CPOA California Peace Officer Summer

PeaceOfficer California

Summer 2011

2011 COPSWEST The Tactical Advantages of Twitter PAID

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OCSD and it’s Tactical Challenges

table of contents

2011-2012 Executive Committee President

Sandra Spagnoli Chief San Leandro Police Department sspagnoli@sanleandro.org

FEATURES

1st Vice President

6

Legislative Update

10

OCSD and its Technical Challenges

12

The Tactical Advantages of Twitter

14

Familial DNA Searching

17

A Look Back at CPOA’s Past Presidents

18

CPOA’s 91st Annual Leadership Summit

20

2011 COPSWEST

22

Meet the New Executive Officers

Scott Jones Sheriff Sacramento Co. Sheriff’s Department sjones@sacsheriff.com

DEPARTMENTS

Treasurer

4

President’s Message

5

Executive Director’s Message

23

Legal Services Program News

24

General Counsel

26

Advertiser Index

Rick Braziel Chief Sacramento Police Department rbraziel@pd.cityofsacramento.org

2nd Vice President

Rich Lucero Captain Fremont Police Department rlucero@ci.fremont.ca.us

3rd Vice President

Mark Yokoyama Chief of Police Alhambra Police Department myokoyama@alhambrapd.org

4th Vice President

David McGill Lieutenant Los Angeles Police Department mcgilld@lapd.lacity.org

Immediate Past President

Jim McDonnell Chief Long Beach Police Department Jim.mcdonnell@longbeach.gov

Publisher

California Peace Officers’ Association 555 Capitol Mall, Suite 1495 Sacramento, CA 95814 (916) 263-0541 Fax: (916) 520-2277 E-mail: cpoa@cpoa.org www.cpoa.org

Managing Editor

Tricia Schomus (916) 263-0541 tschomus@cpoa.org

Chairs, Regional Advisory Council JP Badel Captain Lodi Police Department jpbadel@pd.lodi.gov

Brian Evanski Captain El Segundo Police Department bevanski@elsegundo.org

Parliamentarian

Edward Pape Lieutenant Los Angeles Police Department 31313@lapd.lacity.org

Executive Director Carol Leveroni, CAE Cleveroni@cpoa.org

Opinions expressed are those of the authors or persons quoted and are not necessarily those of the CPOA state board, appointees, staff and its membership.

The publication of any advertisement by CPO or the California Peace Officers’ Association is neither an endorsement of the advertiser nor of the products or services advertised. Neither CPO nor CPOA are responsible for any claims made in an advertisement published in California Peace Officer. © California Peace Officers’ Association. All right reserved. The contents of this publication may not be reproduced, in whole or in part, without prior written consent of the publisher.

The California Peace Officers’ Association is committed to developing progressive leadership for the California law enforcement community. This is accomplished by organizational networking, professional development, technology advancement and public policy advocacy.

The purpose of California Peace Officer is to inform and educate CPOA members; to promote professional development; to generate interest in association activities and to foster a cohesive and involved membership.

Editor

Lisa Kopochinski (916) 481-0265 lisakop@sbcglobal.net

Advertising Manager

Cici Trino Association Outsource Services (916) 990-9999 Fax: (916) 990-9991 cicit@aosinc.biz

Layout and Design Lori Mattas

Printing and Mailing Copeland Printing

California Peace Officer | Summer 2011 | 3

president’s message

Leading Through the New Normal

I

By Sandra Spagnoli, Chief of Police San Leandro Police Department

4

t is an honor to be appointed as the 91st president of the California Peace Officers’ Association. Just last month, CPOA hosted the 91st Annual Leadership Summit in San Diego, which delivered top-notch training, networking opportunities and vendor displays.

Additionally, CPOA held its annual statewide law enforcement recognition event, which brings departments throughout the state together to honor officers who had significant accomplishments and/or those who received medals of valor. The staff of CPOA and Region IX did an incredible job with the Summit and the annual awards ceremony.

Over the next year, I am committed to focusing on the public safety issues that impact our members the most. We are facing the new normal in public safety and, as leaders, must adapt to the increase/shift in workload and budget and staffing reductions by looking ahead and planning for the extraordinary changes in our profession. The next few months will be critical for law enforcement and we need to focus our efforts on the state budget, reform policies and public safety impact related to realignment. We can’t do this alone and continue the commitment to collaborate, with other statewide organizations including California Police Chiefs Association and California State Sheriffs’ Association, to advocate in the best interest of public safety in California.

CPOA’s legislative priorities for 2011 include the following: • Protect law enforcement funding: ensure that there are appropriate levels of funding for law enforcement and policy reforms are tied to adequate and permanent funding.

• Pension sustainability: pension discussions should take into account current benefits provided to public safety employees and that any reform doesn’t cause harmful disruption to the composition of the work force for current and future employees.

• Support adequate funding of POST and their reimbursement programs: CPOA opposed the reduction of $20.8 Million in POST funding and as of the May revise, POST has been removed from realignment and fully funded.

• Ensure the safety of police officers remains a priority in policy decisions: in the United States last year, we saw a 40-percent increase in the number of officers killed in the line of duty, and year-to-date in 2011, has been an even deadlier year. Policy decisions should enhance the protection of police officers who are protecting the communities in which they serve.

In August, the CPOA board of directors will meet for the purposes of strategic planning and reviewing the priorities of the association which guide us in the work that we do. As members, you have a voice and we would encourage you to provide feedback on the association so we can continue to improve the benefits CPOA membership offers. In addition, it is important that you get involved at the local level within your regions or at the state level on the many committees and subcommittees throughout the year. When you receive an email from CPOA, take a look at the volunteer opportunities that can give you an integral role in moving CPOA and the profession forward.

This is really a time of unprecedented challenges for public safety. We are all in this together and CPOA is positioned to have a voice at a local and statewide level on the most pressing issues in front of us. I am looking forward to the next year and CPOA’s involvement in legislation, the state budget, providing contemporary training and working in partnership with the other public safety professional organizations. I believe that it is through our work collectively—California law enforcement and the communities we represent—are well served.

