Attorneys for a couple charged with drugging and raping multiple women argued Wednesday that a search warrant issued in the case violated their constitutional rights and should be dumped.
Attorney Philip Cohen, who represents Newport Beach hand surgeon Dr. Grant Robicheaux, relied on testimony from investigators in a related civil suit in which he has taken the lead on depositions to make the case that there was much doubt among them about the probable cause for the search warrant approved in the case.
Cohen argued that Newport Beach police investigated claims related to three women over 15 months and closed them without seeking charges.
Cohen focused on Newport Beach Police Department detective Marie Gamble, who said in a deposition that she had her doubts about seeking a search warrant and was “taken aback” when a prosecutor pushed her to get a warrant, Cohen argued.
Later, Gamble had a change of heart on the warrant and signed off on it, Cohen said.
“She succumbed to pressure from (former prosecutor Michael Carroll) and the power of the district attorney,” Cohen said. “The question becomes what changed?”
Gamble listened to the 911 calls in the case and the recorded interviews of the alleged victims.
“She’s not credible,” Cohen said of Gamble, adding that the 911 calls had “zero evidentiary” value.
In one case a woman had taken a great deal of drugs such as cocaine and was drinking before she passed out and woke up “spooning” with Robicheaux, Cohen said.
Cohen argued that the woman had been arrested at a nightclub in Laguna Beach two months before after passing out, but that was left out of the search warrant information.
“This is not about victim shaming,” Cohen said. “This is about was the Fourth Amendment followed.”
Another woman told Robicheaux when he attempted anal sex that she did not want that so he stopped and continued normal consensual intercourse, Cohen said.
Another woman denied having sex with anyone else around the time she claimed she was attacked, but it later came out she had consensual sex with her boyfriend at the time, a fact that was not revealed to the magistrate who signed off on the search warrant, Cohen said.
Assistant Attorney General James Toohey said one of the women woke up screaming, “Help me, get off of me,” and when officers arrived they found her “severely impaired.”
The woman met the couple at a bar and that they were recording the incident, but the defendants refused to show their phones to police, Toohey said.
Toohey argued that “even in marginal or doubtful cases” any disputes about a search warrant “should be resolved in favor of the warrant.”
Another woman did do drugs and tried to engage in consensual sex with Robicheaux, but at one point she was given a drink and almost immediately passed out and woke up with Robicheaux, Toohey said.
Toohey said there was enough of a pattern established over the 15 months with the three women to justify a warrant for evidence at Robicheaux’s home.
Police were looking for evidence of drugs, and that as a doctor Robicheaux would have not only access, but training in how to administer medications, Toohey said.
“He knew how to use these substances,” Toohey said. “It made him exceedingly dangerous… He always had a prescription pad to add to his stash.”
Police were also looking for videos or photos on smart phones or other devices, Toohey said.
Toohey said Cohen had a “unique opportunity” in the civil litigation to elicit evidence for the defense, including seven hours of depositions.
Gamble said in the depositions that there was an “evolving” of her thinking on the case over time and she denied that she was pressured and that she was “proud” of her work on the warrant, Toohey said.
Orange County Superior Court Judge Jonathan Fish, who took over the case against Robicheaux and his girlfriend, Cerissa Riley when Judge Frank Ospino died last month, said he will issue a ruling soon.
Robicheaux, 41, and Riley, 35, face charges involving two alleged victims. Robicheaux had previously faced charges involving five alleged victims.
Riley was charged in connection with three alleged victims, but an Orange County Superior Court judge in August granted a motion from prosecutors to reduce charges.
There were a total of 13 accusers, some of whom could still be used by prosecutors as further evidence of a pattern of behavior.
The case generated a great deal of news coverage when charges were filed in 2018 against Robicheaux and Riley and became a political football in the election race between District Attorney Todd Spitzer and Tony Rackauckas, who Spitzer unseated, as the two traded barbs over how the case was handled.
After Spitzer was elected he sought to dump the case, but the move was rejected by an Orange County Superior Court judge and Spitzer was later recused from the case as the state Attorney General’s Office took it over.