DA dismisses charges in air freshener case

WINNEMUCCA — The Humboldt County District Attorney’s Office has dismissed all charges against the Iowa man who was pulled over for having an obstructed front view, which consisted of a “Little Tree” air freshener hanging from the rear-view mirror.

The decision was made after determining the probable cause used by law enforcement to justify  the stop may have been insufficient.

Paperwork filed in the 6th Judicial District Court on Friday (April 22) notes the charges were dismissed in the interest of justice.

Michael Ochoa, 32, of Sioux City, Iowa, was pulled over on March 1 by the Humboldt Interdiction Team (HIT) as he traveled through Humboldt County on Interstate 80.

Sgt. Lee Dove, of the Humboldt County Sheriff’s Office, initiated the traffic stop and alleged investigators located 2 oz of cocaine, 18.2 oz. of methamphetamine, and ten pounds of bulk marijuana in the vehicle Ochoa was driving.

Ochoa was charged with two-counts of trafficking in a controlled substance level III, transporting a controlled substance and possession of a controlled substance.

Public Defender Matt Stermitz challenged the probable cause used to justify the stop in a motion to suppress evidence filed with the court.  He based  the motion on allegations of violations of the Fourth Amendment, which protects people from unreasonable searches and seizures by law enforcement and/or agents of the government.

He argued state statute requires drivers to have a “normal view”, restricts the number of passengers in the front seat so the driver’s view is not obstructed, but does not otherwise outlaw air fresheners or anything else dangling from the rear-view mirror.

Therefore, he argued, there was no probable cause for the stop.  Without sufficient probable cause, the foundation upon which a criminal case is built crumbles away.

Humboldt County DA Mike Macdonald said he, Chief Deputy DA Kevin Pasquale and Deputy DA Roger Whomes reviewed the case and ultimately decided to drop the charges.

Macdonald said, “Although an air freshener may technically obstruct the view and may be reasonable suspicion to justify the stop, after reviewing the case we decided the probable cause was a little on the thin side.”

He added, “Further, I had concerns about whether I was eager to argue that everyone driving down the road should be pulled over for something of that size.”

Macdonald said ultimately he had no burning desire to move forward and argue the matter before the Nevada Supreme Court.

Stermitz has since set up a display on the case in the lobby of the 6th Judicial District Court.  The display is meant to better educate citizens visiting the court during Law Day (Thursday) May 5 on the issues involved in the case.

Photos released in air freshener case

WINNEMUCCA —  Photos of a van involved in a controversial traffic stop were released to the public on Friday (April 8).  The van was seized by authorities and is located at the county’s impound lot.

The photos show the subject of the controversy:   a single, dangling “Little Tree” air freshener.

The air freshener case is currently in the 6th Judicial District Court.  Incidents leading up to case go back to a traffic stop conducted on March 1.

On that day, Michael Ochoa, 32, of Sioux City, Iowa, was traveling through Humboldt County on Interstate 80 when he was pulled over on allegations the view of the driver was obstructed by some air fresheners dangling from the rear-view mirror along with a pair of sunglasses on the passenger-side sun visor.

The photos show one air freshener and no sunglasses, which may have been removed by the occupants of the van prior to their arrest.

The traffic stop was initiated by Sgt. Lee Dove, of the Humboldt County Sheriff’s Office interdiction team.

Ochoa was arrested after the traffic stop and charged with trafficking in a controlled substance, level III, a category A felony, transporting a controlled substance, a category B felony, and possession of a controlled substance for the purpose of sales, a category D felony.

Ochoa pleaded not guilty to the charges.

Dove has alleged a search of the van turned up 2 oz of cocaine, 18.2 oz. of methamphetamine, and ten pounds of bulk marijuana.

The defendant is being represented in court by Public Defender Matt Stermitz, who filed a motion to have the evidence suppressed based on questionable probable cause for the traffic stop and allegations of Fourth Amendment violations.

The Humboldt County DA’s Office will be given an opportunity to respond to the motion to suppress.  The case was assigned to Judge Michael Montero who must decide whether or not a dangling air freshener constitutes an obstructed view and therefore necessary probable cause for a traffic stop.

The photos were released following a media request submitted by SPJ.

Stermitz seeks suppression of evidence in drug case; questions air freshener probable cause

WINNEMUCCA — Defense counsel for a man charged with drug trafficking is attempting  to have the evidence suppressed due to questionable probable cause.

Michael Ochoa, 32, of Sioux City, Iowa, was pulled over on March 1 by the Humboldt Interdiction Team (HIT) as he traveled through Humboldt County on Interstate 80.

