FROM THE DISTRICT ATTORNEY
Bonnie Dumanis
When I started my career in the District Attorney’s
office some 20 years ago, I quickly learned this simple
truth: put people first. This philosophy has served
me well throughout my career – as a support staff
person, Deputy District Attorney and Superior Court
Judge. It will be my guiding principle as District
Attorney.
As I’ve stated throughout my campaign, the first priority of my administration
will be to unify the DA’s office. When people are not working together, public safety
is compromised. I will bring people together, listen to their concerns, and make
certain that everyone’s voice is heard.
My immediate goals will be to:
1. Unify the office so that all staff are working together cooperatively to achieve
the highest level of public safety.
2. Provide a work-environment where all staff are valued and appreciated.
3. Improve channels of communication between all groups inside and outside
the office.
My administration will work hard to regain the trust and confidence of police
officers. I ran on a platform of fair and ethical treatment for everyone, no matter who
you are. I know that all members of law enforcement – from the beat officer to the
chief – have a critical role in bringing a criminal to justice. So, in the coming months it
will be especially important for all of us to work together on the challenges that lie
ahead. The state budget crisis has caused everyone to be looking at some difficult
and uncertain times and choices.
That’s why I’m looking for your ideas, input and suggestions on how we can
do things better for the citizens of San Diego County. You can e-mail me with your
thoughts at bduman@sdcda.org.
I look forward to hearing from you. I am excited to be your District Attorney
because I know we can achieve great things together.
2
Law Enforcement Quarterly
LEQ
Law Enforcement Quar terly
4
A publication of the San Diego County District Attorney
Columns
2
10
16
28
From the District Attorney
by Bonnie Dumanis
Features
On Forensics
by George “Woody” Clarke
Civil Liability
4
by Robert Phillips
by Fred Herrera
Weighing privacy and the public’s right to know.
by Ed Obayashi
Points of Law
Fourth Amendment Rights Of Fire Victims
20
Special Report:
Sexual Predators
by Chris Saunders
Watch out. The S.P.A.T. Team is watching you.
32
Super Bowl XXXVII
by Len Novarro
Capt. Joel Bryden discusses security for the big game.
34
20
Read The Warrant
by Wendy Patrick
Know when your warrant is “defective.”
Departments
36
Making Spanish Program A Reality
by Wendy Alvarez
SDPD and the SDPF create a much needed program.
19
37
39
News Briefs
Commendation of the Quarter
SDPD Crime Laboratory
Profile in Law Enforcement
Gary Hudson
Special Agent In Charge
Bureau of Narcotics Enforcement
On The Cover:
San Diego is home to approximately 3,300
registered sex offenders.
Cover illustration: Jennifer Hewitson
32
The Law Enforcement Quarterly is published four times a year by the Office of the
District Attorney, County of San Diego, 330 West Broadway, Suite 1300, San Diego,
California 92101, (619) 531-3536, or dvedde@sdcda.org. All inquiries or comments
should be sent to the editor at this address. The primary purpose of this magazine is to
provide police officers and law enforcement executives with assistance in understanding the rapidly changing aspects of the law. No portion of this publication may be
Volume 31 Number 2
Winter 2002-2003
reprinted without the written permission of the editor.
3
Fourth Amendment Rights of Fire Victims
By Fred Herrera
O
ut of necessity, the Fire Department has the authority
become more litigious and as a result, emergency person-
to enter the private properties and residences of
nel are increasingly facing personal civil repercussions
the citizens it protects. This entry is performed
for violating the rights of others.
without consent or search warrants. The reason for this
The courts vigorously protect a person’s reasonable
is simple: lives and property may be lost while waiting
expectation of privacy, especially in the home. If a person
for the required permission to enter the property.
has exhibited a subjective expectation of privacy, such
This exception to the Fourth Amendment right against
as from walls, doors and a roof to keep the public out,
unreasonable search and seizure is known as an exigent
and society is prepared to recognize that expectation
circumstance.
as reasonable, then the space is protected by the Fourth
Exigent circumstances exist in an “emergency situ-
Amendment. In Michigan v. Tyler (1978) and Michigan v.
ation requiring swift action to prevent imminent danger
Clifford (1984), the Supreme Court further clarified the
to life or serious damage to property or to forestall…the
reasonable expectation of privacy, specifically involving fire
destruction of evidence” (People v. Ramey, 1976). All emer-
scenes.
gency responses fall under the Fourth Amendment
exception of exigent circumstances. This includes origin
and cause fire investigations. The courts have held there
is a duty to determine the origin and cause and to protect
evidence from destruction.
Warrantless Entry is a Tremendous Responsibility
Since the evidence would most likely be destroyed
during overhaul operations, which are performed while
there is still an exigent circumstance, the fire investigation
is also within the emergency time frame. In short, the
legal obligation of the fire department with respect to
the fire scene includes:
• Extinguishing the fire,
• Determining the origin and cause of the fire,
• Preserving the integrity of the fire scene and,
• Preserving evidence from imminent destruction.
Warrantless entry under exigent circumstances
presents a tremendous responsibility to the fire department personnel at the fire scene.
Standard operating procedures normally include the
physical delineation of the emergency scene. This barrier
may be created by yellow fire line tape, or fire or police
personnel. This physical barrier is often disregarded by
the curious, the media, or persons related to the exigent
circumstance, such as the residents or relatives. Off-duty
police or fire personnel, disaster relief volunteers, medical
personnel and other professionals peripherally related
to the emergency may also need to enter the scene.
Fire Scene Entry by the Media
The first area of concern regarding the Fourth Amendment is the media. There are court decisions that may
The decision to allow entry into the emergency scene
change the way emergency personnel control scenes.
is often posed to the person maintaining scene security.
The Florida Supreme Court noted in Florida Publishing
Who should be allowed in the emergency scene? Who
Co. v. Fletcher, (1976) that a photographer who accompanied
can be kept out? The answers to these questions are
a fire marshal into a fire scene did not illegally enter the
becoming more of an issue as our society continues to
residence based on common custom and practice of the
Volume 31 Number 2
Winter 2002-2003
5
Fire
Victims
media. However, in a U. S. Supreme Court opinion rendered
scene under exigent circumstances, emergency personnel
by Justice Stevens on Wilson v. Layne (1999), Florida Publishing
safety and evidence preservation and collection override
Co. was referenced. The judge pointed out that the fire
the property owner’s rights. So, even if a member of the
was a “disaster of great public interest” and it had been a
media is given consent from the owner of the property
longstanding practice throughout the country for repre-
to enter the structure at a fire scene, emergency personnel
sentatives of the news media to enter private property
are able, and required, to prevent access in order to
where a “disaster of great public interest” has occurred.
protect the potential of undiscovered evidence.
So the question can be raised, when allowing the
In Wilson v. Layne, where a media ride-along accom-
media to enter a fire scene, as to whether the fire is a
panied federal marshals on an arrest warrant, it was held
“disaster” and “of great public interest.” The Wisconsin
that a media ride-along in a home during the execution
State-court decision of Prahl v. Brosamle (1980) further
of an arrest warrant violates the Fourth Amendment. This
distinguished the issue with the following: “We will not
clearly is a wake-up call to emergency services regarding
imply a consent as a matter of law. It is of course well
the protection of the scene from unlawful entry.
In Bivens v. Six Unknown Fed. Narcotics Agents (1971),
known that news representatives want to enter a private
building after or even during a newsworthy event within
the petitioners sued the law enforcement officials as
the building. That knowledge is no basis for an implied
individuals for money damages because the media was
consent by the possessor of the building to the entry…
included in the execution of an arrest warrant. As with
We conclude that custom and usage have not been shown
Wilson, the motion for summary judgment was denied on
in fact or law to confer an implied consent upon news
the basis of qualified immunity. Justice Stevens disagreed
representatives to enter a building under circumstances
and said that an officer should have sufficient knowledge
presented by this case.”
of the law to know that bringing reporters into the home
during the execution of an arrest warrant was not lawful.
As the controlling authority at the scene under exigent
Although it is not clear where the line will ultimately
circumstances, it stands to reason that the fire
department, and also the employee who allows the
be drawn, it appears the court has determined that
entry of unauthorized people, may be held responsible
allowing the entry of the media into the scene can be a
and liable for allowing an illegal entry. It must be deter-
violation of the homeowner’s Fourth Amendment rights.
These cases represent media involvement in law
mined whether the Fourth Amendment protects the
emergency scene, or some part of the scene. If it is an
enforcement activities during the execution of a warrant,
area in which someone holds a reasonable expectation
but the core issue is the violation of the Fourth Amend-
of privacy, the event must be a disaster of great public interest
ment. If fire service personnel on scene during exigent
sufficient to forego the right to privacy, with the exception
circumstances allow the media into a residence, which
of personnel eliminating the exigent circumstance.
is clearly not related to the objectives of eliminating the
exigent circumstance, they may be allowing a violation
Opinions
The courts have not defined a
clear-cut answer covering all of the
Law Enforcement Quarterly
contingencies involved. Opinions at
Published by the Office of the District Attorney
all judicial levels differ and vary
widely from state to state. A wiser
course is to stay on the conservative
Bonnie Dumanis
Denise Walker Vedder
Blaise Nauyokas
publisher
editor
publication design
George W. Clarke, Ed Obayashi, Robert C. Phillips
side and protect the scene until
emergency personnel alleviate the
exigent circumstance or require non-
columnists
Wendy Alvarez, Fred Herrera, M. Margaret Neil
Len Novarro, Wendy Patrick, Chris Saunders
emergency personnel to gain
consent from the property owner.
Keep in mind, while on the
6
contributing writers
Marty Martins
Steven J. Casey
special advisor
editor emeritus
Law Enforcement Quarterly
of the Fourth Amendment. Further, fire investigators,
sometimes conflicts with the Fourth Amendment rights
who have more law enforcement training than fire
of citizens. It would seem the mission of emergency
suppression personnel, may be held to a higher level of
services, to protect the lives and property of our citizens,
accountability.
would be more in line with also protecting their right to
Fire
Victims
privacy. This is not to suggest the media not be included
Balancing the Press & the People
The media performs a crucial role in our society, and
is also protected to some degree by the First Amendment.
in fire operations, but perhaps the extent of their involvement, in a physical sense, should be given a closer look.
A further consideration is the protection of the fire
“In a society in which each individual has but limited
scene as a possible crime scene. As a general rule, the
time and resources with which to observe first hand the
request for an origin and cause investigation is the result
operations of government, he relies necessarily upon
of observations by the first-in officer, who determines
the press to bring to him in convenient form the facts
an investigation is warranted.
of those operations” (Cox Broadcasting Corp v. Cohn, 1975).
As a result, the First Amendment right of the press
The arrival of fire investigators may be after the fire
is controlled, and, if the scene is preserved properly, before
7
Fire
Victims
the overhaul operations are conducted. It is often at this
scene and residence by emergency personnel, and the
point when fire personnel allow the media into the scene
homeowner or tenant later objects, the recorded footage
to take video or still photos, pending the arrival of fire
obtained with the consent of emergency personnel may
investigators. Any physical evidence later discovered by
still be used at the discretion of KUSI.
fire investigators is compromised by the presence of
non-emergency personnel.
Of course, any portions of the property that is
viewable from public areas, such as the street or sidewalk
The television reality shows that illustrate the work
may be filmed without consent from emergency personnel
of fire and police departments play an important role in
or the owner or tenant of the property. This includes the
bringing the work of emergency personnel to the public.
interior of a residence. It is the belief of KUSI News that
The established means, however, to enter a residence
these policies are consistent with the Fourth Amend-
without a warrant requires exigent circumstances, consent,
ment rights of fire victims while providing the media
or abandonment. The emergency personnel are clearly
the First Amendment right to free speech.
on the scene due to exigent circumstances,
but what about the TV crew? The nonemergency personnel are not satisfying the
criteria for legal entry onto the scene, unless
they acquire consent from the person(s) who
maintain a legitimate expectation of privacy
in the property. Some courts have held that
the silence of a homeowner is the same as
consent.
Another consideration is, unlike the
majority of police operations, the fire department responds to many emergencies that
are accidental and not crime-related. In these
situations, an infringement of the Fourth
Amendment rights of the victims may cause
more pain and suffering to an already
traumatized victim.
