Case 2:13-cr FVS Document 369 Filed 05/09/14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON SPOKANE DIVISION

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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON SPOKANE DIVISION 0 UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) No. :-CR-000-FVS ) RHONDA LEE FIRESTACK-HARVEY, ) LARRY LESTER HARVEY, ) MICHELLE LYNN GREGG, ) ROLLAND MARK GREGG, and ) JASON LEE ZUCKER, ) ) Defendants. ) ) BEFORE THE HONORABLE FRED VAN SICKLE, SENIOR JUDGE TRANSCRIPT OF PROCEEDINGS April, PREPARED BY: DOROTHY STILES, RMR, CRR Washington CCR No

2 0 0 APPEARANCES: For the Plaintiff: For Defendant () Rhonda Lee Firestack-Harvey: For Defendant () Larry Lester Harvey: For Defendant () Michelle Lynn Gregg: For Defendant () Rolland Mark Gregg: For Defendant () Jason Lee Zucker: EARL ALLAN HICKS Assistant United States Attorney 0 W. Riverside Avenue - Suite 00 Spokane, Washington JEFFREY SCOTT NIESEN Jeffrey S. Niesen Law Office West Pinehill Road Spokane, Washington 0..0 ROBERT R. FISCHER Federal Defenders - SPO Eastern Washington 0 North Post - Suite 00 Spokane, Washington BEVAN JEROME MAXEY Maxey Law Offices West Broadway Spokane, Washington DOUGLAS DWIGHT PHELPS Phelps & Associates 0 North Stout Road Spokane, Washington J. TONY SERRA Law Office of J. Tony Serra 0 Broadway San Francisco, California.. FRANK LOUIS CIKUTOVICH Stiley & Cikutovich, PLLC 0 West Broadway Spokane, Washington

3 I N D E X 0 0 WITNESS: LOREN ERDMAN Direct Examination by Mr. Hicks Page Cross Examination by Mr. Niesen Page MICHAEL DONALD GILMORE Direct Examination by Mr. Hicks Page Cross Examination by Mr. Niesen Page Redirect Examination by Mr. Hicks Page Recross Examination by Mr. Niesen Page SAM KEISER Direct Examination by Mr. Hicks Page Cross Examination by Mr. Niesen Page Redirect Examination by Mr. Hicks Page EXHIBITS: Government's Exhibit No. Washington State Department of Health Medical Marijuana (Cannabis) Frequently asked Questions... Government's Exhibit No. Petition to Reclassify Marijuana Frequently Asked Questions Government's Exhibit No. Page 0 Affidavit for Search Warrant Clugston Onion Creek Road Colville, Washington Government's Exhibit No. Aerial Photograph Marijuana Grow

4 Government's Exhibit No. Photograph - Sheriff's SUV Government's Exhibit No. Aerial Photograph Marijuana Grow Government's Exhibit No. Application for Search Warrant Clugston Onion Creek Road Colville, Washington 0 0

5 The above-styled cause came on to be heard on April, 0, at : p.m., before the Honorable Fred Van Sickle, Senior Judge, when the following proceedings were had, to-wit: We will take up then at this time the cause that has the caption United States vs. Rhonda L. Firestack-Harvey, Larry L. Harvey, Michelle L. Gregg. Rolland M. Gregg, and Jason L. Zucker. MR. HICKS: Your Honor, I have some exhibits to 0 pass out. Thank you. MR. FISCHER: Your Honor, may I request a hearing apparatus for my client? MR. HICKS: Certainly, Mr. Fischer. Your Honor, just so you know, I have -- this particular screen can do that to me, it turns off my voice. This screen hasn't been changed, so I may not be able to use the ELMO. I will try to use the ELMO. But last time we 0 had a trial, Your Honor, if you'll recall, I had a problem. MR. HICKS: Yes. It's that right there that causes my problem. I understand, Mr. Hicks. I understand.

6 MR. NIESEN: Your Honor, my client is in the restroom. All right. Again, I'm going to call this case. United States vs. several accused: Rhonda L. Firestack-Harvey. Larry Harvey, Michelle Gregg, Rolland Gregg, Jason Zucker. Cause No. CR--. Does that hearing device work, Mr. Fischer? MR. FISCHER: We're trying it out, Your Honor. 0 Are you able to hear me? DEFENDANT LARRY HARVEY: It's all crackly. It's not clear? DEFENDANT LARRY HARVEY: Now it is. It's fine? You're able to hear? DEFENDANT LARRY HARVEY: Yes. All right. Well, everyone will make an effort to speak loudly and clearly. accomplish that. I hope we can The record should reflect that Mr. Hicks -- 0 Mr. Fischer? It doesn't work? Are you able to hear, MR. FISCHER: No, Your Honor, not yet. All right. MR. FISCHER: No. I'm not hearing anything. Not hearing anything at all?

7 MR. FISCHER: No. You were coming in and then it stopped. We have several. Ms. Reisenauer has another one that she will provide you. MR. FISCHER: All right. Now are you able to hear? Mr. Harvey, are you able to hear me? DEFENDANT LARRY HARVEY: Nothing. Nothing? 0 DEFENDANT LARRY HARVEY: Oh, wait a minute. Are you able to hear me now? DEFENDANT LARRY HARVEY: Yes. All right. If at any time you have difficulty hearing, please advise Mr. Fischer. All right. So the record is clear, the United 0 States is represented by Mr. Hicks, who is present at this time. Ms. Firestack-Harvey is represented by Mr. Niesen, who is also present. Mr. Larry Harvey is represented by Mr. Fischer. He is present, as well. Michelle Gregg is represented by Mr. Bevan Maxey. Mr. Rolland Gregg is represented by Douglas Phelps.