According to documents filed with the court, Sgt. Lee Dove, of the Humboldt County Sheriff’s Office, stated his probable cause for the traffic stop was an obstructed front view.

What was obstructing the driver’s view?  “Little Tree” air fresheners hanging from the rear-view mirror along with a pair of sunglasses.

Dove alleged officers located 2 oz of cocaine, 18.2 oz. of methamphetamine, and ten pounds of bulk marijuana in the vehicle.

Representing the defendant is Public Defender Matt Stermitz, who filed the motion to suppress the evidence.

In the motion, Stermitz described the windshield of the defendant’s 1996 van as colossal.  He added the windshield was pristine and the dashboard polished.

Quoting Nevada’s traffic laws, Stermitz points out NRS does prohibit certain activities that could obstruct the driver’s view.  For example,  if the car is so loaded, or there are so many people in the front seat (exceeding three), as to obstruct the view of the driver.

The statutes apparently did not address air fresheners.

Stermitz quotes at length from the Fourth Amendment of the US Constitution, which prohibits unreasonable searches and protects an individual’s legitimate and reasonable expectation of privacy.

Stermitz notes, “Under the Fourth Amendment a decision to stop a vehicle is reasonable where the police have probable cause to believe a traffic violation occurred.”

Reasonable suspicious requires more than an officer’s hunch, he added.

A traffic stop without articulable suspicion of criminal activity is a violation of the Fourth Amendment and NRS, Stermitz noted, and a suspicion based on a mistaken view of the law cannot be the reasonable suspicion required for a traffic stop.

Quoting case law Stermitz notes, “If an officer makes a traffic stop based on a mistake of law, the stop violates the Fourth Amendment.  The remedy for improper search or seizure is the exclusion of evidence.”

Stermitz also argued the NRS statute was vague because it “failed to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden by the statute” (quoting case law).  Further, such a statute “encourages arbitrary and erratic arrests and convictions” (quoting case law).

Stermitz argued any evidence obtained in the search subsequent to the stop, made without proper probable cause, should be suppressed.

The Humboldt County DA’s Office will be given an opportunity to respond to the motion.

The case was assigned to Judge Michael Montero, of the 6th Judicial District Court – Department 2.

Ochoa was before Montero on Monday (April 4) where he pleaded not guilty to trafficking in a controlled substance level III, a category A felony, transporting a controlled substance, a category B felony, and possession of a controlled substance for the purpose of sales, a category D felony.

Should the defense be unsuccessful in their attempt to have the evidence suppressed, the matter may go to the jury on May 26.

District Court Reports – Department 1 for Monday, Aug. 2

The following were the results of arraignment and sentencing hearings for the 6th Judicial District Court – Department 1 on Monday, Aug. 2. Judge Richard Wagner presided.

  • Barbara Supplee was sentenced to a three-year term of probation on the charge of unlawful obtaining of a prescription or controlled substance. The underlying sentence for the charge is 12-32 months in prison.
  • Andrew Timothy Trent pleaded guilty to felony sales of a controlled substance and a sentencing hearing was set for 9:15 a.m. Oct. 4
  • Ian Richard Herzog pleaded guilty to felony possession of more than 1 oz. of marijuana and a sentencing hearing was set for 9:30 a.m. Oct. 4
  • Michael Joe Black pleaded not guilty to battery causing substantial bodily harm. The scheduling of a jury trial was deferred as the defendant’s attorney, Robert Dolan, indicated he intended to file a writ in the matter.
  • The case involving Fausto Arturo Valdez, charged with felony grand larceny, was continued for 90 days.

District Court Reports – Department 2 for Monday, Aug 2

The following were the results of arraignment and sentencing hearings for the 6th Judicial District Court – Department 2 on Monday, Aug. 2. Judge Michael Montero presided.

  • Sherrie Chavez pleaded guilty to gross misdemeanor child abuse, neglect or endangerment and a sentencing hearing was set for 2:15 p.m. Sept. 27.
  • Brenda Bailey pleaded guilty to felony DUI and a sentencing hearing was set for 10:30 a.m. Oct. 25.
  • A three-day jury trial was set to begin on Nov. 17 in the case involving Antonio Canales, charged with felony fraudulent use of a credit card.
  • Shannon Lorraine Golightly pleaded guilty to aiming a firearm at a person and a sentencing hearing was set for 2:30 p.m. Sept. 27.

6th Judicial District Court – Department 2 records for July 26

The following were the results of arraignment and sentencing hearings for the 6th Judicial District Court – Department 2 on Monday, July 26. Judge Michael Montero presided.