Please provide feedback to cpoa@cpoa.org. r

| Summer 2011 | California Peace Officer

executive director’s message

Help Me Out

By Carol Leveroni, CAE

I

’m flummoxed. And I know it is serious because I don’t use the word ‘flummoxed’. So help me out here.

In the three-and-a-half years I’ve been tasked with the responsibility of managing the Association—during which I’ve consistently heard about the benefits of being a member, especially during the years of leadership growth and upward mobility that many of our members seek—I still frequently run into law enforcement individuals who say, “I’ve never heard of CPOA,” or “I didn’t know that CPOA was open to just anyone…I thought it was only for chiefs and sheriffs.”

Really.

Okay, so let’s review. CPOA has been around for 91 years. It birthed the California Police Chiefs Association, has historically had a close relationship with the California State Sheriffs’ Association, and has been a part of the triumvirate of law enforcement groups that is continually called to be part of the public safety conversation at the Capitol. It has probably seen more individuals move up through leadership command posts—and with direct benefit of their association membership networking contacts—than could be accounted for.

Between the state headquarters and the ten regions, we conduct dozens of training opportunities (most POST-approved) throughout the year that amount to training thousands of officers and tens of thousands of hours of training.

We just returned from our annual Leadership Summit with the dichotomy of people raving about the training and wondering where everyone was.

So how is it possible that law enforcement individuals out there don’t know about us or what our purpose is?

Well, obviously this is going to be a discussion we are taking on as a staff. We will be reviewing our marketing plan and exploring what channels may be more effective to making inroads to agencies. The board, under new president Sandra Spagnoli, will also be looking at the association’s program of work as a whole during their August board meeting/retreat in order to determine what the focus of the association should be.

But here’s the thing…it is going to take you too!

Building on what I’ve already stated…CPOA is an association of collaboration and networking. It is what makes this association unique. You don’t need to be just a chief (like CPCA) or just a sheriff (like CSSA) in order to be a member. You just need to want to be better! To advance your career and/or your profession!

When was the last time you told someone about CPOA? Grab a colleague and take them to a state or region meeting/training. Better yet, take two. Spread the CPOA story. Tell them how their participation can enhance their careers. And for those members who are at the pinnacle of their careers, remember that you have a responsibility to prepare your agency for the next generation of leaders—so budget for their membership and participation.

So, help me out. By this time next year (at the conclusion of our May 2012 Leadership Summit in Monterey—plan for it!) I want to be writing that we doubled (nay, tripled!) our Summit attendance and that CPOA recognition is at an all-time high. Who’s in? r

California Peace Officer | Summer 2011 | 5

legislative update

Legislative Update

By Jennifer Wada

T

Jennifer Wada is an attorney, legislative advocate, and Chief Executive Officer of The W Group, LLC. She offers her clients a blend of strong advocacy, relationships at all levels of government, and a wealth of legislative and regulatory knowledge. She can be reached at jennifer@thewgroupspa.com.

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he temperature may be high during these summer months but there is another type of heat that is being felt by the Governor and legislators as they try to craft a budget solution. The June 15th constitutional deadline for legislators to send the Governor a budget has come and gone. In an unprecedented move, the Legislature actually submitted a budget on time.

The question of whether it was “real” budget without accounting gimmicks was debated in political circles. And, in light of mandate established by Proposition 26 to suspend legislator pay for failure to submit a balanced budget by the deadline, many felt as if it was a ploy to merely deliver something to continue to get paid. Regardless of the various views, the budget was a majority-vote budget that included, among other things, education deferrals, hits to redevelopment agencies and approximately $7 billion in borrowing. It was vetoed by Governor Brown in less than 16 hours.

In his veto message, the Governor stated: “We can—and must—do better. A balanced budget is critical to our economic recovery. I am, once again, calling on Republicans to allow the people of California to vote on tax extensions for a balanced budget and significant reforms.

They should also join Democrats in supporting job creation and ending tax breaks for out-of-state companies. If they continue to obstruct a vote, we will be forced to pursue deeper and more destructive cuts to schools and public safety– a tragedy for which Republicans will bear full responsibility.”

A $10 billion deficit still remains in California and the July 30th expiration date on critical VLF funding is days away. After exhaustive attempts to find four Republican votes to approve the necessary tax extensions, the Governor and legislative Democrats have released another majority-vote budget plan. This budget proposal retains roughly $49 billion in funding

| Summer 2011 | California Peace Officer

for K-12 schools and community colleges that the June 15th vetoed plan included; however, unique to this proposal is that “trigger cuts” are built in to take effect in the event revenues are less than projected. Since this budget plan is being released as this article is being written, the details of all of these cuts have yet to be reviewed. We do know that the Governor and legislative Democrats believe the budget plan eliminates more than 75 percent of the structural deficit and fully funds realignment.

The budget proposal is said to contain a tax swap that redirects 1 percent of the statewide sales tax to counties for realignment. As you recall, AB 109 was signed into law but is contingent on funding. The law enforcement community has been adamant about three things: 1) VLF funding must be extended for critical programs; 2) AB 109 must be fully funded prior to realignment going into effect; and 3) funding must be guaranteed and permanent. To complicate matters, a little more than one month ago, the Supreme Court issued a decision in the Brown v. Plata case, forcing the state to reduce its prison population by 33,000 inmates over the next two years. This strongly emphasizes the need for full funding for realignment.

Revisiting the politics of all of this, obtaining the necessary funding has been focused on finding Republican votes. Four Republican votes are necessary to implement even a temporary bridge in order to allow the expiring taxes to live on, at least until an initiative drive is complete and the choice is before voters. While we understand there are some Republicans willing to take a stand, we are still falling short. Republican demands continue to include pension reform, business and environmental regulation reform and a cap on state spending. Pension reform is at the top of their list, with a mandatory hybrid model being the proposition. This would include elements of a traditional defined-benefit plan and a 401(k) savings account so more risk is borne

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A $10 billion deficit still remains in California and the July 30th expiration date on critical VLF funding is days away.

by the employee. The coming days are sure to be a roller-coaster in terms of identifying whether Republicans are still willing to engage or whether the newly announced budget plan is workable.

