HomeMy WebLinkAbout20210412_Motion to unseal search warrant Filed
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PATRICK L. FISHER
FISHER LAW OFFICE
1322 Morro Street
San Luis Obispo, CA 93401
TEL: (805) 543-9156
FAX: (805) 542-0464
CURTIS L. BRIGGS, SBN 284190 SEVILLE BRIGGS LLP 3330 GEARY BOULEVARD, 3RD FLOOR EAST SAN FRANCISCO, CA 94118 TEL: (415) 324-8733 FAX: (833) 667-0274 Attorneys for Defendant TIANNA ARATA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN LUIS OBISPO
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
TIANNA ISIS ARATAWENTWORTH,
Defendant.
Case No. 20M-05512
NOTICE OF MOTION AND MOTION
TO UNSEAL SEARCH WARRANT
AFFIDAVIT [Evidence Code §§ 1040,
1042, and 915(b)].
Date: April 30, 2021
Time: 8:30 AM
Dept: TBD
TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO THE DISTRICT ATTORNEY
FOR THE COUNTY OF SAN LUIS OBISPO:
PLEASE TAKE NOTICE that on the above-mentioned date and time, or as soon thereafter,
as the matter may be heard, the defendant, TIANNA ARATA, hereby moves this Court to conduct
April 23, 2021
D8
-A
ELECTRONICALLY FILED4/12/2021 10:33 AM
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an in camera hearing to examine the search warrant affidavit to determine whether it remains
properly sealed.
The asserted basis for sealing the search warrant affidavit is not an informant, but rather an
“ongoing conspiracy investigation." Therefore, the Court must first evaluate whether there is a
continued need for sealing the search warrant affidavit based on an ongoing investigation. If the
investigation has been completed, the Court should unseal the affidavit. If the investigation is still
ongoing, it should then be determined whether the entirety of the affidavit is properly sealed, i.e.,
whether the extent of the sealing is necessary to avoid jeopardizing the investigation. If the Court
finds any portion the affidavit can be redacted, and the remaining excerpted portion made public
without thereby jeopardizing the investigation, such disclosure should be ordered. Additionally, if
the Court finds that any of the information in the search warrant affidavit is material to Mr. Arata’s
defense, the privilege must give way and that information must be disclosed.
This motion is made pursuant to Evidence Code sections 1040, 1042, 915(b) and the Due
Process provisions of the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution.
This motion is based upon this notice, the attached memorandum of points and authorities,
the attached declaration and exhibits, the records and files in this action, any oral and documentary
evidence as may be presented at the hearing of this motion, and any further evidence as the Court
may wish to consider.
Dated: April 12, 2021 Respectfully submitted,
____________________
CURTIS BRIGGS
PATRICK L. FISHER
Attorneys for Defendant
TIANNA ARATA
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Dan Dow ordered Investigator Paul Kelly to obtain a search warrant by any means
necessary in direct retaliation for counsel for Arata making allegations of racism against Dan
Dow. On one hand, Investigator Kelly, under penalty of perjury, told Judge Guererro there was
probable cause that a felony was occurring, while on the other hand, Dan Dow was publicly
defending his filing of misdemeanors against Arata as misdemeanor conduct. Also, Kelly alleges
an ongoing conspiracy in his affidavit, yet only requests social media information for a six-week
period predating the affidavit by 3 months—something that could not prove an ongoing
conspiracy. Also, the affidavit was filed the third business day after counsel for Arata filed a
demurrer alleging racism and selective prosecution.
In Dan Dow’s world of law enforcement practices, this type of infringement on one’s
Constitutional Rights is not only commonplace, but it is a pattern and practice employed by him
and his disciples and used against political and ideological opponents. Luckily for Ms. Arata, the
law mandates transparency and under the adversarial system, true law and order prevail.
II. STATEMENT OF FACTS
Tianna Arata is a young courageous Black female college student with no criminal history.
On July 31, 2020, Ms. Arata took part in a Black Lives Matter protest wherein she and hundreds of
college kids marched through the city of San Luis Obispo. A majority of the 200 to 300 protestors
were white college students. When the protest came to an end, Ms. Arata was singled out and
arrested by the San Luis Obispo Police Department (SLOPD) for felony charges including
participation in a riot, unlawful assembly, conspiracy, false imprisonment, and resisting arrest.
Following Ms. Arata’s arrest, SLOPD immediately began a large-scale investigation involving
nearly 45 law enforcement officers.1 2
1 (See Request for Complaint Form for Tianna Arata and List of Additional Law Enforcement Personnel,
attached as Exhibit A.)
2 SLOPD employs 59 sworn police officers, thus literally almost the entire police force was involved in this
investigation.
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On August 5, 2020, the District Attorney’s Office received a referral of investigation for Ms.
Arata from SLOPD. SLOPD recommended charging Ms. Arata with four felony counts of Pen.
Code, § 236 [false imprisonment]; one felony count of Pen. Code, § 182(a)(5) [conspiracy to
commit an act injurious to the public health]; one misdemeanor count of Pen. Code, § 148(a)(1)
[resisting arrest]; one misdemeanor count of Pen. Code, § 404.6(a) [inciting riot]; and one
misdemeanor count of Pen. Code, § 407 [unlawful assembly].3
The District Attorney then launched their own in-depth investigation. This included
reviewing drone video footage of the protest and sending investigators to speak to anyone that was
driving a vehicle during the protest and who either stopped or turned around to allow the protestors
to walk by. On September 2, 2021, after nearly a month of investigation, Dan Dow personally
signed and filed a Complaint against Ms. Arata listing thirteen misdemeanor charges. The
Complaint alleges five counts of False Imprisonment pursuant to Penal Code § 236 (Counts 1, 5, 6,
11, 13); six counts of Obstruction of a Thoroughfare pursuant to Penal Code § 647c (Counts 2, 4, 7,
8, 9, 10); one count of Unlawful Assembly pursuant to Penal Code § 407 (Count 3); and one count
of Disturbing the Peace pursuant to Penal Code § 415(2) (Count 12).