  • A status hearing was held in the case involving Scott Rilley Whiffen, charged with felony possession of a controlled substance for the purpose of sales, and a three-day jury trial was set to begin on Oct. 6.
  • A pre-trial conference was held in the case involving Craig Deke Garfield, charged with battery causing substantial bodily harm. A three-day jury trial is scheduled to begin on Wednesday, Aug. 11.
  • Juan Erik Cuevas was sentenced for felony trafficking in a controlled substance level II to a prison sentence of 84-148 months. Cuevas was arrested on Feb. 10 following a traffic stop on US 95 in which 28 grams of methamphetamine and a firearm were found hidden in a car the defendant was riding in. He was originally charged with felony trafficking level III and illegal possession of firearms by a non-citizen. The charges were reduced following a negotiated settlement between the defense and prosecution. Cuevas has repeatedly maintained his innocence — insisting he did not know there were drugs in the car when he accepted a ride from the co-defendant.
  • Angel Hernandez pleaded not guilty to felony battery causing substantial bodily harm and a three day jury trial was scheduled to begin on Dec. 15. The defendant was arrested on Jan. 23 following an incident at a local bar where Hernandez allegedly hit another man in the face, breaking his jaw.
  • A status hearing was held in the case involving Timothy James Warrens, charged with felony statutory sexual seduction and gross misdemeanor lewdness. The case was continued to Aug. 30 to allow the defendant time to obtain an attorney.
  • Richard James Bent pleaded not guilty to felony domestic battery and a three-day jury trial was scheduled to begin on Oct. 13. Bent was arrested on May 30 on allegations he strangled a relative.
  • Shawn Thomas Gurganus pleaded guilty to felony transporting a controlled substance and a sentencing hearing was set for 11:30 p.m. Sept. 20.
  • Roman Everette Nusbaum pleaded not guilty to possession of a controlled substance and a two-day jury trial was scheduled to begin on Dec. 8.
  • John L. Ortega pleaded guilty to gross misdemeanor conspiracy to commit burglary and a sentencing hearing was set for 2 p.m. Sept. 20.
  • Kristen Elizabeth Smith pleaded guilty to possession of a controlled substance and a sentencing hearing was set for 10:30 a.m. Oct. 4.

Settlement reached in attempted sexual assault case

WINNEMUCCA — A man accused of entering a woman’s home and attempting to sexually assault her intends to plead guilty to reduced charges.

Gabriel Raul Zamora-Duenas, 25, was facing charges of attempted sexual assault, battery with the intent to commit sexual assault, kidnapping and burglary. The defendant was scheduled to go before the jury on Aug. 25.

At a pre-trial conference held on Monday (Aug. 2) in 6th Judicial District Court, the defendant’s attorney, Public Defender Matt Stermitz, announced they had reached a negotiated settlement with the Humboldt County DA’s Office that would avoid a trial.

The deal would allow Zamora-Duenas to plead guilty to attempted sexual assault and all other charges would be dropped. The charge normally carries a sentence of 2-20 years in prison, but as part of the settlement both sides agreed to recommend a sentence of 2-6 years in prison.

The attorneys may only recommend a sentence; the actual sentence is up to the judge. In this case, if the defendant is sentenced to more than the recommendation he has the option of withdrawing his plea, Stermitz said.

Judge Michael Montero expressed some concern because the negotiated settlement was not in writing.

Deputy DA Tina Russom told the court she felt comfortable moving forward without the written plea agreement, but agreed to submit one at the court’s instance.

Zamora-Duenas was arrested on Jan. 21 after a woman identified him as the person who came into her house, attacked her, and attempted to sexually assault her.  The woman said during the course of the attack she managed to free herself and call authorities.

The woman identified Zamora-Duenas, whom she knew, as her attacker.

The woman had minor injuries.  Her two children were at home at the time of the attack but were not physically injured

The defendant has been in custody since the time of his arrest 

Plaintiffs prevail in lawsuit against the city

WINNEMUCCA — The jury in Forney v City of Winnemucca needed just three hours before returning with a verdict that found the City of Winnemucca responsible for damages to the home of Kim and Danny Forney after raw sewage flooded their basement in 2008. Having found the city responsible, the jury awarded the family $144,031 to compensate for their losses.

The case was heard in 6th Judicial District Court and was presided over by Judge Richard Wagner. The Forneys were represented by Dane Anderson and Benjamin R. Johnson, of Woodburn and Wedge law firm in Reno, and the city was represented by Brent Kolvet, of Thorndal, Armstrong, Delk, Balkenbush, and Eisinger, also of Reno.

Events leading up to the lawsuit began in the evening hours of March 31, 2008 when raw sewage began flooding the basement of the Forney home.

