Steve Cooley & Associates

1
Steve Cooley, State Bar No. 56789
2 Thomas Brejcha, pro hac vice
Peter Breen, pro hac vice
3 THOMAS MORE SOCIETY
309 W. Washington St., Ste. 1250 Chicago, IL 60606
4
Tel: (312) 782-1680
5 tbrejcha@thomasmoresociety.org
Brentford J. Ferreira, State Bar No. 113762
6 5318 E. 2nd Street, #399
7 Long Beach, California 90803
Telephone: (562) 400-8578
8 E-mail: bjferreira47@hotmail.com
9 Attorney for Real Party in Interest
10
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
FOR THE COUNTY OF SAN FRANCISCO
13
14 DAVID DALEIDEN, an individual SF SUP. CT. No. 2502505

15 Petitioner and Plaintiff,

16 vs.
NOTICE OF MOTION AND MOTION FOR
17 THE SUPERIOR COURTS OF SAN RETURN OF PROPERTY PURSUANT TO
18 FRANCISCO, LOS ANGELES, AND PENAL CODE1 SECTIONS 1539 AND 1540
SACRAMENTO COUNTIES AND TO QUASH AND TRAVERSE SEARH
19 WARRANTS, SECTIONS 1524(G), AND
Respondent and Defendant, 1538.5
20
21 _________________________________________ Date: 9/3/19
Time: 9:00 A.M.
22 THE PEOPLE OF THE STATE OF Dept. 23
CALIFORNIA, ATTORNEY GENERAL XAVIER
23
BECERRA
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Real Party in Interest.
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All further statutory references are to the Penal Code unless otherwise stated.

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1 TO: XAVIER BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ROBERT
2 MORGESTER, SENIOR ASSISTANT ATTORNEY GENERAL, AND JOHNETTE V.
3 JAURON, DEPUTY ATTORNEY GENERAL AND/OR THEIR RESPECTIVE
4 REPRESENTATIVES:
5
6 PLEASE TAKE NOTICE that on, September 3, 2019 at 9:00 a.m., or as soon thereafter as
7 counsel can be heard in Department 23, of the above-entitled court, located at 850 Bryant St, San
8 Francisco, CA, Defendant will move the court to quash and revoke Los Angeles County Search Warrant
9 no. 72887 issued for Mr. Daleiden’s residence at 8400 EDINGER AVE #P107, HUNTINGTON
10 BEACH, CA 92647, to return all of the seized property to him immediately. Mr. Daleiden is a journalist
11 engaged in gathering and disseminating news to the public, and the Attorney General’s Office seized
12 four terabytes of information from numerous computers, hard drives, and other documents which
13 contained sensitive unpublished editorial information. The search and seizure of Mr. Daleiden’s
14 constitutionally protected editorial materials was improper under Article I, 2(b) of the California
15 Constitution and California Evidence Code 1070 (the "Shield Law"), California Penal Code 1524(g), the
16 federal Privacy Protection Act (42 U.S.C. 14 2000aa-2000aa-12), the First and Fourteenth Amendments
17 of the United States Constitution, and the free speech and press clause of the California Constitution.
18 In addition, there was no probable cause to search Mr. Daleiden’s home. The affidavit
19 cites a list of statutes allegedly violated by Mr. Daleiden: Section 115, section 632, Vehicle Code 4463
20 (a)(l), section 470a and section 182 and section 632. No charges were filed for any of these sections
21 other than section 632 and no probable cause was proffered that any unreleased editorial materials in the
22 possession of Mr. Daleiden could possibly violate section 632.
23 Mr. Daleiden has also learned that the search warrant was executed in bad faith.
24 Department of Justice agents assigned to a Special Investigations Team did not believe that there was
25 probable cause for the warrant and one agent was so opposed that he took stress leave rather than
26 continue with the case. (Declaration of Steve Cooley Exhibit 1.) These agents have been subpoenaed
27 and an evidentiary hearing will establish that this warrant was issued in bad faith in order to prevent Mr.
28 Daleiden from continuing to exercise his First Amendment rights as a journalist.

2
1 Mr. Daleiden seeks to quash and traverse the warrant pursuant to Penal Code sections 1524,
2 subdivision (g) , 1538.5 subdivisions (a) (1) (B) (i)(iii)(v) (n) , 1539, 1540, and Evidence Code section
3 1070 subdivision (c) 2.
4 Pursuant to Local Rule 16.11 (A), Mr. Daleiden seeks the return of all of the items which were
5 seized from him pursuant to the search warrant for his home, which are listed in the Property Receipt
6 Form attached to his Declaration as Exhibit B. Pursuant to Local Rule 16.11 (A)(2)-(3), the legal basis
7 and authorities upon which Mr. Daleiden relies for this Motion are set forth in the attached
8 Memorandum of Points and Authorities.
9
2
Section 1524, subdivision (g) “No warrant shall issue for any item or items described in Section 1070
10 of the Evidence Code.”
11
Section 1538.5 subdivisions a (1) (B) (i)(iii)(v): “A defendant may move for the return of property or to
12 suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either
of the following grounds:
13
14 …

15 (B) The search or seizure with a warrant was unreasonable because any of the following apply:
16 (i) The warrant is insufficient on its face.
17 (iii) There was not probable cause for the issuance of the warrant.
18
(v) There was any other violation of federal or state constitutional standards.
19
Section 1538.5 subdivision (n): "a motion, otherwise permitted by law, to return [seized] property, . . .
20 on the ground that the property obtained is protected by the free speech and press provisions of the
21 United States and California Constitutions."

22 Evidence Code section 1070, subdivision (c):

23 (c) As used in this section, “unpublished information” includes information not disseminated to the
24 public by the person from whom disclosure is sought, whether or not related information has been
disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of
25
whatever sort not itself disseminated to the public through a medium of communication, whether or not
26 published information based upon or related to such material has been disseminated.
27
28

3
1 This Motion is based on the accompanying Memorandum of Points and Authorities, the
2 Declarations of Steve Cooley, David Daleiden, Delores Scott and Timothy Miley, the complete files and
3 records in this matter, and such argument as may be presented at the hearing on this Motion.
4
5 DATED: August 19, 2019 STEVE COOLEY and Associates
6
7 _________________________________
8 Brentford J. Ferreira
9 Attorney for David Daleiden
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1
TABLE OF CONTENTS

2 MEMORANDUM OF POINTS AND AUTHORITIES ............................................................................ 8

3
INTRODUCTION ...................................................................................................................................... 8
4
STATEMENT OF FACTS ......................................................................................................................... 9
5
6 THE ATTORNEY GENERAL IGNORED SECTION 1524 SUBDIVISION (g) AND EVIDENCE

7 CODE SUBDIVISION (c) .................................................................................................................... 21

8 THE WARRANT IS INSUFFICIENT ON ITS FACE ........................................................................ 25

9 A. No probable cause is stated under section 115. ........................................................................ 26
B. No probable cause exists for a charge of violation of section 470a. ......................................... 27
10
C. No probable cause was shown for an alleged violation of Vehicle Code section 4463,
11
subdivision (a)(1) ............................................................................................................................... 27
12 D. No probable cause was shown for alleged violations of section 632. ...................................... 28
13
A MOTION TO TRAVERSE AND EVIDENTIARY HEARING ARE ALSO REQUIRED IN
14
FURTHERANCE OF THE RETURN OF MR. DALEIDEN’S PROPERTY PURSUANT SECTIONS
15
1539 AND 1540 .................................................................................................................................... 34
16
17 CONCLUSION ......................................................................................................................................... 42

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28

5
1 TABLE OF AUTHORITIES

2 CASES
3 Animal Legal Defense Fund v. Wasden (2018) 878 F. 3d 1184, 1194-1195 .......................................... 25
Cabrera v. McMullen (1988) 204 Cal. App. 3d 1, 3-4.............................................................................. 26
4
Cobbs v. Grant (1972) 8 Cal.3d 229, 239 ................................................................................................. 41
5 Franks v. Delaware, supra, 438 U.S. at pp. 155-156 [57 L.Ed.2d at p. 672] ............................................ 41
6 Gensburg v. Lipset (9th Cir. June 30, 1997) No. 94-16939, 1997 U.S. App. LEXIS 16276377 ............. 40
Gotfried, supra, 107 Cal.App.4th at p. 265 ............................................................................................... 37
7 Knaugh v. Baender (1927) 84 Cal. App. 142, 148 ................................................................................... 26
8 Miller v. Superior Court (1991) 21 Cal. 4th .......................................................................... 21, 22, 33, 37
Monica Theater v. Municipal Court (1970) 9 Cal. App. 3d 1, 15 ............................................................ 37
9
Morse v. Regents of the Univ. of Ca1. (N.D. Cal. 2011) 821 F. supp. 2d 1112, 1120-21 ....................... 25
10 O 'Grady v. Superior Court (2006) 139 Cal.App. 4th 1423 ...................................................................... 23
People v. Amador (2000) 24 Cal.4th 387, 393 ......................................................................................... 34
11
People v. Baker (1978) 88 Cal.App.3d 115, 123 ...................................................................................... 41
12 People v. Bradford, supra, 15 Cal.4th at p. 1297 ...................................................................................... 34
13 People v. Duval, (1990) 221 Cal. App. 3d 1105, 1112-1113 ................................................................... 34
People v. French (2011) 201 Cal. App. 4th 1307, 1323-1324 .................................................................. 37
14 People v. Garcia (2003) 111 Cal.App.4th 715, 723 [3 Cal. Rptr. 3d 895] ............................................... 36
15 People v. Guion (2013) 213 Cal.App.4th 1426 ........................................................................................ 27
People v. Hirata (2009) 175 Cal.App.4th 1499, 1508 [96 Cal. Rptr. 3d 918] .......................................... 36
16
People v. Luttenberger [(1990)] 50 Cal.3d 1, 23, 265 Cal. Rptr. 690 ...................................................... 34
17 People v. Parra (1985) 165 Cal.App.3d 874, 880 ..................................................................................... 41
People v. Pugh (2002) 104 Cal.App.4th 66, 72 ........................................................................................ 27
18
People v. Suite (1980) 101 Cal.App.3d 680, 688-689 .............................................................................. 41
19 People v. Vasco, 131 Cal. App. 4th 137, 158 (2005) ............................................................................... 22
20 Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 .............................................................................. 41
Turnbull v. ABC (C.D. Cal. Mar. 7, 2005) No. CV 03-3554 SJO (FMOx), 2005 U.S. Dist. LEXIS 47528
21 ............................................................................................................................................................... 28
22 United States v. Alvarez (2012) 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 ................................... 26
Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1079-1080 ......................... 28, 33, 37
23
24 STATUTES