A representative of the television series COPS, which
is in its fifteenth season of production, commented that
The Media Perspective
An interview with Leon Gilchrist, Assignment/Editor
and respecting the right to privacy has allowed the show
for San Diego’s KUSI News, revealed media personnel at
to flourish without difficulty before and after Wilson vs.
KUSI are guided by policies instituted by their insurance
Layne.
carrier. The insurance carrier meets with employees
The producers of the show operate with signed
annually to review existing practices and implement new
consents from the departments providing the ride-alongs
guidelines set forth by industry standards and case law.
and adhere to individual department policies. Also, no
Media personnel at KUSI will not enter an emergency
scene without authorization from fire or police officials
who are maintaining custody of the scene. Once allowed
8
having a good understanding of Fourth Amendment rights
footage is aired without the written consent of the person
filmed.
Unlike television news, COPS is in a documentary
onto the scene, the media personnel will not enter a
format and rarely is involved in the service of a search
residence without further permission from emergency
warrant or entry into a residence without consent. The
personnel.
majority of filming is conducted on public property. In
Regardless of consent to enter from emergency
all cases, show producers consider the rights of the
personnel, KUSI employees will not enter the scene against
individuals filmed extremely important and, in their
the wishes of the property owner or tenant. If the media
opinion, common sense and professionalism has been
personnel, however, have been allowed to enter the
key to preventing litigation.
Law Enforcement Quarterly
Civilian Ride-Alongs
The second area of concern regarding the Fourth
Conclusion
Ultimately, there can be confusion over the legal
Amendment is ride-along programs. The most common
rights of the media and other non-emergency personnel
ride-along, the media, has already been discussed.
entering an emergency scene and the liability of the
There are also civilian, intern, and emergency
emergency services and its employees who let others
services related ride-alongs, such as aspiring and
lawfully or unlawfully enter. One thing is certain, however,
probationary emergency personnel. An employee on the
fire personnel are held to higher and higher levels of
payroll, who is not yet a fully trained member of the
accountability in all aspects of their profession. Any bad
crew and is receiving on-the-job training related to
turn of events, which is not uncommon on an emergency
the operation of eliminating the
scene, can result in a search for a responsible party,
exigent circumstance,
valid or not. To make matters worse, as public servants
would appro-
providing assistance is second nature, and many find it
priately be
difficult to take the hard line on scene security.
on the
In the future, we should try to envision what there is
scene.
to gain or lose by not allowing the media or a ride-along
A college
inside a residence. The media
student who is
provides a valuable service
attempting to gain
to the community and
employment or is working
everyone in law
on a school project most
enforcement benefits
likely would not be legally
from their coverage
able to enter the scene under
by increasing our
the exigent circumstance. The
visibility and public
Fred Herrera, CFI, is
same is true of civilian ride-
image. Yet, it’s not
a 19-year veteran of
alongs such as relatives or
members of the community.
Remember, just because
always necessary
the San Diego Fire
to enter the scene
Department and has
to get the story
been a member of the
to the public. It
Metro Arson Strike Team
past as a matter of custom
often can be
for nine years. He is also
does not create an implied
accomplished
a member of the San
consent from the possessor
without
Diego County Fire and
to enter.
invading the
Arson Task Force.
its been done that way in the
Many departments have
a ride-along policy that may
include a waiver form is
signed by the rider. An
important part of the decision
in Wilson v. Layne was an
existing ride-along policy by
the United States Marshals.
This ride-along policy also was dissented by a federal
victim’s right
to privacy. The media can document
the outside of the structure, perhaps even
inside of the banner tape to get the visuals they
need to report the story accurately. Meanwhile, the
Fourth Amendment rights of the victim and the
evidence inside of the structure are kept intact.
Both law enforcement and the media should ask
themselves: what level of privacy you would expect if
judge, who pointed out the policy was created by an
your home burned and you weren’t there? Would it be
employee of United States Marshals Service and was
okay for non-emergency persons to be inside your “castle”
more related to the public image of the Service than the
just because some of your personal items were charred?
legal issues, including lawful entry. It is important to ensure
As with many scenarios, imagining ourselves trading
department policies are in accordance with applicable
places with the victim can considerably clear up many
laws.
professional quandaries.
Volume 31 Number 2
Fire
Victims
Winter 2002-2003
LEQ
9
ON FORENSICS
George W. Clarke
The Crime of the Century
A chilly Saturday morning in February 2002
began like any other for Brenda van Dam. She
was in the kitchen fixing breakfast; her sevenyear-old daughter Danielle was sleeping late
as she sometimes did on Saturday mornings.
Little did Brenda know that within moments,
this day, would be very different.
As Brenda walked up the stairs
The Man Next Door
two doors away from the van Dam
residence.
to Danielle’s room to wake her, a
Robbery detectives Johnny Keene
parent’s worst nightmare began:
and Maura Parga were assigned inves-
Danielle’s bed was empty. Frantic
tigation duties. On Monday, two days
manicured front yard of the home
searches of the house, the yard, the
after her disappearance, they con-
and thought it odd that a garden hose
neighborhood all produced the same
tinued contacting neighbors who were
was strewn across the lawn toward
nothing: Danielle was no where to
not at home the previous two days.
the street.
be found.
One of those homes was just
Parga looked at the impeccably
She and Keene met the resident:
a 50-ish man dressed in a ball cap
The Initial Investigation
Brenda telephoned 911. Patrol
officers from the San Diego Police
and long pants named David Alan
Westerfield.
He came outside and spoke to
Department were there within
the detectives. Asked if he had any
minutes and began to investigate.
information about the disappearance
Was Danielle lost or had something
of Danielle, Westerfield said he could
worse happened? Detectives began
provide little help. He had been gone
the process of trying to piece
all weekend.
together what could have happened
to the little seven-year-old girl.
Friends and volunteers joined
Saturday, he described, he spent
the weekend in his motorhome at the
Coronado State Beach. Encountering
the police in searching for Danielle.
poor weather, he decided to drive to
The neighborhood was canvassed
Imperial County. He had just returned
by police, leads followed, tips pro-
that morning.
cessed; still nothing produced
Danielle. The van Dams, and all of
San Diego still held out hope for her
safe return.
The Pieces Don’t Fit
More information was developed
in that interview with Westerfield.
To the surprise of Keene and Parga,
10
Law Enforcement Quarterly
Westerfield said he knew the van
morning, he stayed a few hours but
result of warrants obtained for the
Dams, in particular Brenda. He
grew weary of the weather and
same locations – produced potentially
described that over the course of the
decided to drive to the desert.
important evidence.
previous 10 days he had had contact
with Brenda and even Danielle.
On Friday, January 25, he
Arriving Saturday night, he said
In Westerfield’s home, his bed
his motorhome became stuck in the
was stripped down to the sheets. His
sand at a particular wash in the
SUV, although parked in a dusty
described seeing Brenda and some
Glamis area. He slept there and was
location for the weekend, was
of her friends at a local eatery named
towed from the sand the next day.
spotless.
“Dad’s.” The next week, he told
detectives, Brenda and two of her
After leaving Glamis, he claimed
he drove to Superstition Mountain,
children – including
On the kitchen counter was a
note with the van Dam’s phone
number and a list of shopping items
Keene
Danielle – came to his
– at the top of which was “bleach.”
house selling Girl Scout
An apparent dry cleaner’s receipt was
cookies. At that time,
found in the SUV.
Westerfield told Brenda
The motorhome revealed more:
he wished he had been
a painstaking search uncovered poten-
introduced to one of the
tial bloodstains in several locations,
women who had been at
including on the hall carpet, the bed
Dad’s with Brenda.
Westerfield then
Parga
described being at Dad’s
the prior Friday, the
night before Danielle
was determined to be missing.
and then the Borrego
Detectives asked more questions and
Springs area, traveled
listened intently. Westerfield said he
down a deserted road,
bought a round of drinks for Brenda
and became stuck
and her friends, but little came of
again in the sand.
the evening and he had gone home
After getting himself
around midnight. The next day,
out a second time,
Westerfield said, he got out of bed
Westerfield drove back to Coronado
and a curtain. Blonde hairs – Danielle
early, retrieved his motorhome, and
state beach, but was unable to enter
was blonde – were collected from the
left for Coronado.
due to the lateness of the hour. He
motorhome in numerous areas.
The Questioning Continued
Detectives questioned him
further and, after a trip to the motor-
then described crossing the highway
Then, a potential bombshell:
to the Coronado Cays area, parking
police went to the dry cleaners from
by the side of the road, then sleeping
which the receipt had come.
until sunrise Monday morning.
home, obtained Westerfield’s permission to accompany them to the
Northeastern substation for more
Clothing, two bed comforters and
two pillow shams had been left by
The Investigation
Detectives asked if Westerfield
Westerfield, all on Monday, February
4. An interview with the store clerk
questioning. There, he related his
would give them permission to search
revealed when he dropped the items
activities in more detail. Westerfield’s
his home, motorhome, and a sport-
off for cleaning, Westerfield appeared
description of his movements from
utility vehicle he had driven to obtain
disheveled and unusually quiet.
Saturday morning through Monday
his motorhome for the weekend trip.
made detectives more and suspicious.
Westerfield agreed, and was then
Westerfield told police that
after driving to Coronado Saturday
Volume 31 Number 2
Winter 2002-2003
interviewed further.
Searches – also authorized as a
Crime Laboratory Takes Center Stage
Forensic evidence collectors Dorie
Savage and Karen Lealcala spent
11
Forensics
hours over several days searching
the key to solving and proving the
the van Dam home and Westerfield’s
identity of the kidnapper of Danielle
house and vehicles. Criminalists
van Dam.
Annette Peer and Tanya DuLaney
joined in those searches.
Analysis of the hundreds of
Bloodstains And A Hair
Three weeks after Danielle’s
disappearance, the bombshell
ignited. Soriano had located a blood-
Trace Evidence And Patience
Annette Peer, an SDPD DNA
stain on the shoulder area of a jacket
Westerfield had left at the cleaners.
collected items became paramount.
analyst, knew the importance of
Peer determined a stain on the motor-
Was there any evidence in the van
trace evidence; she also knew that
home carpet was indeed blood. DNA
each of the items seized from the
testing and comparison of both stains
van Dam and Westerfield homes
revealed a perfect match to a sample
could hold the key.
of Danielle’s DNA taken from her
Savage
SDPD lab analyst Sean Soriano
was tapped to screen much of the
own clothing in her bedroom.
Westerfield was arrested and
evidence, a painstaking process
charged with the kidnapping and
looking for the slightest traces of
murder of Danielle van Dam. Although
body fluids, including blood.
At the same time,Tanya DuLaney
and Jennifer Shen, trace evidence
examiners specializing in hairs and
Fingerprint evidence introduced during trial.
Dulaney
Danielle’s body had not been
found, police and prosecutors
Lealcala
believed the evidence was sufficient
of examining evidence items, inclu-
to charge and convict David
ding countless “tapelifts,” which could
Westerfield.
Dam home? Both he and the van
provide important links between
Dams told police Westerfield had
Danielle and her kidnapper.
never been inside their home. Was
Down the hall in the crime labo-
there any physical evidence linking
ratory, Jeff Graham, a fingerprint
Danielle to Westerfield’s house,
examiner, began his own painstaking
motorhome or vehicle?
examination of latent fingerprints
Complicating any analysis was
from both scenes and the vehicles,
More analysis would be needed;
the majority of the physical evidence
seized in the investigation had yet
to be examined by the crime lab.
An Arraignment And A Warning
David Westerfield was arraigned
Danielle’s visit to Westerfield’s
seeking any information that might
in San Diego Superior Court for the
home the week before to sell Girl
help detectives determine who had
attack on Danielle. Jeff Dusek, who
Scout cookies.
committed the crime.
had been assisting police during the
Brenda said Danielle and her
12
fibers, began the laborious process
All the while, Danielle was still
investigation and was assigned the
brother had only been on the first
missing. The search for her body
prosecution of Westerfield, was con-
floor, not upstairs. The physical
continued unabated, involving
fident the laboratory would have
evidence, the San Diego Police Depart-
hundreds of local and out-of-town
ample time to complete its analysis.
ment recognized, would likely hold
volunteers.