The Forney’s basement was not just a place to store toys their three kids weren’t playing with anymore. The basement was where two of the Forney kids had their bedrooms. There was also a television for watching movies and a room Kim Forney intended as her office while she studied for her master’s degree. They had non-replaceable items, such as photos, old video tapes, and heirlooms. In addition, the family’s laundry room was in the basement.

As the sewage flooded in, Kim Forney made a desperate rush to save what she could, especially the photos, while her husband called her to come out of the basement because he was afraid she would be electrocuted.

When her attorney asked her why she did that, why she would wade into raw sewage, she replied, “I was in a state of shock that night.”

Eventually, much of the fluid was drained from the house – leaving a moist mass of feces, toilet paper, condoms, and tampons.

The mess had to be professionally cleaned and was twice checked for E. coli; the carpets and walls had to be removed and much of the Forney’s personal belongings in the basement were destroyed. Kim reported after the clean up she could stand at one end of the basement and look clear to the other side. Everything was gone.

The house sits on the lowest spot in that part of the subdivision. When the sewer clogged on the evening of March 31, all the waste from the line above the Forney’s home flooded into their basement.

It was the third time the Forney home had been flooded and the second time sewer waste backed up into the house.

This time, though, the damage was severe.

SUING THE CITY: While the Forney’s wanted to be compensated for their considerable losses, it can be challenging to sue the government – even the local government.

The government has immunity from such lawsuits because they frequently have large numbers of citizens to serve, and are operating on limited budgets with minimum personnel.

In order to successfully sue the City of Winnemucca, the Forney’s would have to prove the city knew there was a problem but failed to act appropriately.

CITY EASEMENT: As it turns out, the city had long known there was a problem in the Parkview subdivision.

For example, in the 40 plus years since the subdivision was built homeowners have encroached on the city’s 10-foot easement that runs behind the homes on Ballard Lane through to Minor St.

Homeowners have planted hedges, trees, and built fences.

According to Councilman Joyce Sheen, who testified at the trial, the city had been reluctant to use a heavy hand in getting homeowners to remove their bushes, trees, and fences because the council felt developing technology would allow them to remove the antiquated sewer pipes and replace them with something modern without interrupting the quality of life for homeowners.

In the mean time, the blocked easement represented a problem because there really wasn’t enough room for the city’s flusher trucks to easily gain access to the Parkview sewer line to flush the pipes when they needed flushing.

On the night the Parkview sewer line plugged up, causing raw sewage to flood the Forney’s basement, there was a 30 minute delay in response while city personnel tried to locate a homeowner to unlock a gate so they could have access to the Parkview sewer line.

CAPPED SEWER LINE: However, the easement-issue did not cause the sewer to clog then back-up into the Forney home.

One of the first things the Forney’s learned in the aftermath of the sewer flood at their house was city officials had discovered that sometime along the way the wrong sewer line had been capped above the Parkview subdivision.

To understand what happened, it’s important to understand the sewer system.

City Manager Steve West explained in 1992 a new sewer pipe was installed along Highland Dr. to accept sewer waste from the new subdivisions being built.

Once the new sewer line was in place, the Parkview sewer line was capped so waste from the new subdivisions would be diverted to the Highland Dr. pipe and the Parkview sewer line would handle the waste from one-half of the Parkview subdivision. The other half of the Parkview subdivision was on a different sewer line.

Somewhere along the way, the cap from the Parkview sewer line was removed and the Highland sewer line was capped.

At that point, the Parkview sewer pipe starting getting all of the waste from the new subdivisions above Highland Dr.

No one knows how long this went on.

WATER MAIN BREAK: It’s also important to understand the problems from March 31, 2008 incident actually went back to March 4, 2008 when a large water main broke. The force from the break was so great it reportedly lifted up asphalt and washed dirt and gravel into the sewer lines.

It should be noted, the Forney basement was flooded on that day, too, along with other basements in the Parkview subdivision.

Approximately two weeks later, the city was still flushing the dirt and gravel out of the sewer lines – including the Parkview sewer line.

The plaintiffs questioned whether or not that flushing of the Parkview sewer line was sufficient – or even occurred – because the city’s record keeping was not stellar.

THE EXPERT WITNESS: Addressing the issue of the city’s record keeping, and testifying on behalf of the Forneys, was John Shaw, of John Shaw Consulting, in Truckee, California.

Shaw reviewed the record keeping done by the City of Winnemucca and was very critical about what he found.

For example, the sewer back-up logs only contained a date and address. There was no information on the extent of the problem and what was done in response.

