California: "Hippie Profiling" declared illegal grounds for car search

Court of Appeal reverses jail and probation sentences: Follow the link to the courts decision in its entirety

Photo: Jason Fishbain with his pets Fanny and Flash.

More information on the case:

Mckinleyville man prevails in case of 'hippie profiling'

By Daniel Mintz

Mckinlevyille Press, vol 7 no 35, page 1 and 12

The actions of a California Highway Patrol (CHP) officer during a traffic stop in Myers Flat have been deemed improper by the state's Court of Appeal, reversing jail and probation sentences that stemmed from a car search.

The case offers a Humboldt County twist on profiling issues -- the CHP recently settled a lawsuit alleging racial profiling, but in this case, lawyers say that their clients were targeted because their appearance matched "hippie" stereotypes.

And now that the state's Court of Appeal has ruled that their arrests were based on a search that violated Constitutional rights, the two former defendants in the case will likely sue the CHP.

An Illegal Stop

Jason Fishbain, Chris White and Veronica Quatse were traveling southbound on Highway 101 in the Weott area on Jan. 31, 1999, when they were noticed by CHP Officer Doug Mertz. He tailed Fishbain's car and later testified that when he passed it, he noticed the lack of a front license plate.

The plate, however, was issued in Arizona -- a state that allows single license plates. Fishbain had just moved to Humboldt County, and lives in McKinleyville.

After slowing down and allowing Fishbain to pass him, Mertz noticed what he believed was another traffic violation -- the presence of a tree-shaped air fresher dangling from Fishbain's rear view mirror.

Mertz accelerated and slowed down repeatedly over a length of five miles as he eyed Fishbain's car. Then he activated his overhead lights and pulled the car over at the Myers Flat exit.

The traffic stop led to a search without permission, as Mertz claimed to have smelled "burnt marijuana" when Fishbain rolled down the driver's side window. After ordering Fishbain out of the auto, Mertz rummaged through it and found a glass pipe under the driver's seat. A search of the car's trunk yielded ten packages of marijuana weighing over five pounds in its trunk. The officer also found a backpack with $9,230 in cash.

And those discoveries led to a protracted court process that saw the case being dismissed, then re-filed by the County's District Attorney's Office. Under a different judge, the defendants' motions to suppress evidence based on the circumstances of Mertz's traffic stop and search were denied.

The resulting jury trial led to White's conviction and incarceration at Pelican Bay State Prison. Fishbain was charged with allowing his car to be used for transportation of marijuana. He pled guilty and got a probation sentence.

But on Feb. 27, the state's Court of Appeal ruled that Mertz had violated Fishbain and White's Constitutional protections against unreasonable searches.The higher court ruled that the single plate and the air freshener did not represent violations, and Mertz did not have legal authority to pull the car over, detain its occupants or conduct the search.

'Unreasonable and Unlawful'

The Court of Appeal ruled that Mertz committed "errors of law" in pulling over Fishbain's car and searching it. Mertz's name is well-known to local defense attorneys, as the CHP officer is reputed for carrying out similarly questionable traffic stops and searches.

But the outcome of the appeal court's ruling will probably influence behavior modification. "It certainly draws a brighter line for police behavior," said Eureka-based Attorney David Crane, who represented Fishbain. "I don't see how (Mertz) could continue making stops like this one. It seems easy to justify them based on their results, but this time, the results are different."

Crane also warned against applying blanket judgments to all police. "There are many dedicated officers out there, and we don't see them asking people to step out of their cars because they have air fresheners hanging from their mirrors."

In Crane's motion to suppress the evidence Mertz had discovered in the car's trunk, he argued that the officer acted illegally when he pulled Fishbain over despite the lack of actual traffic violations.

"The detention of Mr. Fishbain and the request for his driver's license was unreasonable and unlawful," Crane wrote. "Subsequent to the unlawful stop and during the illegal and unlawful, prolonged detention, Officer Mertz began a fishing expedition and conducted an investigation without probable cause, performing an unlawful and unwarranted and unnecessarily intrusive search."

Crane's motion to suppress was granted by a Los Angeles County judge on assignment in Humboldt, but the same judge ruled that the search of White was reasonable. The charges against White were dismissed in November of 1999, however, and it appeared that the two defendants had prevailed.