After all, in a case that was likely to
Law Enforcement Quarterly
become a death penalty prosecution,
body and a Mickey Mouse earring,
laboratory director Mike Grubb,
the defense lawyers would ask for
both items Danielle was wearing
supervisors Patrick O’Donnell and
as much time as possible to prepare
when she disappeared, left little doubt
Jim Stam, and the analysts involved
Westerfield’s defense.
that this was the missing girl.
in the investigation to assist in
To everyone’s surprise, defense
The initial examination of the
determining which samples were
attorneys Steven Feldman and Robert
body and autopsy yielded little infor-
the most critical to examine. The
Boyce demanded Westerfield’s
mation due to the length of time
prosecutors’ desire to test every
Danielle had been exposed
sample had to be weighed against
to the environment. Trace
the reality that only a small percen-
evidence was collected from
tage of the evidence seized could be
her body and the surrounding
tested in the time frame allowed.
area, but analysis would have
The defense tactic: to beat that
to wait. The time crunch was
laboratory analysis to the finish line
beginning to be felt by all.
by requiring a speedy trial.
Scientists And Prosecutors
The Laboratory Goes Overtime
The District Attorney’s
Forensics
The sprint to the finish required
office and the SDPD Crime
the cooperation of many. The Federal
Laboratory have enjoyed a
Bureau of Investigation assisted
with early DNA testing
of hairs from the motorhome. One of those hairs
– from the hall carpet –
matched Danielle.
Numerous bloodstains
Graham
and additional hairs –
preliminary hearing
from the motorhome and
be held within the
Westerfield’s residence –
statutory 10 days
were forwarded to private
of arraignment.
DNA labs on the East
Privately, Feldman
Coast for testing.
and Boyce told
Fingerprint examiner
Dusek and your
Shen
Jeff Graham provided a
author – assigned
critical blow to the defense
to assist Dusek –
of David Westerfield.
Westerfield would demand a speedy
close working relationship for several
Graham located partial latent finger-
trial as well.
years. Cases involving extensive phy-
prints on a wall cabinet immediately
sical evidence are frequently discussed
next to and just above the bed in
and examinations prioritized. But,
Westerfield’s motorhome. The prints
The Discovery Of The Body
Five days after Westerfield’s
the need for such cooperation was
matched Danielle. Graham still had
arrest, news reports spread that a
never as great as in the Westerfield
hundreds of latent prints to examine.
body of a small child had been found
investigation and prosecution. Trial
in the Dehesa Road area of San Diego’s
would start sometime in June, barely
was ongoing in the Forensic Biology
East County. Volunteers combing the
four months from Danielle’s kid-
section, trace evidence criminalists
county for Danielle had found the
napping.
DuLaney and Shen were presented
remains of what appeared to be a
little girl. A choker necklace on the
Volume 31 Number 2
Winter 2002-2003
Both Jeff Dusek and your author
regularly communicated with crime
While additional DNA testing
with an overwhelming task: examination of bedding, clothing and tape-
13
Forensics
Microscopic and chemical analy-
Soriano
sis of the orange fibers revealed
they shared the same characteristics.
Further examination of those fibers
by Shen with the assistance of Faye
Springer, of the Sacramento County
District Attorney’s Office Crime
Laboratory, led to the same results:
the fiber from Danielle’s necklace
was consistent with the orange
fibers from Westerfield’s home.
The Evidence Mounts
By the time jury selection
began, and as the trial proceeded,
lifts from the homes, vehicles and
were made on hairs with root material
several more human hairs from the
body of Danielle would take many
to obtain regular – or “nuclear” – DNA
motorhome and Westerfield’s bed-
months. That time didn’t exist.
results. One hair, taken from the
room and laundry were determined
bathroom sink drain of the motor-
by mitochondrial DNA testing to be
home, matched Danielle’s DNA.
consistent with Danielle. More orange
Others were subjected to mitochon-
fibers were found in the motorhome
DuLaney turned to the task of exam-
drial DNA testing. The physical evi-
and the house.
ining the hundreds of hairs found
dence was mounting.
A Fiber Is Not Just A Fiber
Prioritizing their examinations,
in Westerfield’s home and vehicles.
Jennifer Shen’s work began to
Blue fibers from the sheet around
Danielle’s body were discovered in
Westerfield’s home.
Any hairs that microscopically
appeared similar to Danielle’s would
Clarke and Dusek
Animal hairs from
be considered for mitochondrial DNA
Westerfield’s laundry
testing. Unlike more common DNA
were determined
testing techniques, which can be
both by microscopic
used on hair roots, mitochondrial
comparison and
DNA is the only recourse when hairs
mitochondrial DNA
have little or no fresh root material
testing to be con-
attached to the hair.
sistent with the van
Dam’s dog, Layla.
Shen turned her attention to the
Literally, just
many fibers found on the body of
Danielle. She carefully cataloged the
as the prosecution
different colors and types of fibers
was about to rest
found on both Danielle’s body and
produce important results. In her
its case, Shen and DuLaney deter-
the sheet that had been used to
meticulous examination of fibers
mined that more, matching orange
transport her to the medical exam-
removed from Westerfield’s home
and blue fibers were found in the
iner’s office. The next step: to look
and vehicles, she discovered hundreds
motorhome and Westerfield’s SUV.
at various fibers recovered from the
of long, orange, acrylic fibers in the
Suddenly a link could be provided
Westerfield locations to determine
washing machine and dryer from
to the jury. He likely used the SUV
if any appeared similar.
Westerfield’s house. They matched
to transport Danielle to the location
one found enmeshed in Danielle’s
where he stored his motorhome
Several hairs were sent to a private
own hair in the choker necklace
and then picked it up for his week-
laboratory for DNA testing. Attempts
taken from her body.
end odyssey.
The process required weeks.
14
Law Enforcement Quarterly
troubling. The blood on
the jacket from the dry
hairs, fibers and blood.
Lengthy and often frustrating
cleaners: perhaps
forensic entomology evidence was
impossible.
presented to the jury in to try to
show fly activity on Danielle’s body
The Verdict
Ultimately, the jury
selected to try David
Judge Mudd
The power of the forensic eviduring the trial itself – compelled
But in the end the jury was left
with only one reasonable conclusion:
guilty of the kidnapping
DNA testing
and murder of Danielle
and the other
Van Dam.
forensic
2002 – seven months and
dence in the case – determined even
dumped her body out at Dehesa Road.
Westerfield found him
On September 16,
David Westerfield’s Defense
proved Westerfield could not have
evidence
provided the
14 days after her disappearance –
proof that
that same jury recommended he be
overcame
sentenced to death for his crimes.
any attempt
Several jurors remained after the
to show
Westerfield’s defense to argue to the
announcement of the death verdict
otherwise.
jury that the blood, fingerprints, hairs,
to discuss their deliberations with
Accurate
and fibers all arose from Danielle
both the prosecutors and defense
and reliable science provided justice
apparently having been in Westerfield’s
counsel.
for the murder of Danielle – the real
motorhome and residence at some
They described important
Dusek
heroes in the investigation of
evidence in their deliberations:
Danielle’s disappearance and death:
Westerfield’s possession of child
the San Diego Police Department and
the house just days earlier selling
pornography – brilliantly uncovered
their incredible crime laboratory. LEQ
Girl Scout cookies. The hairs in
and assembled for trial by San Diego
Westerfield’s bed, laundry, and SUV
Police Department computer examiner
George “Woody” Clarke is a Deputy District
were more difficult to explain. The
Jim Watkins – Westerfield’s troubling
Attorney assigned to the Superior Court
blood, fingerprints, hairs and fibers
description to police of his 500-mile
Division. He is the DNA and forensic expert
in the motorhome were similarly
journey to the desert; the fingerprints,
for the San Diego DA’s office.
time prior to her disappearance.
After all, Danielle had been in
The defense team
Volume 31 Number 2
Winter 2002-2003
15
CIVIL LIABILITY
Ed Obayashi
Court Creates New Standards for Determining Excessive Force
When this column began four years ago, now
the tradition of this column of labeling cases, unfor-
retired DDA Mike Carelton called the cases the “good”
tunately, this quarter, I must name them “bad,” “worse”
the “bad” and the “ugly.” So, although I’m carrying on
and “worst.”
Bad
percent and 55 percent liability,
and a crossbow. He screamed at a
Police are responsible for the
respectively. The monetary damages
deputy named Rutherford (who was
safety of motorists they stop.
against CHP amounted to $6 million.
a member of the SIRT and had a
beanbag) that he would “kick his ass.”
A CHP motorcycle officer
directed a speeding driver, who had
Comment:
It is important officers not be
the freeway center median. Both
discouraged from aggressively en-
visibility and road conditions were
forcing traffic laws so long as good
good and traffic was moderate to
judgment is exercised in deciding
weapons, Deorle then picked up
heavy. After issuing the citation and
when and where to make traffic
a can of lighter fluid and walked
returning to his bike, the officer saw
stops. Factors such as weather, road
directly at Rutherford, who then
a pickup truck drifting into the
conditions, department policy, etc.,
shot a beanbag from 30 feet away
center median approaching in the
should be considered. In this case, the
at Deorle’s rib area.
fast lane.
jury considered CHP’s policy of pre-
pointed, ordered Deorle to drop his
weapon, which he did.
After dropping all his various
The beanbag hit Deorle in the
ferring officers to direct motorists to
face causing multiple fractures to
truck’s driver to get his attention. The
the right shoulder rather than the
his cranium, loss of his left eye and
officer barely had enough time to
center median for safety purposes.
imbedded lead shot in his skull. Deorle
The officer motioned at the
sued everyone he could under a
dive over the concrete median barrier.
The truck collided with the vehicle
Worse
federal 1983 civil rights action
the officer had stopped, causing
Use Of Beanbag Weapons Can
claiming his Fourth Amendment
serious injuries to the occupants.
Constitute Excessive Force.
The injured occupants sued both CHP
Richard Deorle was diagnosed
rights were violated by an excessive
use of force.
and the pickup driver alleging both
with Hepatitis C and became upset.
were negligent and caused their
He consumed half a pint of vodka
suit and Deorle appealed. The Ninth
injuries.
and prescription medication. Deorle
Circuit Court of Appeals reversed and
became erratic and suicidal and
held that the claim should be heard
held that the CHP officer had a duty
“lost control of himself.” He began
by a jury to determine if Rutherford
to exercise reasonable care to protect
screaming and banging the walls of
used excessive force and whether
drivers he had pulled over from fore-
his house. His wife called 911. The
he was entitled to qualified immunity.
seeable harm and such a decision was
first deputy on scene called for Code 3
a matter for a jury to decide.
backup and a SWAT situation ensued.
the court considered in evaluating
During the standoff, Deorle
whether a cop’s actions constitute
back to the trial court, the jury decided
threatened deputies with a wooden
excessive force, the court created
both the CHP and the pickup driver
board with protruding nails he tore
another factor: when feasible, officers
were liable and apportioned 45
from the porch, brandished a hatchet
should warn before firing a beanbag.
The California Supreme Court
After the matter was referred
16
After each threat, deputies, with guns
his children in the car, to stop on
The trial court dismissed the
Along with the usual factors
Law Enforcement Quarterly
Here, the court held Rutherford
went looking for the other dogs. After
utility knife in his pants) when he
clearly could and should have issued
a verbal confrontation with the owner
peacefully approached the officers
a warning to Deorle. Further, the
of the dogs, the former police officer
who outnumbered him. To the court,
court determined no reasonable
returned home. The dogs’ owner
at least, the officers were unconcerned
officer could have believed Rutherford’s
called the police and six patrol cars
about whether the suspect might be
use of a beanbag under these circum-
responded to the call, broadcasted
armed when they failed to search
stances was reasonable or lawful;
as a man carrying a shotgun that
him (thus, the officers were uncon-
therefore, the officer was not entitled
had just shot two dogs and was in
cerned for their own safety).
to qualified immunity.
the street yelling.