Two days later, on September 4, 2020, Dan Dow posted in a private Facebook group
wherein he defended his decision to file misdemeanor charges. He wrote, “The law does not
support felonies being prosecuted for the conduct in this case – even though that may seem hard
to believe to someone who has seen the publicly available video.”4 He further wrote, “Prosecutors
cannot charge what we cannot prove, that would be unethical and would be seen by any jury as
undermining the case that we can prove.”5
On Friday, September 18, 2020, Ms. Arata filed a Demurrer to the Complaint alleging this
prosecution is legally barred under the First Amendment and the Complaint is deficient in that it
fails to state facts that constitute a public offense.6 Ms. Arata alleged in essence that there is no
basis for the charges; the charges amount to a brazen effort to intimidate or shut down the Black
3 (See Exhibit A.)
4 (See Dan Dow post in “Protect Paso, September 4, 2020, attached as Exhibit B.)
5 (See Exhibit B.)
6 (See Arata Demurrer to Complaint, filed on September 18, 2020.)
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Lives Matter movement in SLO; and the District Attorney is engaging in invidious discrimination
by singling out on 20-year-old Black women amongst a sea of white protestors. 7
Three business days later, on Wednesday, September 23, 2020, Investigator Paul Kelly for
the District Attorney’s Office submitted a search warrant application for Ms. Arata’s Facebook,
Instagram and Google account records. The warrant sought “evidence related to conspiracy” from
June 1, 2020 to July 21, 2022.8 To obtain the warrant, Investigator Kelly stated under penalty of
perjury that there was probable cause to believe that the records would “show that a felony had been
committed or that a particular person has committed a felony.”
Along with the warrant application, Investigator Kelly submitted a non-disclosure order
requesting that notification of the warrant be delayed for a period of 90 days. As a basis for non-
disclosure, Investigator Kelly alleged: “…there is reason to believe that notification of the existence
of the warrant to any person may result in endangering the life or physical safety of an individual;
lead to flight from prosecution; lead to destruction of or tampering with evidence; lead to
intimidation of potential witnesses; or otherwise seriously jeopardize an investigation or unduly
delay a trial or otherwise lead to an adverse result.”9 10
In addition, Investigator Kelly authored a request to seal the search warrant affidavit
wherein he declared as follows:
Based upon your affiant’s training and experience, your affiant believes this affidavit
used to support this Search Warrant should be sealed by Court Order until further
court order. This ongoing conspiracy investigation would be jeopardized if this
affidavit were made public. Disclosure of this information would compromise the
investigation of this crime as it would alert suspect(s) and allow suspect(s)
knowledge of evidence that could be destroyed.
Your affiant requests that the Search Warrant Affidavit / Statement of Probable
Cause and returns be ordered sealed by the magistrate in order to implement the
privilege under Evidence Code Sections 1040 to 1042.11
7 (See Arata Demurrer to Complaint, filed on September 18, 2020.)
8 (See Search Warrant, dated September 23, 2021, pgs. 1-3, attached as Exhibit C.)
9 (See Search Warrant, dated September 23, 2021, pg. 4, attached as Exhibit C.)
10 If Dow’s office’s discovery disclosures are to be believed, Paul Kelly failed to take any notes or write even one
sentence in a follow up report about a search warrant or analysis of the contents of the materials obtained. Failure to
document investigative steps in this context is highly unusual and raises the strong inference that Dow’s office is failing
to produce discovery despite multiple requests.
11 (See Search Warrant, dated September 23, 2021, Request to Seal, pg. 5, attached as Exhibit C.)
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On September 23, 2020, the Honorable Judge Guerrero signed the search warrant and
authorized the search of Ms. Arata’s social media and Google account records. Judge Guerrero also
signed an order delaying notification of the warrant and approved the requested sealing order.12
The entire search warrant affidavit was sealed.
On October 22, 2020, in response to the warrant, Facebook sent the District Attorney’s
Office basic subscriber information, messages, photos, transactional information, videos, and other
content from Ms. Arata’s Facebook and Instagram accounts.13 On October 27, 2020, Google sent
the District Attorney’s Office subscriber info, chats, and Gmail messages from Ms. Arata’s Google
account.14
On December 18, 2020, the District Attorney’s Bureau of Investigation mailed Ms. Arata a
“Post-Notice of Search Warrant After Court-Ordered Delay.” In the letter, the District Attorney’s
Office alleged that notification to Ms. Arata was “delayed pursuant to a determination by the court
that such notice would seriously jeopardize an investigation concerning: Conspiracy.”15
To date, the affidavit in support of the search warrant remains sealed and has not be turned
over to the defense. It had only been referenced for the first time two weeks prior to this motion.
Counsel is not aware of law enforcement filing any additional requests to continue sealing the
affidavit since September 23, 2020; nor has there been information discovered which suggests an
investigation into conspiracy is still ongoing; nor has Ms. Arata been charged with conspiracy.