25 1 U.S.C. § 8 ............................................................................................................................................... 41
18 U.S.C. § 1111 ....................................................................................................................................... 41
26 42 USCS § 2000aa .................................................................................................................................... 25
27 Cal Vehicle Code 4463 (a)(l) .............................................................................................................. 26, 27
Evidence Code section 1070(c) ............................................................................................................ 8, 23
28 Health & Saf. Code § 123435 ................................................................................................................... 41

6
 Penal Code section 115 ............................................................................................................................. 26
1
Penal Code section 1524(g) .................................................................................................................. 8, 22
2 Penal Code section 182 ............................................................................................................................. 26
3 Penal Code section 470a ..................................................................................................................... 26, 27
Penal Code section 632 ...................................................................................................................... passim
4 Penal Code section 633.5 .......................................................................................................................... 38
5 United State Code 42 USCS § 2000aa ...................................................................................................... 24

6 TREATISES
7 Judges: Journalist’s Data Was Used to Justify Home, Office Raids, 6 August 2019, Metropolitan News-
8 Enterprise ................................................................................................................................................ 8
Media Watchdog: Judge Knew Warrant Targeted Journalist, 8 August 2019, Metropolitan News-
9 Enterprise ................................................................................................................................................ 8
10
CONSTITUTIONAL PROVISIONS
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California Constitution, Article I, Section 2(b) .................................................................................... 8, 23
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7
1
2 MEMORANDUM OF POINTS AND AUTHORITIES
3
4 I
5 INTRODUCTION
6
7 On April 4, 2016, the Los Angeles Superior Court, Judge Michael Pastor acting as magistrate
8 approved search warrant no. 72887 for the search of the home and automobile of David Daleiden. Mr.
9 Daleiden is a citizen journalist or self-employed journalist who founded the Center for Medical Progress
10 (CMP) whose mission statement is listed on its web page: “The Center for Medical Progress is a group
11 of citizen journalists dedicated to monitoring and reporting on medical ethics and advances. We are
12 concerned about contemporary bioethical issues that impact human dignity, and we oppose any
13 interventions, procedures, and experiments that exploit the unequal legal status of any class of human
14 beings. We envision a world in which medical practice and biotechnology ally with and serve the goods
15 of human nature and do not destroy, disfigure, or work against them.”
16 (http://www.centerformedicalprogress.org/about-us/.) As part of its mission CMP surreptitiously
17 recorded conversations at their vendor’s booth at a National Abortion Federation conference held in San
18 Francisco in April of 2014. CMP also surreptitiously recorded conversations with Planned Parenthood
19 doctors and a fetal organ resale company, StemExpress, at restaurants in Los Angeles and El Dorado
20 counties.
21 The Attorney General ignored the absolute privilege accorded Mr. Daleiden as a journalist for
22 unreleased work product and searched his home for unreleased videos and documents in violation of
23 Penal Code section 1524, subdivision (g), California Constitution, article I, section 2(b), and Evidence
24 Code section 1070 subdivision (c). The San Francisco Superior Court has recently and repeatedly
25 confirmed statutory and Constitutional violations in the use of search warrants for a journalist’s
26 unpublished materials (“Judges: Journalist’s Data Was Used to Justify Home, Office Raids,” 6 August
27 2019, and “Media Watchdog: Judge Knew Warrant Targeted Journalist,” 8 August 2019, Metropolitan
28 News-Enterprise).

8
1 On or about May 13, 2019, Steve Cooley, counsel for Mr. Daleiden, received an email from
2 David Daleiden forwarding an email from Attorney Jason Davis who informed him that the
3 investigation into Mr. Daleiden’s video recordings and the search warrant for his home caused
4 controversy in the Attorney General’s office among its investigative staff. (Declaration of Steve Cooley
5 Exhibit 1.)
6 Investigators for Mr. Cooley have subpoenaed seven members of the investigative staff to appear
7 on September 3, 2019 in this Court.
8 A hearing involving these agents is warranted in order to establish that the search warrant was
9 served without probable cause and in bad faith. The warrant itself is replete with misstatements,
10 uncorroborated conclusory opinions and omissions of fact and law.
11
12 II
13 STATEMENT OF FACTS
14
15 The timeline of the Attorney General’s investigation as reflected in internal email
16 communications released between the Attorney General and Planned Parenthood shows an investigation
17 conducted and overseen by Planned Parenthood and allied activist groups as the basis for a sham search
18 warrant. The special investigative team tasked with preparing and serving a search warrant on Mr.
19 Daleiden’s home apparently did not believe that the search warrant was accurate or was based on
20 probable cause:
21
22 July 17, 2015

23 • Beth Parker’s boss, Kathy Kneer, CEO of Planned Parenthood Affiliates of California, emails Jill
24 Habig’s boss, Kamala Harris, apologizing for Doe 9’s “tone and statements” in the undercover
25
video.
26
27
28

9
 • In the letter, Kneer makes multiple material misrepresentations and false statements about
1
2 Planned Parenthood’s fetal tissue programs in California, yet asserts the programs “rigorously
3 follow all state and federal laws.” (AGODAL002007.)
4
5
July 21, 2015
6
• Second undercover video, of Doe 10, released.
7
8 • Beth Parker emails Jill Habig and Robert Sumner alerting them that the second video has been
9 released, and insisting, “We believe we are fully complaint with all federal and state laws and are
10
investigating the situation. Please feel free to reach out to me if you have any questions”
11
(AGODAL002475).
12
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14 July 31, 2015
15 • David Daleiden appeared on CNN New Day, the same day the National Abortion Federation
16
files lawsuit.
17
18
August 6, 2015
19
20 • Doe 10 and Matthew Umhofer approach the Pasadena Police Department to make a police report

21 about Daleiden and CMP.

22
• During her police interview, Doe 10 comments to the detectives about David Daleiden that
23
“Vindictive is his middle name, this guy,” (audio recording 24:30) and, “If we can brand these
24
25 people as criminals, that would a plus for me, I think,” and for Planned Parenthood’s political

26 narrative (File 15-011054 Re interview with Doe 10’s audio recording 42:15).
27 • Doe 10 does not complain to Pasadena PD of any threats to her safety resulting from the videos.
28

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 August 14, 2015
1
2 • Jill Habig emails Larry Wallace, Gerald Engler, and Nathan Barankin with contact information

3 for Doe 10, and promises that Planned Parenthood Chief Legal Counsel Beth Parker will follow
4
up (AGODAL002466).
5
• Later that day, Habig emails again with contact information for Heather Saunders-Estes, the
6
7 CEO of Planned Parenthood Northern California, writing that Estes “received threats.”

8 • Special Agent Supervisor (SAS) James Hirt follows up on the Pasadena Police Department
9 report filed by Doe 10 and Doe 11 on August 6, 2015, and also follows up with Estes. Contrary
10
to Habig’s emails, Hirt later noted to his superiors that neither Estes nor Does 10 and 11 reported
11
actual threats to their safety (AGODAL002376 and AGODAL002464).
12
13
14 August 31, 2015
15 • Jill Habig emails Larry Wallace and John Marsh, asking about the “scope” of the investigation
16
by the Pasadena Police Department, if it was focused on threats to Doe 10’s safety or “more
17
broadly at the recording of the videos.” (AGODAL002461)
18
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20 September 2, 2015
21 • In the context of the Planned Parenthood investigation, Jill Habig emails John Marsh and Larry
22
Wallace noting a clinic vandalism incident in Thousand Oaks, CA. Habig admits, however, that
23
“ordinarily an isolated vandalism incident would not be a matter of huge concern” and offers no
24
25 evidence that the undercover videos are related (AGODAL002456).

26 • This same day, Doe 9 and Planned Parenthood attorney Matthew Umhofer visit LAPD
27
attempting to make a police report against Mr. Daleiden under PC 632. LAPD refuses to take
28
down a report under PC 632, because the recording was made “in a public restaurant.” On

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 August 6, Umhofer had worked with Does 10 and 11 to file a police report with the Pasadena
1
2 Police Department.

