John Patrick Dolan, Smith’s attorney, has filed extensive motions to quash warrants, suppress evidence and dismiss charges against Smith. These motions were filed last month in preparation for the April 28 trial readiness conference.
Dolan argued in his motions that “… there was no reasonable or probable cause to commit the defendant on the charges of violation of counts 1-3.”
Counts 1 to 3 are the charges for the murders of Jon Hayward, Vicki Friedli and Vicki’s daughter Becky, which occurred on Sept. 17, 2006, in Pinyon Pines. Becky’s body was found burning in a wheelbarrow outside the house. The other bodies were found inside the burning home.
Pape, Becky’s former boyfriend, and Smith were first charged for the murders in 2014, but they were subsequently dismissed. In June 2016, District Attorney Michael Hestrin refiled the charges based on better forensic evidence — DNA testing and analysis of cell-tower signals to Pape’s and Smith’s cell phones — and the revelation of a confidential informant.
Dolan’s motions dispute and attack the merit of the “new” evidence. The lack of actual new evidence would not justify the phone taps placed on Smith, he said.
Further, Dolan argues that, regardless of no statue of limitations on a homicide, the District Attorney’s office filing of charges 10 years later is a violation of Smith’s constitutional right to a speedy trial.
One year after the homicide in September and October 2007, Riverside County investigators filed for a search warrant for the defendants’ homes and wiretap on their cell phones.
One of Dolan’s points about the legitimacy of the search warrant is that it was not executed shortly after the crime. By 2007, both men were living in different locations.
In 2006, Smith was living with his parents, one year later he was living with his girlfriend.
“Mere suspicion is not enough to support probable cause” for the warrants, Dolan argues. The 4th Amendment protects citizens from unreasonable searches or seizures.
A wiretap again was requested in 2012, after an anonymous caller in 2011 reported that someone told him that Pape was involved in a murder and arson. The caller, later identified as Jeremy Todd Witt, said he overheard a conversation in 2007 about it between two women. Eventually, the wiretap recorded more than 900 calls and intercepted nearly 390 conversations.
Yet even with these data, the DA did not file any charges until March 2014. In October 2014, these charges were dismissed and eventually refiled in 2016.
Dolan notes that the case had gone cold in 2007 and remained cold until the anonymous call was received in 2011. The caller, later identified as Jeremy Todd Witt, worked at Knott’s Soak City, a water park, in 2007 as did Smith.
According to the call, Smith reportedly said one day, while looking in the direction of Pinyon, “Something went wrong and we torched the f-----g place.”
Witt was unaware of the homicides and made no connection until 2011 when he watched a Dateline program. That is when he made the anonymous call.
Further, an anonymous tip is not sufficient reason for the search or wiretap, Dolan said. There must be some proof that the individual knows the defendant and could reasonably know about the situation reported. In 2012, the Sheriff’s Department did not know the name of the anonymous caller, Dolan wrote. Later, it was revealed.
The District Attorney’s office also maintains that it has a recording of incriminating statements Smith made while alone in an interrogation room after being questioned by investigators. The actual recording or statement has not been made public.
Dolan concluded his motion arguing that the evidence from the search warrant and wiretaps were obtained illegally and, therefore, “is the ‘fruit of the poisonous tree’ and must be excluded.”
On April 28, the court will hear Dolan’s motions on behalf of Smith. Thus far, Pape’s attorney has not made any motion to object to the evidence or procedures against him.