conduct searches for drugs? The Border Patrol has the legal duty to enforce federal immigration and naturalization laws. (8 U.S.C.  12259 1357; 8 C.F.R.  100.2(f),l03.1 (q), and 287.1 et seq.) Federal law authorizes Border Patrol officers to make warrantless arrests based on probable cause for "any felony cognizable under the laws of the United States," but only "if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest." (8 U.S.C.  1357(a)(5)(B).) The foregoing was corroborated in a discussion with a Border Patrol legal 30 counselor in Washington, D.C. Following this discussion, on March 9, 1993, we received a telephone call from Deputy Chief Patrol Agent Robert Logazino who is stationed with the Border Patrol in Northern California. He agreed with our legal analysis but stated that the reason the Border Patrol was involved in the search was because a Forest Service agent told them that illegal aliens were suspected of being present on the property searched. He further stated that the Border Patrol was informed by the Forest Service that the area where the Border Patrol incursion was made was federal forest land rather than private property. This was the first time this suggestion had been mentioned and was not in any Border Patrol reports. Mr. Logazino also stated that all of the Border Patrol agents involved in the search were cross-designated as DEA agents, which would permit the agents to investigate narcotics-related cases on the ranch because it is within 100 miles of the ocean. However, he unequivocally stated that they were not relying upon this authority to justify their entry onto the Trails End Ranch, but were justified by a search for illegal aliens. We discussed the issue with Forest Ranger Mike Alt, who was the Border Patrol's contact in this case. He states that during the September 22 meeting in Whittier, someone mentioned that it is not unusual to use illegal aliens to harvest large crops of marijuana. (The Border Patrol was not present at this meeting.) He does not recall any information that there were illegal aliens at the Trails End Ranch and does not recall if he said anything to the Border Patrol about illegal aliens. He states that he contacted the Border Patrol in order to ask their assistance in finding marijuana. He states that he told them that the search was on private property. This conflicts with a written statement by Border Patrol Chief Patrol Agent W.L. Bonnette, Jr., which states that Alt made it "very clear that this operation would take place on federal land" and that private property was never mentioned. We also discussed the issue with Deputy Spencer. He states that at the briefing on the morning of October 2, he said that there might be Mexican nationals on the property to help harvest the marijuana. Of course, this was well after the Border Patrol searches of September 24 and 25. Spencer does not recall hearing anything from the 31 Forest Service about illegal aliens. Our conclusion is that the recent claim that the Border Patrol was looking for illegal aliens is false. It does not appear that the Border Patrol had any specific information about illegal aliens on the property. Most telling are the Border Patrol's own reports regarding the search. Border Patrol Agent Erik Dubbe wrote a two-page "Operations Order" outlining what would be done, and a two-page "After Action Report." These. documents state that he was contacted by Aft and was asked to gather "evidence that marijuana was being grown on a ranch in the Malibu area." Neither document states that the ranch was on government land, or makes any reference to illegal aliens. We thus conclude that the Border Patrol was looking for marijuana rather than aliens and acted beyond their legal authority in entering the property in this case. 2. Did the Border Patrol entry constitute a trespass? Trespasses are of two kinds: criminal and civil. The entries in this case would constitute criminal trespasses if the property were posted with signs forbidding trespass at intervals of at least three to the mile along all exterior boundaries and at all roads and trails entering the property. (Penal Code sections 602(k) and 602.8(a).) The administrator of the estate, Nicholas Gutsue, told us that not all of the boundaries of the property were posted. We therefore conclude that the Border Patrol agents may not be prosecuted for criminal trespass. However, the entries constituted civil trespasses. Under civil tort law, a trespass is an unauthorized entry onto the land of another. (Miller v. National Broadcasting Co. (1 986) 187 Cal.App.3d 1463, 1480.) Every trespass causes at least nominal damages and no special damages need be shown. (Costerisan v. Melendy (196-1) 255 Cal.App.2d 57, 60.) Since we have concluded that the Border Patrol's actions are not justifiable under federal immigration law, it is our opinion that their entries constitute civil trespasses. 3. Does the Fourth Amendment permit government agents to enter private property to search for drugs? The Fourth Amendment of the United States Constitution prohibits 32 unreasonable searches and seizures. When Border Patrol agents conduct a search on a location other than the border or its functional equivalent, they are governed by ordinary Fourth Amendment restrictions. (United States v. Brennan (5th Cir. 1976) 538 F.2d 7119 716-719.) Thus, in addition to the issue discussed above regarding the extent of the Border Patrol's authority, this case raises the more general issue of whether government agents may enter and search private property without a warrant. The fact that conduct constitutes a trespass does not mean that it violates the Fourth Amendment. (People v. @ (1 970) 5 Cal. App.3d 7249 727.) Searches of "open fields, even those on private property, do not violate the Fourth Amendment. People v. Freeman (1990) 219 Cal.App.3d 894, 9019 903.) An open field need be neither "open" nor a "field" as those terms are used in common speech. A "thickly wooded area" or any unoccupied or undeveloped area may be considered an open field that is not protected by the Fourth Amendment. (J=.) A Fourth Amendment violation would occur only if the incursion was made into the area immediately surrounding and associated with the home, which is called the "curtilage" of the property. (United States v. Dunn, (1987) 480 U.S. 2949 300.) The court in Dunn (at page 301) referred to four relevant factors in determining what constitutes "curtilage": [1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by. Because the Border Patrol has not permitted us to interview its involved agents, we cannot determine with certainty where they went. There were gates on the road, but we do not know where they went in relation to the residence. We therefore cannot determine whether the Border Patrol entered the curtilage in violation of the Fourth Amendment. We did not attempt to use the grand jury or other means to compel the Border Patrol to provide this information. The reason is that a violation of the Fourth Amendment in and of itself does not form the basis for a criminal prosecution. Thus, 33 while we would have liked to interview the agents to learn better what occurred, it was not critical to our evaluation that we do so. B. LAND FORFEITURE 1. Did the Los Angeles County Sheriff obtain the warrant In order to obtain Scott's land? Simple possession of drugs (other than cocaine base) is not a basis for forfeiture of real property under either California or federal law. However, real property may be forfeited under both California and federal law if used for the manufacture, sale or possession for sale of narcotics. California law does not provide for the forfeiture of real property used to cultivate marijuana. (74 Ops.Cal.Atty.Gen. 70 (1991).) However, real property used to cultivate marijuana may be forfeited under federal law. (21 U.S.C.  881 (a)(7); United States v. Tax Lot 1500 (9th Cir. 1988) 861 F.2d 232, cert. denied, 493 U.S. 954; United States v. Premises and Real Property at 250 Kreag Road (W.D.N.Y. 1990) 739 F.Supp. 120, 124.) Thus, if marijuana had been found growing on the ranch, the ranch could have been forfeited under federal law. Property forfeited under the federal statute is deemed to be in the custody of the Attorney General of the United States (21 U.S.C.  881 (c)), but may be transferred to any other federal agency or state or local law enforcement agency which participated in the seizure. (21 U.S.C.  881 (e)(1)(A).) Transfers to state or local law enforcement agencies must bear a reasonable relationship to their degree of direct participation in the law enforcement effort resulting in the forfeiture. (21 U.S.C.  881 (e)(3)(A).) Because the Los Angeles Sheriff's Department was the lead agency in this case, it is likely that it would have received a substantial portion of any forfeited property. The possibility of forfeiture