Shaw was also critical of the city’s response to the water main break. He noted the city did not send a camera down the Parkview sewer line to make sure it was cleared of dirt and debris following the flushing.

While the city has video equipment for the newer, larger concrete pipes, such as the 8-inch pipe installed alongHighland Dr. in 1992, they don’t have such equipment for the smaller 6-inch pipe used in the Parkview subdivision.

According to West, the city had previously contracted a camera for the 6-inch pipe but it didn’t work well.

THE CITY: West, Councilman Sheen, and former Public Works Supervisor Gino Bernardi were all called to testify by the plaintiffs (the Forneys).

Bernardi was asked to recount the actions taken in response to both the water line break and the sewer back-up into the Forney home.

Sheen was asked if there had been problems in the Parkview subdivision for years. Sheen replied, “Yes. Not so much sewer problems but there were easement issues.” She reiterated in order to clear the easement the bushes, trees, and fences would have to be removed. She commented, “It’s not an easy fix.”

She said while the capping of the Highland Dr. sewer line may have exacerbated the problem, it did not cause the plug in the system that caused the sewer line to back-up and flood the Forney’s basement with sewage.

Although there was testimony from the expert witness the city’s maintenance of the sewer lines was below national standards, West testified the city’s maintenance of the sewer lines was well within what was required of the city by the Nevada Department of Environmental Protection. Although the expert had been critical of the inspection process, West countered the city was not required to inspect at all.

West also countered the argument the capping of the Highland Dr. sewer line caused the problems in the Parkview sewer line. He said the Parkview line was capable of handling the flow.

It was the Forney’s position, however, if the Highland Dr. sewer line had not been capped the Parkview sewer line would not have been overwhelmed with waste from the newer subdivisions, and the damage to their home would not have been so severe.

THE CASE GOES TO THE JURY: In civil lawsuits the standards are different than in criminal trials, which the public may be more familiar with.

First of all, there are less jurors: eight instead of twelve. The jurors do not have the “beyond a reasonable doubt” standard. Instead, they use preponderance of evidence – meaning greater probability of truth.

The jury was tasked with determining whether or not the city had been negligent and whether they were guilty of trespass (meaning they let sewage, which they collected and controlled, trespass into the Forney home) and if reasonable effort was made to remove it.

The questions before the jury were: Were the defendants (City of Winnemucca) negligent? Were the plaintiffs (the Forneys) harmed? Did the defendants know they were causing the plaintiffs harm?

The Forney’s asked for just under $100,000 in damages plus an undetermined amount for the loss of the full use of their home during the incident and for month afterwards.

The damages included: clean up and repair, loss of the value to their home, loss of personal belongings, and lost wages while they dealt with the problems.

The jury gave them the amount just under $100,000. The jury also gave them $45,000 for the loss of the use of their home in the time following the sewer flood.

Jury seated in lawsuit against the city

WINNEMUCCA — The family whose basement was ruined when sewage backed up into the house is now having their day in court.

Kim and Danny Forney filed suit against the City of Winnemucca in 6th Judicial District Court. Incidents go back toMarch 31, 2008 when a foot of sewage flooded the Forney’s basement causing extensive damage.

Representatives of the city have not yet testified; however, expect them to argue they’re not responsible financially for the damages. The city is being represented by City Manager Steve West and Reno attorney Brent Kolvet.

SPJ is attending the trial and a full report will be issued at the conclusion of testimony.

Charge of battery on a peace officer amended to resisting arrest

WINNEMUCCA — The local man scheduled to go before the jury on Wednesday (July 14) instead took a deal following a negotiated settlement between the prosecution and defense.

Clair Don Crawford was charged with gross misdemeanor battery on a peace officer. As a result of negotiations, the charge was amended to misdemeanor resisting arrest and the case was remanded back to Union Township Justice Court for further proceedings.

The case against Crawford goes back to a March 2009 traffic stop. According to documents filed with the court, Crawford was pulled over by Deputy Louie Landa of the Humboldt County Sheriff’s Office. During the course of the traffic stop, Landa instructed Crawford to put his car in gear and step out, but the defendant allegedly declined to do so. Landa reached in to put the car in gear, at which time the car began to move.

Landa then pulled his taser but when he attempted to deploy it Crawford allegedly grabbed the deputy’s hand and twisted it — causing Landa to receive a portion of the taser’s charge.

The case was a challenging one for the prosecution. As was noted by Chief Deputy DA Brian Williams, a 2006Nevada case  entitles defendants charged with battery on a peace officer to have self-defense instructions read to the jury.

In addition, the defendant was in a position to argue the movement of the car (when Landa put his hand inside) was not a deliberate action.