8 And Mr. Jason Zucker is represented by Mr. Tony Serra and Frank Cikutovich. courtroom. They are present here in the There is a pretrial conference before the Court at this time. Because of the number of motions, I've 0 determined the best way to handle this, from my viewpoint -- And if there's a hardship or problem, let me know. I'll certainly consider it. But as it stands, it seems to me the best way to proceed is to start with the issue involving the question of the admission of statements made by accused Rhonda Lee Firestack-Harvey. It's based upon a motion brought by Mr. Niesen on her behalf. Now, in that circumstance the burden of showing the validity of the statements made is on the United States. In other words, the burden of proving that they're admissible. 0 And I think we have a fact finding hearing that has to proceed. I would prefer we get that done. Then we'll move on to the issues involving search warrants and other issues in the case that have been raised by pretrial motions for this hearing. So, Mr. Hicks, I'm going to ask you to come forward and proceed.

9 are? Mr. Niesen, are you able to work from where you You're really not at a table. MR. NIESEN: swap out with me. MR. HICKS: I'm going to have to ask counsel to All right. Your Honor, we actually have three witnesses on the two issues. And I would suggest that we would combine the testimony involving the two issues, Your Honor. 0 Which two issues? 0 MR. HICKS: The search warrant affidavits. The search issues and also the issue of statements made by Ms. Firestack-Harvey, Your Honor. I think it makes sense. I'm hopeful that -- As far as the statements made, really the only party having standing is the accused, Ms. Firestack-Harvey. So that hearing would relate to that. As to the search warrant issues, I don't know quite what's going on, unless you are suggesting that this is a Franks hearing basis. MR. HICKS: Well, Your Honor, there were -- No. I'm not suggesting there's a Franks hearing or that there should be one. What I'm suggesting on the search warrant

10 issues, Your Honor, is that it's background for Your Honor. And also, in addition to that, we can cover certain of the issues, unless the Court does not intend on having a Franks hearing. However -- I don't see a basis for a Franks hearing. I guess that's what I'm wondering about the purpose of the testimony concerning the search warrants. Normally, the burden would be on the party 0 attacking the search warrants -- or parties. And the issues would be limited to the four corners of the affidavit and the search warrant itself. So I guess I'm wondering what you're seeking. MR. HICKS: Your Honor, the person who issued the search warrant, who obtained the search warrant, Mr. Loren Erdman, there are a lot of accusations that he misled the Court or he willfully -- there were willful omissions. So he's going to testify in regards to the 0 statements also. Because he was the first person at the door, with Sam Keiser and another law enforcement officer. And so, Your Honor, what I'll do is I'll just put on the information regarding the statements at this time. And during the presentation, I can make an offer of proof as to what the witness would say. And, if necessary, 0

11 then we could call the witnesses for that, if that would assist the Court, Your Honor. Very well. And my concern also is time constraints. And also the fact that there are several counsel involved in the issue of questioning the validity of the search warrant. MR. HICKS: Right. And I want to try to make sure we accomplish this hearing today. 0 MR. HICKS: Mr. Maxey. MR. MAXEY: All right. So I intend to do that. I think it would probably be easier if I -- MR. MAXEY: Yes. I apologize, Your Honor. 0 I think the Court probably does know from the pleadings filed by the defendants, we have made certain assertions that we would hope would make its way to a Franks hearing. So just on behalf of at least myself, if there was testimony that wanted to be presented by the state in that regard, we were kind of hoping to address that issue if the Court had the opportunity. Well, yes. You're going to be

12 allowed to cross examine the evidence, but this is not intended to become a project in and of itself. We'll address those areas that are the source of the presentation of the evidence. And if there are issues outside that are relevant to the issues concerning the search warrants and the affidavits, particularly why, I would allow those. MR. MAXEY: Okay. But, as I said, I do want to 0 complete this hearing today. MR. MAXEY: So noted, Your Honor. Thank you. All right. Very good. Mr. Hicks. MR. HICKS: We call Loren Erdman to the stand. Very good. your right hand. Please come forward here, sir. Please raise (Oath administered.) Please be seated here. 0 THE WITNESS: Thank you, Your Honor. I would ask you to please adjust that microphone and the chair to suit you. Please use the microphone and speak loudly and clearly so all can hear. last name. Would you please state your name and spell your

13 THE WITNESS: Loren A. Erdman. E-r-d-m-a-n. Thank you. Please proceed. MR. HICKS: Your Honor, just for the purpose -- I prepared Loren Erdman's testimony to go through everything. And I would just like to let him know that we're only going to deal with the issue of statements made by Ms. Firestack-Harvey at this time, pursuant to the Court's ruling. 0 Very good. 0 LOREN A. ERDMAN called as a witness, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. HICKS: Q. What is your present occupation? A. I am a detective sergeant for Stevens County Sheriff's Office. Q. And how long have you been employed by the Stevens County Sheriff's Office? A. I was hired in, so years. Q. Do you have any other prior law enforcement experience? A. Not previous to that. Q. And as a result of your employment did you have

14 0 0 occasion to come into contact with an individual by the name of Rhonda Firestack-Harvey? A. Yes, I did. Q. And do you recall when you came into contact with her? A. I believe it was August th, 0. Q. And how was it that you -- Where did you come in contact with her? A. At her residence. Q. And how was it that you were at her residence? A. There was a search warrant for that premises and we were serving that search warrant on that date. Q. All right. And was that a State of Washington search warrant, sir? A. Yes, it was. Q. And when you -- What's the address that we're talking about, just for the record. A. I believe it's Clugston Onion Creek Road. And that's Colville, Washington. Q. All right. And is that within the Eastern District of Washington? A. Yes. Q. When you first arrived were there other people with you at the front door of the residence, sir?

