Judge Mark Magit granted a request to suppress evidence in the case of the people vs. Youseff Boulaalam at the Superior Court of California in Mammoth on Monday. Attorney Doug Buchanan of Bishop, representing Boulaalam, filed the suppression motion, citing that his client’s fourth amendment rights prohibiting search and seizure were violated.
Boulaalam was arrested on the night of July 10, 2013, just outside of Bridgeport after Sheriff Department Deputy Art Torres and Sergeant Rick Hahn found a loaded handgun in a backpack in his car.
The deputies originally pulled Boulaalam over for driving while under the influence, but continued to search his car, all while the dashboard surveillance camera was recording.
“The first role of court with a [suppression motion] is the findings of fact; then to apply those facts to the constitutional amendment,” Judge Magit said at the opening of the hearing on Monday. “The search occurred without a warrant and the court has to consider the constitutionality of the stop and search.”
Assistant District Attorney David Anderson began the prosecution’s defense by calling Deputy Art Torres to the witness stand. Torres started his law enforcement career as a probation officer in Inyo County in 2005. He was a Mammoth Lakes Police Officer from 2007-2012 and worked for the city of Pleasanton, CA for seven months before becoming part of the Mono County Sheriff’s Department last May. Torres has made over 100 DUI arrests in his law enforcement career and was awarded the Hero Award from Mothers Against Drunk Drivers (MADD) every year he was a part of the MLPD.
Torres testified that he first noticed Boulaalam’s VW Jetta on Travertine Road. When asked about his interest in Travertine Hot Springs that night, Deputy Torres said the area “is known to be a higher crime area” where people “indulge in alcohol and drugs.”
Torres looked into Boulaalam’s car while passing him on the dirt road with “the object to find symptoms of intoxication,” he said. “I tried to focus on his eyes. To me they appeared red and watery.” This information was not written in the original police report, but in a supplemental report dated January 3, 2014, requested by the District Attorney’s office. When asked why this information was not in the original report, Torres said, “I didn’t believe it was important to the case.”
Torres’s suspicion of Boulaalam’s intoxication is what eventually led him to pull the defendant over.
Torres explained how he conducted a five-point U turn on the dirt road to follow Boulaalam and observe his driving pattern to determine if he was driving under the influence. According to Torres, he was not able to catch up to Boulaalam until highway 395, where he continued to follow him. Boulaalam drove under the speed limit at 45 mph, another sign of possible intoxication.
This is where the surveillance dashboard camera DVD starts. Anderson played the first 25 minutes in court, asking Deputy Torres to explain his thought process. Torres pointed out every time Boulaalam drifted slightly towards the fog line (the right white lane line on the highway), saying that the defendant’s driving was “inconsistent.”
At one point, Judge Magit pointed out that there was “an oncoming vehicle. He just moved to the right of his lane.” Torres responded: “I was more focused on the driver’s vehicle than oncoming traffic.”
According to the DVD, after two minutes of following Boulaalam on 395, Torres put on his overhead lights to pull the defendant over. At this point in the video, Anderson said, “The DA records that there is oncoming traffic and the defendant is in the middle of his lane.”
Torres testified that as a part of his DUI investigation, he asked if Boulaalam had any weapons in the car, to which Boulaalam said he had a rifle in a gun bag and bullets in a green box in the trunk. Torres than took his license and registration, ran it for wants and warrants, and asked him to step out of the car. He said: “you are not under arrest” but did gain consent to look for the rifle and bullets.
While Boulaalam sat in the car with Sergeant Hahn, Torres began “methodically searching the vehicle.” He found the rifle and the bullets, placing them outside the vehicle, and continued to search the car.
During this time, Boulaalam remembered he also had a handgun in the backseat and told Hahn. Hahn exited the Sheriff’s vehicle and went toward the trunk, where Torres has just found a hunting knife.
Hahn then proceeded to find the handgun in a backpack behind the driver’s seat, put it back where he found it, and told Torres to look behind the driver’s seat.
Hahn did not tell Torres that Boulaalam already told him about the handgun, or that he already found it.
In his cross examination of Torres, Buchanan questioned how the deputy could not catch up to a low, 2 wheel drive Jetta on a dirt road in his high, 4 wheel drive Ford Explorer. The defense questioned Torres’ observations of speed and apparent swerving based on turns in the road, oncoming traffic and changing speed limits. Torres repeatedly responded, “I don’t recall.”
