Search warrant questioned in case involving drugs, child porn | TheUnion.com

Search warrant questioned in case involving drugs, child porn

An anticipated showdown between a narcotics detective who became the subject of an internal affairs investigation following complaints of "dishonesty, incompetence and lack of integrity," and the former team member who blew the whistle on him was postponed Friday. Nevada County Sheriff's Det. Jason Mackey had been subpoenaed to testify, as were former Narcotics Task Force detective Mark Hollitz and both the former and current heads of the task force — Sgt. Guy Selleck and Sgt. Justin Martin.

Hollitz and Selleck did not appear in Nevada County Superior Court for the hearing, which centered around the arrest of a man and woman on charges that include drug sales and child porn. Judge Candace Heidelberger was scheduled to rule on a request by the defense attorneys to throw out the search warrant affidavit authored by Mackey.

But after Heidelberger heard the arguments on the motions, she chose to take the matter under submission and promised to issue a ruling as soon as possible. If she finds in favor of the defense, an evidentiary hearing with testimony will be held, and already has been scheduled for March 21.

What's at stake

The case involving Roland Kitchens and Jennifer Nelsen is just one of the criminal drug cases currently being actively litigated that hinges on Mackey's veracity. If a defense attorney can prove that the lead officer, or the officer who authored the search warrant that led to their client's arrest, has a pattern of complaints about his credibility, then that information could be presented during a trial and could taint the case.

Since last spring, when questions started to bubble up about Mackey, more than a half-dozen of these cases have been slowly making their way through the court system. Because Mackey has taken the lead in many of the county's narcotics cases since mid-2015, the proceedings currently on the court calendar are not just of vital importance to defense attorneys who might be handling a drug felony now or in the future. The outcome is also of enormous importance to the Sheriff's Office ­— which has stood by Mackey and retained him in a position long considered elite — and to the District Attorney's office, which is being dogged by accusations that it tried to sweep the allegations under the carpet rather than disclosing them as potential Brady, or "exculpatory," evidence to defense attorneys.

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What's at issue

Kitchens and Nelson were arrested in September 2014 after a search warrant of Kitchens' residence in North San Juan uncovered marijuana and honey oil, methamphetamine, cash, a handgun and child pornography on media devices.

According to defense attorney Erica Treeby, who is representing Kitchens, in the two and a half years since then, she has requested "Brady" evidence, or exculpatory evidence, several times and has not been provided with information that the District Attorney had during that time period.

Treeby's claim that the DA's office had violated its Brady obligations forms the basis for one of the motions that was heard in court Friday.

"What is at issue is timing," Treeby told Heidelberger. "I requested Brady material back in November 2014, and again regarding Mackey in August 2015."

According to Treeby, she was told nothing existed, or was told she should follow the procedure of filing a Pitches motion, which is designed to uncover negative information that might be contained in an officer's personnel file.

Treeby noted that on April 22, 2015, a hearing was held regarding whether a memo penned by District Attorney Cliff Newell regarding Jason Mackey was "Brady material," but she was not informed of that.

"Then on Dec. 16, attorney Heather Burke told me she had received additional Brady information that had not been released to me," Treeby said.

Treeby argued that she had done her due diligence and went through the proper avenues, and should have been given access to those documents long before.

"They can argue it's not Brady, but the documents were in the actual possession of the DA's office and we didn't receive them," she said, pointing out that their DA's office internal memo from their investigation is titled "Brady allegations."

The documents were certainly relevant to the defense and were not turned over in a timely manner, Treeby argued.

"This is disconcerting for us," she said, expressing concern about additional late disclosure showing up on the eve of trial. "It's been two and half years and we're still at this stage."

Assistant District Attorney Joe Alexander, however, acknowledged the criticism regarding delays but offered a different view of the timeline, noting, for example, that Deputy District Attorney Oliver Pong had disclosed possible Brady information in Mackey's personnel file in July 2015. He stressed that his office has never had access to that personnel file or to the internal investigations report.

"We've disclosed everything we have pursuant to the Brady request," Alexander said. "This is not an acknowledgement or acquiescence that this is Brady material — that has to be a finding by the court."

Alexander also argued that there has been no violation of its Brady obligations by his office, calling it an ongoing process it will continue to comply with.

"Delayed disclosure does not constitute suppression," he said, arguing that there was no evidence the delay was prejudicing the outcome of the case.

Heidelberger denied a request by Treeby to dismiss the case, but said the issue could be revisited at a later date.

Motion to quash and traverse based on text message evidence

The defense attorneys for Kitchens and Nelson also asked Judge Heidelberger to rule on a motion to quash and traverse. In essence, they argued two separate motions challenging the search warrant affidavit. The motion to traverse challenges the truth of the statements, while the motion to quash asserts that the statement made in the affidavit were not enough to get it signed by the judge.

Treeby and Maria Belyi, who is representing Nelsen, needed to successfully argue that Mackey's warrant contained statements that were false or made with "reckless disregard" for the truth — and that if the false statements were removed from the affidavit, there would not be enough information in the warrant to support the judge signing it.

Both attorneys hammered on the "snippets" of text messages between Kitchens and friend David Roper, arguing that at most they pointed to friends occasionally meeting up to get high rather than to evidence of sales.

Mackey "fluffed up" his affidavit in order to cover the fact that he did not actually conduct an investigation, Belyi argued, citing the lack of surveillance and cell phone records.

"He did absolutely nothing," she said.

Deputy District Attorney Jennifer Rivers told Heidelberger she disagreed that the information in the warrant was stale and that the text messages related to drug use rather than sales.

"It's very obvious to me what's going on, it's very obvious there was some sort of drug exchange going on," she said.

Treeby listed a number of inaccuracies in the affidavit she said were examples of "reckless disregard for truth," including the reversal of the two men in one text. She also disputed a characterization by Mackey that the texts were "predominantly about drugs," arguing that the friends texted about a lot of things, including fishing and their relationships.

"Mackey throws out a lot of words and uses (them) to convolute the true nature of what is going on," Treeby said of his conclusions in the affidavit.