Comment:
patrol cars, he went outside and
When the former officer saw the
The Court went through exten-
Comment:
The court has now determined
identified himself as “the man in-
that excessive force, (and by definition,
sive lengths to “Monday morning
volved with the dogs.” Two officers
the use of force) can occur even when
quarterback” Rutherford’s actions
drew their guns and pointed them at
the officer never touches the plaintiff.
step-by-step. This case illustrates the
him from six feet away. The officers
Officers will think the court is out of
old adage that reasonable minds can
closed within three feet and one
touch with reality on the streets, espe-
differ. Most, if not all, officers under
pointed his gun at the former officer’s
cially when it involves a shooting call.
the same circumstances would have
head and commanded him to put
had no problem taking the same
his hands in the air. He was then
concerned for your safety and take
actions as Rutherford’s.
At the very least, you must be
handcuffed and placed in the rear of
appropriate precautions if you are
After all, the purpose of bean-
a patrol car. He was never searched
going to use a firearm to control a
bags is to allow officers to use less
and officers ignored his attempts to
subject (i.e. pat down for weapons).
lethal force in situation like this.
explain what had happened. After the
With this rule, the mere pointing of
For whatever reason, the court felt,
officers spoke with the neighbor, the
a gun at a subject is considered use
despite Deorle’s actions and de-
former officer was released and no
of force even though it may not be
meanor, the use of force here was
charges were filed.
excessive force, thus requiring
excessive.
He sued (another federal S 1983
Regardless, be familiar with your
documentation by most agencies.
action) claiming the officers’ pointing
Note:
department’s policy on giving warn-
of their guns at his head was an
ings when using any significant force
excessive use of force under the cir-
In “Worse” and “Worst,” the
capable of causing serious injury upon
cumstances. The Ninth Circuit held
Ninth Circuit created new standards
an apparently unarmed suspect.
the amount of force that is “objectively
for determining what will constitute
The court will consider the existence
reasonable” (as the Fourth Amend-
excessive force by police.
of such a policy as another factor in
ment guarantees one from “unrea-
determining whether an officer is
sonable seizure”) is determined by:
entitled to qualified immunity.
Author’s Note: This article is not
1) the severity of the crime,
intended to be an “officer safety”
2) whether the suspect poses
advisory. No advice is provided on
Worst
an immediate threat to the safety
officer safety tactics. Although instruc-
The mere pointing of a firearm to detain
of officers or others, and
tional, do not allow court decisions
an apparently non-violent suspect is
considered use of excessive force.
A 64-year-old retired police
officer lived on a farm in Solano
3) whether the suspect is actively
to ever compromise safety.
LEQ
resisting arrest or attempting to
evade officers.
Here, the court said the crime
Ed Obayashi is a San Diego police officer and
a member of the “Use of Force” committee. He
County. When a neighbor’s dogs
was a misdemeanor at most and the
advises officers in the area of civil liability related
attacked his farm animals, he shot
suspect was apparently unarmed
to police work. As an attorney in private practice,
and killed one of the dogs and then
(although he did have a four inch
he is with the Law Offices of O'Mara & Hampton.
Volume 31 Number 2
Winter 2002-2003
17
47.5 UPDATE: Officer
Lawsuits Against Public Participation
remedy when defamed. Some good
(SLAPP) statute. Although the appeals
news: the California Supreme Court
Ordered to Pay $100,000
court acknowledged the facts clearly
unanimously ruled 47.5’s criminal
by Ed Obayashi
would have supported a verdict
counterpart, 148.6, which adds
against the complainant for defama-
criminal penalties for filing a false
issue’s article on police defamation
tion, the suit still had to be dismissed
complaint against a peace officer is
lawsuits against false complainants
because of Civil Code 47.5’s unconsti-
CONSTITUTIONAL.
will do absolutely nothing to reinforce
tutionality. Now, here is the worst
your faith in our system, that is, as
part: because SLAPP allows recovery
for resurrecting the constitutionality
far as police rights are concerned.
of attorney fees and costs by the
of 47.5, but will require a similar
prevailing party the court ordered
ruling on a civil case. I, along with
the officer to PAY almost $100,000!
DDA Bob Phillips are exploring other
The following update on last
As DDA Wendy Patrick wrote,
officers no longer have the statutory
possible remedies for police officers
right (and for that matter, any legal
right whatsoever) to sue for defama-
This ruling may act as an avenue
who are defamed. I will keep you
Comment:
LEQ
tion against false complaints, no
Peace officers are cautioned NOT
matter how outrageous and un-
to file any defamation related claims
founded the complaints may be (visit
– even in Small Claims Court - until
NOTE: Ed Obayashi has been asked to
sandiegoda.com to view article online).
there is some positive ruling in favor
assist in Officer Walker’s case. He can be
of a peace officer’s right to a civil
reached at (619) 239-9885.
To illustrate, here’s a hypothetical
posted on developments.
example: Mr. Complaint tells Internal
Affairs that you falsely arrested him
Death Penalty Numbers: Executions by State and Method 1997-2001
for possession after you planted drugs
on him during a probation search of
his home. You then punched him,
kicked him on the ground, called
him names, stole his wallet, made
advances on his wife, slapped his
children, stuck a gun down his
throat, and…(you get the picture).
Mr. Complaint then tells this to the
media and anyone else who will
listen. You endure the investigation
and media scrutiny and, after a year
of sleeplessness and stress, all claims
are finally unfounded because you
had several reliable witnesses in
your favor and a video of the incident
showing that nothing happened.
Guess what? After all that, you
cannot NOT sue for defamation.
And if you do, be prepared to PAY.
In the case presented in the
last LEQ, when the false complainant moved to strike (dismiss)
the officer’s defamation suit, his
motion was based on the Strategic
18
State
Number
executed:
Lethal
injection:
Electrocution:
Lethal
gas:
Hanging:
Total:
749
584
149
11
3
Federal system
Alabama
Arizona
Arkansas
California
Colorado
Delaware
Florida
Georgia
Idaho
Illinois
Indiana
Kentucky
Louisiana
Maryland
Mississippi
Missouri
Montana
Nebraska
Nevada
New Mexico
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
South Carolina
Tennessee
Texas
Utah
Virginia
Washington
Wyoming
2
23
22
24
9
1
13
51
27
1
12
9
2
26
3
4
53
2
3
9
1
21
2
48
2
3
25
1
256
6
83
4
1
2
0
20
23
7
1
12
7
4
1
12
6
1
6
3
0
53
2
0
8
1
19
2
48
2
3
20
1
256
4
57
2
1
0
23
0
1
0
0
0
44
23
0
0
3
1
20
0
0
0
0
3
0
0
0
0
0
0
0
5
0
0
0
26
0
0
0
0
2
0
2
0
0
0
0
0
0
0
0
0
0
4
0
0
0
1
0
2
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
2
0
0
U.S. Department of Justice – Office of Justice Programs
Bureau of Justice Statistics, Washington, DC 20531
Law Enforcement Quarterly
NEWS BRIEFS
San Diego County Officer-Involved Shootings 1990-2002
Year
Fatal
Non-Fatal
SDPD
SDSO
Other Local
Federal
Total for Year
1990
15
28
27
5
8
3
43
1991
8
14
12
5
4
1
22
1992
10
10
9
6
3
2
20
1993
13
19
14
4
13
1
32
1994
14
19
19
2
8
4
33
1995
12
9
11
4
4
2
21
1996
7
4
9
0
1
1
11
1997
11
15
17
4
4
2
26
1998
10
8
7
3
4
4
18
1999
11
6
7
5
3
3
17
2000
12
13
12
3
6
6
25
2001
13
8
9
2
9
1
21
2002
10
13
15
4
5
1
23
146
166
168
47
72
31
289
Totals
Notes:
1. Shootings are counted per shooting subject rather than shooting incident.
2. Includes accidental shootings and shootings by off-duty officers attempting to apprehend subjects.
3. The number of shootings per agency may exceed the total number of shootings in some years due to shootings involving more than one agency.
Source: San Diego District Attorney’s Office
Visa Database Enabled For
Intelligence Agencies
Beginning next month, local law enforcement will
have access to a database of 50 million overseas applications for United States visas, including photos of 20
million applicants. Previously, this information was only
available to immigration officials.
The database, which will become one of the largest
offerings to local law enforcement is maintained by the
state department and typically provides personal information like the applicants home address, date of birth,
passport number and names of relatives.
The new system will provide “sensitive but
unclassified” information, and will tie together for the
first time the State Department, intelligence agencies,
New Juvenile Detention
Facility Under Construction
the FBI and police departments. Also, for the first time,
the FBI and other agencies will be able to send encrypted
A state of the art juvenile detention facility in Otay
emails to each other. The system, which was basically
Mesa is under construction. The facility is scheduled to
compiled from existing information and required no new
open in February 2004, and will house 380 juveniles. There
spending, was designed as a beginning toward dismantling
are plans to build an additional facility that could house
the bureaucratic stumbling blocks that were revealed
up to 620, as well as a courtroom to handle the growing
LEQ
after 9/11.
Volume 31 Number 2
Winter 2002-2003
number of juvenile matters.
LEQ
19
SEXUAL PREDATORS:
WE KNOW
WHO
-YOU=
ARE.By Chris Saunders
20
Law Enforcement Quarterly
“Oh my God, Oh my God! I know that guy!”
That was the first thing San Diego sixth grade teacher
Marian McCormick said when she saw the face on the
screen of the Megan’s Law CD-ROM at the Del
Mar Fair last July. The second thing she
said was: “You bastard!”
The photo she was looking at
was Jim Smith, a registered sex
staff, teachers, and parents. At the time, nobody knew
what a good hit it was. Jim Smith has gone on to be
S.P.A.T.’s poster boy for successful sex offender investigations.
S.P.A.T. was formed in October of 2001, to help law
enforcement get a better handle on PC 290 sex offender
registrants in the county – where they are and what
they’re doing.
offender who had been convicted
and had served time for PC
288(a), lewd and lascivious
Joining Forces
As far as checking on the compliance of the county’s
behavior with a child under
3,300 PC 290 registrants, “there was not enough auditing
the age of 14.
and monitoring going on in this county,” says DOJ’s
How did she know him?
Ernie Limon, the Special Agent Supervisor of the
McCormick (we changed her name
to protect the identities of
several children who are
victims) says Jim Smith was
volunteering at the San Diego
elementary school where she
teaches. At a Christmas event he
wore a Santa Claus hat and
even went along on a field
trip to Sea World as a
chaperone, according to
McCormick.
As she stared at
Smith’s picture on the
CD-ROM, McCormick
shuddered. She had never
felt comfortable around
Smith, and always had a
strange feeling about him.
“I just had the willies at that
point. Everything I suspected
about him was true,” she says.
“We all got weird vibes off him.”
“That’s a good hit,” Special
Agent Kevin Kolbe told her, and had her
fill out a “hit sheet” on Smith. Kolbe is part
of the California Bureau of Investigations (CBI)
Sexual Predator Apprehension Team, S.P.A.T., which
set up the Megan’s Law booth at the fair. McCormick
says Kolbe hold her: “I’m gonna get this guy.”
Kolbe began an investigation into why a serious
S.P.A.T.
team. It’s just a
question of manpower
in the local agencies that can be devoted to the job.
Now, the S.P.A.T. team is about to become the S.P.A.T.
offender like Jim Smith was spending so much time
Task Force, with all local law enforcement departments
around school children – right under the noses of the
as member agencies. The San Diego County Sheriff’s
Volume 31 Number 2
Winter 2002-2003
Illustration
by Jennifer
Hewitson
21
Special
Report:
Sexual
Predators
WHO IS A SEXUAL OFFENDER?
A sexually violent predator is a person who has been convicted of a sexually offense
as enumerated in Penal Code § 290. A person classified as a sexual offender is so classified
for life, unless and until his or her civil rights are restored, their conviction is overturned,
or he or she receives a full pardon.
WHAT IS A SEXUAL OFFENDER?
A sexual offender is a person who has been convicted of certain enumerated offenses,
which are contained within Penal Code § 290 or a person who is classified as a Sexually
Violent Predator pursuant to Welfare and Institutions Code § 6600 et seq. Seq.
WHAT LEGAL RESTRICTIONS ARE SEXUAL OFFENDERS REQUIRED TO MEET?
Each person who is a sexual offender as defined by the list of enumerated crimes in
Penal Code § 290 is required to have either a driver’s license or State Identification card at
the time of their initial registration. After the initial registration, if the offender moves to
another address, he/she must register that address within five days of moving. Additionally,
offenders are required to register annually within five days of their birthday. Transient
sexual offenders are required to register every 60 days. Additional requirements are listed
in Penal Code § 290. Failure to register as required can result in a felony conviction and prison.