of the ranch had been discussed before the warrant was served, and deputies assigned to the Los Angeles County Sheriff's drug forfeiture unit were on the property when the warrant was served. We thus conclude that forfeiture was at least one of the motivating factors for obtaining and serving the search warrant. There would have been no legal impropriety in this under existing law if the search warrant had been supported by probable cause. Drug forfeiture laws were 34 enacted to deter come, punish offenders, prevent continued illicit use of the property, impose an economic penalty to render illegal behavior unprofitable, and reimburse public agencies for the costs of investigating drug offenses. (Calero-Toledo v. Pearson Yacht Leasing, (1974) 416 U.S. 6639 6799 686-687; Note, Some Constitutional and Practical Considerations of Civil Forfeitures Under 21 U.S.C.  881 (1 987) 9 Whinier L. Rev. 27, 29.) In order to seize and forfeit property under either California or federal law, there is no requirement that an individual be arrested or charged criminally. (People v. Superior Court (Mor" (1 989) 21 0 Cal.App.3d 592.) We recognize that there is a wide spectrum of public opinion regarding drug forfeiture laws. It is beyond the scope of this report to debate policy considerations as to what the law should be or how such laws should be administered. We limit our analysis to the legality of the conduct under existing law and find no legal prohibition to law enforcement investigations with forfeiture of property as a motivating factor. There is no evidence that the Los Angeles County Sheriff's Department went to the property with the intent to kill Scott, or that they killed Scott in an attempt to take his land. If marijuana were growing on the land or some other narcotics offense were discovered for which forfeiture was authorized by law, then the land could have been forfeited. If, as actually occurred, no such evidence was found, then the land could not be forfeited. In neither case would Scott's death permit the government to seize land that it could not otherwise seize. 2. Did the National Park Service orchestrate the investigation or killing in order to obtain the land? The United States Department of the Interior performed an administrative inquiry into the involvement of the National Park Service in the case. Based upon our review of the report of that inquiry and the other evidence in this case, we conclude that the National Park Service did not instigate the investigation, search warrant or shooting as a means of acquiring land. Instead, the Park Service played a relatively minor role at the request of Los Angeles County Sheriff's narcotics detectives as part of the local Interagency Drug Task Force. The National Park Service receives annual appropriations for purchasing 35 property. The Service maintains two lists of properties it wishes to acquire for the Santa Monica Mountains National Recreation Center. The "high priority fee acquisition" list is a priority listing by fiscal year of properties that the NPS is actively seeking to acquire. It currently contains property located along the Backbone Trail. The Trails End Ranch is not on the Backbone Trail and has never been on the high priority list. The "fee acquisition" list contains all properties that the Service would like to acquire at some future date. The Trails End Ranch is contained on this list as a desirable piece of property. In July, 1983, the Park Service did a title search of all property in the area, including the Trails End Ranch. NPS Ranger Simonds states that at one meeting prior to the October 2, 1992 shooting, Spencer stated that if the property were seized, Los Angeles County might give it to the Park Service. It is clear that Spencer had no authority or authorization to make such a statement and there is no evidence that NPS personnel in any way relied upon this statement. The Service interviewed its employees with knowledge of the Santa Monica Mountains and reviewed land acquisition files and found no evidence of any plan to condemn, purchase or seize the Trails End Ranch. Nor had the Service ever attempted to obtain an appraisal for the land, which would be a necessary step before attempting to purchase it. The Santa Monica Mountains National Recreation Area has never attempted to acquire property through the asset forfeiture process, and states that it does not have the staff or resources to do so. Forfeited property may be transferred to any federal agency. (21 U.S.C.  881(e)(1)(A).) However, according to Superintendent David E. Gackenbach, the Park Service cannot directly obtain land through forfeiture because any land forfeited to the federal government would be sold with the proceeds going to the Department of Justice asset forfeiture fund. The Interior Department report also notes that because the role of the National Park Service was so minor in the case, the Park Service would have had to purchase the property from the seizing agency, Los Angeles County, and would be required by law to pay the appraised value of the property. The Service also concluded that the appropriations that it receives for land 36 acquisition are insufficient for the purchase of the Trails End Ranch. In making this conclusion, they assumed a $50 million purchase price for the property. However, a Realtor we contacted who is familiar with Malibu real estate estimated the value as $3 million to $5 million. Some members of the public have hypothesized the existence of a secret government conspiracy to steal Scott's land. We are unwilling to simply assume that a conspiracy of this kind existed in the absence of significant evidence. There is no question that the property here would be a valuable addition to the National Recreation Area. It does not necessarily follow, however, that the National Park Service attempted to obtain it through the forfeiture process, and we have found no evidence to support such a claim. C. EVIDENCE OF MARIJUANA CULTIVATION 1. How reliable are the observations of marijuana from the air? Two obvious questions are whether DEA Agent Stowell really saw marijuana and whether marijuana was in fact growing at the ranch. It is important to realize, however, that the validity of a search warrant does not depend on what is found in the resulting search. The law is clear that if a warrant is not supported by probable cause, it does not become valid if the officer's hunch pays off and contraband is found when the warrant is executed. (Wong Sun v. United States (1963) 371 U.S. 471, 484.) By the same token, if Stowell honestly and reasonably believed that he saw marijuana and if the warrant was in other respects validly issued, then the absence of marijuana when the warrant was served would not retroactively invalidate the warrant. (See 1 LaFave, Search and Seizure (2d ed. 1987 & 1993 supp.)  3.2(d)o pp. 575-576.) The actual presence or absence of marijuana on the date of the overflight is important, however, because it bears on Stowell's credibility in stating that he saw marijuana. Agent Stowell has extensive experience in detecting marijuana from the air and to this day states that what he saw was marijuana. However, the more we learn about the "science" of aerial detection of marijuana, particularly marijuana growing under the canopy of trees, the less convinced we are of Agent Stowell's observations. 37 Apparently, the technique used here consisted of looking at a certain time of the day for a particular shade of green which Stowell says distinguishes marijuana from other vegetation. However, Ranger Alt has stated that when viewed from the air with the naked eye, marijuana is the same color as other green bushes. In People v. Mayoff (1 986) 42 Cal.3d 1302, 13199 the California Supreme Court noted that a botanist, Dr. Nords, had testified that "marijuana has no unique color which distinguishes it from other cultivated crops" and had testified that it "is impossible ... to determine from 1 9000 feet the identity of common plants under cultivation." As the court noted in People v. Mayoff , aerial detection of marijuana from altitudes such as 1 000 feet may be valid in some situations, such as when the unusual color is accompanied by other evidence such as cultivated rows of plants growing in remote or rugged areas, the presence of irrigation systems, or footpaths leading from residences to the cultivated area. No such evidence was found here, either from the air or on the ground. Nor were binoculars used, as they were in Dean v. Superior Court (1973) 35 Cal.App.3d 1 1 29 114, to determine the shape or arrangement of the leaves. But see California v. Giraolo (1 986) 476 U.S. 207, in which the Supreme Court upheld the validity of a search based upon an anonymous tip and naked-eye identification of marijuana from an airplane flying at 1 000 feet, but did not discuss the