Torres also admitted he doesn’t recall smelling alcohol, or any slurred speech by Boulaalam, but that his eyes did remain red and watery. When asked why he didn’t conduct any sobriety tests, Torres said: “I had come to the conclusion that he was not under the influence.”
Buchanan also pointed out that Torres didn’t check either the rifle bag or the green bullet box before he continued to search the car. “In my experience, where there are bullets there are handguns,” Torres said.
Buchanan pointed out that information wasn’t in the report. It is also not in Torres’s report that Sergeant Hahn told Torres to look behind the seat, because Torres “didn’t feel [that detail] was important.”
Buchanan also pointed out that Torres never directly asked Boulaalam if he was under the influence. “There was nothing that caused me to be suspicious,” Torres said.
Boulaalam then took the witness stand. He testified to being in Mono County as part of a four-week camping, fishing and hunting trip in Colorado, Montana, and Idaho. He had stopped at Travertine Hot Springs to take a shower before making the long drive back home to Cardiff by the Sea when Torres and Hahn pulled him over.
Boulaalam also testified that the Sheriff Department vehicle tailgated him all the way to 395, even coming to a complete stop while he slowly drove through a ditch in the road.
“I know he was trying to find a reason to pull me over,” Boulaalam said of Torres. “I knew I would be pulled over. I was scared and I told [Torres] that.”
“What were you scared of?” Buchanan asked.
“Of getting shot. I don’t know.”
Boulaalam admitted to having the Walter 40 cal., but not that it was outside the backpack as Torres testified. “The handgun was inside the red backpack and the zipper was closed. There is no way it could be seen.”
When asked why he didn’t disclose the presence of the handgun earlier, Boulaalam said, “I forgot about it. I’ve never had anything wrong in my life and I was really scared.”
When asked why both guns were hidden at the bottom of his car Boulaalam answered, “I don’t want anyone to see them and break into my car.”
Boulaalam also contested that his eyes were red and watery, when asked about it by Anderson. “I looked in the mirror several times and I didn’t see my eyes were red.”
Anderson focused his closing arguments on the suspicion of a DUI case. “When you couple the red eyes, weaving towards the fog line, and the low speed limit, you have more than reasonable cause.”
Buchanan questioned the supplemental report made by Torres, where he first mentions Boulaalam’s red and watery eyes. He also argued that there was “nothing erratic” about his client’s driving, as seen by the surveillance DVD, and that he couldn’t be driving slow enough to impede traffic since only two cars passed after Boulaalam was pulled over.
It was then up to Judge Magit to decide whether there was probable suspicion for stopping Boulaalam? Had he exemplified any traffic violations to prompt the officers to pull him over?
“It’s obvious Torres takes pride in his efforts to protect the roads,” Judge Magit said. “I fully recognize and commend Officer Torres on wanting to stop people driving under the influence.”
However, Judge Magit questioned the labeling of Travertine Hot Springs as a “high crime area,” explaining that this term is usually used in areas like Washington DC, where there is a large presence of “gangs and the ongoing sale of narcotics.”
He also dismissed the accusation that Boulaalam was weaving. “Drifting to the fog line? Everybody does that. There has to be a balance between lawful duty of the deputy to check out if they are okay and some line that says they need something else.”
“I have scoured published and unpublished cases,” Judge Magit said. “There was not a single vehicle code violation. This is a close call and I’m cognizant of that. It’s as close to the line that there is. But it’s just not enough.”
Judge Magit was interested in the constitutionality of other aspects of this case, especially consent and search. However, he couldn’t get past the lack of reasonable suspicion of a vehicle code violation and so granted the defense’s motion to suppress the evidence.
When asked about his language in the surveillance DVD after the hearing, Sergeant Hahn said, “No comment. You guys don’t get it right. When you get it straight then I’ll talk to you. You can print that.”
Anderson did not seem surprised by the court’s ruling. He said, “Our office believes there was case law that would support either the grant or denial of the motion. The court ultimately made factual determinations from the evidence and applied its interpretation of case law to determine the outcome. At this time, we do not expect to appeal the court’s ruling.”
But, “The case isn’t technically over,” Buchanan said.
Although all the evidence has been suppressed, the case has not been dismissed. Boulaalam is still charged with a misdemeanor for carrying a loaded firearm in a vehicle. The pre-trial hearing is set for March 17 at 10 a.m.