ARE ALL PREDATORS VIOLENT?
No. To become a registered sexual offender under Penal Code § 290, one could have
been convicted of a number of different crimes including some misdemeanors. Some crimes
involve physical violence and some do not. However, all are deemed by the courts, based
on previous behaviors, to represent a potential threat to certain persons.
IS THE POLICE DEPARTMENT REQUIRED TO NOTIFY ME WHEN
A SEXUAL OFFENDER MOVES INTO MY NEIGHBORHOOD?
No. The notification of the public regarding the locations of sexual offenders is strictly
governed by Penal Code § 290. Local law enforcement agencies must meet the criteria under
Penal Code § 290 before they can notify persons in a specific neighborhood that a sexual
offender is nearby. However, the California Department of Justice maintains a computer
database that lists all sexual offenders by zip code. You may view the data base by providing
your California Driver’s license or Identification card to your local law enforcement agency
and then sign a document stating you will not use the information for vigilante-type behavior.
HOW MAY I LEARN MORE INFORMATION ABOUT SEXUAL OFFENDERS?
Go to your local law enforcement agency and view the database as it relates to your
zip code. Most of the individuals listed will be accompanied by a photograph as well as
the crime(s) they were convicted of. Take your children. Often they will recognize sexual
offenders that you may not know.
22
Law Enforcement Quarterly
Office and San Diego Police Department are sending detec-
area can’t afford to put enough full-time assets toward
tives to join the S.P.A.T. Task Force full time.
monitoring these folks properly.” Bird has been a prime
Even though the Memorandum of Understanding
mover in helping organize the S.P.A.T. Task force, and
creating the task force has not yet been signed, the
she’s sending two detectives and two staff people to the
agencies are already working together. “We’re all joining
new team.
hands to combat the problem of the sexual predators
“We are really sold on it, and I think it could have a
who are lurking out there,” says Limon. “The public is
great impact on controlling sex offenders in this county,”
wondering – do we know they’re there? What do we do
says Bird, who is happy to see the countywide conso-
to keep track of them?”
lidation of resources and intelligence to crack down on
Special
Report:
Sexual
Predators
PC 290 registrants who are out of compliance. “We want
Knocking On Doors, Taking Names
S.P.A.T. detectives are going to be knocking on a lot
of doors, according to Limon – checking addresses listed
them to know we’re watching them.There has to be reason
for them to believe there are consequences if they violate.
Otherwise, what good is the 290 law?”
by 290 registrants as their current legal residence. But
Limon says there’s a lot of groundwork to do before they
knock and talk. Detectives look into the terms and conditions of the registrant’s parole or probation. Then,
Cracking Down On Compliance
Case in point: Lon Warren Curtis, a sex offender who
lives in the Ramona area. Detective Ron Schweitzer, who
monitors the Sheriff’s 290 registrant files,
found that Curtis, a convicted rapist, had
moved twice without informing the office
within the required five days after completing the moves.
Schweitzer gave the case to deputies
out of the Ramona substation, who wound
up arresting Curtis after warning him to
re-register his latest address. Curtis is now
once they knock, they’re looking for two things: Does the
offender live there? And is there anything illegal in his
residence, like child pornography?
S.P.A.T. has a zero tolerance policy. “We want them
serving time in county jail for failing to register.
The Sheriff’s Office has also developed a special
software program that automatically searches for noncompliance among PC 290 registrants. If someone isn’t
to know that we’re proactively watching them,” Limon
up to date, chances are they’ll get a knock on the door
says. “We want 290 offenders to know they’re going to
from Detective Ron Schweitzer, or a COPPS deputy to
be arrested if they fail to register, so they don’t think
find out what the problem is.
they have total freedom of movement.”
This is not to say that the individual law enforce-
“The 290 registration law wasn’t taken very seriously
– at least not until the case of Danielle van Dam,” according
ment agencies haven’t been proactively monitoring
to the Tia Quick, a deputy district attorney who heads
registered sex offenders all along.The Sheriff’s Office does
the DA’s Adult Sexual Prosecution Team (ASAP), another
regular compliance sweeps through its different stations
key component of the S.P.A.T. Task Force. “This law’s there
to check up on offenders in their areas. The COPPS
for a reason,” Quick said. “High-risk sex offenders like
deputies (Community Oriented Policing and Problem
Jim Smith often don’t comply with the 290 registration
Solving,) also are involved in doing day-to-day legwork
law. These people are dangerous. They’re scary and
checking up on PC 290 offenders in their areas. They are
people should be able to protect themselves.”
part of the Sheriff’s S.A.F.E. – Sexual Felony Enforcement
Ready To Prosecute
team.
It’s time-consuming work, according to Sheriff’s
In order to get these offenders in compliance or off
Captain Lori Bird, head of the department’s Youth and
the street, Quick is ready to give the District Attorney’s
Family Services Division, “and most departments in our
support to police at a moment’s notice.
Volume 31 Number 2
Winter 2002-2003
23
Special
Report:
Sexual
Predators
“We are a ready resource,” Quick says. Deputies or
police officers in the field can get fast answers to legal
so involved with a boy. We all wondered ‘who is this guy.’ ”
McCormick decided to personally warn her student’s
questions 24 hours a day, through their supervisors. And
mother that the man who was living under her roof was,
when it comes to prosecution, “the experience is all here.”
in fact, a convicted child molester as well as a high-risk sex
That means the sex offender cases are all going to
offender. The mother’s reaction? A fairly matter-of-fact
be handled by the same team in the DA’s office. It’s
“Oh really?,” McCormick says.Then came the mother’s reve-
one-stop shopping for cops – or another way to put it –
lation that Smith was actually sleeping in her son’s room.
vertical prosecution, which is a concept that the DA’s
“Anybody else would have called Child Protective
office has applied to several units, the latest being 290
Services right then,” says McCormick. The mother didn’t
registrants.
call CPS, but McCormick did. And when the mother, who
had grown dependent on Smith, refused to kick Smith
out of her home, CPS took her son into protective custody.
Smith did move out, but he didn’t stay away from
the 12-year-old. The manager of the apartment complex
where the mother and son lived told investigators she saw
Smith with the boy by the swimming pool a week later.
When Smith reported his new address to San Diego
Police, he told them he was moving to Arizona. Special
Agent Kolbe quickly learned that Smith had not really
moved to Arizona, but was apparently just visiting his
mother there.
When an Arizona police officer whom Kolbe had
asked about Smith’s whereabouts tipped Smith he was
under investigation, he quickly came back to San Diego
and registered as a transient, to avoid a felony charge.
What Kolbe didn’t know yet, was that Smith was
moving into an apartment in El Cajon to become a caregiver to the resident. In the meantime, Kolbe found out
from the criminal intelligence specialist on the S.P.A.T.
team that a new portion of the state 290 law, 290.95,
requires that sex offenders who work with children must
disclose that they are a sex crimes registrant with the
agency or organization where they are volunteering or
working.
Using Megan’s Law, the Oceanside Police Dept. thought sex offender
Douglas Dannet was such a risk to the community that they printed
flyers and went door to door advising neighbors of his presence.
It was a Sea World field trip that gave Kolbe the
violation he needed to arrest Jim Smith, who pled guilty.
But Smith is still in custody, facing felony 290 charges
A Sad Story
Quick’s unit is handling the prosecution of Jim Smith,
Kolbe says it often doesn’t matter whether a sex
the offender who was spending a lot of time at the ele-
offender is classified as violent, high-risk or serious, “it
mentary school where Marian McCormick teaches.
doesn’t mean they won’t re-offend.”
McCormick told police that Smith was living with
The media covered Smith’s arrest. After learning he
the mother of one of her students, a 12 year-old-boy.
was in custody, several children told their parents they
Although Smith and the boy’s mother were not dating,
had been victimized by Smith. To date, seven more victims
he was attending school functions and volunteering as
have come forward and Smith has been charged with
if he were the boy’s father. McCormick was skeptical all
multiple counts of child molestation.
along that “it’s not normal for a man who’s not related to be
24
for allegedly lying to SDPD about his status as a transient.
“I’m proud of myself,” McCormick says when she
Law Enforcement Quarterly
Office of the Attorney General, Department of Justices Megan’s Law
Special
Report:
Sexual
Predators
California’s Sex
Offender Registrants
(Total: 97,573 as of
October 1, 2002)
Serious
78,081
Other
17,708
Number of photographs on file
High-Risk
Serious
Other
High-Risk
1,784
1,720
59,970
11,856
SERIOUS SEX OFFENDER REGISTRANTS
Definitions
• Assault with intent to commit specified
HIGH RISK SEX OFFENDER REGISTRANTS
• Rape
sex offenses
• Sodomy with a minor or by force
High-risk sex offenders are serious sex offenders
who have been convicted of at least one violent sex
offense and a combination of other offenses.
• Lewd and lascivious contact with a child or
dependent adult
• Oral copulation with a minor or by force
• Continuous sexual abuse of a child
High-risk criteria is set forth in Penal Code section 290(n)(1)(A)
~~~~~~~~
OTHER SEX OFFENDER REGISTRANTS
(Not subject to public disclosure)
• Foreign object penetration
• Child molestation
• Kidnapping with intent to commit specified
sex offenses
• Felony sexual battery
• Felony enticement of a child for purposes of
Registrants convicted only of: Pornography,
incest, indecent exposure, misdemeanor sexual
prostitution
• Abduction of a child for purposes of prostitution
battery or spousal rape.
-- or --
(Crimes subject to public dissemination
Juveniles adjudicated in juvenile court.
are listed in Penal Code section 290.4(a)(1).)
Volume 31 Number 2
Winter 2002-2003
25
Special
Report:
Sexual
Predators
MEGAN’S LAW DATABASE AVAILABLE AT DA’S OFFICE
A mother is concerned about the possibility of a sex offender living in
her apartment complex. She searches the County’s website and by entering
her street address, she pulls up a map of sexual predators in her neighborhood, called a PIN map. She sees that there’s a dot close by, indicating a
high-risk sex offender lives in the area. She has many questions and wants
more information about this person – what does he look like? What did he
do? She finds out the police and sheriff’s departments offer viewing of the
Megan’s Law database, but she lives too far from the few offered locations
plus she can’t take off work during the restricted viewing hours.
Now, this busy mother of two has another option.
The San Diego District Attorney’s office is the first D.A.’s office in California
to offer viewing of the Megan’s Law database to the public. Viewing will be
offered in January at the Hall of Justice in downtown San Diego. Plans are
underway to offer the database to the public at all office
branches.
No appointment will be necessary, so jurors, witnesses,
members of the public visiting the court, or those who
want to come specifically to the District Attorney’s office
for the information will be able to view the database on
a first come, first serve basis. They’ll see photographs of
serious and high-risk sex offenders who live close by.
They’ll be able to obtain physical descriptions of offenders
and see the crimes the offenders have committed.
Parents, teachers, and other concerned citizens will
Megan Kanka
be better able to protect themselves and their children.
Information about child safety, protecting children from internet predators,
and other crime prevention programs are also available to the public.
“We are excited to be once again on the forefront of innovative efforts
to fight crime and educate the public,” said District Attorney Bonnie Dumanis.
“It gives families and children one additional tool to protect themselves
from sexual predators.”
26
Law Enforcement Quarterly
realizes the impact her using the Megan’s Law CD-ROM
“this is a typical example of how we work together to
“almost as a lark” has had.
solve countywide problems.”
Sheriff’s Captain Lori Bird says S.P.A.T. will be able
Helping Parents Help Police
Prosecutor Tia Quick spent time at the same Megan’s
Law booth where McCormick spotted Jim Smith, and
Special
Report:
Sexual
Predators
to do a lot of groundwork that patrol units don’t have
time to do, and help all agencies do a better job of
monitoring their PC 290 registrants.
thinks the system is a highly effective tool for helping
parents protect their children from known child molesters.
And Quick advocates taking it a step further and letting
children view the offenders as well.
“Let the kids look,” she says. “It’s not scary. It’s preventive.” At the Del Mar Fair, one five-year-old saw one
sex offender photo and said: “this is my friend’s daddy!”