Ultimately, it is concerning that the District Attorney’s Office sought a search warrant for
Ms. Arata’s social media and email records immediately following her demurrer to the
Complaint.16 Given that Dan Dow made it clear that the conduct in this case did not amount to a
felony, the declaration by Investigator Kelly stating that Ms. Arata’s online accounts would
contain evidence of a felony offense was a lie used to deceive Judge Guerrero. Moreover, it is
12 (See Search Warrant, dated September 23, 2021, pg. 1, attached as Exhibit C.)
13 (Bates Stamp Nos. 7:000383, 7:000401.)
14 (Bates Stamp Nos. 7:000402 - 7:000403.)
15 (See Post-Notice of Search Warrant After Court-Ordered Delay, dated December 18, 2020, attached as
Exhibit D.)
16 A prosecutor violates due process [vindictive prosecution] when he or she seeks additional charges solely
to punish a defendant for exercising a constitutional or statutory right, or "for doing something that the law
plainly allowed him to do." (United States v. Goodwin (1982) 457 U.S. 368, 384.)
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unclear how continuing to seal the search warrant affidavit could seriously jeopardize any
“ongoing conspiracy investigation” given Ms. Arata has not been charged with conspiracy.
With the entire search warrant affidavit sealed, Ms. Arata is prevented from litigating the
lawfulness of the government intrusions into her social media and email accounts, and this is
stifling her rights to present a defense, to confront the witnesses against her, and to effective
assistance of counsel. Therefore, Ms. Arata now seeks to exercise her constitutional to right unseal
the search warrant affidavit.
III. ARGUMENT
A. A MOTION CHALLENGING THE LEGALITY OF A SEARCH WARRANT SHOULD
BE HEARD BEFORE THE MAGISTRATE WHO ISSUED THE WARRANT.
In cases involving a search warrant, a motion challenging the legality of the warrant “should
be heard by the magistrate who issued the search warrant.” (Pen. Code, § 1538.5(b)) Although this
subsection is not a mandate, it is recommended that the judge who issues the search warrant should
hear a motion challenging the warrant. (Cuevas v. Superior Court (1976) 58 Cal.3rd 406, 409; See
People v. Fleming (1981) 29 Cal.3rd 698, 794 n6 [language of Penal Code §15385(b) is “permissive
not mandatory.”].
Here, Judge Guerrero was presented with the search warrant application on September 23,
2020. He ultimately signed the warrant, signed an order delaying notification, and signed an order
sealing the affidavit. Therefore, Judge Guerrero is in the best position to evaluate whether the
warrant was properly sealed in its entirety, and whether Investigator Kelly’s stated basis for sealing
the affidavit creates an ongoing need for secrecy given Ms. Arata has not been charged with
conspiracy.
B. THE COURT MUST CONDUCT AN IN CAMERA HEARING TO DETERMINE IF
THE SEARCH WARRANT AFFIDAVIT IS PROPERLY SEALED.
Pursuant to California Penal Code § 1534(a), after the statutory 10-day period following the
issuance and execution of a search warrant, the judicial records pertaining to the warrant shall be
open to the public. There are limited exceptions to this rule such as sealing a search warrant affidavit
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to protect the identity of an informant or to prevent the disclosure of official information. (Evid.
Code, §§ 1040, 1041.)
Here the affidavit was sealed in its entirety based on an “ongoing conspiracy investigation”
that “would be jeopardized if this affidavit were made public.”17 The basis for sealing the search
warrant affidavit in this case is not a confidential informant, therefore the Hobbs procedure and
analysis do not apply. (See People v. Hobbs (1994) 7 Cal.4th 948; People v. Galland (2004) 116.
Cal.App.4th 489; and People v. Heslington (2011) 195 Cal. App. 4th 947.)
However, ongoing investigations may be privileged as “official information” under
Evidence Code section 1040. (People v. Jackson (2003) 110 Cal.App.4th 280, 287; see also
County of Orange v. Superior Court (2000) 79 Cal. App. 4th 759 [holding evidence gathered by
police as part of an ongoing criminal investigation is by its nature confidential].)
Pursuant to Evidence Code section 1040(b)(2), “[a] public entity has a privilege to refuse to
disclose official information, and to prevent another from disclosing official information,
if.…[d]isclosure of the information is against the public interest because there is a necessity for
preserving the confidentiality of the information that outweighs the necessity for disclosure in the
interest of justice.” The privilege is conditional in the sense that the court must weigh the
necessity for preserving the confidentiality of the information against the necessity for disclosure
in the interest of justice. (People v. Superior Court (1971) 19 Cal.App.3d 522, 526.)
To evaluate a claim of privilege under Evidence Code section 1040, the Court must
conduct an in camera hearing pursuant to “Evidence Code section 915, subdivision (b), which
provides for a hearing in the judge's chambers attended only by the judge and representatives of
the public agency asserting the privilege.” (Id., at 526.)
Specifically, Evidence Code section 915, subdivision (b) provides that when a court is
ruling on a claim of privilege under section 1040 “and is unable to do so without requiring
disclosure of the information claimed to be privileged, the court may require the person from
whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the
information in chambers…” In order to trigger an in camera hearing, section 1040 requires “the
defendant seeking disclosure must at least show how the information affects the preparation or
17 (See Search Warrant, dated September 23, 2021, pg. 5, attached as Exhibit C.)
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presentation of his defense.” (Id., at 522.)
Here, with the entire affidavit sealed, Ms. Arata is unable to evaluate the legality of the
search of her social media and email accounts. She is unable to initiate a sub-facial challenge (by
moving to traverse the warrant), or otherwise make an informed determination whether sufficient
probable cause existed for the search (in consideration of a motion to quash the warrant).