15 A. Yes, there was. Q. Who else was with you at the front door when you attempted to enter the house? A. I believe at the front door was myself; Detective Mike Gilmore, one of the Stevens County detectives. Also I think at the door was Detective Duane Ford, also with the Stevens County Sheriff's Office. Detective Mike George was there, as well. I'm not sure if he was right at the door at that time, but he 0 was fairly close there. And then DEA Agent Sam Keiser. 0 Q. All right. Who answered the door when you knocked on the door? A. Rhonda Firestack-Harvey. Q. Is she present in the courtroom today? A. Yes, she is. Q. Would you point her out and tell us -- Just give us an idea of where she's at. A. She's sitting near the end of the defense table here, over to my left. Q. All right. A. She's wearing the gray jacket and the dark hair. MR. HICKS: Your Honor, I would like the record to reflect that he has identified Ms. Rhonda Firestack-Harvey. Very well. It does.

16 Q. (By Mr. Hicks) When you first came to the door, what did you indicate to Ms. Firestack-Harvey? A. First I just advised who we were and that we had a search warrant for the premises. Q. Did you have your weapons drawn or anything such as that that you recall? A. I don't recall if we had them drawn or just at the -- Normally when we do a search warrant they're usually probably at the ready or at our sides; at least out 0 of the holster for a search warrant service. So I'm going to assume they were probably out of the holster, along the side. I don't recall if mine was because I had paperwork in my hand. But generally, that's normal 0 procedure for a search warrant service. Q. All right. When you knocked on the door did Ms. Harvey identify herself and tell you who she was? A. Yes. Q. And how did she do that? A. I believe I already had a picture from the Department of Licensing and I asked her if that's who she was. she identified that's who she was. And Q. Now, do you recall approximately at what time you arrived? A. I believe it was about 0: that I recorded that we

17 arrived there. We went up, made our presence known, 0 knocked and announced, and she came to the door. It was shortly thereafter, I think it was 0:0, that I actually sat down and read the search warrant to her and then read her her constitutional rights. Q. Now, when you read the search warrant to her, are you talking about just the search warrant itself and not the affidavit for the search warrant? A. Correct. Just the search warrant. Q. All right. And did you start to question her at that point in time? A. No. No. We just read her the search warrant at that point in time. I believe she made a statement about -- Because we told her the items we would be searching for and that there was a belief that there was a marijuana grow there. And she indicated that she had some 0 paperwork related to that, as far as medicinal authorization. And then we basically told her we need to read her her constitutional rights and went through that process there. And then we went from there. Q. All right. And after you read her her constitutional rights, what did she indicate to you in regards to whether or not she was going to waive her constitutional rights?

18 A. She said she wanted to make clear that she was going to cooperate, but that she wanted to call and talk to an attorney or talk about it to an attorney -- Q. All right. A. -- first. Q. And then what did she do? A. We let her make a telephone call. She wanted to call her son because she said that her son would have the attorney's phone number, the person 0 to call. So she called her son. She talked to her son for a short period of time. And then she handed the phone to me, said he wants to talk to you. I talked to him for a short period of time. And then that was it. I asked her -- She didn't get the number for an attorney. I asked her if she wanted to call, and she said no. was pretty much the end of any discussion about the attorney. And that 0 Q. And did you ever interrogate her or question her after that? A. No. No. I mean, there was -- While we were conducting the search warrant she was, you know, sitting in the living room there. And there was discussions going on about, you know, just what they were going to do for the day. There was nothing --

19 We weren't directing any questions at her as far as related to what we were there for. There was comments 0 0 made as we would find things or something related about, you know, what we had found or something like that, but no questions directed towards her. We didn't really interview her or do any kind of interrogation at all. Q. All right. Were you present -- There was a second search warrant that was issued at the residence. A. Correct. Q. And were you present for the execution of the federal search warrant? A. Yes, I was. Q. And that took place on what date, if you recall? A. I believe that was August th, 0. I think it was right at seven days later. Q. Were you present at the door when the entry was made for that? A. I was right -- I was at the top of the steps there; which is pretty much right at the door there, yes. Q. All right. And do you know if Ms. Firestack-Harvey was questioned or interrogated at that time? A. I'm not sure what extent the interview or

20 interrogation would have taken place at that time. I wasn't involved in that part of it there. was there more just to assist and collect the identified evidence and load it up. I Q. Did you have her sign a waiver of her constitutional rights or read her her constitutional rights from a form? And I'm talking again -- I'm going back to the first search warrant. A. I don't recall it was a form. I believe it was a 0 rights card. know, recall. But I can double check with my report to, you a rights card. I don't recall a form. I think it was just from 0 Q. All right. And other than that, after you had that contact with her, you indicated you had her sit down. Was she making comments on her own? A. Yeah. There was light conversation for a good portion of the day that we were there in the house or for the time that we were there at the residence. Q. Did she indicate anything about what was the marijuana grow or anything like that that you even put in your report? A. There was -- Like I said, right at the beginning when we identified what we were there for and, you know, reading 0

21 0 the search warrant, she indicated that it was a medicinal grow, at least in my presence. That it was a medicinal grow and that there was paperwork. And that paperwork was produced for us. And we took photographs of that and documented it and collected those items. Q. Did you ever or anybody ever indicate to her that you did not believe that it was a medicinal grow, that there were far too many plants? A. I believe there was -- Probably Detective Gilmore, I think, was present. I do recall something about that, about the number of plants. And I don't recall. I may have said something 0 about that, as well, once I verified the number of plants that were up there. But I know from our photographs going there, we believed that the number was in excess of what was allowed. And so there might have been some conversation about that. I don't recall exactly -- Q. All right. A. -- any response from that. Q. Did that take place prior to her contacting her son or after, if you have a recollection of that? A. I'm not positive if that was before or after.