Numerous pension proposals have been floated throughout the process, including pension caps, employer contribution caps, later retirement ages and prohibiting unions from bargaining for pension benefits. Other proposals attempted to extend Social Security to police and teachers who only receive pensions, cut pension inflation adjustments, and restructure pension boards to give taxpayers more representation. One issue often discussed is what, if anything, can be done once a government employee is “vested” in a pension. A slew of pension reform bills did not meet requisite deadlines and, although they could be revived next year, they are dead for this year. However, numerous bills continue to work their way through the process. Some of them include very concerning provisions, such as prohibitions on a retiree returning to work as a retired annuitant or

as a contract employee until at least 180 days have elapsed since retirement. Amidst publicized pension spiking and City of Bell-like stories, we know pension reform will remain a point of debate even after a budget deal is struck. While there is a clear need to prevent inappropriate pension spiking, we must ensure that all proposals maintain fairness for our law enforcement community.

The coming days are critical as June 30th quickly approaches. We will sort throughout the details of the latest iteration of the budget and once again, assess whether realignment and VLF programs will be adequately funded. Hopefully, by the time the fall edition of this article comes out, we will have an acceptable budget deal and it will no longer have to be about the budget. But for now, we keep our sleeves rolled up and press on. r

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| Summer 2011 | California Peace Officer

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California Peace Officer | Summer 2011 | 9

new tactics, equipment and technology

OCSD and Its

Technology Challenges

By Kevin McDonald

A

s with many public safety organizations, the Orange County, California, Sheriff’s Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to the public. The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology. After Sheriff Sandra Hutchens’s initial appointment in June 2008, she immediately recognized that while OCSD had internal talent managing the department’s technology, there was a need for a fresh and independent view.

Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve.

Considering the drastic budget cuts of nearly $70 million since 2009, the question became, “How could OCSD possibly get the high level analysis and information technology (IT) management and security consulting it needed, without incurring significant expense?”

Sheriff Hutchens began the process of consulting with other public officials about how they were interfacing with the technology community. In that process, she learned that there were local committees being organized for the support and education of several federal, state and locally elected officials by a Southern California tech leadership group. These committees were high level and involved some of the state’s top technology talent and business leaders sharing their insights and advice with our legislators. With this knowledge, Sheriff Hutchens decided that she needed a technology-specific advisory group that would take the process to a much deeper level, and actually dig down into the real issues.

Upon further investigation it was recommended that Sheriff Hutchens meet with me to explore the potential of creating a similar but department specific advisory council. We later met and discussed the Sheriff’s vision to form a council that could help her and the

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| Summer 2011 | California Peace Officer

department’s command to better understand the current technology footing of the department. The sheriff stated that she was prepared to begin the process of forming her own council and requested that I take the lead in that process. So in July of 2009, a letter of appointment was presented to me by Sheriff Hutchens. My appointment as the Community Technology Advisory Council (CTAC) chair and subsequent clearance by backgrounds, paved the way for recruiting additional CTAC members. Nearly a dozen prominent leaders of the tech community—from many different technology disciplines—were recruited as volunteers and subsequently processed for clearance. There are more applicants hoping to become part of CTAC, and their applications are being considered.

After the first group of CTAC members were cleared, the vetted group met with Sheriff Hutchens, OCSD Acting CIO Kirk Wilkerson, and Government Affairs Manager Ryan Burris to discuss the Sheriff’s vision for technology within OCSD. After that initial meeting, the group began to plan tours of the various critical facilities of the department. We also began to look at administrative aspects of the operations.

CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department.

It is important to note that the newly activated CTAC is 100 percent independent of the department and conflict free. We interface with several members of the department’s sworn and civilian personnel, but report to Sheriff Hutchens directly. CTAC is focused on technology and security through best practices that can improve efficiency, help to ensure security, and increase return on tax dollars invested. Where possible, CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers.

CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership.

As of the writing of this article, OCSD’s CTAC is well into the process interfacing with key personnel. The group has already completed tours (in some cases several times) of key facilities including the jails, the primary data centers, the O.C. Emergency Operations Center, the coroner’s operations and The Newport Harbor, among others. The CTAC members are participating in ride-alongs with deputies and scheduling shift shadowing with others like dispatch and investigations. A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month.

“I have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with minimal budget pressure,” said Sheriff Hutchens. “I am convinced more than ever that the CTAC members have a great deal to offer our department. They are making a positive impact.”

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential information is not released to the public. “All members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriff’s Department or Coroner’s office. This shutters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSD’s technology,” said Ryan Burris.

CTAC will continue its review and report func-

tions throughout 2011 with many more tours and ongoing interactions with members of command, information technology and information service professionals. These tours allow for each CTAC member to gather information from a professional perspective and leverage individual expertise. CTAC members draw from their professional disciplines, personal observations and information provided by both sworn and civilian staff members. Members are experts in computer sciences, networking, physical and logical security, telecommunications, AFIS, infrastructure, vendor management, and more. “I certainly appreciate the professional insight and very significant dollars being saved by leveraging a group like CTAC. Having worked with them directly now, it is clear that they know their stuff and are here for the right reasons,” said Kirk Wilkerson.

Having run advisory committees for legislators and other civic leaders for some time now, I am pleased that CTAC is proving to be more advanced, hands-on and integrated than prior operations. We believe this type of operation could benefit many departments and other LE affiliated organizations throughout California and the nation. Even where budget constraints are less of an issue, having volunteer professionals providing an independent view and laymen’s translation to the department’s leadership is a great thing. Dedicated community groups like CTAC bring several positive factors to the table and every community could benefit from this type of operation. r

Kevin B. McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks, a 28-year strong network services and security firm in Irvine, Calif. He is also Chairman of the Orange County Sheriff/Coroner’s Community Technology Advisory Council (C.T.A.C), President of the Tech Coast Venture Network (TCVN), a member of the Crime Survivors’ Council, and The High Tech Crimes Consortium. McDonald is a trusted technology and security expert and public policy advisor to some of America’s most influential people and organizations. He serves as a senior advisor to corporate executives, federal and state legislators, law enforcement, high worth individuals, charitable boards, abuse prevention professionals and organizations, municipalities and businesses. He is a highly sought after consultant, writer and presenter. He can be reached at kmcdonald@ alvaka.net.