Moreover, she is unable to determine whether the affidavit was actually based on any ongoing
investigation, or rather, was sought in direct response to Ms. Arata exercising her constitutional
right to demurer to the Complaint. This not only affects, but significantly impairs the preparation
and presentation Ms. Arata’s defense in the form of trial defenses (credibility of government
witnesses) and anticipated pretrial motions, thus prejudicing her right to a fair trial.
Therefore, the Court must conduct an in camera hearing to determine whether there is a
necessity for preserving the confidentiality of an ongoing investigation that justifies continuing to
seal the search warrant affidavit, and whether this outweighs the “necessity for disclosure in the
interest of justice.” (Evidence Code §§ 915(b) and 1040.)
C. THERE IS NO LONGER A BASIS TO SEAL THE SEARCH WARRANT AFFIDAVIT
IF THE INVESTIGATION HAS BEEN COMPLETED.
An ongoing investigation can be privileged under Evidence Code section 1040(b)(2) when
"there is a necessity for preserving the confidentiality of the information that outweighs the
necessity for disclosure in the interest of justice . . ." When it is the state which seeks to withhold
information from a criminal defendant, the stakes are particularly high; thus, the court must ensure
the process of assessing the state's claim of privilege affords the defendant due process. (In re
Marcos B. (2013) 214 Cal.App.4th 299, 308.)
The primary justification for the official information privilege is the public interest in
protecting the flow of information to law enforcement officials. (People v. Otte (1989) 214
Cal.App.3d 1522, 1532.) For example, the government has a privilege under Evidence Code
section 1040 to refuse to disclose the exact location of a surveillance site if the public interest in
preserving the confidentiality of that information outweighs the need for disclosure. (People v.
Haider (1995) 34 Cal.App.4th 661, 664-665.)
However, the trial court must ensure that a police agency’s claim of privilege in
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connection with a surveillance location is supported by evidence sufficient to demonstrate the
agency’s need for continued secrecy of that particular location outweighs the defendant’s need for
it to be disclosed in the normal course of a criminal prosecution. (In re Marcos B. (2013), 214 Cal.
App. 4th 299, 312 [emphasis added].)
Federal authority provides guidance here. For example, federal courts will sometimes
temporarily seal a search warrant affidavit based on an ongoing investigation, but hold that the
“government is under an obligation, of course, to immediately notify the court if its legitimate
concerns regarding unsealing of the affidavits are allayed by further investigation.” (In re Searches
& Seizures, 2008 U.S.Dist.LEXIS 107087, at *17. (E.D.Cal. 2008); see also In the Matter of
Searches of Semtex Industrial Corporation, 876 F. Supp. 426, 429 (E.D.N.Y. 1995) [observing in
response to a motion to unseal a warrant affidavit brought by a business that had been subject to
search, that the affidavit may not be sealed indefinitely pending the government's decision to seek
an indictment].)
Here, the affidavit was sealed nearly seven months ago on September 23, 2020 based on
claims of an ongoing investigation of conspiracy.18 Counsel is not aware of law enforcement filing
any additional requests to continue sealing the affidavit since September 23, 2020; nor has there
been information discovered which suggests an there is still any ongoing investigation. Nearly 45
SLOPD officers and the entire Bureau of Investigation for the District Attorney’s Office has been
reviewing this misdemeanor case for nearly nine months. At this point, there is no indication that
Ms. Arata will ever be charged with conspiracy.
For the affidavit to remain sealed based on an ongoing investigation, there must be
sufficient evidence of a current and continued need for secrecy regarding the investigation. If the
investigation has been completed, there is no longer a continued need for secrecy that outweighs
Mr. Arata’s right to challenge the legality of the search and evaluate the affidavit for trial defenses
and pre-trial motions.
D. SPECIFIC ALLEGATIONS UNDERLYING THE SEARCH WARRANT CAN BE
DISCLOSED WITHOUT ENDANGERING AN “ONGOING INVESTIGATION.”
The party claiming the privilege carries the burden of showing that the evidence which it
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seeks to suppress is within the terms of the statute. (In re Marcos B. (2013) 214 Cal.App.4th 299,
308.) Pursuant to Cal. Rules of Court, Rule 2.550, a sealing order must be narrowly tailored; and
no less restrictive means exist to achieve the overriding interest. Therefore, every statement in the
search warrant affidavit must contain information that will jeopardize an ongoing investigation for
it to be privileged and for the affidavit to remain entirely sealed.
The courts analysis of a sealed search warrant affidavit involving an informant in Swanson
v. Superior Court is instructive here. ((1989) 211 Cal. App. 3d 332.) Swanson held, when the
search warrant is supported by a written affidavit, the privilege is ordinarily protected by not
identifying the informant by name in the affidavit rather than by sealing the affidavit. (Swanson, at
338.) Even though the informant is not named, sufficient information must be given in the written
affidavit to establish that the information given by the informant is reliable. (Id.) This may
necessitate limiting the details which might reveal identity; however, even then the affiant must
nonetheless include as much detail as practicable and must at least state generally that specific
grounds for suspicion exist. (Id, at 338.)
Here it is reasonable to assume that the court authorized the search of Ms. Arata’s social
media and email accounts for evidence relating to criminal conspiracy. Therefore, information
within the affidavit such as the date, time, and location surrounding any specific allegations that
Ms. Arata was engaged in a conspiracy should be disclosed with the remaining portion of the
affidavit redacted so that it will not jeopardize an ongoing investigation. Further, details that
provide a sufficient nexus to search Mr. Arata’s social media and email accounts should be
disclosed as long as any information that may jeopardize an ongoing investigation remains sealed.