3
4
September 24, 2015
5
• As “Part III” of a follow-up email, a pro-abortion, pro-Planned Parenthood advocacy arm of The
6
Feminist Majority Foundation emails Jill Habig a list of what they claim are “anti-abortion
7
8 extremist actions immediately preceding and following the release of the CMP videos.” The list

9 slanders Mr. Daleiden and tries tenuously to connect his investigative journalism work to various
10
violent or dangerous acts, but provides zero examples of violent acts or statements by Mr.
11
Daleiden or supported in his work product—because there are none (AGODAL002372 to
12
002375).
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14
15 October 13, 2015
16
• Beth Parker emails Jill Habig with information about peaceful protests organized nationwide at
17
Planned Parenthood regional headquarters in response to the videos. Parker also reports by email
18
that she is “instructing everyone to file police reports in their local jurisdictions” apparently
19
20 solely because of First Amendment protest activity. Parker tells Habig, “Let me know if your

21 office thinks we should be doing anything else.” Habig’s email to Parker later that morning is
22
redacted (AGODAL002360 to 002362).
23
24
November 4, 2015
25
26 • Beth Parker call with Jill Habig (AGODAL002481)

27
28 November 5, 2015

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 • Misdemeanor case disposition by Pasadena Police Department noted as “pending” with Pasadena
1
2 City Prosecutor.
3
4
November 30, 2015
5
• Beth Parker call with Jill Habig (AGODAL002482)
6
7
8 December 3, 2015

9 • Beth Parker emails a Planned Parenthood-constructed chronology of Mr. Daleiden’s citizen

10 journalism work to Michael Casperson and Jill Habig.
11
• Special Agent Supervisor Michael Casperson, after speaking to Parker by phone, forwards
12
Parker’s Planned Parenthood work product to Agents Daniel Torres and Jesus Mejia
13
14 (AGODAL002429).

15 • During Torres, Mejia, and Casperson phone conversation with Beth Parker that morning, Parker
16
told them that “Planned Parenthood would like the computers used to produce the videos seized”
17
(AGODAL001393).
18
19
20 December 2015
21 • Sometime in December, Jacqueline Barbic, owner of the late-term abortion clinic Family
22
Planning Specialists Medical Group in Oakland, CA, sends a letter to the Attorney General
23
demanding DOJ action against Mr. Daleiden, accusing him of “an effort to put us [abortion
24
25 providers] at risk” of violence (AGODAL002342). Barbic’s clinic sold fetal body parts to both

26 StemExpress, LLC (three of whose officers are Does 12, 13, and 14) and to Advanced
27 Bioscience Resources, Inc. (ABR). StemExpress and ABR are the among the entities (including
28
several California Planned Parenthood affiliates) confirmed in December 2017 as under federal

13
 DOJ investigation for the sale of fetal body parts
1
2 (https://www.nytimes.com/2017/12/08/us/politics/planned-parenthood-fetal-tissue-transfers-

3 federal-investigation.html), and in the Congressional investigation that prompted the DOJ probe,
4
Barbic’s clinic was found in to be in “systematic violation” of HIPAA for providing patient
5
medical files to unlicensed StemExpress workers in order to target pregnant women with the
6
7 most marketable fetuses (https://www.hipaajournal.com/fetal-tissue-firms-guilty-of-systemic-

8 hipaa-violations-8635/).
9
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January 5, 2016
11
• Torres forwards Beth Parker’s Planned Parenthood-authored research documents to Deputy
12
Attorney General Cyrena Shirley, apparently the prosecutor then assigned to the Daleiden case
13
14 (AGODAL002405 and 002429).
15
16
January 7, 2016
17
• Agent Mejia tries to set up a meeting with Dr. Katharine Sheehan, a late-term abortion doctor
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from Planned Parenthood Pacific Southwest filmed at a conference in Denver, CO during Mr.
19
20 Daleiden’s citizen journalism project (AGODAL002358 to 002359). Planned Parenthood Pacific

21 Southwest sold fetal parts to ABR, whose CEO would later that year tell Agent Cardwell that she
22
did not believe the conversations recorded by Mr. Daleiden were “confidential” within the
23
meaning of PC 632 “due to the amount of people walking around” (AGODAL001749).
24
25 • Agents Torres and Mejia interview Doe 9 and Doe 10 at the offices of Matthew Umhofer. Doe 9

26 reiterates her and Umhofer’s allegations from their LAPD visit of September 2, 2015, when the
27 LAPD refused to make a police report under PC 632—though the AG Investigative Report does
28
not mention whether Doe 9 or Umhofer mentioned this to the AG (AGODAL001429).

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2 January 8, 2016

3 • Planned Parenthood Pacific Southwest replies to Mejia that Dr. Sheehan is not available for an
4 interview, and CCs Matthew Umhofer—the Planned Parenthood attorney who first worked with
5
Does 9, 10, and 11 attempting to secure a local prosecution of Mr. Daleiden—as a go-between.
6
Planned Parenthood tells Mejia that it is “not aware of any threats made against her” since the
7
8 release of her undercover video. (AGODAL002357 to 002359).

9
10 January 11, 2016
11
• Matthew Umhofer confirms that Dr. Sheehan has not received any threats (AGODAL001431).
12
13
14 January 22, 2016

15 • Agents Torres and Mejia meet with LAPD and obtain the police report documenting LAPD’s
16 determination that the recording of the lunch meeting with Doe 9 was not a violation of PC 632
17
(AGODAL001439).
18
19
February to April, 2016
20
21 • From February to April, emails show Beth Parker and Jill Habig and others in the Attorney

22 General’s office and Planned Parenthood collaborated closely on three different political
23
initiatives—the State’s lawsuit to shutdown pro-life pregnancy resource centers, the State’s
24
amicus role in the Whole Woman’s Health abortion regulation case at the U.S. Supreme Court,
25
26 and Planned Parenthood’s pinpoint legislation to give special treatment in the California

27 recording law to “health care providers” in an attempt to target David Daleiden

28 (AGODAL002475 to 002536).

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 • Beth Parker and Jill Habig provided each other with almost immediate access to detailed data
1
2 from their respective employers. Habig demonstrated the Attorney General’s office’s willingness
3 to ignore the facts in pursuit of a favored political narrative from Planned Parenthood when she
4
sought data from Beth Parker on Texas patients having abortions at Planned Parenthood in
5
California, in order to argue that the Texas abortion regulations were having a large impact in
6
7 California. The data Beth Parker provided (within a matter of hours) showed only 6 Texas

8 abortion patients at Planned Parenthood in California, no more than any other populous state. Yet
9 Habig pushed ahead with the narrative that the Texas law was having a significant impact on
10
California abortion appointments, which she indicated she had first been told by Planned
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Parenthood Los Angeles CEO Susan Dunlap.
12
13
14 March 8, 2016
15 • Beth Parker emails Jill Habig asking to set up an interview with Dr. Jennefer Russo, the Medical
16
Director and late-term abortion doctor for Planned Parenthood Orange & San Bernardino
17
Counties (PPOSBC), who admitted to Mr. Daleiden on undercover camera that PPOSBC was
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19 providing aborted fetal body parts to DaVinci Biosciences, LLC and DV Biologics, LLC in

20 Orange County for sale across the country and internationally. The DaVinci companies have
21
since admitted guilt for selling fetal organs and tissues from Planned Parenthood for profit in a
22
$7.8 million settlement with the Orange County District Attorney’s Office, who credited Mr.
23
Daleiden’s investigative reporting with prompting the case
24
25 (http://www.latimes.com/local/lanow/la-me-fetal-tissue-20171209-story.html). Parker asks to be

26 part of Dr. Russo’s interview and asks to be put in direct contact with whomever first contacted
27
Dr. Russo (AGODAL002339).
28

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 • Beth Parker also requests greater insight into the internal processes of the Attorney General’s
1
2 investigation, writing, “I have sent Cyrena Shirley the chronology and all the supporting
3 documentation that I had previously sent to her predecessor. I had not realized the prosecutor
4
assigned to this had left, and was not sure whether all the information was transmitted internally
5
to Cyrena.” Dr. Russo seeks to avoid speaking directly with California Department of Justice
6
7 agents and instead refers them to a Planned Parenthood official (AGODAL002336 to 002339).

8 • Rachel Capello sends a “Planned Parenthood Update” to Director Wallace, Robert Morgester,
9
Jill Habig, John Marsh, and Cyrena Shirley, forwarding them Michael Casperson’s report of his
10
meeting with Planned Parenthood attorney Matthew Umhofer. Umhofer by this time had failed
11
to induce the Los Angeles District Attorney’s office to bring charges against Mr. Daleiden (and
12
13 the LAPD had summarily rebutted him and Doe 9), yet now worked to sell the Attorney

14 General’s office on the same trumped-up accusations (AGODAL002336).

15
• Kathy Kneer emails Nathan Barankin and Jill Habig to set up an in-person meeting with Kamala
16
Harris for multiple Planned Parenthood representatives (AGODAL001982).
17
18
19 March 9, 2016
20 • Kathy Kneer emails Nathan Barankin and Jill Habig thanking them for their in-person meeting
21
together to plan for the Kamala Harris meeting on March 23 (AGODAL001981).
22
23
March 15, 2016
24
25 • Agents Hirt and Casperson interview Dr. Russo by phone, with Beth Parker on the line as well

26 (AGODAL001446).
27
28

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 March 17, 2016
1
2 • Jill Habig emails Kathy Kneer asking her to confirm the list of Planned Parenthood attendees for

3 the meeting with Kamala Harris on March 23. Kneer confirms that the list is: Kathy Kneer, Ana
4
Sandoval, Sue Dunlap, Celinda Vazquez, Sheri Bonner, and Dr. Jennefer Russo
5
(AGODAL001991).
6
7
8 March 23, 2016

9 • Kneer, Sandoval, Dunlap, Vazquez, Bonner, and Dr. Russo all meet with Kamala Harris in
10
person. This Court granted a discovery request for all notes, documents, recordings, and emails
11
pertinent to this meeting. DAG Jauron informed the Court that none existed. An evidentiary
12
hearing is necessary to find out what was discussed at this meeting concerning the prosecution of
13
14 Mr. Daleiden.