22 My belief, it was, like, right after I read the search warrant, before the constitutional rights were read, which would have been before the phone call to her son. believe. I MR. HICKS: All right. I have no further questions of this witness, Your Honor. 0 Mr. Niesen. MR. NIESEN: Very well. Thank you, Your Honor. CROSS EXAMINATION BY MR. NIESEN: Q. Officer Erdman -- Erdman; right? A. Erdman. Yes, sir. Q. What was the role of the other officers -- I'm sorry. You mentioned the name, a specific name of an officer. A. At which time? What was his name? 0 Q. At the first search warrant. A. It was myself, Detective Gilmore, Detective -- Q. Gilmore. And what was Detective Gilmore's role at that search? A. His role specifically was to search the residence.

23 If there was going to be interviews, it would likely have been conducted by him. But it was to search 0 the residence, locate and identify evidence. Q. Was anybody tasked with keeping track of what was going on? A. As far as -- Q. Basically, the time you arrived, the people who were involved, the search warrant being read. A. That was my task. Q. That was your task. What's your badge number? A. 0. Q. All right. Now, in preparing for this have you reviewed all of the exhibits that were given to us as the Government's proposed exhibits? A. I believe I've reviewed most of them. I'm not sure if I've reviewed all of them. Q. Let me show you -- MR. NIESEN: May I approach the witness, Your 0 Honor? Counsel, if you want the witness to be shown anything, please provide it to Ms. Reisenauer and she'll provide it to the witness. MR. NIESEN: All right. This is proposed Government's Exhibit.

24 0 0 (Document handed to the witness.) Q. (By Mr. Niesen) If you would take a look at that, I believe there is at the very end of that a search warrant. And there are numerous notations on the search warrant itself, written by you. A. Yes. Q. Now, this document is sort of a blow-by-blow of what occurred. And it starts with: Served at 0 hours on // by Sergeant Erdman. Do you see that? A. Yes, I do. Q. And then the next thing it says is, Read to Rhonda Firestack-Harvey at 00 hours. A. Yes, sir. Q. All right. So the first thing we know is that it wasn't until 00 hours that you began to read her the search warrant itself. A. Yes. Q. All right. And during that first three-minute period, you confirmed Rhonda's identity. A. Yes. That would have been when we knocked at the door. Q. And you told her why you were there. A. Yes. Q. And did anything else occur the first three minutes,

25 before you read her the warrant at 00 hours? A. Yes. We would have basically just ensured that the environment we were standing in was safe at that moment, while the officers checked the other rooms in the house for other persons. And other outbuildings, to ensure that 0 0 everybody was accounted for and that we were safe at that point. Q. And how long did that take? A. I'm guessing by this, about three minutes. Q. Well, I believe in your report you indicated that you had read her her constitutional rights in the first three minutes. That's wrong, isn't it? A. I'm not sure that that's what I said in my report, but that's not my recollection. I believe I read the search warrant affidavit and then the constitutional rights. And I think at 0: was when I completed that. Q. Well, I'm going to show you a document which purports to be your report. MR. NIESEN: Unfortunately, I don't have copies of this. Can you use the ELMO, Counsel? That will work. MR. NIESEN: If I knew how to use it, yes.

26 Well, it's a good time to start learning. MR. NIESEN: Yes. I guess so. Bob, can you help me with this? Is that monitor on, sir? THE WITNESS: Yes, it is, Your Honor. Very good. THE WITNESS: Yes, it's there. 0 0 Q. (By Mr. Niesen) Can you read this? A. I can read it about there, I think. Q. All right. I believe that what it says is, I read Rhonda her constitutional rights at 0:0. But on this report you said that you read to Firestack-Harvey at 0:0, presumptively the search warrant. A. Like I said, it was one and then the other. It was all kind of right at -- I mean, I read one and then I read the other one there right afterwards. It wasn't like -- I guess I didn't take note when the search warrant was done and I then started on constitutional rights and then finished on it. I think it was just that one process. From, like, 0:0 to 0:. Q. But in your report, on this Government's proposed Exhibit, you don't indicate that you gave constitutional

27 rights. All you're indicating is that you read her the search warrant. Isn't that true? A. I believe it says, I read Rhonda her constitutional rights at 00 hours from a rights card. Q. No. I want you to look at Exhibit. The document that you prepared, that you signed. And it says the only thing that occurred at 0:0 is read to Rhonda Firestack-Harvey. That's all that's there. Isn't that true? 0 A. Correct. When I read this particular search warrant to her. Q. Now you're saying you gave her her constitutional rights. rights? Did you ask her to sign an acknowledgment of those 0 A. No, I did not. Q. And did you read it from a card? A. I read it from a rights card, yes. Q. But again, you have nothing to prove that, in fact, you gave the rights at that time. In other words, you don't have any acknowledgment from her as to her rights. A. I don't have anything as far as a document or paperwork, no. Q. Now, I think you stated that even before you gave her her constitutional rights -- the time, we're not sure --