California Peace Officer | Summer 2011 | 11

new tactics, equipment and technology

The Tactical Advantages

of Twitter

By Lauri Stevens

T Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene.

he verdict in a contention case is expected in a matter of weeks, and no matter what the jury’s decision, the city streets are likely to fill with protestors, and it could get really ugly. As highly trained law officers, you know what needs to be done. Until reckoning day, you create the integrated policing unit, you meet, you plan, you train. The front line and support officers are well prepared and well provisioned.

1. Incident Command Structure designed.

CHECK 2. Critical personnel identified. CHECK 3. Support systems in place. CHECK 4. Front-line provisions: Shields, Batons, Tasers.

CHECK, CHECK, CHECK 5. Twitter. CHECK Whoa, Wait, Whaaaaa?............. Twitter?

How could it be possible that something with a name like Twitter could be a serious law enforcement tactic? One very macho Nebraska cop once said, “I won’t use Twitter until they come up with more manly terms.” That was more than a year ago. It probably comes as no surprise that to this day, he doesn’t tweet. But despite its name and the turquoise feathered mascot, it doesn’t mean Twitter isn’t really useful for law enforcement operations.

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages, no kidding.

1. Talk directly to any antagonist, in the moment.

2. Follow any POI without them knowing.

3. Map a tweet to see exactly from where it came geographically.

Talk Directly to Any Antagonist I like to also call this one “seizing the virtual scene.” Any protestor, these days, as s/he is doing what protestors do, is tweeting as they do it. But they don’t necessarily follow each other. So, how can they communicate via Twitter and know that other protesters see what they tweet? The answer is in the #hashtag. Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene.

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| Summer 2011 | California Peace Officer

What’s a Hashtag?

A hashtag on Twitter is simply a word or an acronym that is preceded with the hash mark, aka pound sign (#). In Twitter, beginning a word with that symbol makes it clickable. You click on it and you get all the tweets sent with that hashtag in them. What’s the relevance? If you just tweet as the PD, especially in a contentious situation, the people you really want to see those tweets probably won’t. Maybe some of your followers will see them. But the protestors won’t, because they aren’t following you, they’re following the hashtag(s) for the event.

A hashtag can be created immediately—right on the spot. If the media or the public hasn’t created a hashtag that is relevant to your event, create it yourself. Keep it as short as possible as it uses up some of your 140 characters in every tweet.

Then, check to see that it’s not being used to signify something else (with a quick Twitter search), then just use it in your tweets. Others (media) will follow and also use the hashtag.

In the above-described scenario—as in any mob situation—a few people are really angry and/or motivated and the rest are just following along. On Twitter, all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate. Until Twitter, you had no way of communicating directly to them, in the moment. The officers at the scene, even if they could get through to them don’t really know the details themselves. But back at incident command, details are known. So, put a communications officer in the fusion center and feed him or her some tweets, and use the hashtag.

By using the hashtag relevant to an event, you are injecting yourself into that situation/event. You are forcing people—who could otherwise care less about what you have to say—to see what you have to say. The protesters who are following the hashtag will start seeing your tweets. Their first reaction might be surprise that you’re there. Beyond that is the potential to influence the actions of the less radical—those follower-types who can be swayed either way, might make a better decision. If they see

tweets of reality and public safety coming from law enforcement, they might think twice about their own actions.

Superintendent Mark Payne of the West Midlands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups “English Defense League” and “United Against Fascism.” Both groups were using Twitter to communicate and had incorporated the hashtags: #edl (English Defense League) and #uaf (United Against Fascism) in their messaging. Prior to the event, they had used Twitter to spread misinformation about the other, resulting in increased tensions.

Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests. He wrote this about the event on the ConnectedCOPS blog : Using the iPhone, I was able to use Tweetdeck to monitor a range of messages from all sides of the argument. I was in touch with the command cell, and able to dispel rumours instantly. Before the start of the protest, there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight. I checked, found it was not true, and tweeted a message to say so. Then a tweet was circulated that an EDL steward had been stabbed by UAF supporters, again after checking I was able to refute the allegation. This carried on throughout the day. When the EDL broke through police lines, I was able to update people straight away, and all significant events during the day were subject to messages. —Superintendent Mark Payne, West Midlands Police The added benefit is that the media will closely follow the tweets as well, increasingly the likelihood of accurate reporting on the outcome.

Two Ways to Secretly Follow any POI With Twitter’s list feature, users can create up to 20 lists. Each list can be made public or private.

Leading up to any public safety event, or for any long-term surveillance reasons, put persons of interest on a list and keep it marked “private.” Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed.

A second way to follow someone without their knowledge is to simply put the URL (web address) of their Twitter RSS feed into an RSS reader.

Put Tweets on a Map Both Google and Bing have Twitter mapping functionality that, for the users who have geo-location enabled, allow you to see the exact location of their tweets.

For example, Bing Twitter maps are searchable by location, keyword or Twitter username. In the above scenario, put in the intersecting streets of the protest and see what tweets are happening in the area. Or, if there’s a particularly offensive tweeter, literally watch his or her movements as s/he moves about.

In Google maps, try putting the RSS feed of any Twitter user into the search bar. If they enable geolocation, see their tweets from where they tweeted them.

Grist for the Mill No social media tool is the magic answer to law enforcement’s toolbox, and neither should social media be seen as the holy grail within your overall communication scheme. But when approached with proactive planning and realistic expectations, social media can prove to be a very valuable tactical device for law enforcement. r

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations.

She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPS.net blog. She can be reached at (978) 764-9887 or lauri@ lawscomm.net.

California Peace Officer | Summer 2011 | 13

new tactics, equipment and technology

Familial DNA Searching

By Jill Spriggs

F

Jill Spriggs is the Bureau Chief for the California Department of Justice, Bureau of Forensic Services.

She can be reached at jill.spriggs@ doj.ca.gov or (916) 319-9368.