reliability of such identification. It is not clear why efforts to hide marijuana in trees would be ineffective against observations at 1,000 feet. In our visit to the ranch and examination of aerial photographs, we found the canopy of the trees to be extremely dense. Further reducing the credibility of Stowell's conclusions are the fact that he had not observed such a disbursement pattern before and the fact that he thought the planes looked unusual because there was light under them. Finally, even though Stowell had a camera with him and it is the usual practice of himself and others to take photographs, he inexplicably failed to do so. Also troubling is the fact that neither Stowell nor McClung could identify any marijuana in the aerial photograph taken of the property by Pacific Western just four days before Stowell's flight. Stowell and McClung disagree as to whether these 38 photographs are similar to what could be seen at lOOO feet. However, when we look at the dense foliage in the photograph, it is difficult to imagine how anyone at 1 000 feet could spot marijuana plants hanging under the trees. Stowell initially told Spencer that he had a warrant to write, but then stated his unwillingness to be the basis for a search warrant without corroboration. As noted above, Stowell gives explanations for this position and insists that he was nonetheless sure that he saw marijuana. Notwithstanding these protests, the almost unavoidable conclusion to be drawn from his change of heart is that he was either lying or not sure that he saw marijuana. Stowell has stated that plants cultivated in grow bags easily can be transported from one location to another, and that the marijuana could have been removed in a small van or pick-up truck in less than a day. He also feels that the 9 day delay between his observations and service of the warrant was too long, particularly because marijuana is commonly harvested in early October. A number of other factors also indicate that Stowell did not see marijuana. When McClung flew over the area in a helicopter after the shooting, he saw an area that he thought might contain marijuana near the area identified by Stowell. Officers on the ground found only ivy growing, which suggests that Stowell too may have misidentified the vegetation he saw. Also disturbing is the virtually inaccessible location identified by Stowell, the absence of trails or irrigation systems, and the failure to find stems, seeds, ropes, or any other remnants of marijuana cultivation. The inability of the Border Patrol agents to penetrate the area described by Stowell is evidence that the area was not accessible enough for cultivation activities. Ventura County Sheriff's Commander Vince France has expertise in narcotics cases and been to a number of sites where marijuana had been cultivated. He reports that there were always stems, seeds, or some other evidence of the cultivation remaining. It is his professional opinion that cultivation of marijuana on the scale suggested by Agent Stowell will always leave such evidence. 39 2. What other evidence supports or refutes the presence of marijuana? The evidence of the presence of marijuana includes Stowell's observations and the statements of the informant discussed in the Factual Summary, including Plante's alleged acknowledgment that marijuana was growing somewhere nearby. If the cigar box with marijuana debits were found at the ranch, it would help support a conclusion that marijuana was used or possessed on the ranch at some point, but would not be evidence of cultivation. However, in light of the failure to list the box in the search warrant return and the inability of deputies to state where it was found, it is our conclusion that it is extremely unlikely that it was found at the ranch. Both the search warrant return signed by Spencer and Penal Code section 1537 require that "all of the property taken" pursuant to the warrant be listed in the return. Plante has denied ever seeing a cigar box on the property, and Nicholas Gutsue, who knew Scoff well for many years, told us that Scott did not buy cigars but only occasionally smoked them when a friend would bring one to him. There is also additional evidence that would support a conclusion that marijuana was not present on the property. In our interview with Frances Plante, she denied that there was ever marijuana at the ranch, that she ever saw Scoff smoke marijuana, or that she ever smoked marijuana at the ranch. She stated that the claim that there was ever anything growing in the trees was ridiculous. She stated that Scott was against drugs. United States Pretrial Services Officer Michael Morgan reports that Plante is under his supervision while her misdemeanor conviction for marijuana possession is on appeal. Plante was indicted in federal court for possessing one marijuana cigarette on an aircraft and assaulting a flight attendant during a flight on December 17, 1990. Because of the disturbance she created, the pilot was forced to land the plane in El Paso rather than Houston. Morgan reports that he visited her approximately once a month and walked up to the waterfall with her several times, but never saw any marijuana. Los Angeles County Deputy District Attorney Larry Longo knew Scoff and also stated that Scott was against drugs and never used drugs. 40 Other indications that there was no marijuana on the property include the failure of the Border Patrol to locate any marijuana, the lack of any evidence of cultivation when the search warrant was served, and the factors discussed in the previous question including Stowell's indecision, his failure to take photographs, the impossibility of identifying marijuana in the aerial photographs we do have, and the almost impenetrable vegetation. From all of the evidence, we conclude that Stowell did not see marijuana cultivation from the air as he maintains. Although there is conflicting evidence as to whether marijuana was present on the Scoff property, ft is the District Attorney's conclusion from all the known facts that marijuana was not being cultivated on the property in the quantity and manner suggested by Agent Stowell. Whether he was mistaken or dishonest is unknown. D. VALIDITY OF SEARCH WARRANT 1. How Is the validity of a search warrant determined? Search warrants must be supported by probable cause. Probable cause has been defined as a "substantial basis for concluding that a search would uncover evidence of wrongdoing.' (Illinois v. Gates (1 983) 462 U.S. 2139 236 (internal punctuation omitted).) Usually, the validity of warrants is tested in criminal cases by way of a motion to exclude the evidence seized on the basis that the warrant was invalid. The procedural context is different in this case because no evidence was seized which led to a criminal prosecution. However, we shall apply the same legal standards in our analysis. In Franks v. Delaware (1 978) 438 U.S. 154, the United States Supreme Court held that when a defendant demonstrates by a preponderance of the evidence that a false statement was knowingly or with reckless disregard for the truth included in a search warrant affidavit, the false statement must be omitted from the affidavit and the search warrant must be retested for probable cause. The "deliberate falsehood" and "reckless disregard" standards of Franks and the add-and-retest procedure apply to intentional or reckless material omissions as well as affirmative falsehoods. (People v. 41 Gesner (I 988) 202 Cal.App.3d 581, 590-591; United States v. Ippolito (9th Cir. 1985) 774 F.2d 14829 1486-87, fn. 1.) A warrant will not be invalidated based upon misstatements or omissions which are merely negligent. (Franks v. Delaware, supra, at p. 171; People v. Gesner, supra, at p. 590; People v. Truer (1985) 168 Cal.App.3d 437.) The officer need not include all information in the search warrant affidavit; the officers duty to disclose information extends only to facts that are material and adverse to a finding of probable cause. (People v. Gesner, supra, at p. 591; Stewart v. Donges (10th Cir. 1990) 915 F.2d 5729 582-583.) 