28 she indicated that she had paperwork regarding the grow. A. As far as, yeah, the medicinal authorizations. Q. Yes. And did you ask her to obtain those or -- A. I don't recall if that happened at that very moment or if it was right afterwards that she provided those. And I believe a comment was made that we'll need to see those. I'm not sure. I don't recall exactly how that transpired, whether we said: Can you go get those? Or if she said, I 0 have those here if you want to see them. transpired exactly. Or how that Q. Now, at that point in time, as I understand it, about six or eight of you came to the door. A. Yeah. I think there was four or five somewhere near the door. portion. And then the others were up on the upper 0 Q. And apparently you either had your guns available to you or even some of them had them drawn. A. Approaching the residence, yes. Q. At that point was Firestack-Harvey free to leave? A. The residence? Q. Yes. A. No. Q. In fact, you ordered her to sit down? A. Well, yeah. We asked her to sit down.

29 0 Q. Through the rest of the search, from what I understand, one or two officers were keeping an eye on her. A. Correct. Q. So she wasn't free to leave. A. No. Q. And at that moment certainly you believed, you thought, that she could be involved in criminal conduct. A. Yes. Q. And that's supposedly the reason why you gave her the rights that you did. A. Correct. Q. Now, you say at that moment she asked to speak to her son. She asked to make a call to her son. A. Well, she wanted to talk to an attorney. She said she wanted to fully cooperate, but she wanted to talk to an attorney. But she didn't have a number for the attorney, so she wanted to contact her son who supposedly had this number. by telephone. So she contacted her son 0 Q. And after that she indicated that she didn't want to make any statements? A. She did not say that. Q. She did not say that. Can you tell me what her demeanor was? calm? Was she nervous? What? Was she

30 A. She was -- I mean, under the circumstances, I thought she was fairly calm and pleasant. She was, you know, interactive. She probably was a little nervous. MR. NIESEN: May I have just a moment, Your Honor? Certainly. (Pause in proceedings.) 0 Q. (By Mr. Niesen) I guess, what was the purpose -- Exhibit. Turning again to Government's proposed MR. NIESEN: evidence, Your Honor. MR. HICKS: Which I'm now going to offer into Any objection? No, Your Honor. Exhibit is admitted for the purpose of this hearing. MR. NIESEN: Thank you, Your Honor. 0 (Government's Exhibit No. - admitted.) Q. (By Mr. Niesen) Can you tell me what your purpose of writing all this stuff down was? A. This is our common practice, for us and our courts, as far as how we file our warrants. And we put on there the time served, who was present, who it was read to, and then when we completed our 0

31 warrant. MR. NIESEN: All right. Nothing further, Your Honor. MR. NIESEN: MR. HICKS: witness, Your Honor. No further inquiry? No further questions. Further questions? I have nothing further of this All right. 0 You may step down, sir. MR. FISCHER: Your Honor, if I might, it's my understanding that we can examine Detective Erdman at a later time. Well, we'll see. If it's going to be sought that evidence be presented in this matter, then yes, if it's the desire. I don't know the basis for getting into a Frye hearing -- not a Frye hearing, a Franks hearing. MR. FISCHER: I just have a few limited 0 questions about the application for the warrant and how available the court was that issued the warrant while the detectives were searching. How many other questioning -- Mr. Hicks, what areas are you going to want to inquire of?

32 Because if you're going to inquire of this witness and other witnesses, then defense counsel will have the opportunity, if you raise the issues, to inquire. MR. HICKS: Well, Your Honor, my inquiry was to my concern that the Court might want to hear evidence before it determines whether or not there should be a Franks hearing. My position is that there's no reason for a Franks hearing, myself. And so I have to be prepared in 0 case -- not knowing what the judge wants/feels it appropriate in a circumstance like this to put on. So I don't intend on calling Mr. Erdman back at this particular point in time unless it's necessary based upon issues and concerns by the Court, Your Honor. Very well. You may step down, sir. (Witness excused.) MR. HICKS: If we could have Officer Gilmore. Please come forward here, sir. 0 Please raise your right hand. (Oath administered.) Please be seated here. I would ask that you please adjust the microphone and your chair so you might use the microphone. And please speak loudly and clearly.

33 Would you please state your name and spell your last name. G-i-l-m-o-r-e. THE WITNESS: Michael Donald Gilmore. Thank you. 0 0 Please proceed. MICHAEL D. GILMORE called as a witness, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. HICKS: Q. Mr. Gilmore, just for the purpose of the record, the Court has limited what we're going to be testifying to about now, which is the initial contact at the door with Ms. Firestack-Harvey. A. Okay. Q. And we had prepared a little bit differently than that, so I want to stick to those questions. What is your present occupation? A. I'm a detective for the Stevens County Sheriff's Office. Q. And how long have you been so employed? A. Since 00, is when I promoted to detective. Q. And how long have you been involved in law enforcement, sir?