“Obviously, it’s real important,” says the S.P.A.T. Team’s
Ernie Limon. According to Limon, 4,000 people looked
at the sex offender CD-ROMs at the fair and there were
Protecting Kids is Their Passion
The S.P.A.T. team has been around for a year now,
and in that time they’ve made 41 arrests, including Jim
Smith. How do they measure their success?
“You really can’t measure,” says Limon. “Ninetynine percent of it is prevention. We arrested 16 people in
August. That’s good, but I’d rather look at someone like
Jim Smith.
“It’s what we prevented
between 300 - 400 “hits.” Those hits have so far led to
that individual from doing
12 investigations of possible violations. He believes it’s
that’s important. I like to
a great tool to give to the public.
measure success in terms of
“PIN maps, which give general locations of sex
offender’s addresses, are fine, but the Megan’s Law
prevention, not the number of
arrests”
database takes it one step further,” says Limon. “Instead
And as Tony La Dell,
of just a dot on a map “you can put a face to the dot. If
Special Agent In Charge of the
Chris Saunders is a
you feel it’s appropriate you can actually identify these
CBI’s San Diego office, puts it,
Special Assistant to the
people with your child at your side and tell them “stay
“Protecting kids is not only our
San Diego Sheriff. Prior
away from this person.”
job, it’s our passion.
to joining the Sheriff’s
“Predators don’t stop,”
office in August 2002, he
says La Dell. “They have child
was a long-time news
pornography in their homes.
reporter for KFMB-
that local law enforcement agencies don’t, such as
They’re out hooking up with
Channel 8.
being able to do surveillance of high-risk offenders.
potential victims.”
High Risk Offenders
As for the S.P.A.T. team, they have the resources
“Before October of 2001, there wasn’t a countywide
As for child pornography, which was powerful evi-
agency to which you could refer a surveillance case,”
dence in the recent trial of David Westerfield – someone
Limon points out, also noting that “all agencies are
who had no criminal record of molest or sexual assault.
strapped for bodies.” He speculates that “catching one
“Some of this stuff is shocking - like nothing you’ve
of these people molesting a child is highly unlikely, but
ever seen. Until you see it, you can’t know how
we can enforce violations of their parole conditions,
important it is that we stop these people,” says La Dell.
which ultimately will protect innocent victims.”
“That is the enormous task the S.P.A.T. Task Force is
Once the task force is fully formed, they’ll have the
infrastructure to do extensive surveillance and inves-
taking on.”
For her part, Marian McCormick, the elementary
tigation: a $2.8 million budget, covering five counties,
school teacher who spotted Jim Smith on the Megan’s
with a staff of two supervisors, 14 special agents, two
Law CD-ROM at the fair, is glad that her actions led to
criminal intelligence specialists, and two office techs.
Smith’s arrest.
Sheriff Bill Kolender is an enthusiastic supporter of
“Wow,” said Marian McCormick when she heard the
the new S.P.A.T. Task Force, as yet great another illustration
news that her “hit” on the Megan’s Law CD-ROM has led
of how well law enforcement agencies team up to tackle
to several other alleged victims of Jim Smith to come forward.
major enforcement issues in this region. Kolender says
“What a creep! And so bold! What was he thinking?” LEQ
Volume 31 Number 2
Winter 2002-2003
27
POINTS OF LAW
Robert Phillips
Megan’s Law
Revisited
without the public at least being
violent predators per W&I 6600 et
warned he is coming?
seq. and labels them as “high risk sex
As a result, the United States
Congress mandated (under penalty
cluded in these categories, generally
of losing certain federal funding for
comprised of the relatively less serious
Scarlet Letter, authored by Nathaniel
failing to comply) that all states set
sex registrants, are not included in
Hawthorne, describes the colonial
up some form of registration and
the Megan’s Law notification pro-
practice of branding female adul-
public notification procedure, known
visions.
teresses with the red letter “A.” After
universally as “Megan’s Law,” when
all, such persons had committed the
convicted child molesters and other
95,401 such sex offenders living in our
unforgivable, violating the sanctity
sex offenders are brought back into
state’s neighborhoods, driving by our
of the bed chamber and the solemnity
the community.
schools, watching our loved ones, and
The time-honored classic The
of marriage vows. Their presence in
California was the one of the
any particular community was thus
first to comply, enacting Penal Code
announced to all those who wished
sections 290(m) through (r) and 290.4,
to be protected from such “harlots.”
with former Governor Pete Wilson
While our morals, at least in
some respects, may have perhaps
waiting.
Police & The Sex Offender
When a law enforcement officer
becomes aware of a person who
September 1996.
qualifies as a “serious sex offender”
under Megan’s Law, and who lives
practice of publicly branding those
Golden State Is Home
or works near, or frequents the area
persons who have demonstrated a
To 95,400 Predators
of, a school, day care center, or any
propensity for violating society’s most
California’s Megan’s Law is
feared taboos, as means of providing
structured very simply, but becomes
assault victims live, work or visit, and
a warning to others, is still going
quite involved in its application. Its
the law enforcement officer “reasonably
strong. The sophistication by which
provisions take the previously enacted
suspects” under the circumstances
we do this has certainly improved,
sex registration statute, Penal Code
that this sex offender is “likely to
but the theory behind the practice
section 290, and breaks down those
encounter” one or more potential
is still largely the same.
who have been convicted of any of
victims where someone may be “at
the listed offenses into three cate-
risk,” the officer has the discretionary
gories; “high risk,” “serious,” and all
authority to warn potential victims
others.
of the offender's presence and the
Murder Of A Child Inspires Law
The country was enraged over
the senseless 1994 sexual assault and
28
As of June 2002, there are about
signing its provisions into law in
slipped a bit over the centuries, the
Illustration
by p.theo
offenders.” All those offenders not in-
Penal Code section 290.4(a) lists
other place where potential sexual
danger this poses to them.
murder of seven-year-old Megan
the most serious of the 290 sex
Kanka by a convicted sex offender
offenses and classifies those who
interject a measure of supervisory
who had been released by the New
stand convicted of such offenses as
control (negating the inevitable
Jersey prison system into an unsus-
“serious sex offenders.” Penal Code
argument that a law enforcement
pecting residential neighborhood.
section 290(n) then takes the worst
officer acted with “unfettered, or
Many people had to ask their legis-
of the worst of these offenders,
uncontrolled, discretion,”), police
lators, in effect, why was there no
usually involving sex crimes with
department policies are generally
red letter “A” on this killer’s forehead?
violence and/or where there are
established to set the criteria guiding
How can the release of such a
multiple convictions, as well as
an individual law enforcement
dangerous person from prison happen
those who are adjudicated sexually
officer’s discretionary decisions on
To ensure uniformity, and to
Law Enforcement Quarterly
Volume 31 Number 2
Winter 2002-2003
29
Points
of Law
releasing such information. The
city or zip code and bring up a list of
ment representing a jurisdiction
statute is very specific as to what
serious and high risk sex offenders
with over 200,000 in population.
information may be released, with
for that area. Clicking on an individ-
In San Diego County, this mandates
individual police departments given
ual’s name from that list will reveal
availability of the CD-ROM at the
the discretion to release less informa-
a page of information about the
San Diego Police Department and
tion where deemed appropriate.
offender, except for a home address.
the Sheriff’s headquarters.
When a “high risk” sex offender
comes to town, Penal Code section
290(n) provides certain “designated
A recent photograph of the sex
offender is generally included.
While all the law enforcement
Not mandated, however, but
provided anyway, are CD-ROMs at
seven of the Sheriff’s branch offices
law enforcement entities” with the
agencies listed above are provided
as well as the La Mesa and El Cajon
authority to give notice to the public
with the CD-ROM, the only depart-
Police Departments. Also, as of
in general “by whatever means the
ments required by statute to make
December 2002, the San Diego District
agency deems necessary to ensure
them publicly accessible are the
Attorney will be the first DA’s Office
the public safety.” The “designated
County Sheriff and any police depart-
in California to offer viewing of the
law enforcement agencies”
include all the more
traditional county and
municipal law enforcement
agencies as well as college
police departments, county
probation, the California
Highway Patrol, the state
Departments of Justice,
Corrections and the Youth
Authority, and, last but
certainly not least, a
county’s District Attorney’s
Office.
But whether or not any
particular law enforcement
agency chooses to take advantage
of all this statutory authority to
release offender information is up to
the individual department. The threat
of civil suit, vigilantism, or other
misuse of the information is enough
to discourage some law enforcement agencies from becoming
involved at all.
Citizens Can Be Proactive
Recognizing this, provisions have
been made for concerned adults to
visit their local police department.
Through a CD-ROM updated monthly
by California’s Department of Justice,
concerned citizens can type in their
30
Law Enforcement Quarterly
Megan’s Law database, with CD-ROMs
Additionally, sex offender infor-
it detractors. There is an argument
to constitute a 14th Amendment
to be made that public disclosure
“due process” violation, specifically
mation is also available to the public
identifying a person as one with a
for failing to provide the registrant
through the State Department of
prior criminal history for sexual
with the opportunity for a hearing
Justice “hot line” – (900) 448-3000.
offenses is, in much the same manner
on the issue of his present danger-
After identifying him or herself, the
as the scarlet letter, an unfair invasion
ousness. This case is also presently
caller is able to verify whether any
of that person’s privacy and other
before the United States Supreme
specific person is a serious or high
constitutional rights. In fact, Megan’s
Court.
risk sex offender. A fee of $10 for
Laws similar to California’s have been
checking up to two names is assessed
attacked in various courts through-
come down sometime within the
for this service.
out the country on constitutional
next year, will have a binding and
Lastly, a number of California
These two decisions, when they
“ex post facto,” “privacy,” “procedural
lasting effect across the entire nation,
due process,” “double jeopardy,” “equal
including California. If upheld, Alaska’s
on the Internet which, although not
protection,” “cruel and unusual punish-
case will cause us to reevaluate the
identifying a particular sex offender
ment,” “deprivation of inalienable rights,”
punitive nature of our Megan’s law
by name, will show the approximate
“retroactivity,” and “deprivation of
to determine whether it can only be
location of such offenders living in
liberty and property” grounds. These
applied prospectively. Washington’s
a particular neighborhood.
lawsuits have met with varying
case, when decided, will tell us
degrees of success.
whether we must set hearings on
counties are now providing pin maps
To locate this web page, go to:
www.arjis.org/SDCRPinMapEntry.html.
While California’s Megan’s Law
each one of the 95,000-plus sex offen-
Both the city of San Diego and the
has never, itself, been the subject
ders living in our communities to
County have pin maps designating
of any published appellate court
determine whether each such person
the general locations of serious or
decision, the federal Ninth Circuit
is still a danger to our children and
high risk sex offenders. You can also
Court of Appeal upheld a similar
other loved ones.
go to “www.meganslaw.com,” and
statute out of the State of Washington
following the directions from there.
in Russell v. Gregoire (9th Cir. 1007)
Megan’s Law attempts to strike
Conclusion
Megan’s Law is an important
124 F.3rd 1079. In that the Ninth
a balance between the important law
Circuit covers California as well, this
part of the rights of citizens to protect
enforcement function of providing
case is at least some authority for
themselves and their families from
maximum protection to all persons
upholding and continued enforce-
future harm. In trying to balancing
potentially at risk from sexual preda-
ment of California’s Megan’s Law.
the offender’s right to privacy and
tors, while respecting the constitu-
In contrast, however, the Ninth
to a life without unnecessary ostra-
tional due process and equal protec-
Circuit, in Doe v. Otte (9th Cir, 2001)
cism once they have served their time
tion rights of registered serious and
259 F.3rd 979, found Alaska’s Megan’s
with the right of ordinary citizens to
high-risk sex offenders, allowing such
Law to constitute an “ex post facto”
live without fear of future attacks
offenders the opportunity to live and
violation, in that it imposes far greater
against their children and families,
work in the community in a lawful
burdens on sex offenders than does
someone has to lose. The offender’s
manner without fear of unlawful
Washington’s statute, and is therefore,
misdeeds as the cause of the conflict
threats, violence, injury to person or
in effect, punitive, as opposed to
should be a factor in this balancing
property, or other forms of vigilan-
merely regulatory. This case is
process. But we can only wait to see
tism. Criminal sanctions are provided
presently before the United States
whether the Supreme Court agrees
for misuse of Megan’s Law infor-
Supreme Court.