15
16
March 28, 2016
17
• Agent Torres interviews Ana Sandoval.
18
19
20 April 2, 2016

21 • Jill Habig emails Ana Sandoval indicating she and Nathan Barankin discussed the AG’s office
22 presenting at Planned Parenthood’s public affairs meeting on April 7. Habig offers to be the
23
presenter and the emails continue through April 5 (AGODAL001998 to 2000).
24
25
26 April 5, 2016

27 • Jill Habig sends a list of 8 “Action Items” from the March 23 meeting with Kamala Harris and
28 six PP representatives, which include both follow up from discussions about Dr. Russo and about

18
 Planned Parenthood’s legislative agenda, as well as AG policy toward Planned Parenthood.
1
2 These Action Items reflect that Kamala Harris discussed both Dr. Russo’s witness interview

3 from March 15, and Planned Parenthood’s political asks, in the same meeting with these Planned
4
Parenthood representatives and witnesses (AGODAL001983).
5
• Search warrant served on David Daleiden’s home.
6
7
8 May 13, 2019
9 • Steve Cooley, counsel for Mr. Daleiden, received an email from David Daleiden forwarding an
10
email from Attorney Jason Davis who informed him that the investigation into Mr. Daleiden’s
11
video recordings and the search warrant for his home caused controversy in the Attorney
12
13 General’s office among its investigative staff. Mr. Davis wrote:” Special investigative team at

14 DOJ used copy of alleged fake ID as basis for warrant. Team did not want to use it or pursue the
15 warrant. Tom Donahue, agent on team, is one to talk about out this of la. (sic) One agent went
16
out on stress.
17
• Shortly thereafter, Steve Cooley was able to reach Attorney Davis by telephone. He told him to
18
19 also reach out to Rachel Capello who was part of the team tasked with the investigation and /or

20 preparation of the search warrant and was aware of the concerns expressed about the warrant. He
21
believed Capello would testify truthfully. (Exhibit 1.)
22
23
June 2019
24
25 • Inv. Delores Scott made several attempts to locate Agent Thomas Donohue through channels at

26 the California DOJ. She met with resistance, as he had left the Department. She located
27
Donohue’s former supervisor, Agent Andy Alvarado and left him a message. On June 19th, he
28

19
 answered with an e-mail that the DOJ would not serve former employees or contact them on our
1
2 behalf. (Declaration of Delores Scott Exhibit 2.)

3
4
June 14th, 2019
5
• Timothy Miley left a phone message for Agent Rachel Capello at her desk line, (559)312-9270.
6
He left a detailed message about a need to speak to her on the behalf of the defense of David
7
8 Daleiden. He also spoke to the person answering the main DOJ Fresno Office phone, (559) 312-

9 9300. He was told she would be in on Monday, June 17th. (Declaration of Timothy Miley
10
Exhibit 3.)
11
12
June 27, 2019
13
14 • On June 27, 2019 at approximately 4:00 p.m., Delores Scott, went to Agent Rachel Capello’s

15 office located at 1735 E Street, Fresno, California. She asked to speak with Agent Capello. One
16
of the receptionists, Samantha, said that she was not available and didn’t know when she would
17
be. She asked what Inv. Scott’s visit was in regard to. She said she needed to serve Agent
18
Capello with a subpoena. Samantha stated that their office policy was not to accept any hand
19
20 delivered subpoenas. She said they had to be mailed. Inv. Scott asked if she could leave a note

21 for Agent Capello, which she already had written out and had in an envelope. Samantha said she
22
would accept the envelope, as long it did not contain the subpoena. She took the envelope and
23
said she would give it to Agent Capello. When Inv. Scott left their office, she went across the
24
25 street to the post office and mailed the subpoena to Agent Capello via certified mail. The

26 envelope was delivered and signed for by Danielle Padua. On July 1, 2019 at 10:16 am. (Exhibit
27 2.)
28

20
 July 17, 2019
1
2 • Delores Scott and Timothy Miley located Donohue working for the Department of Corrections,

3 Internal Affairs unit, located at 9035 Haven Avenue #105, Rancho Cucamonga. On July 17th,
4
Miley and Scott went to that location and asked to speak to him. He was paged on the office
5
speakers and called the front desk. When told they wished to speak to him regarding the
6
Daleiden case, he refused to come out and speak to them. Inv. Scott and Inv. Miley then
7
8 attempted to serve the subpoena for Agent Donohue. A woman came out and refused to accept
9 service, stating we had to call Erin Hoppin at their Legal Affairs Office, (916) 255-1671. Scott
10
served the secretary, Joyce, the subpoena for Donohoe. A note explaining their need to speak to
11
him was also left with her, with their contact numbers and emails. Another copy of the subpoena
12
13 was mailed to Donohue via registered mail. A message was also left with Hoppin. No response

14 has been received as of this date, August 9, 2019. (Exhibits 2 & 3.)
15
16
July 25, 2019
17
• On July 25, 2019, Inv. Miley got a call from Rachel Capello. She said that, though she would not
18
19 do a declaration or be interviewed, she would honor the subpoena and testify truthfully. She went

20 on to ask if other agents had been subpoenaed and gave Miley several names of those who
21 should be. (Exhibit 3.)
22
23
I
24
THE ATTORNEY GENERAL IGNORED SECTION 1524 SUBDIVISION (g) AND EVIDENCE
25
CODE SUBDIVISION (c)
26
In Miller v. Superior Court (1991) 21 Cal. 4th 883, a reporter for KOVR television had
27
interviewed a murder suspect in his jail cell. A portion of the interview had been broadcast.
28

21
1 Subsequently, the District Attorney for San Joaquin County “issued a subpoena duces tecum for
2 KOVR's custodian of records to ‘Bring Tape Recording of the Entire Interview at the San Joaquin
3 County Jail of Defendant Anthony Lee De[S]oto on 3/19 or 3/20/96, to Include Portions of Broadcast as
4 Well as Portions That Were Not Broadcasted [sic].’ The subpoena indicated no appearance was required
5 if the materials were turned over to the prosecution. KOVR submitted only the broadcast portions of the
6 interview, invoking the . . . shield law (Cal. Const., art. I, § 2; Evid. Code, § 1070) as to the ‘outtakes’
7 which were not broadcast. The prosecutor reiterated her demand for the unpublished materials.”(Id. at
8 888.)
9 The prosecution attempted to rely on the People’s right to due process articulated in Proposition
10 115 and added to the California Constitution as article I, section 29, (Id. at 892.)
11 The California Supreme Court stated: “[I]t is beyond dispute that the information sought by the
12 prosecution in the present case, unbroadcast portions of an interview of DeSoto by a newsperson, is
13 "unpublished information" within the meaning of article I, section 2(b) and is thereby protected by that
14 constitutional provision. Nor, as discussed above, is there any question that that protection, by the terms
15 of article I, section 2(b), is absolute, and may be overcome only by a countervailing federal
16 constitutional right, as in Delaney. (New York Times Co. v. Superior Court, supra, 51 Cal. 3d at p. 461.)
17 As explained above, article I, section 29 is not such a right.” (Id. at 897, People v. Vasco, 131 Cal. App.
18 4th 137, 158 (2005) (“[t]he prosecution has no due process right to overcome a newsperson's shield law
19 immunity and force disclosure of unpublished information, even if the undisclosed information is crucial
20 to the prosecution's case”).)
21 Section 1524 subdivision(g) is explicit: “No warrant shall issue for any item or items described
22 in Section 1070 of the Evidence Code.”
23 The search warrant affidavit admits that Mr. Daleiden is a journalist. “I am further aware that
24 DALEIDEN may be considered an investigative journalist.” (Affidavit p. 26. Unsealed Search Warrant
25 and Affidavit Exhibit 4.) Mr. Daleiden has earned his living exclusively as an investigative citizen
26 journalist since 2008. (Declaration of David Daleiden Exhibit 5.).
27 The Sixth Appellate District broadly interpreted the Shield Law to include an online blogger who
28 wrote about Apple products, holding that the Shield Law barred the company's attempt to force him to

22
1 reveal his sources. (O 'Grady v. Superior Court (2006) 139 Cal.App. 4th 1423). In resounding terms, the
2 court rejected any attempt to limit the scope of the Shield Law based on the type of journalism involved,
3 explaining:
4 we decline the implicit invitation to embroil ourselves in questions of what constitutes
5 'legitimate journalis[m].' The shield law is intended to protect the gathering and
6 dissemination of news, and that is what petitioners did here.
7 We can think of no workable test or principle that would distinguish 'legitimate'
8 from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a
9 fundamental purpose of the First Amendment, which is to identify the best, most
10 important, and most valuable ideas not by any sociological or economic formula, rule
11 of law, or process of government, but through the rough and tumble competition of the
12 memetic marketplace.
13 (Id. at 1457.)
14 Nonetheless the warrant specifically sought unreleased videos and documents protected by
15 Evidence Code section 1070, subdivision (c) and the California Constitution article 1, section 2 (b):
16 “There is also probable cause to believe that DALEIDEN still maintains more video footage that
17 has not yet been released. On July 22, 2015, DALEIDEN, on the FOX News Show Hannity, announced
18 that “for the past two-and-a-half years, The Center for Medical Progress conducted a long-term in-depth
19 comprehensive investigative journalism study” into Planned Parenthood. The study focused on the
20 harvesting and the sale of fetal specimens. DALEIDEN further stated, “We probably have hundreds to
21 even thousands of hours total of videotape over the past two-and-a-half years” and that the videos were
22 on You Tube. In support of your affiant's contention that DALEIDEN maintains more video,
23 DALEIDEN recently released a new video on March 1, 2016. During a February 21, 2016 interview
24 with the Washington Examiner, DALEIDEN stated, ‘There's still plenty of unreleased footage.'”
25 (Affidavit p. 22.)
26 The affidavit cites federal law 42 USCS § 2000aa for the proposition that a search of unreleased
27 journalist’s materials is proper in pursuit of a prosecution for violation of Penal Code section 632. The
28 statute actually supports Mr. Daleiden.