2. Did the warrant affidavit contain knowing or reckless false statements or material omissions? The Statement of Probable Cause upon which the warrant was based includes a number of statements which could be considered false. They are: (a) that the information that Plante was spending $1 00 bills was "anonymous information," (b) that the BMW was registered to Scoff at the Trails End Ranch, that Stowell 'noticed' marijuana "while conducting cannabis eradication and suppression reconnaissance," (d) that Spencer verified the location of the plants from the ground, and (e) that Stowell used binoculars. In addition, there are a number of facts which could be considered material omissions, including (f) that there had been several entries onto the property in which marijuana had not been seen, (g) the altitude that Stowell flew over the property, (h) the basis for Stowell's opinion that he saw marijuana, (I) that Stowell saw nothing the first two times he flew over the property, 0) Stowell's equivocation regarding obtaining a warrant, (k) that Stowell only agreed to have his name go on the warrant based on purported statements by an informant that there was a 40-pound yield of marijuana, and (1) the discrepancies in the informant's statements regarding the amount of marijuana. These potential misstatements and omissions are discussed in order below. (a) Spencer refers to the information from the informant regarding Plante's spending $1 00 bills as 'anonymous information.' Spencer told us that he does in fact know the name of the informant, but that he used the term "anonymous" to mean that he was not disclosing the name. In his file is a photocopy of a dictionary entry for 42 anonymous" which arguably supports this use of the term. Despite Spencer's reliance upon the dictionary definition of "anonymous" we believe that his use of the term in the search warrant was misleading. In making probable cause determinations, published case law gives much less weight to an "anonymous" tip, where the identity of the caller is unknown to the officer, as compared to information from an "informant" whose identity is known to but not disclosed by the officer. (See, e.g., Illinois v. Gates, supra.) However, because labeling the first informant as "anonymous" in this case actually tended to understate rather than overstate the probable cause, and because the information from this informant added almost nothing to the probable cause anyway, the characterization of this information as "anonymous" should not be a significant factor in challenging the validity of the warrant. (b) Spencer states that he received information that Plante was driving a BMW with Nevada plates, and that when he checked the license number, he learned that it was registered to Donald Scott at the Trails End Ranch. However, we determined that the vehicle was in fact registered to a Nevada Corporation with a Malibu post office box address. We cannot determine if Spencer fabricated this information or was confused about the information he obtained. This information is significant because it links Plante, who was reportedly spending the $100 bills, to Scott and to the Trails End Ranch. (c)The Statement of Probable Cause states that Stowell "noticed" marijuana "while conducting cannabis eradication and suppression reconnaissance." Dictionary definitions of "reconnaissance" include 'a preliminary survey" and "a general examination or survey," but also include other examinations of an area. Our opinion is that the statement that Stowell "noticed" marijuana during 'reconnaissance' may be literally accurate, but creates the false impression that Stowell was doing a routine general flight and that the marijuana was so visible that it attracted Stowell's attention. In fact, Stowell was specifically flying over that property to look for thousands of marijuana plants, saw nothing the first two times he flew over, and then saw what he thought were 50 plants with an unusual disbursement pattern. 43 Aerial observations of marijuana from 1,000 feet are constitutional whether they occur during "routine patrol" or during a flight made for the purpose of looking at particular property. (California v. Ciraolo, supra, 476 U.S. at p. 214, fn. 2.) The problem here is the implication that the marijuana was so readily apparent that it was spotted fortuitously during a routine flight over a large area. (d) The Statement of Probable Cause states, "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." This statement is susceptible of two meanings: that Spencer verified that the area was in the ranch, or that Spencer verified that marijuana was growing in the ranch. Spencer did tell the deputy district attorney who reviewed the warrant that he, Spencer, never actually saw any marijuana on the ranch. We do not know how the magistrate interpreted this sentence. (e) Spencer erroneously stated that Stowell used binoculars in making his observations from the air. This misstatement would mislead the magistrate into thinking that Stowell's observations were more accurate than they really were. This misstatement is material because it directly affects the accuracy of what Stowell could have observed. See People v. Joubert (1 981) 118 Cal.App.3d 637, 646 (subsequent opinion at 140 Cal.App.3d 946) in which the Court of Appeal concludes that "plants cannot truly be identified as marijuana at reasonable altitudes without the aid of binoculars." This misrepresentation is clearly false rather than an issue of interpretation. When we recently asked Spencer about this issue, he stated that during a discussion of the overflight at the September 22 meeting, either Stowell or Sgt. Mueller gestured as if they intended to use binoculars, and that Spencer therefore assumed that binoculars would be used. (f) 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 the undercover threat assessment of September 27. Specifically, the Border Patrol made two incursions onto the property in order to locate marijuana but found none. If officers had seen marijuana during the entries onto the property, the failure to disclose the entries would not invalidate the warrant because the warrant was based 44 on the aerial observations as an "independent sources of probable cause. (Murray v. United States (1988) 487 U.S. 533.) But the fact is that marijuana was not found during the entries, which is material information counter to a finding of probable cause which should have been included in the affidavit. It could be argued that the ranch is a big place and that there is no evidence that any of the individuals went to the area where Stowell said he saw the plants. The Border Patrol's refusal to be interviewed has frustrated our attempts to learn exactly what area they saw. Our opinion is that all of the entries onto the property by government agents which Spencer knew about should have been reported in the Statement of Probable Cause, along with whatever information was available as to what areas were observed. The magistrate then could make his own determination as to whether the entries affected probable cause. We conclude that the failure to include this information constituted a material omission contrary to a finding of probable cause. (g-j) Few details are given regarding Stowell's observations. Not disclosed are the specific altitude of the flight, the basis for his opinion that he saw marijuana, the fact that he did not see the plants until the third pass over the ranch, and his equivocation regarding obtaining a warrant. The Statement of Probable Cause does not state that Stowell's opinion was based solely on the color of vegetation and that he did not see any nearby irrigation system, paths, cultivated rows of plants or other evidence to support his conclusion. At first blush, the allegations in the Statement of Probable Cause regarding aerial observations sound reasonable. An experienced DEA agent with extensive expertise in aerial detection of marijuana states that he observed marijuana growing on the property. It would appear reasonable to rely upon the credibility and expertise of law enforcement officers when one officer reports that a DEA agent saw and recognized marijuana. It also would be reasonable to believe that the agent would not report seeing marijuana unless the plants were in such a location and were viewed from such an altitude that the observer, using binoculars as the search warrant claimed, would be in a position to recognize it. 45 In preparing an affidavit in support of a search warrant, it is not enough to merely set forth the opinions of peace officers. Additionally, one must set forth sufficient facts upon which those opinions are based so that the magistrate can make his or her own determination as to whether probable cause exists. (See Illinois v. Gates, supra, 462 U.S. at p. 239.) The limitations of aerial observations for detection of marijuana are discussed in a separate section above. The weight to be given to the opinion would be affected by the specific altitude of the flight. If Stowell's opinion was based solely upon the shade of green, that fact should have been disclosed. If he had some other bases for his opinion, they should have been disclosed as well. Stowell's equivocal statements regarding use of his name on the warrant also affected the credibility of his opinion and should have been disclosed. Like many prosecutors, the deputy district Adam who reviewed the warrant was not familiar with the cases discussed above which deal with the accuracy of aerial detection of marijuana. It is actually somewhat unusual for published case law to give guidance on the factual sufficiency of different kinds of evidence as opposed to stating more general principles of law (with which the prosecutor was familiar). If a narcotics prosecutor who was more familiar with aerial observations had been available to review the affidavit, the deficiencies in the affidavit might have been uncovered. However, had Spencer complied with his obligation of including the additional information discussed above, the deputy district attorney and the magistrate who reviewed the warrant should have been alerted to the thin factual basis for the conclusion that marijuana had been spotted. Aerial photographs would have also assisted in the determination as to whether probable cause existed. The District Attorney takes responsibility for his office's role in approving the search warrant. This case is a painful reminder that prosecutors and judges reviewing search warrants must understand the factual basis for "expert' opinions upon which probable cause determinations are made. The affiant must be pressed to include all relevant information which forms the basis for the probable cause determination, and all evidence that might detract from a finding of probable cause. 