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amilial DNA is nothing new to the fields of genetics or forensics. We all inherit our DNA from our mother and father. Because of the way our DNA is inherited, it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters. Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investigative lead. Specifically, familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes. Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used. This DNA can be found on the Y chromosome of male individuals. A father and son or two brothers will have the same Y-STR type, if they are related.

Familial DNA searching was first used in the United Kingdom about a decade ago to help solve several highprofile homicides. On April 24, 2008, former California Attorney General Jerry Brown unveiled the familial DNA search policy and announced to California that

| Summer 2011 | California Peace Officer

the California Department of Justice would use a new genetic search technique called “familial DNA searching.”

Currently, the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offender’s profile. It can also look for case-to-case matches. The CODIS is not configured to count shared alleles or types, looking for a close relationship between a crime scene sample and a convicted offender. Although one could do this manually by hand, although it would take a great deal of time to do so, especially if you are comparing the crime scene sample to the approximately 1.3 million convicted offender profiles in the California DNA data bank. (For familial searches, the CA DOJ does not search the crime scene sample against arrestee samples.) Software called the Ratiometer, created by the CA DOJ, does this for us.

Not only does it compare the number of shared alleles, but more importantly, it focuses on the rarity of the

alleles that are shared between family members.

There is nothing new or novel about comparing the number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender sample— but what is new and novel is the software developed by CA DOJ to do this. At the click of a computer button, the crime scene sample is compared to more than 1.3 million convicted offenders, who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene sample—based on the number of shared alleles and their rarity. CA DOJ’s validation studies indicate that the most likely candidate among the over 1.3 million convicted offenders is within the top 200 ranked offender samples. Y-STRs are run on the approximately 200 candidates and compared to the crime scene sample Y-STR type. If a match is found, the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII). BII conducts a computer-style investigation to assess additional information bearing on possible kinship between the perpetrator and the convicted offender. The Familial Search Committee reviews the computer data provided

by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investigative lead.

In order for the CA DOJ to consider a familial DNA search request, the law enforcement agency attests that all other investigative leads have been exhausted, the crime is of a violent nature (examples: rape or homicide) and it is an ongoing public safety issue. In addition, the crime scene sample should be from one individual (single-source), contain a complete DNA profile (15 loci) and Y-STR typing must be completed in advance.

Currently, the CA DOJ has completed 19 familial DNA search requests, with two familial search hits. Both resulted in apprehension of the perpetrator. Under the direction of Attorney General Kamala Harris, the familial search unit presently does two searches per month.

Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time, familial searches are conducted for a specific profile within a single case. The Familial Search Committee meets regularly to discuss incoming cases and prioritizes the requests. Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bashinski Laboratory in Richmond, California, by calling (510) 620-3305 or by email at gary.sims@doj.ca.gov. r

California Peace Officer | Summer 2011 | 15

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past presidents

A Look Back At CPOA’s Past Presidents

Jerry Adams 2004-05 CPOA President

By Sal Rosano

C

hief Jerry Adams retired from the Lodi Police Department in 2007, after 30 years of experience in the law enforcement profession. His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT team, detectives, patrol, and administrative services divisions. During his tenure as chief of that department for seven years, he managed 120 full-time staff positions, 150 volunteers and operated an annual budget of $16 million. Chief Adams was only the tenth police chief for the city of Lodi, since its incorporation. He taught specialized courses in the Role of the Chief training program, and shared his lessons learned from the Lodi Terrorism Case, which received substantial notoriety during his leadership of that department.

Service to CPOA Chief Adams became a member of CPOA in 1984 and served on various committees, including membership, training and region board. He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee. In 2000-2001, he was elected to the Executive Board as a Vice President and assumed the presidency in 2004. During his presidency, a new executive director was hired, and the association’s staff was reorganized.

While serving as president, he worked closely with other public safety association leaders and the Governor to defeat an ill-conceived pension reform measure that would eliminate the defined benefit pension structure and death benefits for public safety officers killed in the line of duty. Chief Adams also worked with legislative leaders to strengthen workers compensation reforms to reduce abuse and fraud.

Chief Adams was asked to serve on the Attorney Generals Medal of Valor Committee and was elected its Chairman one year later. In that role, Chief Adams presented the Attorney General and Governor to medal recipients and acted as master of ceremonies at three of the annual medal ceremonies.

Further Accomplishments In April of 2008, Jerry Adams joined the California Governor’s Office of Homeland Security and served as the Director’s Public Safety Liaison. He continued in that role when the Homeland Security and Office of Emergency Services were consolidated. In this role, he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency. r

Sal Rosano, retired Chief of Police of Santa Rosa Police Department, was the CPOA president from 1984-1985. He is actively gathering CPOA historical information. If you would like to contribute, contact Sal at salrosano@aol.com.

California Peace Officer | Summer 2011 | 17

CPOA’s 91st Annual Leadership Summit

C

POA’s 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel. This year’s theme, “Developing Excellence in Leadership,” set the bar for the Summit. The theme challenged us to bring the best in training worthy of branding itself “top-notch” as Summit attendee’s expected nothing less. The Summit also provided some fabulous networking opportunities to bring colleagues together to share, inspire and have fun with one another.

The pre-opening optional San Diego Padres game at the award winning PETCO Park was enjoyed by more than 60 attendee’s on Tuesday night. This event was a fun and casual networking opportunity for folks to relax, kick back and enjoy the game.

The Summit opening session and CPOA’s annual business meeting commenced with the nominating committee’s recommendation on the slate of officers for the 2011-2012 fiscal year, the Treasurer’s and Executive Directors reports were delivered.

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The Installation of the Officers followed at lunch where Sandra Spagnoli, Chief, San Leandro Police Department, was installed as CPOA’s President for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli.

Rounding out the executive committee board members are: First Vice President Chief Rick Braziel of the Sacramento Police Department; Second Vice President Captain Rich Lucero of the Fremont Police Department; Third Vice President, Chief, Mark Yokoyama of the Alhambra Police Department; and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriff’s Department.