23
1 United State Code 42 USCS § 2000aa states in relevant part:
2 (a) Work product materials. Notwithstanding any other law, it shall be unlawful for a
3 government officer or employee, in connection with the investigation or prosecution of a criminal
4 offense, to search for or seize any work product materials possessed by a person reasonably believed to
5 have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public
6 communication, in or affecting interstate or foreign commerce; but this provision shall not impair or
7 affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search
8 for or seize such materials, if—
9 (1) there is probable cause to believe that the person possessing such materials has committed or
10 is committing the criminal offense to which the materials relate: Provided, however, That a government
11 officer or employee may not search for or seize such materials under the provisions of this paragraph if
12 the offense to which the materials relate consists of the receipt, possession, communication, or
13 withholding of such materials or the information contained therein . . .
14 (2) there is reason to believe that the immediate seizure of such materials is necessary to prevent
15 the death of, or serious bodily injury to, a human being.
16 (b) Other documents. Notwithstanding any other law, it shall be unlawful for a government
17 officer or employee, in connection with the investigation or prosecution of a criminal offense, to search
18 for or seize documentary materials, other than work product materials, possessed by a person in
19 connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar
20 form of public communication, in or affecting interstate or foreign commerce; but this provision shall
21 not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable
22 law, to search for or seize such materials, if—
23 (1) there is probable cause to believe that the person possessing such materials has committed or
24 is committing the criminal offense to which the materials relate: Provided, however, That a government
25 officer or employee may not search for or seize such materials under the provisions of this paragraph if
26 the offense to which the materials relate consists of the receipt, possession, communication, or
27 withholding of such materials or the information contained therein . . .
28

24
1 (2) there is reason to believe that the immediate seizure of such materials is necessary to prevent
2 the death of, or serious bodily injury to, a human being.
3 (Emphasis in original.)
4
5 Section 632 is an “offense . . . which . . .consists of the receipt, possession, [and]communication”
6 of materials protected under 42 USCS § 2000aa. In other words, if Mr. Daleiden has not released the
7 materials a search warant may not issue for them based on the suspicion that they may have been
8 obtained in violation of section 632. Like California's Penal Code 1524(g), 42 USCS § 2000aa creates
9 a “subpoena-first rule” for government searches directed at journalists which “generally prohibits
10 government officials from searching for and seizing documentary materials possessed by a person in
11 connection with a purpose to disseminate information to the public.” (Morse v. Regents of the Univ. of
12 Ca1. (N.D. Cal. 2011) 821 F. supp. 2d 1112, 1120-21.)
13 There is no evidence presented in the affidavit that seizure of the materials listed in the warrant
14 will prevent death or great bodily injury or that Mr. Daleiden ever threatened anyone. Nothing is alleged
15 in the warrant that connects Mr. Daleiden or his work product to the acts of a mad man in Colorado who
16 opened fire at an abortion clinic.
17 Section 1540 requires that all of Mr. Daleiden’s unreleased materials both video recordings and
18 other documents be returned to him. Section 1540 states: “If it appears that the property taken is not
19 the same as that described in the warrant, or that there is no probable cause for believing the
20 existence of the grounds on which the warrant was issued, the magistrate must cause it to be
21 restored to the person from whom it was taken.”
22 Any evidence obtained must also be suppressed and the warrant quashed under section 1538.5.
23 II
24 THE WARRANT IS INSUFFICIENT ON ITS FACE
25 It is true that Mr. Daleiden created an elaborate ruse to get close to Planned Parenthood
26 personnel and personnel from fetal organ procurement companies. However there was nothing illegal
27 about the ruse he created. An undercover investigative journalist may lie to gain access to a newsworthy
28 subject. (Animal Legal Defense Fund v. Wasden (2018) 878 F. 3d 1184, 1194-1195 statute

25
1 criminalizing misrepresentations made to enter agriculture facilities struck down as unconsitutional
2 citing United States v. Alvarez (2012) 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574.)
3 The affidavit cites a list of statutes allegedly violated by Mr. Daleiden: Section 115, section 632,
4 Vehicle Code 4463 (a)(l), section 470a and section 182. (Affidavit, p. 4-6)
5 None is supported by probable cause and charges were only filed for alleged violations of section
6 632.
7 A. No probable cause is stated under section 115.
8
The affidavit states “your affiant went to the California Secretary of State's Office in
9
Sacramento, CA. Your affiant was able to verify that a Susan Tennenbaum filed articles of organization
10
of a limited liability company in the name of BioMax Procurement Services, LLC on October 11,
11
2013...Filing this document with the California Secretary of State is a violation of California Penal Code
12
115 (a).” (Affidavit, p.12)
13
The purpose of the LLC-1 instrument was to organize a California LLC under the Beverly-Kinea
14
LLC act. The LLC was properly organized and has paid thousands of dollars in taxes to the State of
15
California, and was recently reinstated in good standing with both the CA SoS and the CA State FTB.
16
The use of a DBA on the form to organize the LLC is totally immaterial to the State's purposes in
17
processing the instrument, and it is also totally consistent with numerous other busineses use of fictitious
18
business names in the creation of LLC pass-through entities. BioMax always had an identifiable agent
19
for service of process in the event that any process needed to be served on the entity.
20
The affidavit seems to assume that the use of the assumed name “Susan Tannenbaum” somehow
21
makes the document false. Nothing in the law prevents a person from using an assumed name to
22
organize an L.L.C. (See e.g. Knaugh v. Baender (1927) 84 Cal. App. 142, 148 [“It is the settled law of
23
this state that HN2 a person may assume any name in which to receive title to property and that if he
24
assumes such a name a conveyance by him under such assumed name passes a good title.”]; Cabrera v.
25
McMullen (1988) 204 Cal. App. 3d 1, 3-4, [“Under California law, a person may change his or her name
26
at any time without any legal formalities. (citation omitted) More importantly, a person may sue or be
27
sued in any name in which he or she is known and recognized. “].)
28

26
1 B. No probable cause exists for a charge of violation of section 470a.
2
A photograph of a facsimile California driver’s license containing a picture of David Daleiden
3
and the name Robert Sarkis was presented in the affidavit (Affidavit p. 7). However, no evidence of the
4
use of the driver’s license to perpetrate a forgery was presented as required by the statute Under Penal
5
Code section 470a, “it is a crime to counterfeit ‘any driver's license . . . with the intent that such driver's
6
license . . . be used to facilitate the commission of any forgery.’ Intent to defraud in this state is broadly
7
defined as ‘an intent to deceive another person for the purpose of gaining a material advantage over that
8
person or to induce that person to part with property or alter that person's position by some false
9
statement or false representation of fact, wrongful concealment or suppression of the truth or by any
10
artifice or act designed to deceive.’” (People v. Pugh (2002) 104 Cal.App.4th 66, 72.)
11
12
C. No probable cause was shown for an alleged violation of Vehicle Code section 4463,
13
subdivision (a)(1)
14
Vehicle Code section 4463, subdivision (a)(1) states in relevant part: ” (a) A person who, with
15
intent to prejudice, damage, or defraud, commits any of the following acts is guilty of a felony and upon
16
conviction thereof shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the
17
Penal Code for 16 months, or two or three years, or by imprisonment in a county jail for not more than
18
one year:
19
(1) Alters, forges, counterfeits, or falsifies a. . . license, “
20
21 Mere possession of a novelty driver’s license does not demonstrate an “intent to prejudice,
22 damage, or defraud.” Showing the license at the desk of the NAF conference in order to obtain the
23 credentials paid for under the name Robert Sarkis does not constitute any attempt to prejudice, damage
24 or defraud NAF. False identification on a license, alone, cannot support a felony charge of violating
25 Vehicle Code section 4463(a)(1). (See People v. Pugh , supra, 104 Cal.App.4th at p. 72.) The “intent
26 to prejudice, damage, or defraud” is analogous to the additional act other than presenting a false
27 identification necessary for probable cause of false impersonation. (People v. Guion (2013) 213
28 Cal.App.4th 1426.)