46 (k-1) One of the most disturbing issues in this case is Spencer's claim that the informant reported that a yield of 40 pounds of marijuana was expected. The informant denies making such a statement to Spencer. Ordinally, an officer would not be obligated to include statements by an informant if the warrant were adequately supported by other evidence such as an officer's direct observations. This case is unusual in that the informant's statement was not relied upon in the Statement of Probable Cause, but was used to induce Stowell to agree that a warrant could be sought. If Spencer fabricated the information, then Stowell's agreement is based upon false statements. Further complicating this issue is the fact that Stowell has insisted all along that he is sure he saw marijuana. If the informant really did say there were 40 pounds, the statement, along with the informant's prior inconsistent statements about 3000 pounds, should have been included in the Statement of Probable Cause because it places Stowell's opinion in context and has a significant bearing on Stowell's credibility and the weight to be given to his opinion. If the informant did not really say there were 40 pounds, then the fact that Stowell's agreement was induced by deceit should certainly have been included and would have reduced both Spencer and Stowell's credibility. The prosecutor who reviewed the warrant has stated that he did not know about Stowell's equivocation or the fact that Stowell agreed to the warrant only after the purported statement from the informant about 40 pounds. If the deputy district attorney had known about this information, he would have insisted on learning about the informant's credibility and including information about the informant in the affidavit. A similar problem is that Stowell told Spencer that he saw approximately 50 plants, but Spencer told the deputy district attorney reviewing the warrant that Stowell saw between 50 and 1 00 plants. Just as Spencer used purported statements of the informant to induce Stowell to agree to use of his name in the warrant, Spencer exaggerated the number of plants in convincing the deputy district attorney to approve the search warrant affidavit. 47 3. Do the misstatements and omissions invalidate the warrant? It is our legal conclusion that the misstatements and omissions discussed above are material and would invalidate the warrant. We provided the deputy district attorney who reviewed the warrant with the information provided above, and asked for his opinion as to whether he would have approved the affidavit if he had known the additional information. His conclusion is that if he had known then what he knows now about the facts of the case and the law regarding aerial observations, he would not have approved the affidavit. 4. May the officers be prosecuted for perjury? Penal Code section 118a defines perjury as willfully stating under oath in an affidavit 'any material matter which he knows to be false.' In order to be guilty of pedury, the person must have the specific intent to testify falsely under oath and must know or believe that the statement is false or be aware that he does not know if the statement is true or not. (CAUIC 7.24; Penal Code l 25; People v. Meza (1 987) 188 Cal.App.3d 1631,1647.) In order for perjury to be assigned, the false statement must be "material," i.e., it must have tended to influence the outcome of the "proceedings.n (People v. Hedgecock (1 990) 51 Cal.3d 395, 405.) A misleading but literally true statement will not form the basis for a perjury conviction. (Bronston v. United States (1 973) 409 U.S. 352.) Proof of falsity may not rest solely upon contradiction with the testimony of a single other person. (Penal Code  118 (b).) As in all criminal cases, all elements of the come must be proven beyond a reasonable doubt. (Penal Code  1096.) In the present case, the truth of statements that Spencer received 'anonymous information," that Stowell 'noticed" marijuana "while conducting cannabis eradication and suppression reconnaissance,' and that Spencer verified the location of the plants from the ground, are a mafter of interpretation. We cannot establish beyond a reasonable doubt either that these statements are false or that Spencer knew them to be false. The statement that Stowell was using binoculars is clearly false. However, it cannot be proven that Spencer knew this to be false; it is also possible that he believed it to be true and was mistaken. The misstatement that the BMW was 48 registered to Scott is not so easily explained. While it seems unlikely, it is possible that Spencer obtained the information from some other source which he did not recall a year later when he prepared the warrant affidavit. At a trial for perjury, we would need to prove beyond a reasonable doubt that he knowingly lied, and that the statement was "material for purposes of the perjury statute by influencing the issuance of the warrant. Based on our evaluation of the evidence, it is our conclusion that a prosecution for perjury based upon these statements could not be proved beyond a reasonable doubt. As discussed above, we have concluded that Stowell did not see 50 madjuana plants under cuftivation on the Trails End Ranch. However, Stowell cannot be prosecuted because he did not make his statements under oath, and because we cannot prove that he knew his statements to be false. By the same token, Spencers inclusion of Stowell's observations cannot be the basis for a perjury prosecution because it cannot be proven that Spencer knew that Stowell had not seen marijuana. Nor may Spencer be prosecuted on the basis of omissions in the Statement of Probable Cause. There are conflicting cases as to whether the omission of a material fact required to be disclosed under oath may constitute perjury. Compare People v. French (1 933) 134 Cal.App. 694, 699 (no perjury for failing to disclose all assets in affidavit to obtain county relief work) with People v. Meza, supra (perjury may be based on silence when judge asked prospective jurors if any of them knew defendant, and prospective juror in fact knew and was brother-in-law of defendant.) In contrast, the present case does not deal with silence in response to a direct question, but a much more general legal duty to disclose material negative information in a search warrant affidavit. In our opinion, the perjury statutes do not equate such omissions with a false statement. We thus conclude that neither Spencer nor Stowell may be prosecuted for perjury. The issue of whether the many misstatements and omissions subject Deputy Spencer to prosecution for homicide is discussed under issue F, below. 49 E. SERVICE OF WARRANT 1. Why were so many officers and agencies present? Thirty law enforcement officers were present to serve the warrant. Deputy Spencer states that he had originally planned on a large number of officers to deal with the 3000 plants he expected to find, and had some difficufty in reducing the number of people when the size of the expected drug seizure was reduced. R makes sense that officers from different agencies who had already participated in the case would be interested in observing and participating in the seizure of madjuana plants. Finally, the size of the property justified having a relatively large contingent on hand in order to search all areas. 