Case Dismissed -- And Refiled

But then-District Attorney Terry Farmer's office re-filed its complaint against Fishbain and White. In another interesting aspect of the case, the defendants tried to bring back the judge who'd dismissed the case but were not able to.

Instead, Humboldt Superior Court Judge Marilyn Miles was assigned to the case. Judge Miles rejected the motions to suppress the evidence, opening the door to White's conviction and jail sentence, and Fishbain's guilty plea.

"Lawyers need to be vigilant, and they need to flag the circumstances that don't seem right," Crane said. "Judge Miles was not given that message by the district attorney."

Crane said that Fishbain has "serious health problems" and a valid doctor's recommendation to treat them with marijuana (which is allowed under Proposition 215, the state's medical marijuana law).

The county's probation department advocated for probation conditions that erased Fishbain's medicinal marijuana rights, Crane continued. Fishbain's parents enlisted a prominent Illinois attorney (and a friend of the family) who successfully argued that his client's 215 rights should be maintained -- along with his right to appeal the case.

"I knew there was no way I'd get any justice in Humboldt County," Fishbain said. "I knew I had to take the case to San Francisco and have it heard by an unbiased court."

And Fishbain said his health has deteriorated as a result of the physical and emotional stress of dealing with the charges and crisscrossing court maneuvers. "My buddy did almost three years in Pelican Bay State Prison and I've been diagnosed with post-traumatic stress syndrome and anxiety-related stomach disorders that I've been hospitalized for," he said. Fishbain added that with the lower court's and district attorney's decisions, "it was like getting prosecuted three separate times."

Money and the Law

Fishbain was asked if the outcome of the appeal process restored his confidence in the legal system to any degree. "I guess if you spend enough money and you're able to stick with it, maybe you'll get justice," he replied. "But if you're an average person in Humboldt County who doesn't have much money, you're pretty much screwed -- unless you have the money to play the game. That's what I've learned."

Some may view Mertz's discovery of marijuana as a justification for his actions. Fishbain asserted that people who take Constitutional rights seriously would disagree.

"Illegal searches are the first and most visible step toward living in a police state, where people have no Fourth Amendment rights and police can pull over kids who happen to look like hippies," he said. "If we allow that, we're throwing the Constitution out the window."

Fishbain explained that when the stop occurred, he was going to the Bay Area to visit Quaste's mother, who also had a 215 recommendation. The marijuana was for her treatment, he continued, adding that she died during the trial.

He will sue the CHP for violating his civil rights, he said.

Chris White's incarceration in state prison is "a tragedy," said his Eureka-attorney, Manny Daskal, who also said he's "looking at the civil rights violation issues" in the context of a possible lawsuit against the CHP. "This has caused (White) substantial personal problems, as he was removed from his family and his child," Daskal pointed out.

He had enlisted expert witnesses who testified that it was highly unlikely Mertz had smelled marijuana and that the air freshener -- millions of which are manufactured, sold and used in cars -- did not obscure vision.

To Daskal, the case is an unusual but clear reaffirmation of civil rights protections. "Generally, it's tough to argue those issues because it's the cop's word against ours," he said. "This was an unusual case, it took a lot of time and energy and it took a lot out of Chris's life. We were able to get the case overturned on appeal, and that doesn't happen very often -- usually these cases are resolved short of a trial, with penalties."

Considering that, did the legal system work? "Yes, it did," Daskal answered. "Because in the end, the stop was found to be illegal ... but unfortunately, Chris paid a penalty that took a chunk out of his life, and that reveals a problem with the system."

Recently-elected D.A. Paul Gallegos is a former defense attorney and is conscious of these issues. He campaigned against his predecessor on a platform that emphasized a more progressive prosecution approach. In a recent interview broadcast by the Redway-based KMUD radio station, Gallegos said that courts are usually filled with people who lack the resources to carry out an effective legal fight.

"Hasn't that been the case, in this community?," he asked.

The CHP's public affairs office was contacted for comment and given the Court of Appeal case numbers, but had not responded as of press time.

The Arcata Eye (707) 826-7000

Kevin Hoover, Editor & Publisher