LEQ
Also, another similar statute
mation.
Law Has Its Detractors
Despite Megan’s Law’s honorable
intentions, the system is not without
Volume 31 Number 2
Points
of Law
Winter 2002-2003
out of the state of Connecticut was
Bob Phillips, a former police officer, is a Deputy
found by the Second Circuit Court
District Attorney and liaison to the Sheriff’s
of Appeal, in Doe v. Dept. of Public
Office and the Carlsbad, Escondido, El Cajon,
Safety ex rel Lee (2001) 271 F.3rd 38,
La Mesa and Oceanside police departments.
31
g
G
i
B
a
m
e
h
e
T
T
o
t
e
o
w
m
n
a
C
By Len Novarro
Capt. Joel Bryden of the San Diego Police Department’s
Special Services Division was asked in April 2002 to be
in charge of security for the third Super Bowl to be held
LEQ: How many law enforcement officers in all were
involved?
BRYDEN: I’ve talked to so many reporters who asked
in San Diego. He recently discussed the assignment and
the same question. We don’t tell numbers. In the ballpark,
how security since 9/11 was handled.
what I will tell you is that according to the contract
(between the National Football League and the city of
LEQ: Was the San Diego Police Department solely
officers working the Super Bowl as a sold-out Chargers’
other agencies involved?
game. The Raiders game is not considered a sold-out game.
BRYDEN: We were the designated law enforcement
agency. Therefore, we were the ones in control of security
for the game. But any agency who does this has to reach
out for partnership. The FBI, for example, had a distinct
role. They assisted us on a number of different issues.
The Secret Service was involved. The Sheriff’s Office
helped. Several law enforcement agencies gave us motor-
However, we staff it with extra officers, anticipating that
we usually make arrests.
LEQ: How long did you prepare?
BRYDEN: We prepared for over a year. That was my
full-time job for that period.
LEQ: What other divisions were involved?
BRYDEN: Different portions of the entire police depart-
cycle officers to help with motorcades. Those are some
ment were involved. For example, we had 14 different
examples of cooperation.
subcommittees. We had a staffing committee, a technical
LEQ: How many motor officers?
BRYDEN: I couldn’t tell you. The way we had it
support division, technical analysis and computer staff,
a media committee comprised of people from all over
structured, we had 14 committees. One of them was the
the department and an intelligence subcommittee, with
transportation committee. That’s the big one. I know we
criminal intelligence heading it up.
had 50 to 60 motorcycle officers from our department.
32
San Diego), we were required to have three times the
responsible for security at the Super Bowl, or were there
We also had a transportation committee and special
Law Enforcement Quarterly
resources. We used our S.W.A.T. teams, our K-9 officers,
fence there were five sets of metal detectors. Everyone
all our special resources.
working the game had to go through those gates. Cell
LEQ: Did you work the last Super Bowl?
BRYDEN: I was a S.W.A.T. commanding officer then.
phones and pagers were X-rayed. No one got into the
I never went to the stadium. I was at a command post
a reason to be there – the coaches, for example. And if
in case anything happened.
you’re working, you had to have a credential.
LEQ: How did that go?
BRYDEN: No problems, whatsoever.
LEQ: Did you encounter anything unusual this time
in getting prepared?
BRYDEN: I can’t think of anything. The one thing that
parking lot itself without a game ticket unless they had
LEQ: What’s the first thing you did when you knew
you would be taking over security for the Super Bowl?
BRYDEN: I didn’t get transferred to this assignment
until last April. The wheels already were in motion.
But SDPD did a Super Bowl before. We had a good
does happen is that things are constantly changing. You
record to begin with. So, we went to the archives to form
really need to be flexible because there’s always some-
our basis for setting up and planning the event.
Captain Joel Bryden
thing going on. Many of the things we do are contingent
upon other entities doing certain things.
For example, part of the contract with the NFL
The first thing I personally did when planning for
this security system was reach out to the partners I
would be dealing with – the other law enforcement
required us to provide security at team hotels. What
agencies and, in particular, the FBI and the Secret
happens is the teams come in on a certain day, or a day
Service, the Host Committee and the NFL Committee.
earlier. We have to be there, and, depending on what
Those are the people I’ve reached out to and become
they do, that determines what we do. We were not
friends with, all of whom have helped us in the past.
totally in control. So you have to be prepared for a
change in plans.
LEQ: What is the big difference between preparing
for this Super Bowl and the last?
BRYDEN: The biggest difference was in the security
LEQ: What exactly was the Secret Service role?
BRYDEN: The Secret Service’s role in this Super Bowl
was as a consultant. Last year, they were the lead agency.
Based on the type of security we do and based on 9/11,
we used them as a resource.
measures we took. For example, there was a secure
inner perimeter fence to keep people out. Within that
Volume 31 Number 2
Winter 2002-2003
Len Novarro is a San Diego-based freelance writer.
LEQ
Photo
by Tim
Tadder
33
F
or many law enforcement detectives, seeking and
In KRL v. Moore, the federal court issued a Memo-
executing search or arrest warrants is a routine part
randum of Opinion and Order that held neither the
of the job. Different defendant, similar facts, similar
defendant law enforcement officers, a deputy district
procedure. Piece of cake, right?
In several recent cases, courts have come down hard
on members of law enforcement who have become in-
attorney, nor the District Attorney of Amador County
were protected by qualified immunity in connection
with an overbroad search warrant.
volved with defective warrants in the course of a criminal
investigation.
FOLLOWING INSTRUCTIONS FROM SUPERIORS
Sometimes you are just following instructions. Will
QUALIFIED IMMUNITY
Warrants are often sought during the course of a
this save you? The answer is: it depends on the particular
defect of the warrant. If a warrant is overbroad, the officers
criminal investigation before charges have been filed.
involved may not be protected by qualified immunity
Ordinarily an officer’s conduct while seeking and executing
despite having received authorization from their superiors.
a warrant is protected from civil liability by qualified
This may be true even if the warrant was signed by
immunity. The two part qualified immunity test for law
a magistrate. Officers serving facially defective warrants
enforcement is whether the officer’s conduct 1) violated
on the other hand, are protected by qualified immunity
a constitutional right, 2) that was clearly established at
when they rely on advice from their superiors as long as
the time in the context of the particular case.
they inquire about the warrant’s nature and scope.
Several recent cases have denied officers qualified
immunity based on the circumstances surrounding
their involvement with a warrant.
In Bishop Paiute Tribe v. County of Inyo, the court held
In KRL v. Moore, the court held that “officers are not
entitled to rely on facially overbroad search warrants
neither the prosecutors nor the deputy sheriffs who
absent specific assurances from a magistrate that the
served a search warrant on tribal land were protected
warrant is valid.” Marks v. Clarke rejected the argument
by qualified immunity because they were executing a
that qualified immunity would protect officers who relied
warrant on land outside of their jurisdiction, in violation
on the approval of an overbroad warrant by prosecutors
of clearly established law.
and the issuing magistrate.
(This decision is being appealed and must be clarified.
34
OVERBROAD WARRANTS
Compare this to Guerra v. Sutton, where Border Patrol
It prohibits the seizure of tribal property from a tribal
and INS agents searched plaintiff’s homes and made
business without the tribe’s permission. Officers can
arrests without warrants or probable cause, relying on
obtain valid search warrants for evidence found elsewhere
officer’s statements that warrants existed. The court
on the reservation.)
held that the defendants were not protected by qualified
Law Enforcement Quarterly
immunity because they acted unreasonably in failing to
may rely on the representations of their superiors that a
inquire into the nature and scope of the warrants.
warrant exists and is valid, “so long as they ‘make inquiry
as to the nature and scope of [the]warrant.’ ”
OBJECTIVE REASONABLENESS
In Marks, the court denied certain officers qualified
immunity and cited Malley v. Briggs (1986) 475 U.S. 335,
Officers who lead the search, on the other hand, must
ensure they are acting under lawful authority and that
they have a valid warrant.
for the objective reasonableness inquiry and the position
that an immunity determination is not limited to the
question of whether the officer sought legal advice or
COUNTY LIABILITY
When drafting and serving search or arrest warrants,
relied on a magistrates authorization of a warrant. “[T]he
law enforcement officers are considered county officers
objective reasonableness inquiry is confined to the
and may thereby subject the public entity for which the
objectively ascertainable question whether a reasonably
officer works to federal civil liability. The 9th Circuit in
well-trained officer would have known that the search
Bishop Paiute held that both the District Attorney and the
was illegal despite the magistrate’s authorization.”
Sheriff in executing the search warrant were acting as
The Marks court held the officers’ reliance on the
county officers, thereby subjecting the county to 1983 liability.
by Wendy Patrick
approval of the warrant from a prosecutor and the mag-
In support of their conclusion, the Bishop Paiute court
istrate was insufficient to grant them qualified immunity,
cited Brewster v. Shasta County (9th Cir. 2001), as one of
and held further that in order to be protected by qualified
the recent federal circuit court cases that held the sheriff
immunity, the officers would have had to have received
accountable as a county officer in the investigation of
“specific assurances” from the issuing magistrate that
criminal conduct.
the warrant was valid despite its overbreadth. Qualified
immunity was thus denied to the officers obtaining the
warrant, as well as those executing the warrant.
CONCLUSION
Even experienced law enforcement officers must be
aware of potential civil liability issues related to warrant
FACIALLY DEFECTIVE WARRANTS
In Ramirez v. Butte-Silver Bow County (9th Cir. 2002),
practice. Reading warrants carefully is critical even for
veteran officers. A working knowledge of the principles
officers served a facially defective warrant that omitted
and law cited in this article will equip law enforcement
a description of the evidence sought, and did not reference
with the tools needed to protect the public, while also
or have an attached affidavit
protecting themselves.
LEQ
Regarding respective levels of liability, the court
distinguished between the different roles and positions
Wendy Patrick is a Deputy District Attorney assigned to the
of the officers involved. The court held that line officers
Special Operations Division.
Volume 31 Number 2
Winter 2002-2003
35
Foundation, SDPD Make
Spanish Program A Reality
By Wendy Alvarez
When San Diego Police Sergeant Andrew Hoffman
million San Diego county residents consider Spanish to
be their primary language. Within that same group, more
than 250,000 respondents rated their English skills as
“less than very well.”
Yet, fewer than 210 SDPD patrol officers are bilingualSpanish. An inability to communicate public safety
began patrol duty in a primarily Spanish-speaking neigh-
information, instructions or acquire timely information
borhood 16 years ago, he realized he could be much more
that helps officers apprehend suspects and solve crimes
effective if he were able to speak Spanish.
represents an ongoing risk to public safety.
So, Hoffman took many community college courses
In addition to the 26 officers completing the 2002
and became one of the relatively small number of bilingual
program, more than 200 officers have expressed serious
officers called on to translate in critical, and not-so-critical
interest in future enrollment.
The yearlong program is a collaboration coordinated
by the Foundation, a nonprofit 501 (c)(3) organization
created at the urging of former Police Chief Jerry Sanders.
Accepting charitable contributions from individuals,
businesses and private foundations, it awards grants for
special equipment, training and community-oriented
crime prevention programs that cannot be sustained
within the narrowing confines of the Police Department’s
city-funded operating budget.
With community support, the Foundation is making
tangible, long-term solutions like the SDPD Spanish
Program a reality.
One of those community partners is SBC Pacific Bell
Foundation.
“As a company that receives an estimated 32,000
calls per day from Spanish-speaking customers in
California, we clearly understand and identify with the
From left, Sgt. Andrew Hoffman; Asst. Chief Bill Maheu; Ofc. Jim
Bolen (one of the graduating Spanish students), Wendy Alvarez,
San Diego Police Foundation; Ignacio De La Torre, SBC Pacific Bell;
and San Diego County Hispanic Chamber of Commerce board
members Paola Hernandez and Sal Ramirez.
importance of being able to communicate effectively,”
says John Hull, regional president for SBC Pacific Bell.
In addition to major support from SBC Pacific Bell,
the San Diego Police Foundation obtained program
funding from The San Diego Foundation Weingart-Price
situations for non-Spanish-speaking officers – a necessary,
Fund and the San Diego County Hispanic Chamber of
yet time-consuming strain on limited police resources.
