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Sheriff blamed after Lake County marijuana case tossed


A Lake County judge Wednesday dismissed a marijuana cultivation case after evidence emerged that Sheriff Frank Rivero told the defendant to get off the phone with an attorney, a violation of his Miranda rights.

The issue stems from an Aug. 2, 2012, encounter on a remote property east of Lower Lake where Lake County sheriff's narcotics officers were investigating marijuana gardens, Lake County District Attorney officials said.

At the Cantwell Ranch Road property, Kelseyville resident Frank Frazza, then 23, called a lawyer when investigators arrived, but, during the conversation, he was told by Rivero to get off the phone, according to court documents.

"Sheriff Frank Rivero told the defendant, 'You don't need to be talking to him, you need to be talking to me' or words to that effect," according to a District Attorney's Office motion filed in the case.

Judge Andrew Blum threw out the case during Wednesday's preliminary hearing after ruling that Rivero's actions violated Frazza's rights and therefore Frazza's statements and the evidence were inadmissible.

Rivero did not respond Wednesday to calls or emails seeking comment.

The dismissal of the case — which prosecutors said involved 7-foot marijuana plants worth $600,000 slated to be sold in Los Angeles — is fallout from another of Rivero's legally questionable actions.

"It is not normal for a deputy to do that; that is very basic police academy stuff," Lake County District Attorney Don Anderson said. "If someone wants to talk to an attorney, you don't interrupt the conversation."

Rivero's credibility in court has already been compromised.

After Rivero gave varying statements during a 2008 shooting investigation, Anderson placed Rivero on the "Brady List," which means his credibility issues must be disclosed during any court case for which Rivero is a material witness.

Rivero also is facing legal scrutiny for his decision to cut the Lakeport Police Department's access to computerized records and criminal histories, previously provided through a contract with the Sheriff's Office.

On Wednesday, Rivero testified in court that he did not remember his conversation with Frazza, according to attorneys on both sides of the matter.

Yet the potential rights violation initially emerged after Rivero brought up his interaction with Frazza at a 2012 meeting with county leaders to discuss medical marijuana ordinances.

According to two District Attorney officials present at the meeting, Rivero recounted his demand that Frazza get off the phone with the lawyer and talk to him instead.

"I expressed that I had issues with that, and some of the language I used may have been a little bit colloquial," Senior Deputy District Attorney Art Grothe said. "When you tell a defendant you need to get off the phone with a lawyer, that is a Miranda violation."

Miranda rights refer to a set of court decisions that established that suspects must be told they don't have to talk to police and have the right to an attorney.

Frazza complied with Rivero's demand, got off the phone and was interviewed by a sheriff's deputy, who apparently was not aware of the sheriff's actions.

"He was a scared young man; he didn't know (his rights)," said Frazza's Sacramento-based attorney, Michael Wise. "That is why people need an attorney."

Rivero's statements during the meeting, which took place in the weeks following the investigation, prompted Grothe to send the Sheriff's Office a request that Rivero submit a report on his interaction with Frazza.

In the request, provided as evidence in the case, Grothe asked Rivero to detail the "timing, circumstances, and content of any communications between himself and defendant, specifically including statements concerning defendant's attempt to, or concerns about, telephoning his attorney."

In a series of emails between the prosecutor and sheriff's officials about the request, Grothe said the details would "have a major impact on what statements are admissible and whether the suspect was attempting to invoke his right to counsel."

Rivero refused in a Sept. 20, 2012, email and said that "the suspect got on the phone to his attorney and told us that she (the attorney) wanted to talk to us. I said that we would not talk to her. ... This does not merit a supplemental (report)."

Although prosecutors said they lost a chance to pursue a suspected illegal marijuana cultivation case, Wise said Frazza was trying to comply with medical marijuana guidelines.

Wise said Frazza, now 24, is an aspiring musician with no criminal history who had been working with a lawyer to follow state laws.

Wise said he had not encountered a similar rights violation in court before: "Never, in 20 years of criminal law."

"I give a lot of kudos to the Lake County District Attorney's (staff); they were forthright with disclosing a lot of material that I wouldn't have had access to or even known to ask for," Wise said.

(You can reach Staff Writer Julie Johnson at 521-5220 or julie.johnson@pressdemocrat.com. On Twitter @jjpressdem.)