California legal experts say probable cause for Eddie Alvarez warrant was ‘thin’

The affidavit Santa Rosa Police used to secure a search warrant on Vice Mayor Eddie Alvarez was thin on probable cause, three legal scholars who reviewed the materials say, but one said it may have been his own words that led police to proceed.

The warrant request was based on an anonymous letter that led police to suspect Alvarez may have had a role in orchestrating a murder, Det. Matthew White wrote in the affidavit.

The letter, along with Alvarez’s presence at the Roseland bar where the shooting occurred and his remarks to police about a previous homicide, led detectives to believe they would find evidence on the councilmember’s cell phones, the affidavit states.

When The Press Democrat first reported on the warrant in March, police declared Alvarez was not a suspect. Still, city attorneys fought the newspaper’s effort to unseal the search warrant materials for another eight months.

When police use an anonymous tip, like a letter, to secure a search warrant they are supposed to prove to a judge that the tipster has demonstrated reliable, personal knowledge of the suspect or the crime, three legal scholars who teach and research criminal procedure in California said.

All three experts said police hadn’t met that bar in this case, given easily proven falsehoods in the tipster’s letter and the fact that many other details in the account were public knowledge. The Press Democrat provided each of the scholars the unsealed affidavit.

“The tip in the letter doesn’t strike me as particularly useful,” said Beth Colgan, Vice Dean of Faculty and professor at the University of California Los Angeles School of Law. “They are relying pretty heavily on this tip, but the author doesn’t seem to know anything about Alvarez,” she said.

No rubber stamp

SRPD spokesman Sgt. Chris Mahurin said detectives always seek to verify anonymous tips. “There has to be some corroboration to show it has some accuracy,” he said.

He added that all search warrant requests are typically reviewed by a prosecutor from the Sonoma County District Attorney’s office before going before a judge, Mahurin said.

“Search warrants aren’t rubber-stamped,” he said.

In this case, the warrant passed muster for two county judges. White wrote he was unable to find Alvarez and serve the first search warrant, signed by Judge Lawrence Ornell, before it expired. Sonoma County Judge Arthur Wick signed a renewed version.

Police received the anonymous letter on Oct. 18, 2021, almost three weeks after arresting Fogatia Fuiava and Ednie Afamasaga on murder charges for the Sept. 25, 2021 shooting outside the Whiskey Tip on Sebastopol Road.

Police say they identified the suspects using bar surveillance footage that captured two men gunning down 27-year-old Kenneth McDaniel in a deluge of as many as 29 shots.

But the letter writer suggested Alvarez may have had something to do with the incident because he was at the bar that night and may have held a grudge against McDaniel. Over a year before his death, McDaniel broke into Alvarez’s marijuana dispensary, The Hook.

Alvarez Warrant Affidavit

In the warrant affidavit, White said the letter writer’s knowledge of the break in at The Hook and Alvarez’s presence in the crowd at a July 4, 2021, drive-by shooting during a summer block party were not public knowledge and indicated the tipster was familiar with the councilmember.

The letter writer also wrote two easily proven falsehoods. The writer suggested Alvarez was a part owner of the Whiskey Tip and that security had been sent home the night of the shooting. Neither is true.

Mahurin said probable cause is based on only the verifiable portions of an anonymous tip.

“Even if we get an anonymous tip in a case where we already have an arrest, and the tip is implicating somebody else, we still have an obligation to follow up,” Mahurin said.

Further investigation needed

Robert Weisberg, the co-director of the Stanford Criminal Justice Center, called the affidavit “thin,” overall, and said police should have investigated the letter further before seeking a search warrant for over a year’s worth of electronic data from Alvarez’s phone.

“It’s a very generous finding of probable cause by a judge,” Weisberg said.

But Megan Graham, a supervising attorney at the Samuelson Law, Technology and Public Policy Clinic at University of California Berkeley School of Law, said the public should not be surprised if the probable cause appears thin.

“This is normal business for a cellphone search,” she said, “which might be disturbing for Councilman Alvarez, but it’s also disturbing for all of the other phone searches that are conducted.”

All three scholars agreed that Alvarez’s elected status likely did not influence the judges who signed the warrant.

Weisberg and Colgan said a judge could have applied extra scrutiny if the warrant were being served on a possible political foe for police. Alvarez has called for police oversight and reform, and while he has been sharply critical over the warrant, both he and police officials say his working relationship with the department has remained productive.

Alvarez said he and SRPD chief John Cregan tackle public safety issues together and do not discuss the warrant, which was served under the leadership of Cregan’s predecessor, Ray Navarro.

The only friction between Alvarez and police captured in the warrant came in regard to the July 4 homicide. Alvarez told police he was unable to identify shooters in that event, though he attended a street fireworks party where the drive-by shooting occurred.

According to another detective, Brandon Matthies, Alvarez said he knew more than he was willing to share with officers. Alvarez also told police he often was informed about events in the Roseland area.

The council member’s admission to police that he picks up neighborhood gossip about crime is one of the stronger arguments in favor of the warrant, Colgan said.

“There’s a closer call that there may be some evidence on the cell phone about that first shooting at the firework party or maybe (the McDaniel shooting),” Colgan said, but, “a lot rests on this idea that people tell him all these things.”

Warrant a payback?

Alvarez disagrees with the suggestion that he did not cooperate with police. He told The Press Democrat this month he met with officers but was unable to tell them who fired shots during the drive-by shooting because he could not be sure, he said. He believes police brought the search warrant in the second shooting as payback for not providing them suspects in that case, he said.

In the McDaniel case, he responded to a text from Matthies about being at the Whiskey Tip during the shooting and noted he knew the victim, who had once broken into his dispensary. Detectives included that message as probable cause for the search warrant, calling it evidence of a motive.

Alvarez scoffed at the idea that he would have orchestrated a murder because of a break-in more than a year earlier that resulted in minimal financial losses to his business. “They took an off-the-cuff statement and ran with it,” he said.

To Alvarez, the incident has demonstrated a need for “more transparency and more accountability” into search warrants and police procedure, he said.

Mahurin said detectives were simply doing their job.

“That we’re merely going after someone to smear their name or make them look bad is always going to be upsetting to officers because that’s not who we are as an organization,” he said.

“No matter what the investigation is for, whether it’s an elected official or an average citizen, they’re going to be conducted the same way,” Mahurin said.

There’s no indication police seized evidence from Alvarez’s phones that will serve as evidence in the murder trial against Fuiava and Afamasaga, who Alvarez has said he does not know.

Fifteen months later, police have yet to make any arrests in the July 4 drive-by, in which Javier Montes, 35, was killed, two minors and one 29-year-old woman were injured.

You can reach Staff Writer Andrew Graham at 707-526-8667 or andrew.graham@pressdemocrat.com. On Twitter @AndrewGraham88