A narrowly tailored sealing order will strike a balance between law enforcement’s need for
the privilege and Mr. Arata’s right to challenge the legality of the search by challenging the
specific allegations underlying the warrant. Ultimately, “denying all of the information used to
establish probable cause may violate defendant’s Sixth Amendment rights." (People v. Hobbs
(1994) 7 Cal.4th 948, 981.) In order to protect Mr. Arata’s Sixth Amendment rights, any
information within the affidavit that does not jeopardize an ongoing investigation must be
disclosed to the defense.
18 (See Search Warrant, dated September 23, 2021, pg. 5, attached as Exhibit C.)
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E. ANY INFORMATION REGARDING AN ONGOING INVESTIGATION IS NOT
PRIVILEGED IF IT IS MATERIAL TO MR. ARATA’S DEFENSE.
There is general agreement that there is no privilege of nondisclosure if disclosure "is
relevant and helpful to the defense of the accused or essential to a fair determination of a cause . .
." (People v. McShann (1958) 50 Cal.2d 802, 807.)
The privilege under Evidence Code section 1040 has been analogized to the confidential
informer identity privilege codified in Evidence Code section 1041, thus under Evidence Code
section 1042, the court must disclose the information claimed under a privilege if it is material to
the defense. (See Haider, (1995) 34 Cal.App.4th 661, 664-665.)
“Evidence Code section 1040 . . . represents the exclusive means by which a
public entity may assert a claim of governmental privilege based on the
necessity for secrecy. Evidence Code section 1042, subdivision (a), in turn,
codifies the due process demand recognized by the United States Supreme
Court that the prosecution cannot commence criminal proceedings 'and
then invoke its governmental privileges to deprive the accused of
anything which might be material to his [or her] defense.' In concert, the
two provisions create an orderly and fair procedure designed to safeguard the
legitimate interests of both the government and criminal defendants."
(People v. Montgomery (1988) 205 Cal.App.3d 1011, 1018 [emphasis
added].)
Here, it is presumed that the charges against Ms. Arata will be based on the drone video
footage of the protest and statements that were obtained from the alleged victims by SLOPD and
District Attorney Investigators. Therefore, it is imperative that Ms. Arata be afforded the
opportunity to confront and discredit the law enforcement officers who obtained statements from
these percipient witnesses.
If the search warrant affidavit contains any statements or allegations of SLOPD officers or
District Attorney Investigators who were involved in the investigation of this case, such as
Investigator Paul Kelly who obtained statements from percipient witnesses, then these are
statements made by government witnesses who will be called to the stand to bolster the testimony
of percipient witnesses to the crimes alleged. Ms. Arata must be allowed to confront the
allegations of these key witnesses with any evidence bearing on their credibility to effectively
challenge their testimony. Therefore, any statements in the search warrant affidavit made by law
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enforcement officers who were involved in the investigation of percipient witnesses must be
disclosed to the defense.
IV. CONCLUSION
The Court must first evaluate whether there is a continued need for sealing the search
warrant affidavit based on an ongoing investigation. If the investigation has been completed, the
Court must unseal the affidavit. If the investigation is ongoing, the Court must unseal any portion
of the affidavit that will not jeopardize the investigation and redact the remainder. Finally, if the
Court finds that any information in the search warrant affidavit is material to Mr. Arata’s defense,
the privilege must give way and that information must be disclosed.
Dated: April 12, 2021 Respectfully submitted,
___________________
CURTIS BRIGGS
PATRICK L. FISHER
Attorneys for Defendant
TIANNA ARATA
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DECLARATION OF COUNSEL
I, CURTIS L. BRIGGS, declare:
1. I am the attorney for defendant Tianna Arata in the instant case.
2.I have reviewed the discovery and investigated the search warrant issued in this
case.
3.All of the facts stated in the foregoing Motion to Unseal Search Warrant Affidavit are true
and correct; as to any matters stated on information and belief, I believe those matters to be true.
4.Contrary to the sealing order requested by the affiant, it is my information and belief that
the affidavit can be redacted and unsealed without jeopardizing any ongoing investigation, which
will allow me to mount a challenge the sufficiency of the probable cause underlying the search
warrant and effectively prepare for Ms. Arata’s trial defenses and pre-trial motions.
5. On my information and belief, the search warrant was obtained in response to Ms. Arata
filing a demurrer to the Complaint, and thus was obtained in pursuit of an increase in charges as
retaliation for Ms. Arata exercising her constitutional rights.
I declare under penalty of perjury that the foregoing is true and correct, except as to matters
therein stated on information and belief, and as to those matters, I believe them to be true.
Executed on April 12, 2021at San Francisco, California
_______________________
CURTIS L. BRIGGS
Attorney for Defendant
TIANNA ARATA
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PROOF OF SERVICE
The undersigned declares:
I am a citizen of the United States. My business address is 3330 Geary Blvd., 3d. Fl. East,
San Francisco, California, 94118. I am over the age of eighteen years and am not a party to the
above-entitled action.
On the date set forth below, I caused a true and correct copy of the within:
NOTICE OF MOTION AND MOTION TO UNSEAL SEARCH WARRANT AFFIDAVIT
[Evidence Code §§ 1040, 1042, and 915(b) ].
To be served on the following parties in the following specified manner:
William Frank, Deputy A.G.
Attorney General of California
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
William.Frank@doj.ca.gov
Delaney Henretty, Assistant D.A.