34 0 0 A. Since. Q. And what other types of positions have you held in law enforcement? A. I started as a reserve deputy for the Stevens County Sheriff's Office. In, I was hired on as a police officer for the City of Kettle Falls. In 000, I came to work for the Stevens County Sheriff's Office as a road deputy. And in 00, I promoted to detective. Q. All right. As a result of your employment with the Stevens County Sheriff's Office did you have occasion to participate in the execution of a state search warrant in Stevens County, Washington on August th of 0? A. I did. Q. And where was this search located at? A. It would have been on Clugston Onion Creek. At Clugston Onion Creek. Q. And do you know who the owners of that residence are? A. Rhonda Firestack-Harvey. And I can't remember what her husband's name is. Q. Okay. When you arrived, what was the first thing that you did upon your arrival? A. We approached the front of the residence. Q. When you say we approached the front of the

35 residence, did everybody there involved in the search approach the front of the residence? A. No. All the officers? Q. Where did some of the officers -- A. Officers would have -- Like a typical search warrant. They would have, 0 0 you know, spread out and tried to secure surrounding areas, to make sure that it was safe. Q. All right. Were you present at the door when Detective Sergeant Erdman knocked on the door and sought entry? A. Yes. Q. And who else was present at that time when entry was sought? A. I believe it was Sergeant Erdman, myself. There may have been -- For some reason I want to say -- I think we had a female deputy that responded there initially. Q. Do you know if Special Agent Keiser with the DEA was present with you at the time? A. Yes, he was there. Q. All right. Who answered the door when you knocked on the door? A. I believe Ms. Harvey did. Q. And when --

36 0 0 A. Or Ms. Firestack-Harvey. Q. And when you knocked on the door did you announce who you were at the time? A. Yes, I believe we did. Q. And how would that announcement be? A. We would have just stated we were with the Sheriff's Office and we had a search warrant. Q. All right. And how long did it take for Ms. Firestack-Harvey to get to the door? A. I don't specifically recall. I don't believe it was long. Q. And did officers go into the home to attempt to see if there were other people in the house at the time? A. After she answered the door, I believe officers went in and cleared the room. Q. All right. Is that usual procedure, to clear a location in order to make sure -- for officer safety? A. Absolutely. Q. Now, in regards to that, were you present during the time that Sergeant Erdman read anything to Ms. Rhonda Firestack-Harvey? A. Yes. Q. And what did he do? Would you explain that to the Court. A. I was present when he --

37 Which was right shortly after we got there; within, I would guess, a minute -- Q. Okay. A. -- of us, you know, being allowed entry into the house or gaining entry, however you want to put it. very shortly after. It was 0 He advised that there was a search warrant. read her the search warrant. He read -- Q. Now, is that just the search warrant or the search warrant affidavit? He 0 A. No. I don't believe he would have read the affidavit to her. Q. All right. A. Just the search warrant. Q. Go ahead. A. And a short time after that, he read her her constitutional rights. I don't know exactly what the split was there, but it was all at about the same time there. Q. Now, did Ms. Firestack-Harvey discuss medical authorizations? A. She stated that they had medical authorization. Q. And did she get those medical authorizations and bring them out? A. I believe she did, yes.

38 I remember seeing them on the -- like, the island in the entryway there. Q. If you have a recollection of it, at what point in time was that? Was that after she was read her rights? 0 0 Before she was read her rights? When did she make the statements about having medical authorization? A. It was right in there. It was -- I can't say for a hundred percent sure whether it was -- I don't believe it was before she was read her rights, but... Q. Did she volunteer the information? A. I believe she -- Yeah, I believe she did. Q. Were you interrogating her at the time? A. No. Q. Now, at some point was she read her constitutional rights? A. Yes. Q. And did she make any comments or statements regarding that they were involved in co-op growing and that she was using marijuana for food stuffs? A. She did. Q. And do you know if that was before or after she was

39 read her rights? A. I can't say a hundred percent sure. It was right in there. I believe it would have been about the time that 0 0 she pulled the authorizations out. Q. All right. And at that particular point in time were you interrogating her -- A. No. Q. -- or was that a voluntary statement? A. No. That was voluntary. Q. All right. At some point in time was she read her constitutional rights? A. Yes. Q. Did you ever indicate to her or did anybody indicate to her in your presence that she had more marijuana plants than were appropriate for -- Anything about there being too many marijuana plants? A. Yes. Q. Do you know who did that? A. That may well have been me. Q. Okay. A. That it appeared to be in excess of what's authorized for a medicinal marijuana grow. Q. And do you know if she was read her rights before that or whether she was read her rights after that?

40 0 0 A. I can't say for sure. Q. Now, after you made that statement did you attempt to interrogate her or question her about your statement? A. After I had mentioned that that appeared to be an excessive amount of marijuana, she indicated that she may want to speak to an attorney, if I recall correctly. Q. All right. And did you allow her to make phone calls at that point in time? A. Yes. She actually requested to speak to her son, to make a phone call to her son. Q. Did she tell you or indicate to anybody why she needed to talk to her son? A. My understanding was I thought she was trying to obtain the attorney's contact information. Q. All right. And after that had taken place, what did she indicate about that? A. About talking to an attorney? Q. After she spoke to her son. After she spoke to her son, what did she indicate about wanting an attorney? A. I don't believe she ever clarified after that. So I -- At that point, to me it appeared she was essentially asserting her rights. her. So we didn't question 0

41 Q. But she didn't clarify it one way or another, whether she wanted an attorney? A. Not that I recall. Q. All right. At that point in time did you ever interrogate her? While you were present then at the house on August th, did you ever question her? A. No. I was there for a couple of hours. So, obviously, during that time there's small talk that comes 0 up. But, no, I wasn't interrogating or questioning her. Q. And the small talk. What's the nature of the small talk? A. Questions about what's going on, mostly from her. Whether she was going to jail or not. nature. Things of that 0 Q. All right. Did you ask her any questions yourself? A. No. I didn't ask her. Q. Did you ever see any other law enforcement officer asking her questions? A. No. Not that I recall. Q. What was her -- A. At least nothing related to the manufacture of marijuana. Q. All right. What was the nature of the -- Is it unusual to have small talk with people

