Defense: Toss evidence in CHP death

Allen's lawyer says police didn't have probable cause

By SUSAN HERENDEEN
sherendeen@modbee.com
and ROSALIO AHUMADA
rahumada@modbee.com

last updated: August 25, 2008 02:42:48 AM

A defense attorney said the story Columbus Allen Jr. II told a detective before he was arrested in the shooting death of California Highway Patrol Officer Earl Scott should be scrubbed from the official record.

The defense also wants to suppress rap lyrics found on Allen's computer, the results of gunshot residue tests taken a few hours after Allen showed up at the Stockton Police Department saying his wife's car had been stolen, and the electronic trail from a cell phone found in Allen's truck.

The matter comes before Judge Hurl Johnson on Tuesday in Stanislaus County Superior Court and likely will prompt a stern rebuttal from prosecutors who used those findings to indict Allen for murder in a case in which a conviction could lead to the death penalty.

Defense attorney Ramon Magaña said the evidence should be tossed because it was obtained through illegal means. Magaña argues Allen was taken into custody -- without probable cause -- as soon as he showed up at the Stockton Police Department.

"You have to have probable cause," Magaña said. "Is it lawful, is it legal, is it within the Fourth Amendment?"

Stanislaus County Chief Deputy District Attorney Alan Cassidy declined to comment.

Magaña said he will argue in court that there wasn't a sufficient connection between his client and the crime when he was detained and questioned in Stockton.

"They're going to say (Allen) voluntarily went down to the police station," Magaña said.

The defense will argue Allen was not free to leave the Police Department during questioning and was denied a request for a lawyer, Magaña said.

When prosecutors presented their case to a Stanislaus County criminal grand jury in June 2007, a detective noted Allen was taken into custody at the end of an interview that began at 9:24 a.m. on Feb. 17, 2006, and lasted for about one hour and 40 minutes.

Less than four hours earlier, Scott was shot and killed during a traffic stop on northbound Highway 99, just south of Hammett Road near Salida.

The slain officer's body was found a few minutes after the shooting because a passing motorist reportedly heard a shot and circled back to the scene to find Scott, who was gripping registration papers from a Nissan Maxima registered to Allen's wife, Bertera.

"We don't have someone saying they saw Columbus Allen pull the trigger, and we don't have someone saying they saw Columbus Allen leaving the (crime scene)," Magaña said. "The officer also had identifying information of other people in his possession. Why weren't those people detained?"

According to a transcript of a closed-door hearing before the grand jury, Allen, 32, told Detective Frank Navarro that he spent the night in Stockton, at the home of rap music producer Christopher Hicks.

Hicks told authorities Allen did not show up until about 6 a.m. The grand jury also heard from Allen's wife, a girlfriend Allen spent the night with in Modesto and investigators who said Allen had gunshot residue on his hands and hooded sweat shirt.

Magaña said Allen was detained until 4:30 p.m., when he was arrested in Scott's murder, then taken to Modesto to be booked at the Stanislaus County Jail, where he has been held without bail for 2½ years.

Magaña insists the bulk of the evidence against Allen, including a search of Allen's former home on Jill Circle in Stockton, was collected before search or arrest warrants were signed.

Magaña said investigators persuaded Bertera Allen to turn over her husband's computer without a warrant. He argues her actions were simply a submission to authority and not voluntary consent.

Magaña said he will call officers to the witness stand to determine the timing of key events, then leave the matter in the judge's hands.

Bee staff writer Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338. Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or 578-2394.

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