San Luis Obispo District Attorney’s Office
1035 Palm Street
San Luis Obispo, CA 93408
dhenretty@co.slo.ca.us
Brian Ford
For Robert Lastra
3330 Geary Boulevard, 3rd Floor East
San Francisco, CA 94118
brian.ford.esq@gmail.com
Dustin M. Tardiff & Matthew F. Janowicz
For Marcus Montgomery
P.O. Box 1400
San Luis Obispo, CA 93406
dustin@tardiffsaldo.com
matt@tardiffsaldo.com
Earl E. Conway, III
For Amman Fasil Asfaw
1065 Higuera Street, Suite 202
San Luis Obispo, CA 93401
earl@conawaylawfirm.com
Steven D. Rice
For Joshua Powell
991 Osos Street, #A
San Luis Obispo, CA 93401
srice@slodefend.com
Vincent Barrientos
For Sam Grocott
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3330 Geary Blvd., 3rd Fl. East
San Francisco, CA 94118
vincent@barrientoslaw.com
Tyler Smith
For Jerad Hill
3330 Geary Blvd., 3rd Floor East
San Francisco, CA 94118
smithtyler42@gmail.com
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I declare under penalty of perjury that the foregoing is true and correct, and that this
declaration is executed on the __12__ day of April, 2021 at San Francisco, California.
_______________________________
EXHIBIT A
Defense Lastra Copy
4:000171
DA 00mm REQUEST FOR COMPLAINT DA Case#:
(SUBMIT ONE FOR EACH SUSPECT)
AGENCY CODE:SLF’D AGENCY CASE NO;200721084
SSPECT NAME:ATAWENTWORTH TIANNA ISIS I 0 NUMBER'#57‘7___<3~_$
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A CmIAppearanceDate:09______103 12020 SW'IWW0{721/CW1 Mm w/
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AGENCY SUGGESTED CHARGE(S)
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02/21/2020 /Pc 236 (4countSIw M E
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PRI Violation Date:Code Section:DMV
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Additional Pages:Law Enforcement Personnel 2/27/2020
{ALWImGFF
EXHIBIT B
1 1 [2/2020 (3)PRotect Paso |Facebook
PRotect Paso
I Private group -9.7K members .35WE‘IDBO Imvite
About Discussion Announcements Members Events Media
Dan Dow ISeptember4--
First,|want to say how very grateful |am for the huge number of
birthday wishes today and the widespread support |have received
over the past few weeks.It was overwhelming and we feel very
supported.Thank you!
Secondly,|keep hearing that there is a group of people who are upset
that |did not file felony charges.|am writing to provide some legal
context and explanation.So,if you are confused,or if you believe that
|gave in to pressure by filing misdemeanors,please stop and read this
message.
|did not cave on anything.|am seeking accountability andjustice by
charging appropriate crimes for what evidence was submitted to my
office.We have filed a complaint charging 13 separate counts.
The law does not support felonies being prosecuted for the conduct in
this case —even though that may seem hard to believe to someone
who has seen the publicly available video.However,please
remember...our laws are written by the super majority in Sacramento.
They have been decriminalizing everything since 2011 beginning with
AB 109 realignment.And,"we the voters”passed Prop 47 and Prop S7
and since then,the legislature has continued to water down a||of our
WSIIIwww_facebook_comlgroupsl666684993890010/permalink/729497037608805 1/9
11012020
9-
(3)PRmect Paso |Facebook
Law enforcement only needs "probable cause"to make an arrest.
However,the DA is required to have proof "beyond a reasonable
doubt"for EVERY element of the offense before we can charge it.
(Each |aw has multiple 'elements’that must be proven separately by
evidence.And the proof required is 'beyond a reasonable doubt.)
There are publishedjury instructions that include what the elements
are and the DA and the Jury are REQUIRED to follow those
instructions.Most laws require additional and more serious facts to
prove a felony version of a crime.Many crimes are only designated as
misdemeanors and cannot be made a felony for ANY reason.
For anyone to passjudgment on my decision without reading the
specific laws,thejury instructions,and the entire case file is not fair.|
believe that my track record demonstrates that |am the strongest
advocate for public safety and |work tirelessly for our community's
safety.It is my duty and my passion.|do not waiver and |will not
waiver.And |will not be bullied by anyone —left or right.
|care very deeply for our community and state and |am literally
working tirelessly against some very strong forces and odds...|
understand people's frustrations with the criminal justice system.|,
along with a number of my elected DA colleagues,am constantly
trying to educate the community about all of the problems caused by
"justice reform"and what we need to fix many of the problems in the
law.Sadly,it often feels like we are shouting into a black hole and no
one can hear us.|will never give up or surrender on the important
issue of public safety.
Prosecutors cannot charge what we cannot prove,that would be
unethical and would be seen by anyjury as undermining the case that
we can prove.Also,please know that |am prohibited from publicly
discussing the facts of a pending case.
Please know that misdemeanors are significant as criminal behavior.
Other serious crimes also classified as misdemeanors include:DUI
(first,second,and even third),Theft,Vandalism,Hit and Run,Battery,
Battery on a Peace Officer,Domestic Violence,ID Theft,Criminal
Threats,etc...it's not like a misdemeanor is a speeding ticket.Each
misdemeanor can carry up to 3 years of probation and up to 6 months
or 1 year in the County Jail.It is not at all what you are calling "a slap
on the wrist."