Also during the luncheon, the Mickie Rainey Award was awarded by the outgoing president to a CPOA member who has been an active supporter and contributor to CPOA over a long period of their career. The recipient this year was John Standish. John has been a member of CPOA since 1997 and has served in various leadership capacities during that time, ultimately, in 2009-10, as CPOA’s president.

The training presentations during the CPOA Leadership Summit continue each year to be outstanding and this year was no exception. Retired Police Commander Michael Nila kicked off the Summit by addressing the nobility of policing by developing character and competence in policing. El Dorado Co. District Attorney’s Office gave a presentation on the Phillip Garrido case that helped assist other law enforcement agencies who may have unresolved cold case kidnappings and sexual assaults. Lieutenant Col. James Vance started Thursday off by sharing with attendees the role of senior leadership in dealing with the media during a crisis. The day ended by offering three different tracks of quality training. One focused on four hot topics including; working with media, high risk search warrants, technology legalities and Taser law and litigation. The second track addressed keys to safe driving and provided real-world interventions.

The third track, presented by Captain Mike Parker of the Los Angeles County Sheriff’s Department, gave specifics on how agencies can minimize costs

while maximizing the reach of the agency’s success through new media communications. On the final day of the Summit, Dr. James Reese discussed strategic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world.

The program concluded on Friday with the CPOA Awards Luncheon. The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of selflessness and who went above and beyond the call of duty during 2010. Recipients were applauded and honored with awards ranging from the Professional Achievement, Awards of Distinction, and Awards of Valor to the Sherman Block Memorial Award.

Please visit the CPOA website for a complete listing of award recipients.

Mark your calendars now for the 92nd CPOA Leadership Summit to be held May 23-25, 2012, in Monterey at the Monterey Hyatt. r

California Peace Officer | Summer 2011 | 19

By Marc Shaw

A

re you interested in the future of law enforcement? Perhaps you would like to see the latest and greatest tactical gear, or may be you’re looking for new badges or challenge coins. Do you think it’s about time to make a change to your agency’s uniforms? Are you a techie looking to make your life a bit simpler? No matter what your preference, I can bet that the latest police vehicles and accessories are of interest to you. Now look at your calendar and be sure that the week of November 7 is blocked out with “COPSWEST Ontario.”

Each year, CPOA proudly hosts law enforcement professionals from throughout the west and provides cutting-edge seminars, coupled with an exceptional tradeshow, all at a tremendous value.

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For those of you who aren’t really sure what the “COPSWEST Experience” entails, here is a sample of what you will find.

The “COPSWEST Experience” begins on Monday with a first-class Leadership Training Day. Previous presenters have included Gordon Graham, Danny McKnight and Sandra Hutchens. The Best of COPSWEST Awards will also be presented on Monday afternoon. While you are enjoying the presentation, the Ontario Convention Center will be transformed into the home of the largest law enforcement tradeshow west of the Mississippi River. When the tradeshow floor opens on Tuesday morning, you will have two days to visit with more than 250 vendors from throughout the country, participate in various

cpoa bulletins

training opportunities, attend emerging technology presentations, enjoy an exceptional lunch at the 4th Annual Charity BBQ, and network with other public safety professionals. COPSWEST truly provides something for everyone.

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country, then you need to be at the Auto Club Speedway in Fontana on Thursday.

Each of the “Big 3” automakers will be participating in the Los Angeles County Sheriff’s Police Vehicle Test Day and those in attendance will enjoy vendor booths, screeching tires and revving motors, and of course…lunch!

Two of CPOA’s goals include providing professional development and organizational networking opportunities. By attending Monday’s Leadership Training Day, you will experience both

first hand. If you aren’t already a CPOA member, now is a great time to join the more than 3,000 law enforcement professionals who have already found the value in a CPOA membership. When you sign up for the Leadership Training Day, you will find a payment package that offers a CPOA membership at a greatly reduced price.

By participating in the “COPSWEST Experience,” you will enjoy a fantastic opportunity where you can learn about the most cuttingedge products and services available to the public safety community, listen to the experts talk about everything from vehicles to investigations, enjoy some great food, and meet a few new friends along the way. Mark you calendars for November 7-10, 2011, and register today at www.cpoa.org.

Remember, it’s only free for a limited time…. r

Perhaps you are still on the fence and not sure if the show is right for you. Let me offer you one more value-added benefit that will certainly sway your decision. COPSWEST is free if you pre-register! That’s right ! You can attend the tradeshow and vehicle test free of charge if you log on to www.cpoa.org and register before October 21. Simply enter the code “CPOMAG11” when checking out and you are set.

California Highway Patrol Captain Marc Shaw, Commander of the Baldwin Park area, serves as the 2011 Chair of the COPSWEST Tradeshow Committee and is a member of the CPOA Board of Directors. Captain Shaw holds a Bachelor’s degree in Management from Saint Mary’s College of California and is currently attending POST Command College Class 50.

California Peace Officer | Summer 2011 | 21

Meet the 2011-2012 Executive Officers President – Sandra Spagnoli Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011, after serving four years as the Chief of Police in the City of Benicia.

As Chief, she has been successful in implementing contemporary public safety initiatives, incorporating grant funding to start new programs and using technology to enhance the delivery of police services.

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Officer in 1990. Promoted to Sergeant in 1996, she supervised patrol officers, implemented community policing programs, developed a streamline hiring process and established a recruiting team.

In 1998, she was promoted to Commander and supervised patrol, investigations and administration operations.

Sandra holds a master’s degree in public administration and a bachelor’s degree in human services management from Notre Dame.

She attended the FBI Academy (Class 2000), Executive Leaders Program (ELP) at the Naval Postgraduate School/Center for Homeland Security and Defense and POST Command College.

Sandra has been an active member of CPOA since 2000, serving on various committees and holding positions on the Region Board, Board of Directors and the Executive Committee.

First Vice President – Richard Braziel Rick Braziel was sworn in as the Sacramento Police Department’s 43rd Chief of Police on January 9, 2008.

He has been a member of the Sacramento Police Department since 1979. Chief Braziel’s prior assignments include Deputy Chief of the offices of operations, investigations, technical services, and homeland security and emergency services.