27
1 D. No probable cause was shown for alleged violations of section 632.
2
Penal Code section 632 precludes charges for recordings made in public settings where other
3
people are present and may overhear. (Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th
4
1066, 1079-1080 [investigative journalists recording fake business meeting in public restaurant did not
5
violate Penal Code section 632 because the meeting was not a “confidential communication”]; Turnbull
6
v. ABC (C.D. Cal. Mar. 7, 2005) No. CV 03-3554 SJO (FMOx), 2005 U.S. Dist. LEXIS 47528, at *16
7
[“Plaintiffs concede they were talking openly and were aware that [Defendant] was in the room.... The
8
statute expressly excludes from its scope those conversations that take place in any circumstance in
9
which the parties ... may reasonably expect that the communication may be overheard.”].)
10
The only evidence presented in the affidavit that the conversations recorded were confidential
11
are the bald opinion of the affiant that conversations at two restaurants with Does 9 and 10 were
12
confidential notwithstanding the fact that they were held in a public setting where others could overhear
13
them. As to Doe 9, the affiant states: “Your affiant observed that the meeting took place in a restaurant
14
that was fairly loud (Affidavit p. 14). During this meeting, (Doe 9) discussed the various aspects of
15
abortions in relation to DALElDEN's interest in purchasing fetal tissue. Your affiant observed no outside
16
party involved in this conversation and due to the subject matter, it also appeared to your affiant that this
17
conversation was a private conversation. This video was ultimately posted by DALEIDEN as an
18
example of his belief that (Doe 9) was profiting on the sales of fetal tissue on behalf of Planned
19
Parenthood.” (Affidavit pp. 12 & 13.)
20
Other than this bald opinion, the affiant offered hearsay from two other DOJ agents who
21
interviewed Doe 9:
22
“On January 7, 2016, SA Jesus Mejia and SA Daniel Torres, both with DOJ, interviewed Doe 9
23
who advised them that she did meet with DALEIDEN and another female who identified herself as
24
Tennenbaum. According to Doe 9, both identified themselves as representatives from BioMax.
25
According to Doe 9, the meeting took place on July 25, 2014, at the Kraft Restaurant in Century City,
26
CA (Los Angeles County). According to Doe 9, the video taken of her at this meeting was taken without
27
her knowledge or consent and that she believed the conversation at the restaurant was confidential. She
28
explained that they sat at a table located in a corner of the restaurant. She further explained that there

28
1 were no other patrons seated around them, and she was in a position to be able to see people coming her
2 way. Doe 9 advised that she met with DALEIDEN, and other people associated with BioMax, on the
3 following four other occasions:
4
02/2014-Medical Director's meeting held in Florida (DALEIDEN and Adrian LOPEZ
5
[LOPEZ]).
6
04/2014-National Abortion Federation meeting held in San Francisco, CA.
7
03/2015-Planned Parenthood National Conference held in Washington, D.C.
8
(DALEIDEN and LOPEZ).
9
04/2015-National Abortion Federation meeting held in Baltimore, MD (DALEIDEN
10
and LOPEZ).
11
12 Doe 9 indicated she did not know if she had been recorded at the four meetings listed above.”

13 (Affidavit p. 15)

14 The affiant never interviewed Doe 9 himself. At a subsequent deposition, Doe 9 admitted that the

15 conversation at the restaurant could be overheard:

BY MR. JONNA:
16
17 Q: I stopped it at frame 36755. So you noticed the waiter that came by during the

18 conversation that you had while you were talking about handling tissue?

19 A: So that wasn't a waiter, and I wasn't talking about handling tissue when he came to
20 the table.
21 Q: Okay.· So what was he, then?
22
A: He was a guy filling the water glasses.
23
Q: Okay.
24
25 A: The waiter was a woman.

26 Q: Okay.· A guy filling the water glasses --

27 A: Yes.
28
Q: -- you saw you him. What were you talking about in that clip?

29
 A: I was talking about when consents should happen, but I wasn't actually using any
1
sensitive language.
2
3 Q: Okay. You agree that he could overhear that conversation; correct?

4 A: Sure.
5
(Unsealed portion of Deposition of Doe 9 pp. 232:8-233:3.)
6
7
She also admitted that she did not want to testify at the preliminary hearing, was equivocal about
8
Mr. Daleiden being imprisoned. She also stated that she had not been harmed by him:
9
BY MR. MIHET:
10
Q: And you haven't asked the Attorney General's Office if you are actually required to
11
go?
12
A: I have not asked the Attorney General's Office anything.
13
14 Q: If you find out that you are not actually legally required to be in San Francisco April
22nd and 23rd, would you still show up?
15
16 A: I would.

17 Q: Why?
18
A: Because I believe that I'm important to the case.
19
Q: Okay. So you do want to go?
20
A: No.
21
22 Q: Do you want to see David Daleiden and/or Susan Merritt in jail because of what they

23 did?

24 A: Quite frankly, I don't care.

25 Q: So you don't. Do you want to see David Daleiden --?
26
MR. KAMRAS: Objection. Misstates the record.
27
BY MR. MIHET:
28

30
 Q Do you want to see David Daleiden and/or Susan Merritt or any other defendant in
1
this case be stuck with a multi-million-dollar judgment against them because of what
2
they've done?
3
4 A: I've never actually thought about it.

5 Q: As you think about it now that I've asked you, what would be the answer?

6 A: I would like to see them be held responsible for the inappropriate things they did,
7 yes.
8 Q: Okay. Responsible to whom?
9
A: Whoever they damaged.
10
Q: Including yourself?
11
12 A: They didn't damage me.

13 (Unsealed portion of Deposition of Doe 9, pp. 370:1-371:10)

14 Had the affiant actually interviewed Doe 9 he may have learned that the conversation was not
15 confidential.
16 As to a recording of a conversation with Doe 10, the affiant stated:
17 “2. Doe 10, President of Medical Directors' Council for Planned Parenthood Los Angeles.
18 Date Recorded: 02/06/15:
19 During this meeting, DALEIDEN posed as Robert Sarkis, a representative from
20 BioMax, a company that collects fetal tissue for stem cell research. Your affiant was able
21 to determine that the voice sounded the same as DALElDEN's voice in the prior
22 referenced video at the NAF conference. Your affiant observed the fact that this meeting
23 was between Doe 10, a male presumed to be DALEIDEN, and another female that
24 appeared to be with DALEIDEN. There was also another female present that appeared to
25 be with Doe 10. Your affiant observed that the meeting took place in a restaurant that
26 appeared to be fairly private for conversation purposes. During this meeting, Doe 10
27 discussed the various aspects of abortions in relations to DALElDEN's interest in
28 purchasing fetal tissue. Your affiant observed no outside party involved in this

31
1 conversation and due to the subject matter, it also appeared to your affiant that this
2 conversation was a private conversation. This video was ultimately posted by
3 DALEIDEN as an example of his belief that Doe 10 was profiting on the sales of fetal
4 tissue on behalf of Planned Parenthood.
5 On January 7, 2016, SA Mejia and SA Torres met with Doe 10 and her attorney.
6 Doe 10 advised that the meeting between she and DALEIDEN took place in the City of
7 Pasadena (Los Angeles County) and that she believed the conversation she had with
8 DALEIDEN was confidential. According to Dr. GATTER she was in the process of
9 filing a complaint against DALEIDEN with local authorities for unauthorized video
10 recording of their meeting in Pasadena, CA.
11 On January 19, 2016, SA Mejia and SA Torres met with Detective Edgar
12 Sanchez, Pasadena Police Department, regarding a police report filed by Doe 10.
13 According to Detective Sanchez, the Pasadena Police Department maintained an open
14 investigation concerning Doe 10 being secretly recorded at a lunch meeting with David
15 DALEIDEN and an unknown female who had identified herself a Susan Tennenbaum.
16 According to Detective Sanchez, both had presented false identifications during an event
17 and the identification DALEIDEN presented was in the name of Sarkis. Planned
18 Parenthood representatives later provided the copies of the identifications to Detective
19 Sanchez. Detective Sanchez advised that he submitted his investigation for illegal
20 recording of Doe 10 to the Los Angeles County District Attorney's Office (LADA) for
21 filing consideration. On March 1, 2016, SA Mejia and SA Torres conducted a follow up
22 telephonic interview with Detective Sanchez. Det. Sanchez stated that the investigation
23 regarding the illegal recording of Doe 10 was still being reviewed by the LADA to
24 determine if the case would be filed as a felony complaint or referred to the Pasadena
25 City Attorney's Office as a misdemeanor complaint.” (Affidavit p. 16-17)
26 The affiant gives the conclusory statement that a public restaurant “appeared to be fairly private
27 for conversation purposes” and offers heresay that Doe 10 simply believed that the conversation was
28 confidential even though it was made in public, and because she attempted to file a criminal complaint

32
1 that was not pursued by the Los Angeles County District Attorneys Office and was ultimately
2 transferred to the Attorney General’s Office. (Declaration of LADDA Robert Dver.)
3 Like Doe 9, Doe 10 admitted in a subsequent deposuition that the conversation at the restaurant
4 could be overheard by others:
5 Q: Doe 10, I want to wrap up some items on the lunch meeting that we were just
6 reviewing the video of. You had said that the waiters could overhear the

7 conversation, but that you had discussed innocuous topics during the times the

8 waiters were present; is that accurate?

9 Ms. Bomse: Objection to the extent it misstates her testimony.

10 The Witness: To the extent that I remember, yes.

11
(Deposition of Doe 10 p. 279:9-19.)
12
Had the affiant actually interviewed Doe 10 about the conversation, she may have admitted as
13
much to him.
14
These videos were not presented to the magistrate. In Miller v. Superior Court, supra, “the trial
15
court stated (in concurrence with the position taken in the People's opposition to the motion to quash)
16
that the case law requires in camera review only when the material sought to be shielded under the
17
newspersons' shield law is confidential or sensitive--elements not present in the instant case, where
18
KOVR has not contended the unpublished tape is confidential or sensitive. The court further stated that
19
notwithstanding this point of law, the court would exercise its discretion and review the tape in camera.
20
“ (Id. at p. 889. ,)
21
This Court is not being asked to review the four terabytes of materials taken from Mr. Daleiden’s
22
home without probable cause. The Court is being asked to review the two videos of Does 9 and 10
23
referenced by the affiant. Both common sense and the only direct statements from Does 9 and 10 (albeit
24
made after the warrant was served) establish beyond doubt that the conversations could be heard by third
25
parties and were not confidential. (Wilkins, supra.)
26
Since there was no probable cause for this warrant all of the evidence should be suppressed
27
pursuant to section 1538.5.
28

33
1 III
2 A MOTION TO TRAVERSE AND EVIDENTIARY HEARING ARE ALSO REQUIRED IN
3 FURTHERANCE OF THE RETURN OF MR. DALEIDEN’S PROPERTY PURSUANT
4 SECTIONS 1539 AND 1540
5
6 “Under Franks [v. Delaware (1978) 438 U.S. 154], a defendant must make ‘a substantial

7 preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for

8 the truth, was included by the affiant in the warrant affidavit. . . ‘ (Franks v. Delaware, supra, 438 U.S.