If things don't make sense to you,please do what you can to learn
more about the specific laws,charges,jury instructions,all the
elements of the crime that must be proved beyond a reasonable
doubt before concluding that I caved or sold out or discounted the
case.It’s easy for people on social media to be armchair lawyers and
make assumptions that a case is easily proved.If you want to read
some of thejury instructions that give the specific law that we and the
jury are bound by,you can do so here:
https://www.courts.ca.gov/partners/312.htm
mylwww.faoebook.oomlgoup51666684993890010/pennalinld729497037608805
EXHIBIT C
Defense Arata Copy
7:000376
Search Warrant No.l Ll a 0?
COUNTY OF SAN LUIS OBISPO -STATE OF CALIFORNIA
AFFIDAVIT AND SEARCH WARRANT
(AFFIDAVIT)
l,Paul Kelly.certify under penalty of the laws of the State of California that foregoing stated by me in this Search Warrant and
Affidavit and In the attached and incorporated Statement of Probable Cause are true and correct.and that based thereon there
is probable cause to believe that the property andlor person described below is lawfully seizable pursuant to Penal Code §1524,
as indicated below.and is now located at the locations set forth below.Wherefore.affiant requests that this Search Warrant be
issued.
.
g 4 fl ,sEALINc onoea Reoussreo yes El no
(Signature ofAffiant)NIGHT SEARCH REQUESTED I]YES E no
(SEARCH WARRANT)
THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY SHERIFF,POLICE OFFICER.OR PEACE OFFICER [N THE
COUNTY OF SAN LUIS OBSIPO:proof by affidavit having been made before me by Paul Kelly
(Name of Affiant)
that there is probable cause to believe that the property andior person described herein may be found at the locations set forth
herein and is lawfully seizable pursuant to Penal Code §1524 as indicated below by "x"(s)in that it:
was stolen or embezzled;
was used as the means of committing a felony;
is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by
another to whom he or she may have delivered it for the purpose of concealing it or preventing Its discovery;
2':tends to show that a felony has been committed or that a particular person has committed a felony;
tends to show that sexual exploitation of a child in violation of Section 311.11.or depiction of sexual conduct of
a person under the age of 18 years.in violation of Section 311.11,has occurred or is occurring;
When a provider of electronic communication service or remote computing service has records or evidence.as
specified in Section 1524.3.showing that property was stolen or embezzled constituting a misdemeanor.or that
property or things are in the possession of any person with the Intent to use them as a means of committing a
misdemeanor public offense.or in the possession of another to whom he or she may have delivered them for
the purpose of concealing them or preventing their discovery.
YOU ARE THEREFORE COMMANDED TO SEARCH:
See attached and Incorporated description page(s}.
FOR THE FOLLOWING PROPERTYIPERSON:
See attached and Incorporated description pagoda).
h before me.or this court.at the courthouse of this court.This Search Warrant
subscribed before me on this 23"day of September.2020.at '3 .‘2 [
-.uance of this Search Warrant and do issue it.
AND TO sarze rr IF FOUND
"
and .rporated Affidavit was --
Norm Wlr-refore.l ti -.-
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and
U53
.-,SEALING ORDERAPPROVED E yes C]no
(Signature of Magistrate)NIGHT SEARCH APPROVED El YES E“N0
9 WWE%.G'lr'I _-._;
Date:‘at ame
Approved as to form:Deputy District Attorney Delaney Henretty
Jud Dl
SEARCH WARRANT Search Warrant No. ___________
2
DESCRIPTION PAGE
YOU ARE THEREFORE COMMANDED TO SEARCH:
Location #1: Facebook Inc.
Attn: Facebook Security/LE Response Team
1601 Willow Road
Menlo Park, CA 94025
(650) 472-8007
Service via upload at the Law Enforcement Portal
https://www.facebook.com/records
FOR THE FOLLOWING RECORDS (PROPERTY)
A-1
Instagram LLC (owned by Facebook Inc.)
Records from the above listed Service Provider for the account:
For the period of June 1, 2020 0000 (PST) to July 21, 2020 2359 (PST) for evidence related to conspiracy
1.Archived Data: Archived copies of the target Instagram pages/profiles or User Content to include
photos, video, chat communication, messages, friend lists, profile information and files.
2.Communication Content; Information including contents of communications, photo comments, or
any other data that would constitute other electronic communication information.
3.Friends List: Records of friends that the Target Account has added through the use of the
Instagram “Find friends”feature either thought their contacts list, third-party social media sites, or
through a name search of Instagram usernames and data that indicates the method in which they
were located if available.
4.Linked Accounts: Records of all linked external accounts (Facebook) or associated email address,
username, user ID numbers, or contact information.
5.Log Information: Records that Instagram Inc. servers automatically record in logs files to include
web requests, browser type, referring/exit pages and URLs, number of clicks and how the Target
Account interacted with links on the Service, domain names, landing pages, pages viewed and other
such information, and information collected from emails sent to the Target Account and data that
indicates which emails were opened and which links were clicked.
6.Stored Media: All photographic/video/audio data and associated metadata, EXIF data, and
geolocation data.
7.Subscriber Information: Subscriber information to include name, address, phone number, contact
information, profile photo, and dates associated with account creation and/or suspension for the
listed Target Account.
A-2
Facebook Inc.