2. Was the presence of Ventura County deputies required? One concern is why the Ventura County Shedff's Department, which has law enforcement jurisdiction over the Trails End Ranch, was not present or notified that the warrant was going to be served. Penal Code section 830.1, subdivision (a), provides that the authority of a deputy sheriff extends to the county by which he is employed, unless he has the poor consent of the chief of police or the sheriff of another city or county. Absent consent of the Ventura County Sheriff, a Los Angeles County Deputy Shedff would have no authority to serve a search warrant in Ventura County that did not relate to an offense which occurred in Los Angeles County. (People v. Gaivan (1992) 5 Cal.App.4th 866.) The search of the Trails End Ranch did not relate to a Los Angeles County offense. However, there is an agreement between the Shedffs of Ventura and Los Angeles Counties signed in May, 1990 entitled 'Consent Pursuant to Section 830.1 of the California Penal Code." That agreement provides that "any peace officer ... employed by the other signatory to this agreement, has the authority of a peace officer at all times within the city or county for which each of the signatories can give consent." (The consent of the Los Angeles Shedff is limited to unincorporated areas and contract cities.) It appears that this agreement would satisfy the requirement of "consent" referred to in Galvan. As such, it would appear that a local peace officer from Ventura County was not legally required to be present during 50 the execution of the search warrant at the Trails End Ranch. When the investigation of offenses occurring in one county require bank records, telephone records, and similar documents located at an office in a second county, it is common for law enforcement officers of the first county to serve a search warrant for the records in the second county. In these circumstances, there is liffle practical reason to notify the Shedff of the county where the office containing the records is located. But when a search warrant is to be served in a neighboring county and there is a potential for violence or for a criminal prosecution in that county, there is good reason to notify the law enforcement agency with primary law enforcement authority for the area involved, and it is the usual practice to do so. A newspaper article regarding this case quotes Los Angeles County Sheriff Chief of Detectives Paul Myron as saying that they simply forgot to notify the Ventura County Sheriff. In an interview, Spencer stated that he does not know why the Ventura County Sheriff's Department was not notified, but felt that there was no need to do so, other than as a courtesy. In a subsequent wdften statement, Spencer gives an explanation of several pages as to why there was no notification. He stated that because he no longer thought there would be thousands of plants, he reduced the number of personnel needed for service of the warrant and did not need the Ventura Sheriff to provide additional personnel. He also stated that an accidental confrontation with Ventura County deputies was unlikely because of the remote location of the property and the fact that 911 calls would dng into the Los Angeles County Sheriff. Finally, he stated that he had learned that Ventura County deputies had recently seized a large amount of cocaine in an unrelated arrest and feft they would be busy working on that case. Spencer denies that he failed to notify the Ventura County Sheriff based on any desire to exclude Ventura County from sharing in the proceeds of a possible forfeiture. These explanations are not particularly convincing and it is probable that the Ventura County Sheriff was not called because Los Angeles County did not want to split the forfeiture proceeds-with that agency. The property is worth millions of dollars, which Los Angeles might need to split with the other agencies already involved. Of 51 course, the fact that several other agencies were already involved can be interpreted in several ways. One possibility is that it shows that Los Angeles had no reluctance to involve other agencies. A second possibility is that because so many agencies were already involved, the Los Angeles County Sheriff's Department did not want to further split the proceeds with yet another entity. A third possibility is that, as the lead agency, LASD expected to get the major share of the proceeds and was not concerned that the involvement of other agencies would have a significant effect. We cannot conclusively determine what the motivation was for failing to notify the Ventura County Sheriff. We can only suggest that when an operation of this kind directly and significantly impacts a neighboring county, the law enforcement agency with primary law enforcement authority for that area should be notified as a matter of interagency courtesy and professionalism. A related issue is why the Sheriff's Department, Coroner and District Attorney of Los Angeles County attempted to handle the investigation of the shooting. The consent document discussed above was not intended to give the Los Angeles County Sheriff the authority to conduct the investigation of a fatal shooting in Ventura County. Nor are we aware of any authority for the Coroner or Distdct Attorney of Los Angeles County to handle a shooting death occurring in Ventura County. It is clear that a death in Ventura County is appropriately investigated by Ventura County authorities. Deputy Spencer knew they were in Ventura County because he had researched the property records and had obtained the search warrant in Ventura County. It is possible that other law enforcement personnel on the scene did not know they were in Ventura County or did not think about that issue aiter the shooting occurred. We cannot eliminate the possibility, however, that Los Angeles County Sheriff's personnel wished to avoid scrutiny of their actions by outside investigators. 3. Did the officers comply with knockmnotice requirements? Penal Code section 1531 states: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, aiter notice of his authority and purpose, he is refused admittance. 52 The policies underlying section 1531 are fourfold: (1) to protect the occupants' privacy; (2) to protect innocent persons who may be present on the premises; (3) to prevent violent confrontations between householders and law enforcement officers who enter without proper notice; and (4) to protect peace officers who might be injured by a startled and fearful householder. (Duke v. Supedor Court (1 969) 1 Cal.3d 314, 321.) Compliance with section 1531 requires that officers executing the warrant do the following: 1 . Knock or utilize other means reasonably calculated to give adequate notice of their presence; 2. Identify themselves as police officers; 3. Explain the purpose of their demand for admittance; and 4. Give the occupants an opportunity to surrender the premises voluntarily (i.e., right to refuse entry). (Duke v. Superior Court, supra at p. 319; Jeter v. Superior Court (1983) 138 Cal.App.3d 934, 937.) Refusal justifying forcible entry may be implied, e.g., when officers have knowledge that someone is awake inside the residence and fails to admit the officers within a reasonable time. (People v. Hobbs (1 987) 192 Cal.App.3d 959, 964-965.) Courts have upheld entries where they are made as quickly as 20 or 30 seconds aiter the demand is made. (See Jeter v. Supedor Court, supra.) In the present case, numerous officers at the scene report repeated knocks and announcements before entry was made. These officers include not only Sheriff's deputies but also officers of other agencies including the National Park Service and Drug Enforcement Administration. We are persuaded that knock and notice were given as required by law. Time estimates for the length of the knock-notice range from 60 seconds to 4 53 minutes. Under existing case law, this appears to be an adequate period before entry. However, the events after the entry and the statement of Frances Plante suggest that Plante and Scott had been asleep and were still reacting to the knock-notice when the deputies forced entry. F. SHOOTING l. May a peace officer use deadly force In serving a search warrant? Murder is the unlawful killing of a human being with malice aforethought. (Penal Code  187.) Malice is (a) the deliberate intention unlawfully to kill a human being, or (b) the deliberate performance of an intentional act with knowledge of the danger to, and conscious disregard for, human life, without considerable provocation. (Penal Code  188; CAUIC 8.1 1.) Voluntary manslaughter is the unlawful killing of a human being without malice aforethought, but with the intent to kill. There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion, or in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. (Penal Code  192 (a); CAUIC 8.40.) Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill, in the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. (Penal Code  192 (b); CAUIC 8.45.) When Deputy Spencer pointed his Bereita at Scoit and shot him, he intended to kill or at least seriously injure him. The issue is whether the killing was legally justifiable and therefore not 'unlawful" under the murder and manslaughter statutes. Penal Code section 196 provides: Homicide is justifiable when commiited by public officers... 