Commerce.
Hoffman’s then decided he would make it his goal
The class schedule works around shift changes. Two-
was to create a program that would make it easier for
hour classes are held 3 days per week and tutoring is
more officers to acquire Spanish language skills.
provided an additional 4 hours each week. The program
Hoffman, with the support of the San Diego Police
Department and San Diego Police Foundation, developed
an intensive language program that fits officers’ work
schedules.
The pilot program recently graduated 26 officers from
includes traditional college Spanish instruction with an
emphasis on law enforcement-related vocabulary.
Its success encouraged SDPD Chief David Bejarano
to commit to training 200 more officers over the next
LEQ
five years.
its unique one-year, three-semester program, taught
onsite at the Mid City police station.
Wendy Alvarez is the CEO of the San Diego Police Foundation.
According to 2000 census data, more than a half
36
Law Enforcement Quarterly
COMMENDATION OF THE QUARTER
By M. Margaret Neil
said Dusek, who, along with DDA George “Woody” Clark,
prosecuted Westerfield. “Not only did the lab rise to the
challenge by finding an incredible amount of incriminating
evidence in an impossibly short period of time, they were
all true professionals on the witness stand.
Danielle’s Angels
In his closing arguments during one of the most
notorious cases in America, prosecutor Jeff Dusek paid
tribute to the talent and professionalism of the men and
women of the San Diego Police Department Crime Lab.
He told the jury that Danielle van Dam, a sevenyear-old girl who was taken from her bed and found
“Despite relentless cross-examination, and the
pressure of knowing they were on national television,
the crime lab staff remained composed throughout,”
says Dusek.
“Every piece of incriminating evidence located by
the lab was subjected to confirmatory tests by private
labs and defense retained experts,” Dusek explains. “Not
one result or one opinion was challenged by a defense
murdered, had two sets of angels
who helped bring her killer to
justice. One set, he said, was the
volunteers who found her body.
The other, said Dusek, were
the men and women of the San
Diego police lab. “What they did
with this case, how they looked at
it, how long and how hard they
worked.” Indeed, without their hard
work and dedication, David
Westerfield, might still be free.
The 70 employees of the SDPD
The staff of San Diego Police Department Crime Lab.
Crime Laboratory gather and analyze the physical
witness. In essence, the defense conceded the accuracy
evidence found at the scene of virtually every homicide
of the work of the San Diego Police lab.”
and sex crime that occurs in the city of San Diego.
The lab has four scientific or “criminalistic” units –
Forensic Biology, Trace Evidence, Firearms and Alcohol/
Narcotics, and four technical units – Latent Prints, Field
Services, Documents and Polygraph. Although they are
used to working under pressure and tight deadlines,
Crime lab manager Mike Grubb speaks modestly
about the lab’s role in the case and is quick to point out
the credit belongs to everyone who works at the lab.
“We were pleased to be part of the team effort that
went into this investigation,” said Grubb.
Under fire on the stand were Field Services Unit
this case called for an above and beyond effort from
Forensic Specialists Dorie Savage and Karen Lealcala.
everyone who worked there.
Savage handled the collection of evidence from the van
When David Westerfield was identified and arrested
as a suspect, his defense team demanded he be given a
speedy trial. Many speculated the reasoning behind this
Dam home, while Lealcala collected evidence from
Westerfield’s home, his motorhome and his SUV.
It was in the motorhome that Lealcala lifted the
was simple: the more time the San Diego Police Depart-
small fingerprint that belonged to Danielle. Having the
ment’s Crime Laboratory had to process the evidence,
two specialists work separate locations was one way to
the stronger the District Attorney’s case against the
head off possible defense issues about cross contamination.
accused would become.
Assisting with photography and evidence collection
The lab only had two months to analyze more than
400 pieces of evidence – nearly an impossible task.
The defense “woefully underestimated the talent
and dedicated professionals at the San Diego Police Lab,”
Volume 31 Number 2
Winter 2002-2003
were Forensic Specialists Gary Dorsett and Larry Fregia.
Because polygraphs are not admissible in court, when
Interview and Interrogation Specialist Paul Redden took
the stand, he had to phrase his testimony as if he’d only
Photo
by Linda
O’Neil
37
interviewed Westerfield.
Since Westerfield abstained from taking the stand
in his own defense, Redden’s taped interview was the
only time the jury heard Westerfield’s voice, with the
possible exception of when he pled, “not guilty.” Interview
into the complex world of forensic science. On the day
the jury verdict was read, Court T.V. reported 1.2 million
viewers across the United States tuned in.
The interest in this area has only increased with
the popularity of CBS’s hit television show CSI, short for
and Interrogation Specialists Tom Kinney and Mike Fisher,
Crime Scene Investigation. Millions of viewers have been
and Detective Tim Hall conducted many of the other
educated on the reactive effects of luminol, the DNA
polygraph examinations in the case.
properties of epithelial cells, and the gruesome details
Jennifer Shen’s testimony tied fiber evidence found
of autopsy. But does the show accurately portray the kind
on Danielle’s body to Westerfield’s environment. Shen,
of day-to-day casework that goes on in a real crime lab?
Tanya Dulaney and Mel Kong, criminalists in the Trace
Yes and no, says Grubb.
Evidence Unit, worked extensively on the case – Shen
As far as the bizarre plot-lines of CSI, the truth, as the
and Dulaney even after the trial started. “They finally
cliché goes, is often stranger than fiction. According to
had to stop so that they could consolidate the information
Grubb, the lab has had its share of bizarre cases. In the
they had into reports and get ready to testify,” says Grubb.
storeroom of one suspect’s apartment, Grubb explains,
Grubb describes Latent Print Examiner Jeff Graham
a saw with chunks of flesh attached was found. A sub-
as having worked on Westerfield exclusively for months.
sequent search revealed the severed fingers of one of his
“He made a great effort to identify the fingerprint from
victims. Another case involved a man who told detectives
the bedroom in the motorhome, even before having
that the reason his shirt was covered with blood was
Danielle’s body for comparison. Jeff assembled a nearly
because he’d recently had…relations…with a chicken!
complete set of Danielle van Dam’s fingerprints from
The Crime Lab confirmed that the blood wasn’t human.
fingerprint traces left on items in her room.
“Ultimately Jeff (Graham) was able to use Danielle’s
But CSI, “doesn’t accurately represent what we do,”
says Grubb. “Although the technology they use is all based
fingers for comparison after her body was found. His
in reality, the jobs they do in that show are mythical. Those
testimony was extremely effective, placing Danielle,
“crime scene investigators” are doing the scene work of
possibly alive, on Westerfield’s motorhome bed. He had
forensic specialists, doing the detectives job of interviewing
support from several other latent print examiners in the
suspects, and doing the criminalists’ job of laboratory
case, including Ed Palma, Mary Widner-Brown, Leta Houle
analysis.”
and Roger Worthington.”
Forensic Biology Unit criminalist Sean Soriano screened
The other issue that’s often not presented on CSI,
is how cases can affect the laboratory staff on a personal
Westerfield’s clothes and bedding for the presence of
level. During the Westerfield case, Grub says, “The staff
blood, and testified to finding the bloodstain on the jacket.
involved was as gripped by the case as the rest of the
Annette Peer, a criminalist who participated in the
community. Most of the people who worked on the case
search of Westerfield’s home and motorhome, analyzed
are parents themselves, and it was difficult to avoid
the DNA of the bloodstains on the jacket and on the
thinking of our own children and their safety. We pride
motorhome carpet, concluding that they had come
ourselves, however, on remaining objective.”
from Danielle van Dam.
Also testifying was criminalist David Cornacchia who
When the guilty verdict came in, Grubb says, “there
were a number of us in the lab gathered around a tele-
performed DNA analysis on items from Danielle’s bed-
vision monitor in our Polygraph Unit. The mood was one
room. Criminalist Shawn Montpetit chemically processed
of relief more than cheer. We were poised to conduct
Westerfield’s motorhome, searching for additional blood
additional analysis of trace evidence had the jury been
traces.
unable to reach a verdict, but (were) relieved we were not
Coordinating the efforts of lab personnel during the
going to have to pursue further work in the case.”
LEQ
Westerfield trial was Supervising Criminalist Jim Stam,
who maintained communication within the group and
M. Margaret Neil is a freelance writer and employee of the
documented the chain of custody.
District Attorney’s office.
As the trial progressed, the nation got a glimpse
38
Law Enforcement Quarterly
PROFILE IN LAW ENFORCEMENT
by M. Margaret Neil
Fighting Drugs And
Making A Difference
Gary Hudson, Special Agent in Charge
Bureau of Narcotics Enforcement
What
assignment
most deeply
affected
you?
Leading
Gary Hudson began his law enforcement career with
the Drug
a strong desire to help troubled youth. At the tender age
Endangered
of 16, he worked as a student in a police youth program
Children program was among the most satisfying posts
that he credits with keeping him, as well as other kids,
I have had in my entire career. When you remove a child
out of trouble.
from a drug environment, you truly make a difference.You
Summers cleaning fields of weeds and trash left a
get to see firsthand how quickly the child becomes attached
positive impression on him. He looked up to the officers
to you and how they relate to you. It just breaks my heart
who ran the program, and it made him want to provide
when I see how these children are treated by their
the same type of motivation some day.
parents.
After serving as a police officer in Jackson, Mississippi,
The DEC program inspired my wife and I to getting
and then in Long Beach, California, Hudson was hired
involved in the Orange County Social Services Adoption
by the California Department of Justice, Bureau of
Program. Working closely with the fine members of the
Narcotic Enforcement. His first assignment was in Orange
Orange County Children and Family Services and DEC
County. Two years later, he was promoted to Special Agent
Social Workers, we have since adopted a child. I would
Supervisor where he was in charge of the Diversion Team,
like to believe that we will make a huge difference in
the Financial Team, the Clandestine Laboratory Enforce-
this child’s life.
ment Team and the Drug Endangered Children Team.
He was promoted to Special Agent in Charge,
responsible for state narcotic enforcement in San Diego
and Imperial Counties in August 2000.
The Bureau of Narcotic Enforcement provides support
Attorney General Lockyer says, “Where meth goes, violence and destruction follows.” What do you think?
Meth is a huge problem in California and in the U.S.
San Diego and Imperial Counties have a lower rate of labs
to law enforcement agencies in combating drugs, illegal
seizures than surrounding counties. I believe that the
weapons, and violent crime in California. There are nine
more we teach clandestine laboratory recognition and
regional offices and 53 task forces throughout the state.
awareness to the general public, (the more) the seizure
Each office has several narcotic investigation programs.
rate will increase in both counties.
Do you have any special training or philosophy that
What do you consider to be the biggest challenge of
makes your leadership skills unique?
your career?
I learned my supervisor skills from my worst super-
The biggest challenge of my career is being able to
visors throughout my career. I saw how badly I was treated
spend enough time with my family. I have worked in an
and I said to myself, “If I ever become a supervisor I will
undercover capacity; I have worked as a clandestine
not treat my people the way I was treated.” I also used
laboratory response team/ DEC response team supervisor;
the good supervisors as mentors. I continue to learn
and now a manager of the Regional Office responsible
from these mentors. I also like to manage by walking
for San Diego and Imperial County. It is a “juggling act”
around – I feel it makes me more accessible.
to get more hours out of the day.
Volume 31 Number 2
Winter 2002-2003
LEQ
Photo
by Linda
O’Neil
39
There are individuals who are so toxic
that their very presence threatens us all.
There is an old saying about monsters that we
ought to heed: You don’t know where they’re going,
but you can always tell where they’ve been. Once an
offender has shown us he has clearly embarked on
the predator’s bloody road, it is our responsibility to
make that road a dead end.
If a person has desires or fantasies about sexually
exploiting children, that individual may be sick. But
if the individual chooses to act upon those feelings,
that conduct is evil. People are not what they think;
they are what they do.
Sickness is a condition. Evil is a behavior.
Sickness happens. Evil is inflicted.
Sickness should be treated. Evil must be fought.
From the writings of Andrew Vachss,
a nationally recognized author
and attorney whose only clients
are children.
Office of the District Attorney
County of San Diego
330 West Broadway, Suite 1300
San Diego, California 92101
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