42 when you're in their house for hours? A. No, it's not unusual. Q. But you had asked her no questions. Do you know of anybody who asked her any questions that related to any criminal conduct involving marijuana after she was read her rights? A. To the best of my recollection, no. MR. HICKS: All right. Your Honor, I have no further questions of this 0 witness. Mr. Niesen. MR. NIESEN: Very well. Officer Gilmore; right? THE WITNESS: Correct. CROSS EXAMINATION 0 BY MR. NIESEN: Q. I'm going to attempt to establish the timeline. At some point you recollect Officer Erdman reading her her constitutional rights. A. Yes. Q. But you really don't know when. A. It was very close to the time when we -- that initial introduction. there. So it was within a few minutes of us being Q. Within a few minutes?

43 0 A. Yes. Q. And is it your standard procedure when you read constitutional rights to have the recipient of those rights acknowledge getting the rights? A. Yes. That's on the card. Q. That's on the card. And do you know whether that was done in this case? A. I believe it was, but I don't have a specific recollection. There was nothing -- Nothing seemed out of the ordinary about it. I guess nothing sticks out of the ordinary on it. Or Q. Now, at some point I believe you said that you're not sure whether the rights were delivered to Rhonda before or after she was given those constitutional rights. A. I'm sorry? Q. All right. You're not sure whether or not -- She was asked about the medical marijuana 0 certificates. A. Okay. Okay? Q. The authorizations. You're not sure whether that happened either before or after she was given her constitutional rights. A. It was all in that initial first few moments we were there. So my recollection is she kind of used that as a --

44 0 Q. Well -- A. -- maybe as a defense or to show us that's why they were doing it. Q. Let me be precise. A. Okay. Q. You have no recollection whether or not she volunteered information or gave information regarding the medical marijuana certificates, that they had them, before or after she was given her constitutional rights. A. Yes. I don't specifically recall exactly when she said that. Q. Then isn't it also true that you don't recall specifically whether -- She made a statement about co-op growing and that she used the marijuana for food stuff. You're not 0 sure whether that statement was made before or after the rights were given either, are you? A. I believe that was after; but it was months ago, so I can't say. Q. You don't know. A. Specifically. Q. Then apparently she was advised -- by you, I guess -- that there appeared to be far too many plants for just a medicinal grow. Do you remember that statement?

45 0 0 A. Uh-huh. Q. And did you make that statement? A. Yes, I did, I do believe. Q. And that statement was made to her after your belief that she was given her constitutional rights? A. Yes, I believe it was. Q. Now, that statement that you made, why did you make it? A. It would have been in response to the assertion that it was a medicinal marijuana grow. Q. And, again, you're not sure when that happened in terms of when the Miranda rights were given. A. I know it was the common -- It appeared to be the common theme through this. So it would have likely been right at the beginning, as well as all the way through to today, that it was her assertion that it was a medicinal marijuana grow. Q. Well, all I want to know, sir, is if you have a current recollection of whether the statement was made before or after she was given her constitutional rights. Can you tell us that? A. And this is her statement that it was a medicinal grow? Or my statement that it -- Q. Your statement to her that it was -- A. That would have been after she was read her

46 0 constitutional rights. Q. And in making that statement did you expect to elicit a response? A. No. Q. And her response, as I understand it, to that was that she needed to speak to an attorney. A. Yes. I believe that was... Q. And then it's your recollection she attempted to reach an attorney by calling her son? A. Well, she called her son. Whether she actually intended to talk to an attorney or have him speak to an attorney, I have no idea. Q. How long did that take place after she was supposedly given her Miranda rights? A. It was shortly after we got there, so... If you're looking for an exact, minutes, 0 minutes, I'm not sure. showing up. But it was reasonably soon to us 0 Q. So it could have been as long as minutes? A. I don't think it was that long. Q. Now, at some point you told her that it appeared to you that the operation was a for profit marijuana grow. A. Uh-huh. Q. That was made after she received her constitutional rights.

47 A. Yeah. Q. And after you knew that she wanted to contact or get ahold of an attorney. A. And after she was allowed an opportunity to do that, yes. Q. And you expected that comment to elicit a response, did you not? A. No. Q. I see. So you just -- 0 So that's your comment. She never responded to that. A. As I said, I was there for a couple of hours. So there was small talk going on as we would go through. Like, how long are we going to be there. Why are you guys still here? Q. And apparently -- That sort of thing. 0 A. And that comment would have been in response to that, to something of that nature. Q. So you made the comment. Did she respond to the comment? A. I don't recall her responding. Q. And at the time you made the comment she was still sitting in the -- I guess in the living room of the house. A. Yes. That would have been -- Actually, she did make the comment.

48 Q. All right. As I understand it, while she was sitting there she was being guarded by various members of the police force. A. Well, she was sitting there. I don't know how heavily she was being guarded, but... Q. And so now you recall that she did respond? A. She did respond. Q. What did she say? A. She indicated that they weren't selling marijuana to 0 anybody outside whatever her immediate group was. And that they were just sending it over to make food stuffs out of, to try to start up a business. MR. NIESEN: If I may have a minute, Your Honor. Yes, you may. (Pause in proceedings.) 0 Q. (By Mr. Niesen) Is it possible, sir, that you gave the Miranda rights to Ms. Firestack-Harvey? A. No. I believe that was Sergeant Erdman. Q. So you definitely did not? A. I don't recall giving them to her. Q. And again, at the time that you elicited these statements from her, she was still in the living room, was still not -- Well, let me ask you this. Was she free to leave?