9 at pp. 155-156 [57 L.Ed.2d at p. 672].) Further, ‘To mandate an evidentiary hearing, the challenger's

10 attack must be more than conclusory and must be supported by more than a mere desire to cross-

11 examine. . . . [A defendant's offer of proof should include] affidavits or sworn or otherwise reliable

12 statements of witnesses, . . . or their absence [should be] satisfactorily explained’ ( Id. at p. 171 [57

13 L.Ed.2d at p. 682].)”

14 (People v. Duval, (1990) 221 Cal. App. 3d 1105, 1112-1113.)

15
16 When a defendant attempts to quash a search warrant, the burden rests on him. “A defendant

17 claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging

18 and then proving the errors or omissions. [Citations.]” (People v. Amador (2000) 24 Cal.4th 387, 393.)

19 In addition, “[a] defendant who challenges a search warrant based upon an affidavit containing

20 omissions bears the burden of showing that the omissions were material to the determination of probable

21 cause. [Citation.] 'Pursuant to [California Constitution, article I,] section 28[, subdivision] (d),

22 materiality is evaluated by the test of Illinois v. Gates (1983) 462 U.S. 213, 76 L. Ed. 2d 527 . . ., which

23 looks to the totality of the circumstances in determining whether a warrant affidavit establishes good

24 cause for a search. [Citation.]' (People v. Luttenberger [(1990)] 50 Cal.3d 1, 23, 265 Cal. Rptr. 690.)”

25 (People v. Bradford, supra, 15 Cal.4th at p. 1297.)

26
27
28

34
1 Many misstatements and omissions are present in the affidavit. Information recently received
2 from Attorney Jason Davis and impliedly from DOJ agent Lt. Rachel Capello also points to this warrant
3 having been served in bad faith.
4 On or about May 13, 2019, Steve Cooley, counsel for Mr. Daleiden, received an email from
5 David Daleiden forwarding an email from Attorney Jason Davis who informed Mr. Daleiden that the
6 investigation into Mr. Daleiden’s video recordings and the search warrant for his home caused
7 controversy in the Attorney General’s office among its investigative staff. Mr. Davis wrote: “Special
8 investigative team at DOJ used copy of alleged fake ID as basis for warrant. Team did not want to use it
9 or pursue the warrant. Tom Donahue, agent on team, is one to talk about out this of la. (sic) One agent
10 went out on stress leave because he was so adamant against it.” Mr. Cooley called Mr. Davis and was
11 also given the name of Lt. Rachel Capello and was told that Mr. Davis was aware that Agent Capello
12 was part of the team tasked with the investigation and/or preparation of the search warrant, and was
13 aware of the concerns expressed about the warrant. He believed she would testify truthfully.
14 (Declaration of Steve Cooley.)
15 Investigators for Steve Cooley and Associates, Delores Scott and Timothy Miley immediately
16 sought out Rachel Capello for an interview. Inv. Miley found Agent Capello in Fresno and left voice
17 messages for her. Inv. Scott went to Fresno to serve Agent Capello with a subpoena. Office staff
18 informed Scott that Capello was not available and that hand delivered subpoenas were not accepted.
19 They had to be mailed. Scott left a note for Agent Capello and proceeded to serve her by registered mail.
20 (Declarations of Delores Scott and Timothy Miley.)
21 On July 25, 2019, Inv. Miley received a call from Rachel Capello. She told him that she would
22 not give an interview or a declaration but that she would honor the subpoena and testify truthfully
23 concerning the investigation and the search warrant. She also gave him the names of other agents who
24 she believed should be subpoenaed to the hearing: Michael Casperson, Reye Diaz, the affiant on the
25 search warrant, Jesus Mejia, Daniel Torres and Brian Cardwell.
26 (Declaration of Timothy Miley.)
27 After being rebuffed by the Attorney General’s Office, Inv. Scott found Thomas Donohue who
28 had left the Attorney General’s Office and was working at the Department of Corrections. Inv. Miley

35
1 went to his work site, but Donohue refused to come out and accept service, as did the office staff.
2 Donohue was served by registered mail. (Declarations of Timothy Miley and Delores Scott.)
3 The defense has stated many times that this is not an honest prosecution but rather a political
4 favor to Planned Parenthood. It appears that the investigative staff had to be coerced into serving a
5 search warrant that they opposed. This is overwhelming evidence of bad faith.
6 “Evidence obtained by police officers acting in reasonable reliance on a search
7 warrant issued by a detached and neutral magistrate is ordinarily not excluded under the
8 Fourth Amendment, even if a reviewing court ultimately determines the warrant is not
9 supported by probable cause. [Citation.] This is commonly referred to as the good faith
10 exception to the exclusionary rule. However, the good faith exception to the exclusionary
11 rule is inapplicable if ‘the affidavit was “ ‘so lacking in indicia of probable cause’ ” that it
12 would be “ ‘entirely unreasonable’ ” for an officer to believe such cause existed.’
13 [Citation.] ‘The question is whether “a well-trained officer should reasonably have
14 known that the affidavit failed to establish probable cause (and hence that the officer
15 should not have sought a warrant).” [Citation.] An officer applying for a warrant must
16 exercise reasonable professional judgment and have a reasonable knowledge of what the
17 law prohibits. [Citations.] If the officer “reasonably could have believed that the affidavit
18 presented a close or debatable question on the issue of probable cause,” the seized
19 evidence need not be suppressed.’ [Citation.] The absence of any legal authority directly
20 on point and the existence of arguably supportive legal authority renders the issue of
21 probable cause debatable. [Citation.]” (People v. Garcia (2003) 111 Cal.App.4th 715,
22 723 [3 Cal. Rptr. 3d 895])
23 “ ‘[T]he prosecution has the burden of proving that the officer's reliance on the
24 warrant was objectively reasonable.’ [Citation.]” (People v. Hirata (2009) 175
25 Cal.App.4th 1499, 1508 [96 Cal. Rptr. 3d 918].) “Application of the good faith exception
26 requires a factual presentation of the officers' activity, which is then measured against a
27 standard of objective reasonableness. [Citation] This objective standard ‘requires officers
28

36
1 to have a reasonable knowledge of what the law prohibits.’ [Citation.]” (Gotfried, supra,
2 107 Cal.App.4th at p. 265.)
3 (People v. French (2011) 201 Cal. App. 4th 1307, 1323-1324.)
4
5 It is now known that both Doe 9 and Doe 10 admit that their conversations at restaurants could
6 be overheard. It was reckless for Agent Diaz to state based on the videos themselves that the
7 conversations appeared to be private, especially without interviewing Does 9 and 10 himself. Other
8 people who could overhear the conversation are seen coming and going in the videos.
9 These videos were not presented to the magistrate. In Miller v. Superior Court, supra, “the trial
10 court stated (in concurrence with the position taken in the People's opposition to the motion to quash)
11 that the case law requires in camera review only when the material sought to be shielded under the
12 newspersons' shield law is confidential or sensitive--elements not present in the instant case, where
13 KOVR has not contended the unpublished tape is confidential or sensitive. The court further stated that
14 notwithstanding this point of law, the court would exercise its discretion and review the tape in camera.
15 “ (Id. at p. 889. )
16 In another First Amendment context movies that are alleged to be obscene a pre-preliminary
17 hearing as to their obscenity is required if requested by the defendant. “If, indeed, in a given case, a
18 prewarrant viewing or hearing would have inclined the magistrate not to issue a warrant, the same
19 decision at the close of a section 1538.5 hearing would eventuate in restoration of the film, creating a
20 minimal prior restraint (which would be even more minimal if a duplicate film were obtained during the
21 interval between the seizure and the decision on the section 1538.5 motion).” (Monica Theater v.
22 Municipal Court (1970) 9 Cal. App. 3d 1, 15.)
23 It is not suggested that the Court attempt to view the entire four terabytes of information taken
24 from Mr. Daleiden by this overbroad warrant. However, given the First Amendment Rights at stake it is
25 requested that the Court view the two videos mentioned in the affidavit where people other than the
26 parties to the conversations are clearly present and can overhear. If there are people present who can
27 overhear there can be no reasonable belief in confidentiality. (Wilkens, supra.)
28

37
1 A glaring omission from the affidavit is the attempt made prior to the service of the search
2 warrant by Doe 9 and her attorney Michael Umhofer to file a report and obtain a referral from the Los
3 Angeles Police to the District Attorney’s Office based on the video of Doe 9 at the restaurant. The Los
4 Angeles Police Department refused to take a report for filing with the District Attorney’s Office because
5 the video was recorded in a public restaurant.
6 Even more importantly, the affidavit makes no mention of section 633.5. "Nothing in Section 631
7 or 632 shall be construed as prohibiting one party to a confidential communication from recording such
8 communication for the purpose of obtaining evidence reasonably believed to relate to the commission by
9 another party to such communication of the crime of extortion, kidnapping, bribery, any felony
10 involving violence against the person or a violation of Section 653m, and nothing in Section 631 or 632
11 shall be construed as rendering inadmissible in a prosecution for extortion, kidnapping, bribery, any
12 felony involving violence against the person, or a violation of Section 653m, or any crime in connection
13 therewith, any evidence so obtained." (Italics added.)
14 In the video reviewed by the affiant, Doe 9 was asked about procedures that could result in
15 partial birth abortions, a federal felony involving violence. Doe 9 admitted that partial birth abortions
16 occur: “The Federal [Partial-Birth] Abortion Ban is a law and laws are up to interpretation, so there are
17 some people who interpret it as, it’s intent, so if I say on Day One that I don’t intend to do this then what
18 ultimately happens doesn’t matter, because I didn’t intend to do that on Day One.”
19 Also on the video reviewed by Agent Diaz, Doe 9 discusses her experience providing fetal tissue
20 to a local biotech company. She explains how she routinely changes her abortion technique in order to
21 provide the fetal body parts requested:
22 “I’d say a lot of people want liver. And for that reason, most providers will do this
23 case under ultrasound guidance so they’ll know where they’re putting their forceps. The
24 kind of rate-limiting step of the procedure is calvarium, calvarium—the head—is
25 basically the biggest part. Most of the other stuff can come out intact. It’s very rare to
26 have a patient that doesn’t have enough dilation to evacuate the other parts […] So then
27 you’re just kind of cognizant of where you put your graspers. You try to intentionally go
28 above and below the thorax, so that, you know, we’ve been very good at getting heart,