1. In obedience to any judgment of a competent Court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty... 54 This section applies because Scott was resisting Deputy Spencer in the execution of a search warrant. The killing is also justifiable because it was in self-defense. Self-defense requires that the person doing the killing honestly and reasonably believes that there is imminent danger that the other person will kill him, and that it was necessary under the circumstances to kill the other person to prevent death or great bodily injury to himself. (Penal Code  197 (1); CAUIC 5.12.) A number of witnesses report that Spencer commanded Scoff to drop the gun. Spencer reports that Scott was slowly lowering his gun when Spencer shot him. It is significant that while there is a conflict as to whether Plante was in the room during the shooting, her statement supports Spencer's statement that Scott was lowering the gun. The statements of other officers at the ranch regarding the timing of the commands to drop the gun and the shots also support Spencer's version of the shooting. Spencer states that the gun was pointed directly at him, and Cater corroborates this statement. Another deputy found Scott's gun on the floor near his body shortly aiter the shooting. The conclusion of the Medical Examiner-Coroner as to the position of Scott's arm neither supports nor contradicts Spencer's statement. The Medical ExaminerCoroner states that Scott's upper arm was to his side when he was shot, but is inconclusive as to the position of his forearm. The medical examiner-coroner concluded that the fatal bullet entered Scott's upper chest at a 35 degree downward angle. This could occur if Spencer were shooting at a higher elevation than Scott's chest. But Spencer and Cater state that Spencer was on one knee when he shot Scott. Spencer is 5'8" and Scoff was 5'1 1 There are no stairs or obvious slants in the floor. The downward angle of the bullet could also occur if Scott were leaning forward. Although neither Spencer nor Plante report that Scott was in that position, and although Spencer states that Scott jerked backward and then fell forward, it is possible that this was the second shot and that Scott was momentarily leaning forward in response to the first shot. A third possibility is that the medical examiner-coroners measurements were incorrect. While there remains some question as to the downward angle of the bullet as 55 described by the medical examiner-coroner, it is our conclusion that the relative positions of Spencer and Scott are as reported by Spencer, Cater and Plante, i.e. that Spencer was on one knee and that Scott was standing in the doorway. If Scott wished to submit to the demand to drop the gun, he reasonably would have done so in a way that did not point the gun at the deputy, e.g. by dropping the gun onto the floor or by pointing the gun to the side as he lowered it. We cannot determine why Scoit would have lowered the gun in the manner described by Spencer (aithough Spencers report conflicts with Cater). Spencers lack of candor regarding the search warrant affidavit, Cater's conflicting report on the movement of Sooit's arm at the time of the shooting, and the downward angle of the bullet give us reason to doubt Spencers report of the shooting. However, in a criminal prosecution, it would be the burden of the prosecution to disprove Spencer's assertion that he acted in self-defense. Aithough we are leit with some question as to how the shooting occurred, we cannot disprove Spencer's version of the shooting. We thus must conclude that the evidence supports the claim that Spencer and Cater reasonably feared for their lives and shot Scoff -in self-defense. Penal Code section 198.5 creates a presumption that a person had a reasonable fear of imminent peril if that person used deadly force within his or her residence against a person not a member of the family or household who unlawfully and forcibly entered the household, if the householder knew or had reason to believe that an unlawful and forcible entry occurred. In the present case, it is reasonable to assume that Scott knew that Spencer and the others were Sheriff's deputies based upon the verbal identification and large yellow letters and other insignia identifying them as such. If Scott knew that they were Sheriff's deputies, then he would not have reason to believe that the entry was unlawful, and section 198.5 would not apply. However, even if Scott did not know the identity of the officers, based on his intoxication or otherwise, this would not mean that Spencer would be criminally liable. The issue in a criminal prosecution for homicide against Spencer would be whether Spencer reasonably believed he needed to shoot in order to defend, himself, not what Scott believed. 56 2. Does an Invalid warrant make the shooting a crime? As discussed above, it is our conclusion that the Statement of Probable Cause contained material misstatements and omissions and that the warrant was therefore invalid. The fatal shooting was by Deputy Spencer, who signed the search warrant affidavit. We have not found any California case which bases a homicide prosecution upon defects in a search warrant affidavit. However, the principles in other cases are instructive. In People v. Gonzalez (1 990) 51 Cal.3d 1 1 799 the defendant was prosecuted for intentionally killing a peace officer who was serving a search warrant at the defendant's residence. The California Supreme Court held at page 1218: Squarely faced with the issue for the first time, we conclude that if a warrant is valid on its face, an officer carrying out its command to search or arrest is lawfully engaged in duty, and his or her aitacker may be convicted and punished on that basis, even if the facts disclosed to the magistrate in support of the warrant were not legally sufficient to establish probable cause. The court in Gonzalez went on to note that pursuant to Penal Code section 834a, citizens have a duty to refrain from resisting both lawful and unlawful arrests. W. at p. 1219.) The court's inference was that this rule also applied to search warrants. In the court's own words: When the police submit their suspicions for judicial evaluation, obtain a warrant regular on its face, and act only as it expressly authorizes and commands, no issue of fault in the serving officers "performance of... duties" arises. (Id. at pp. 1220-1221, footnote and emphasis deleted.) In reaching its decision, the court in Gonzalez relied upon Civil Code section 43.55, which immunizes peace officers from liability for the execution of arrest warrants "if the peace officer in making the arrest acts without malice." In Crabtree v. State of Arkansas (1 964) 238 Ark. 358, 381 S.W.2d 729, the Sheriff and his deputies, in uniform, served a search warrant at a residence for illegal 57 possession of liquor. The defendant ran to the kitchen and started disposing of the liquor. When the Sheriff forced open the door, the defendant pointed a pistol at the Sheriff's head. In upholding the conviction for unlawfully resisting execution of a criminal process, the Supreme Court of Arkansas held that the defendant could not obstruct the service of a warrant regular on its face and could not challenge the validity of the warrant. However, two California civil cases suggest that officers may be civilly liable for deficiencies in an affidavit which forms the basis for a warrant. In Harden v. San Francisco Bay Area Rapid Transit Distdct (1 989) 215 Cal.App.3d 7, the court addressed whether a peace officer acted with malice in executing an arrest warrant. In that case, an officer provided false information forming the basis for the warrant under which the plaintiff was arrested. The plaintiff brought an action for false imprisonment and arrest. The California Court of Appeal held that the officer could be found liable if he "acted with malice" by "knowingly or recklessly' giving false information "With the intent to induce the arrest of [plaintiff], and that such action was a proximate cause of [plaintiff's] arrest." (jd. at p. 15.) Similarly, in McKay v. County of San Diego (1 980) 1 1 1 Cal.App.3d 251, the court held that a district attorney investigator was liable for false imprisonment when he provided false information that generated an arrest warrant. By analogy, it can be argued that a peace officer is not immunized for executing a search warrant when he acts with malice. Consistent with Harden and McKay, an officer who maliciously and wrongfully obtains a search warrant is not engaged in the lawful performance of his duty in executing said search warrant. In this context, "malice" is used in the general sense of "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act" (Penal Code section 7. subdivision 4) and not the "malice aforethought" required for murder, which requires an intent unlawfully to kill a human being or conscious disregard for human life (CALJIC 8.1 1). Also relevant are cases which address the admissibility in a criminal prosecution of evidence seized pursuant to an invalid search warrant. Evidence seized pursuant to an invalid search warrant may be admissible in a criminal case if 58 the officers executing the warrant acted in "good faith," i.e., "Whether a reasonable and well-trained officer 'would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.' (People v. Camarella (1991) 54 Cal.3d 592, 605-606, quoting Malley v. Bd= (1986) 475 U.S. 335v 345.) However, an officer cannot be said to have acted in "good faith* in procuring and executing a search warrant where he has misstated or omiited material facts in the affidavit. (People v. Alexander (1992) 11 Cal.App.4th 1630,1638,1641.) Since we have concluded that the misstatements and omissions were material in nature we also conclude that Deputy Spencer did not act in good faith in procuring and executing the search warrant. Because there is no evidence that the other officers serving the warrant were involved in the preparation of the affidavit, their actions would be in good faith. (Ld. at p. 1638.) If it could be proven that Spencer knowingly omitted and distorted information in the affidavit in order to obtain the search warrant, 'malice" in the general sense of the term would exist and he would not be in the "lawful performance of his duties" when he executed the search warrant. However, this would not necessarily mean that he is criminally liable for the resulting death of Scott. As discussed above, Penal Code section 834a obligates a citizen to submit to both a lawful and unlawful arrest; it is only where officers use excessive force that a citizen can resist the arrest and/or resort to self-defense. (People v. Muniz (1970) 4 Cal.App.3d 562; People v. Henderson (1976) 56 Cal.App.3d 349, 356-357.) As a maiter of public policy, citizens should have the same obligation to submit to search warrants regardless of whether they believe that the magistrate was correct in his assessment of probable cause. If a search warrant is improperly issued, then the occupants can obtain a remedy in a court of law. As discussed above, we cannot conclude that the search warrant was valid. However, while it is our opinion that a warrant would not have been issued if all the facts had been known, a court might rule otherwise. Moreover, in a criminal prosecution, we would be required to prove all elements of the come, including the mental state of the killer, beyond a reasonable doubt. For those reasons, it is the conclusion of the District Attorney that the problems with the warrant would form an 59 insufficient legal or factual basis for a criminal pmsecution of Deputy Spencer for murder or manslaughter. Law enforcement officers responsible for obtaining a search warrant based on material misstatements or omissions may be civilly liable for civil rights violations under federal law. (42 U.S.C. l 983; LoSacco v. Cily of Middletown (D.Conn. 1990) 745 F.Supp. 812, 816-817.) However, an officer "is entitled to qualified immunity if his actions were reasonable under the totality of the circumstances, even if those actions may be later determined to have violated the plaintiff's constitutional rights. Tachiquin v. Stowell (E.D.Cal. 1992) 789 F.Supp. 1512, 1517.) A judicial determination that an officer lacked probable cause for a search would bar the defense of qualified immunity only if a reasonable officer would have known that the absence of probable cause was clear and unmistakable. (Ibid.) Donald Scott's estate has already filed an action in federal court alleging violation of civil rights. It would be inappropriate for us to predict the outcome of that lawsuit. V. CONCLUSIONS 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 observations 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 Distdct Attorney's conclusion that there was never marijuana being cuitivated on 60 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 cuitivation, 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 Sheriff's 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 aititude 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 mislead by Spencer into approving the warrant affidavit, further inquiry by this office might have uncovered the 61 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 Sheriff's 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 as 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 Scoit's death could and should have been avoided. VI. RECOMMENDATIONS 1. Law enforcement officers should tape record critical conversations with informants and other witnesses. 2. Observations of suspected madjuana during aedal surveillance should be photographed in color. 3. While interagency cooperation for madjuana eradication and other law 62 enforcement purposes can be valuable, involved agencies should ensure that they have the legal authority for their investigative actions, including the entry on private property. 4. In preparing search warrant affidavits, law enforcement officers must not compromise their objectivity based upon forfeiture concerns. Regardless of whether a given search warrant may resuit in the forfeiture of valuable property, officers must ensure that there is adequate probable cause. 5. Whenever possible, search warrants should be reviewed by a deputy district attorney who is familiar with the specialized areas of law that are involved. Prosecutors reviewing search warrants must act as objective evaluators and before approving an affidavit must resolve all questions relating to probable cause. 6. Search warrants should be obtained and served promptly. Specifically, search warrants for growing marijuana should be served quickly during the harvest season. 7. Returns to search warrants should comply with the statutory requirement of listing all of the property taken pursuant to the warrant. 8. The Sheriff of Ventura County and other sheriffs and police chiefs statewide should review consent agreements entered into pursuant to Penal Code section 830.1 to determine how much authority they wish to give to Sheriff's deputies from other counties and police officers from other cities. Specifically, they should consider whether they should require notification and the opportunity to participate in the service of search warrants and other specified law enforcement operations within their jurisdiction. 9. Based on the personal involvement of Los Angeles County Deputy Distdct Attorney Larry Longo in this investigation, the referral to the Los Angeles County Distdct Attomey will request that Longo not be given access to the file and will suggest that his conduct in the case be addressed by the Distdct Attorney of Los Angeles County. 10. The Los Angeles County Sheriff's Department should reopen its administrative investigation into the conduct of Deputy Gary Spencer in view of the 63 District Attorney's findings. 11. The Los Angeles County Sheriff's Department should examine its policies and procedures regarding obtaining and executing search warrants to prevent a recurrence of the events which lead to the death of Donald Scott. Specifically, they must ensure that warrants are supported by probable cause and served in a manner that minimizes the danger to both citizens and officers. 12. The Los Angeles County Shehff's Department allowed Deputy Spencer to participate in the investigation into the circumstances leading to the shooting of Donald Scoit. In view of Spencers activity in procuhng the warrant and ultimately shooting Scott, his participation in the ensuing investigation was inapprophate. Officers involved in shooting incidents should not participate in investigations of their own conduct. 13. The United States Department of Justice should require its law enforcement agencies, including the Border Patrol, to cooperate with investigations by local law enforcement agencies. 14. The Bureau of Narcotic Enforcement of the California Department of Justice, in conjunction with the Campaign Against Planting Mahjuana, should establish chteha, consistent with case law, for determining the sufficiency of an expert opinion regarding the aerial identification of mahjuana cuitivation. 15. Our file will be forwarded to the Grand Juries of Los Angeles and Ventura Counties, the Shehffs of Los Angeles and Ventura Counties, the Los Angeles County Disthct Aitomey, the Aitorneys General of the United States and of Califomia, and the Federal Bureau of Investigation for their review. We recommend that these bodies conduct their own investigations to determine what action is approphate for them to take. 64