49 A. At that point, no. Q. All right. And you approached her and you made these comments to her, and she responded to them. A. Well, I didn't approach her. I mean, she's in the living room. And it's on the travel path, going back and forth to where we were searching and what we were looking at. MR. NIESEN: All right. Thank you. I'm finished, Your Honor. 0 Very good. Further questions, Mr. Hicks? MR. HICKS: Yes, Your Honor. REDIRECT EXAMINATION 0 BY MR. HICKS: Q. Do you have your report with you? A. I do. Q. All right. Would your report refresh your recollection? Because you indicated you don't recall certain things. A. Correct. Q. All right. When you write your report do you write things sequentially, to the best of your recollection? A. Yes. Q. So it appears that you wrote this report shortly

50 0 afterwards, sometime in October. Would it have been -- A. It was finished in October, yeah. Q. What do you mean it was finished in October? I don't understand that. A. Which means I may well have started it earlier. Q. Okay. A. But that's when I signed it and forwarded it to records. Q. When Ms. Harvey provided you the four medical authorizations for the possession of marijuana, was she asked to go get them or did she just provide them? recall. If you 0 A. I believe she provided them. I don't recall -- I know I didn't ask her for them. Q. You were right there standing next to other people. A. Right. Q. Did you hear anybody else order her or command her to go get those authorizations? A. No. Not to my recollection. I believe that was her basically just offering them up as to why there was a marijuana grow there. Q. And did she do that right away? A. It was fairly soon to us being there. It was -- You know, it was in the first 0 minutes or so, I believe. 0

51 0 0 Q. Was that subject to you asking her any questions or interrogating her about it? A. No. Q. And while you were standing there was anybody interrogating her about whether or not she had medical authorizations or anything like that? A. Not that I recall. Q. All right. Now, in regards to the -- After you advised her that there appeared to be far too many plants for just a medicinal grow, was that the point in time when she indicated she might need to speak to an attorney? And if you don't recall and if it would refresh your recollection to look at your report, I would ask you to refresh your recollection if it's necessary. A. Okay. Yes. Could you ask the question again? Q. So does that refresh your recollection as to the sequence of events, sir? A. Yes. Q. Now, in regards to that sequence, my last question was: Was it after you told her that there appeared to be far too many plants for just a medicinal grow that she indicated she might need to talk to a lawyer at that point in time?

52 A. I believe so. Q. Does your report reflect that? A. Yes. Q. Is that the basis of your belief, sir? A. Yes. Q. Now, in regards to that, after that particular point you did indicate that you made a statement to her. A. Yes, I did. Q. And you've indicated how she responded. And she 0 indicated what she was doing with the marijuana. correct? A. Correct. Is that Q. Were there any other statements that she made? Were there any other questions asked, that you recall, that you asked her, attempting to get her to respond to anything? A. No. Q. All right. Now, during the course of this search 0 were you always looking at your watch? anything would you look at -- A. No. Every time you did Q. Were you taking notes and marking times or anything like that? A. No. Q. Who was the person primarily responsible for the

53 execution of the search warrant and reading the search warrant and constitutional rights to Rhonda Firestack-Harvey? A. That would have been Sergeant Erdman. MR. HICKS: witness, Your Honor. MR. NIESEN: I have no further questions of this Further questions? Just a few, Your Honor. RECROSS EXAMINATION 0 0 BY MR. NIESEN: Q. You've used the term, I didn't interrogate the witness, or something to that effect. What do you mean by that? A. I wasn't asking her questions in regard to this crime. Q. But you were making statements as to your belief concerning aspects of what was going on. A. In response to normal conversation, yeah. Q. Does your report indicate that the questions you were asking were in response to normal conversation? A. It wasn't a question. I didn't ask her a question. Q. No. But what you did is you made statements. Isn't that correct? A. In response to what she would say, yes. Q. So she was --

54 statement -- Well, let's explore this. Your first Well, one of the statements: At one point I advised it appeared to me that the operation was a for profit marijuana grow. A. Uh-huh. Q. Now, prior to that statement what was the conversation? A. That would have been her wondering why we were there 0 if it was a medicinal marijuana grow. a for profit marijuana grow. Q. And did that elicit a response? A. Yes. My belief was it was 0 Q. Were you surprised that a response was made? A. Not necessarily. Q. So did you expect to have a tête-à-tête, that there would be conversation taking place between you and Ms. Firestack-Harvey? A. No. Q. Where did she go to get the medical marijuana cards? A. I do not recall if they were in the den. They may have actually been there in the kitchen. Q. So she was ordered to sit in the front room and then permitted to go off and get these cards somewhere? A. No. I believe she produced those early on.

55 Q. Under state law is somebody who is using medical marijuana required to tell that to the police when asked? A. Yes. They're required to. And they're required to have it posted in their grow. Q. Now, was it your understanding that this was a state investigation taking place or a federal investigation? A. It was a state investigation. 0 MR. NIESEN: MR. HICKS: I have nothing further, Your Honor. Further questions? I have nothing further, Your Honor. And I would ask the witness to stay around just in case the other issues come up. Very well. You may step down, sir. (Witness excused.) We will take an afternoon recess at this juncture. Court will be in recess at this time for minutes. Court stands in recess. 0 LAW CLERK: LAW CLERK: All rise. (Recess was taken at : p.m.) All rise. Court is reconvened. Mr. Hicks. Please be seated.

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