38
1 lung, liver, because we know, so I’m not gonna crush that part, I’m gonna basically crush
2 below, I’m gonna crush above, and I’m gonna see if I can get it all intact. And with the
3 calvarium [head], in general, some people will actually try to change the presentation so
4 that it’s not vertex, because if it’s a vertex presentation, you never have enough dilation
5 at the beginning of the case, unless you have a real, huge amount of dilation, to deliver an
6 intact calvarium. So, if you do it starting from the breech presentation, there’s dilation
7 that happens as the case goes on, and often, in the last, you can evacuate an intact
8 calvarium at the end […] under ultrasound guidance they can just change the presentation
9 […] and we’ve been pretty successful with that, I’d say” (001000 to 004620).
10
11 Doe 9 also asserts that converting a woman’s fetus to the breech presentation at the start of the
12 abortion in order to procure more intact fetal body parts would not involve a separate patient consent
13 process (007000). She also says that she always made sure to do the abortions that were to supply body
14 parts herself, rather than allowing a trainee to do them, in order to abort the fetus intact: “What we did
15 for a while, and I think it worked pretty well, is if there was a trainee, I would just basically say, ‘Any
16 research case, I’m gonna do, and as you get better I’ll let you do more of those cases, but we really need
17 to try to do this intact’” (008000).
18 Mr. Daleiden was investigating violent felonies perpetrated by abortion doctors. The affiant
19 states: “Your Affiant reviewed an interview of David DALEIDEN by Bill O'REILLY, a nationally
20 televised television host, on July 15, 2015.” (Affidavit p. 16) At that interview Mr. Daleiden told
21 O’Reilly that he was investigating criminality within the abortion industry with the explicit purpose of
22 reporting to law enforcement and to the public (https://www.youtube.com/watch?v=yxWU0arMBoI).
23 The press release and video Mr. Daleiden issued the day before the O’Reilly interview alleged violent
24 crimes committed by abortion doctors including partial-birth abortions and babies born alive and
25 allowed to die (http://www.centerformedicalprogress.org/2015/07/planned-parenthoods-top-doctor-
26 praised-by-ceo-uses-partial-birth-abortions-to-sell-baby-parts/ and
27 https://www.youtube.com/watch?v=jjxwVuozMnU).
28

39
1 The Ninth Circuit has explained exactly what it means to record “for the purpose of obtaining
2 evidence reasonably believed to relate to the commission” of a violent felony. (Gensburg v. Lipset (9th
3 Cir. June 30, 1997) No. 94-16939, 1997 U.S. App. LEXIS 16276377 , at *8-9.)3 In Gensburg, the Ninth
4 Circuit upheld the ruling of Northern District of California Presiding Judge William H. Orrick II
5 granting summary judgment in favor of the defendants in a case that dealt exclusively with the
6 parameters of Penal Code section 633.5:
7 We agree with the district court’s conclusion, that the statutory exception in
8 California Penal Code § 633.5 applied. That statute says that nothing in section 632.5
9 “prohibits one party to a confidential communication from recording the communication
10 for the purpose of obtaining evidence reasonably believed to relate to the commission by
11 another party to the communication of the crime of extortion.” This exception applies
12 precisely. The Gensburgs argue that Mr. Lipset should not have the benefit of it, because
13 had he called Mrs. Merdita’s physician as the police inspector did, he would have learned
14 she was schizophrenic and not proceeded further. This speculation is irrelevant, because
15 the statutory exception includes no condition which would impose this duty on Mr.
16 Lipset. All the statutory exception requires is that the purpose is “obtaining evidence
17 reasonably believed to relate to the commission by another party to the communication of
18 the crime of extortion.” Even if Mr. Lipset might have reason to be skeptical of Mrs.
19 Merdita’s account, he had no reason to doubt that recording her conversations with Mrs.
20 Gensburg would “relate to” the commission by Mrs. Gensburg of the crime of extortion.
21 It might relate by proving Mrs. Gensburg innocent, by proving her guilty, or by being
22 indeterminate, but however the evidence turned out, it would be precisely for this
23 statutorily permitted purpose.
24 (Gensburg, supra, 1997 U.S. App. LEXIS 16276, at *8-9.)
25
26
3
Citing unpublished federal opinions does not violate California Court Rules. (Cal. Rules of Court, rule
27
8.1115.) (In re Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18. [High court found
28 federal court’s unpublished reasoning persuasive.]).

40
1 Gensburg stands for the proposition that “reasonably believed to relate” means that Penal Code
2 section 633.5 permits recording conversations for the purpose of investigating criminal activity, not just
3 gathering evidence of criminal activity. (Ibid.) The individual who is performing the recording merely
4 needs to reasonably believe that the recording will relate to his investigation of potential criminal
5 activity. (Ibid.) He does not need to have a reasonable belief that the individuals he is recording are
6 actually engaged in criminal activity. (Ibid. [“It might relate by proving Mrs. Gensburg innocent, by
7 proving her guilty, or by being indeterminate”].)
8 Although no California case has explicitly endorsed this explanation, every California case has
9 implicitly endorsed it through their application of the Penal Code section 633.5 defense. (See, e.g.,
10 People v. Parra (1985) 165 Cal.App.3d 874, 880 [“[The defendant’s] testimony of why he recorded the
11 appellant’s voice was sufficient to except that recording from the prohibition of section 632.”] [emphasis
12 added]; People v. Baker (1978) 88 Cal.App.3d 115, 123 [verbal evidence of potential extortion sufficient
13 to permit recording of confidential communication]; People v. Suite (1980) 101 Cal.App.3d 680, 688-
14 689 [university bomb threat permitted university to “record” all incoming calls on their two emergency
15 lines” in order to potentially gather evidence of criminality].)
16 Infanticide, or homicide, whether one performs it personally or instructs another to do so, is
17 clearly a crime of violence which fits within the exception of Penal Code section 633.5. (See Health &
18 Saf. Code § 123435; 18 U.S.C. § 1111; 1 U.S.C. § 8).
19 However, altering abortion procedures to facilitate the harvesting of fetal tissue is also a crime of
20 violence because it constitutes a battery against the women. (Cobbs v. Grant (1972) 8 Cal.3d 229, 239)
21 [“Where a doctor obtains consent of the patient to perform one type of treatment and subsequently
22 performs a substantially different treatment for which consent was not obtained, there is a clear case of
23 battery”]; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.)
24 The evidence presented here supports an evidentiary hearing under both Franks, supra, and
25 sections 1538.5 and 1539 which states: “(a) If a special hearing is held in a felony case pursuant to
26 Section 1538.5, or if the grounds on which the warrant was issued are controverted and a motion to
27 return property is made (i) by a defendant on grounds not covered by Section 1538.5, (ii) by a defendant
28 whose property has not been offered or will not be offered as evidence against the defendant, or (iii) by a

41
1 person who is not a defendant in a criminal action at the time the hearing is held, the judge or magistrate
2 shall proceed to take testimony in relation thereto, and the testimony of each witness shall be reduced to
3 writing and authenticated by a shorthand reporter in the manner prescribed in Section 869.”
4
5 CONCLUSION
6
7 Mr. Daleiden did release three videos that are the subjects of counts 9 through 14. Otherwise all
8 of the information taken from his home is protected from being the subject of a search warrant under
9 both California and Federal law. This case began in controversy within the Attorney General’s Office
10 and should end in dismissal. Counts 1 through 8 must be dismissed once the warrant is quashed. Counts
11 9 through 14 lack any probable cause as well and should not survive the preliminary hearing.
12
13 August 20, 2019 Respectfully submitted by,
14
15 _________________________________
16 Brentford J. Ferreira
17
18
19
20
21
22
23
24
25
26
27
28

42
1 CERTIFICATE OF SERVICE
2
3 Pursuant to the stipulation of the parties, I certify that on August 20, 2019, I served the foregoing
Motion to Quash and Traverse on the following parties/entities as follows by electronic mail:
4
5
Nicolai Cocis
6
Attorney at Law
7 38975 Sky Canyon Dr., Suite 211
Murrieta, CA 92563
8 nic@cocislaw.com
9
10 Horatio G. Mihet, Esq.*
Vice President of Legal Affairs & Chief Litigation Counsel
11 Liberty Counsel
PO Box 540774
12 Orlando, FL 32854
13 hmihet@lc.org

14
15 Johnette Jauron
Deputy Attorney General
16 eCrime Unit
17 California Department of Justice
455 Golden Gate Avenue, Suite 11000
18 San Francisco, CA 94102
Johnette.Jauron@doj.ca.gov
19
20
I further certify that I am over 18 years old and not a party to this action.
21
22
23 Dated: August 20, 2019, at Long Beach, California

24
25
26 _____________/s/______________________

27 Daniel Ahearn
28

43