Records from the above listed Service Provider for the account:
For the period of June 1, 2020 0000 (PST) to July 21, 2020 2359 (PST) for evidence related to conspiracy
Defense Arata Copy
7:000377
SEARCH WARRANT Search Warrant No. ___________
3
1.Account Status History: All dates for when the account was activated, deactivated, reactivated,
disabled, or deleted
2.Active Sessions: All stored active session, including date, time, and device
3.Alternate Names: Any alternate names on the account including nicknames
4.Chat: All chat conversations in their entirety associated with the account including date and times
5.Emails: All email addresses associated with the account, including email addresses removed
6.Linked Accounts: A list of all accounts linked to the above listed Facebook account
7. Login/Logout Information: All historical information for logins and logouts to the Facebook /Instagram
account
8.Messages: All messages sent and received including date and time
9.Name Changes: All name changes associated with this account
10.Notes: All notes written and published to the account
11.Phone Numbers: All phone numbers added to the account including verified mobile numbers used
for security purposes
12.Photos: All photos uploaded to the account or wherein the account holder was tagged in –including
original metadata and EXIF data. This includes photos that have been flagged, deleted, or
otherwise removed
13.Posts: All posts made by the subject to his/her timeline, to another person’s timeline, or to a page
as well as all posts from others made onto the subject’s timeline or page
14.Registration Date:Original date the subject joined Facebook/Instagram
15.Videos: All videos the account holder posted to his/her timeline –including videos that have been
deleted
16.Facebook/Instagram Messenger: All messages and voice or audio clips/files associated with the
above listed account accessed through Facebook/Instagram Messenger to include the text content
of the messages or the audio content
17.Facebook/Instagram Messenger: All video calls, video clips, or movies associated with the above
listed account accessed through Facebook/Instagram Messenger
Location #2:Google, LLC –An Electronic Communications Provider
Attn: Legal Investigations Support
1600 Amphitheatre Parkway
Mountain View, CA 94043
FOR THE FOLLOWING RECORDS (PROPERTY)
Records from the above listed Service Provider for the account:
For evidence related to conspiracy
1.Account Information: User-name, primary email address, secondary email addresses, and
associated telephone numbers
2.Gmail:For the period of July 21, 2020 0000 (PST) to July 21, 2020 2359 (PST)-All email
messages including by way of example and not limitation, such as inbox messages whether read or
unread, sent mail, saved drafts, chat histories, and emails in trash folder. Such messages will
include all information such as the date, time, internet protocol (IP) address routing information,
sender, receiver, subject line, any other parties sent the same electronic mail through the “cc”
(carbon copy) or the “bcc”(blind carbon copy), the message content or body, and all attached files
Defense Arata Copy
7:000378
SEARCH WARRANT Search Warrant No.
Service Provider Response Time
Per California Penal Code §1524.2(b)(1),you are hereby commanded to provide the information within
five (5)business days or receipt of this search warrant.
|have verified that said service providers are a California corporation or foreign corporation doing business
in California at at the aforementioned locations,and are service providers of electronic communication
services as defined in California Penal Code Sections §1524.2(a)(1).As such,California Penal Code §
1524.2(b)(1)applies to these service providers.
Therefore l request the service providers be ordered by the court,after receipt of this search warrant,to
produce the records sought in this search warrant in no less than five (5)business days in accordance §
1524.2(b)(1).
Order for Non-Responsive Content
As required by California Penal Code §1546.1 (d)(2),any information obtained through the execution of
this warrant that is unrelated to the objective of the warrant shall be sealed and shall not be subject to
further review,use,or disclosure absent an order from the court or pursuant to California Penal Code §
1054.1 or 1054.7.
Order for Custodian’s Declaration
It is hereby ordered,pursuant to California Penal Code §1546.1(d)(3),that the service provider receiving
this warrant shall verify the authenticity of the records and information it produces by providing an affidavit
that complies with the requirements set forth in California Evidence Code §1561.The Google Custodian of
Records shall complete and sign the "Declaration of Custodian"which accompanies this search warrant.
The "Declaration of Custodian“shall be returned with a copy of the requested records.
fithorization for Electronic Service:
l also request authorization to execute the search warrant for the requested records via electronic means.
Order for Production of Records
It is hereby ordered that any records produced in response to this search warrant may be provided via
email or digital storage media to:
Investigator Paul Kelly
NON-DISCLOSURE ORDER I SERVICE OF WARRANT (Pursuant to Penal Code §1534(b)(4):IT APPEARING,
good cause having been established in the affidavit filed herewith,that there is reason to believe that
notification of the existence of the warrant to any person may result in endangering the life or physical
safety of an individual;lead to flight from prosecution;lead to destruction of or tampering with evidence;
lead to intimidation of potential witnesses;or otherwise seriously jeopardize an investigation or unduly
delay a trial or otherwise lead to an adverse result.
Defense Arata Copy
7:000379
SEARCH WARRANT Search Warrant No. ___________
5
REQUEST TO SEAL WARRANT
Based upon your affiant’s training and experience, you r affiant believes this affidavit used to support this
Search Warrant should be sealed by Court Order until further court order. This ongoing conspiracy
investigation would be jeopardized if this affidavit were made public. Disclosure of this information would
compromise the investigation of this crime as it would alert suspect(s) and allow suspect(s) knowledge of
evidence that could be destroyed.
Your affiant requests that the Search Warrant Affidavit / Statement of Probable Cause and returns be
ordered sealed by the magistrate in order to implement the privilege under Evidence Code Sections 1040
to 1042.
Defense Arata Copy
7:000380
EXHIBIT D
POST-NOTICE OF SEARCH WARRANT AFTER COURT-ORDERED DELAY
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Defense Arata Copy
7:000373
September 23,2020
Matthew Guerrero
Conspiracy
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Defense Arata Copy
7:000374
Dec 18, 2020 Inv. Paul Kelly
CA Attorney General
(213)269-6206