He received his bachelor of arts and master of arts degrees in communication from California State University, Sacramento. In 2006, Chief Braziel received a master of arts degree in security studies from the U.S. Naval Postgraduate School.

He is a graduate and class spokesperson of the

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P.O.S.T. Command College; and a graduate of the Police Executive Research Forum’s (P.E.R.F.) Senior Management Institute for Police.

Chief Braziel has received the Silver Medal of Valor in 1988; Distinguished Service Award in 2001; and a Unit Citation in 2002. He has been an active member of CPOA since 1986, serving on the COPSWEST and Training Committees, Board of Directors and the Executive Committee.

Second Vice President – Richard Lucero Richard Lucero is a Captain with Fremont Police Department. He has been a police officer for 23 years and has served his entire career with Fremont. His assignments have included patrol, SWAT, narcotics, internal affairs, and street crimes. He is presently the Investigations and Special Operations Division Commander. He is a graduate of POST Command College (class 40) and a lifetime member of the California Narcotic Officers’ Association. He is also a graduate of San Jose State University and Santa Clara University School of Law. He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar. He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President. Captain Lucero’s present area of responsibility with CPOA is legislative and public policy advocacy.

Currently, he is participating in providing law enforcement commentary regarding development of budget related realignment efforts.

Third Vice President – Mark Yokoyama Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center. Upon graduation, he joined the La Palma Police Department progressing through the ranks working various field and administrative assignments. In 1999, Mark joined the Newark Police Department as a Lieutenant and was promoted to Captain in 2002. In

2003, Mark joined the Cypress Police Department as a Captain and was promoted to Chief of Police in 2008. On June 6, 2011, Mark accepted the position of Chief of Police for the Alhambra Police Department.

Mark holds a bachelor of arts degree in public administration from the University of La Verne, a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second master’s degree in executive leadership from the University of Southern California. He is also a graduate of the FBI National Academy, L.A.P.D. West Point Leadership program, P.O.S.T. Command College, P.O.S.T. Supervisory Leadership Institute, and the University of Southern California Delinquency Control Institute.

He has been an active member of CPOA for 25 years serving on various committees and board positions and is a past recipient of the CPOA Law Enforcement Professional Achievement Award.

Fourth Vice President – Scott Jones Sheriff Scott Jones was elected Sheriff by the citizens of Sacramento County and began his term in January 2011. He joined the sheriff’s department in 1989 and was assigned to work at the brand new main jail. In 2000, after graduating law school, Jones was assigned as the department’s Legal Advisor, a position he held for over seven years. Jones was promoted to Sergeant, Lieutenant, and finally Captain in January 2007. As a Captain, he worked various assignments and also served as Sheriff John McGinness’ Assistant and Legal Advisor.

Sheriff Jones has earned a bachelor’s degree in criminal justice from CSU Sacramento, and a Juris Doctor (Law) degree from Lincoln Law School. He is also a graduate of the West Point Leadership Program. Jones has been an active member of CPOA since 2001, holding positions on the Board of Directors and the Executive Committee.

legal service program news

Ninth Circuit Limits Political Retaliation Against “High Level” Managers

By Jeffrey R. A. Edwards, Esq.

Apply online at

www.cpoa.org for CPOA’s Legal Service Program.

Jeffrey R. A. Edwards is an Associate in the Labor Department at Mastagni, Holstedt, Amick, Miller & Johnsen.

I

n Bardzik v. County Of Orange (Mar. 28, 2011) 635 F.3d 1138, the Ninth Circuit Court of Appeals set limits on when elected department heads can use the “policymaker exception” to retaliate against managers for political reasons. The case concerned Jeff Bardzik, a lieutenant with the Orange County Sheriff’s Department. Lt. Bardzik was the department’s Reserve Division Commander in 2005. Then, he endorsed the incumbent sheriff’s rival in an upcoming election. Shortly thereafter, the Sheriff transferred him to a position in court operations where he only supervised three people. He was denied pay increases and promotional opportunities even after his transfer.

Elected officials cannot retaliate against most public employees for their political activities or affiliations. However, the “policymaker exception” allows elected officials to appoint “some high‑level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if a manager counts as a “policymaker,” an elected official can retaliate against him for political activity.

The policymaker exception is not strictly rank based. Rather, courts look to nine factors: 1) breadth of responsibilities; 2) relative pay; 3) technical competence; 4) power to control others; 5) authority to speak for policymakers; 6) public perception; 7) influence on programs; 8)

contact with elected officials; and 9) responsiveness to partisan politics.

The Court held four of the factors favored Bardzik: he did not have a relatively high salary; he had to go through superiors before sending official memoranda to reserves; the public was unaware of his role; and it was unclear if he was responsive to partisan politics.

However, the Court decided the policymaker exception applied because of the other five factors. The Court emphasized Bardzik’s discretion over the Reserve Division and noted he often reported directly to the Sheriff. The Court also decided he had special skills and extensive authority over members of the Reserve division.

Finally, the Court decided Bardzik wielded significant influence over specific programs in the Division, a distinction the Court identified as “the most critical factor” in its analysis. As a result, the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander.

The Court stressed, however, the retaliation crossed the line after the transfer. In Court Operations, Bardzik’s job duties were limited to implementing, rather than making policy. Thus, the Court held his First Amendment rights barred continued retaliation for his political activity. r

California Peace Officer | Summer 2011 | 23

general counsel’s message

Accessing an Officer’s Personal Cell Phone Records

By Martin J. Mayer

T

here is no dispute that if a peace officer has been issued a cell phone by his/her agency, and the agency policy states that it is to be used only for official business, anything contained on that phone (text messages, phone numbers, photos) belong to the agency. In addition, in the absence of unusual circumstances, normally there is no reasonable expectation of privacy on the part of the officer to information within that phone. However, the issue which appears to be raising concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty?

Agency Issued Equipment

Martin J. Mayer is a name partner with the public sector law firm of Jones & Mayer and has served as General Counsel to CPOA for the past 25 years.

24

Since the advent of business computers, pagers and cell phones, most companies, including public sector agencies, have adopted policies which inform employees that such equipment belongs to the employer and the employee has no reasonable expectation of privacy in the contents within that equipment. Last year, the United States Supreme Court addressed just such an issue in the case of City of Ontario v. Quon (2010) 130 S. Ct. 2619.

Quon, a police officer with the City, had been issued a pager, which could send and receive text messages. The City’s policy specifically stated that the pagers were to be used for city business exclusively. In addition, the contract with the provider specified the number of characters to be sent or received, after which addition fees would be charged to the City. When the police chief discovered the limits were being exceeded, he attempted to determine if the contract needed to be expanded by conducting an audit of usage. It was during that review of transcripts of messages, sent and received, that the chief discovered Quon was using the pager for personal messages in violation of the policy. A significant part of the Supreme Court’s decision focused on whether or not there was any reasonable expectation of privacy on the officer’s part?

The Court examined the Fourth Amendment’s protection against unreasonable searches by the government. It stated that the Amendment “guarantees the

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privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government.” In addition, the Court held that it “applies as well when the Government acts in its capacity as an employer.” The Court also noted that the question of “whether an employee has a reasonable expectation of privacy must be addressed on a case by case basis.”

In the Quon case, an issue regarding the expectation of privacy arose because a lieutenant told Quon that no audit would be done if Quon paid for his excess use of the pager and that the content of his messages would remain private. Even though a lieutenant could not unilaterally change the agency’s policy, the Court accepted, for purposes of the case, that Quon had a reasonable expectation of privacy. Nonetheless, it concluded that the search of the messages was not in violation of the Fourth Amendment.

The Court held that “it would be necessary to consider whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state open records laws.” (Emphasis added.)

The Court pointed out that “although as a general matter, warrantless searches ‘are per se unreasonable’ under the Fourth Amendment, there are ‘a few specifically established and well-delineated exceptions’ to that general rule.” According to a prior decision of the Supreme Court, “the special needs of the workplace [would] justify one such exception.”

For example, “when conducted for a non-investigatory, work-related purpose or for the investigation of work related misconduct, a government employer’s warrantless search is reasonable if it is ‘justified at the inception’ and if ‘the measures adopted are reasonably related to the objectives of the search…” Furthermore, held the Court, Quon, “as a law enforcement officer… would or should have known that his actions were likely to come under legal scrutiny, and that this might entail analysis of his on the job communications.”

Personal Equipment Carried While On Duty As stated above, it is fairly easy to see how communications by an officer while on duty, using department issued equipment, are considered agency “property” and accessible by the department. But, what about communications by an officer on his or her personal cell phone, which occur while the officer is on duty? That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v. Marty Ortiz, August 13, 2009, 2009-NMCA-092. While this decision is not binding in California, it can be cited as persuasive argument.

John Boerth, a Santa Fe, New Mexico police officer, pulled over a car and arrested the driver for DUI. During discovery, the defense attorney demanded access to all communications made between the officer and any other persons leading up to the traffic stop, “including personal cell phone calls that Officer Boerth had with anyone.” The claim was that Boerth knew the defendant and “was out to get him.” The defense alleged that a confidential informant called Boerth on his personal cell phone to tip him off about Ortiz’ location and that the stop for a DUI was a pretext since the officer had no probable cause to make it.

The prosecutor “asserted that Defendant was not entitled to private communications on an officer’s private cell phone number.” The defense attorney argued that he “was only asking for records of communications the officer had within the relevant six-minute period” in question. Defense counsel argued, further, that “the officer did not have an expectation of privacy of his cell phone records while on duty, on patrol, in a marked unit, during an emergency or arrest situation.”

The court granted the Defendant’s motion for discovery stating, in part, that (1) it was for a very finite period of time, and; (2) “if there were personal matters irrelevant to the case, the State could file a motion for an in camera review.” The State continued to refuse to comply with the order and “the court found that the State had flaunted the court’s order for simple discovery and that Defendant was prejudiced. The court entered a written order…granting Defendant’s motion to dismiss with prejudice.”

The Court of Appeals held that “Defendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in question.” The court said that “the officer was an arm of the State and that therefore his private telephone records were within the possession, custody, or control of the State, making them subject to disclosure…,” under the relevant state statutes.

The court ruled that “Defendant showed that the cell phone records were potentially material to his defense…,” and “a defendant need only show circumstances that reasonably indicate that records may contain information material to the preparation of the defense.”

In still another case, in St. Louis, Mo. four police officers are attempting to stop their agency from requiring them to turn over personal cell phone records as part of an internal investigation. A cell phone photo taken at the scene of a fatal shooting was leaked, showing the “bullet-ridden body” of the deceased. An officer admitted using his cell phone to take the picture, but it is unclear as to who leaked the photo. Dissemination of such job-related information, to unauthorized persons, is contrary to their agency rules.

In California, a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are potentially evidence in cases and must be preserved by the agency. The DA’s memo states that, in addition to the information potentially being evidence against a suspect, it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v. Maryland. There is nothing to distinguish such evidence which is on an officer’s personal cell phone from that on a department issued cell phone.

Conclusion All law enforcement policy manuals state, in words or substance, that information gathered by its officers and/or employees, while acting in the course and scope of employment, belongs to the agency. It is obvious, as stated by the United States Supreme Court in the Quon case, that a law enforcement officer would, or should, know that “his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on the job communications.”

In order to reduce uncertainty about this issue, it behooves all agencies to generate a clear and concise policy articulating the rule that all such information, photos, phone records, etc., which are generated by officers while on duty are subject to review by the agency and disclosure may be required as part of administrative, as well as criminal cases in which they are involved. In addition, such material should not be shared with, or disseminated to, any person or entity not entitled to receive it.

If officers choose to carry personal cell phones, recorders, etc. while on duty, they need to be aware of the fact that the information is accessible by others. The easiest way to avoid intrusion into one’s private life is to not carry those items while on duty. This is an evolving area of the law and will, without doubt, be subject to further litigation. As such, both agency heads and employees should seek advice and guidance from their respective legal counsel. r

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| Summer 2011 | California Peace Officer

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