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The Brave New World of Law Enforcement Investigation

The digital age has changed everything in the world around us and law Enforcement is no exception. Back in the old days, police investigation procedures were limited to talking with potential witnesses, taking lots of photographs, lifting fingerprints, forensic analysis of blood, and that sort of thing. Now law enforcement has investigation tools that make their job easier and make it harder for the criminal to “get away with it.” But these tools present their own dangers to the public. As civil rights advocates warn, the brave new world of law enforcement tools endanger our civil liberties. I will discuss why this may be so in my next post but today, let’s review just a few of the new age law enforcement tools.

We might begin with DNA analysis, which was no doubt the first huge law enforcement tool of the digital age. We are all familiar with DNA analysis, but it’s pretty amazing to think that it has only been around since the mid-1980s. DNA has proven to be a very effective law enforcement tool and on the flip side, DNA evidence techniques have freed individuals who were wrongly convicted of a crime.

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NEW CALIFORNIA LAW PULLS IN THE REINS ON LAW ENFORCEMENT’S SEIZING OF PROPERTY

You have probably heard of civil asset forfeiture but did you know that under this procedure law enforcement can confiscate property—be it money, a house, a vehicle, or any other asset—without any due process to the owner of the property. The property can simply be seized under civil asset forfeiture laws on the “suspicion” that the asset was gained by or used for a criminal enterprise.

While the owner of the asset can petition for the return of asset, the petition must be filed within a very short period of time and the process is daunting. In the end, the government can refuse to return the asset on the continuing suspicion that the asset is connected with criminal activity. And guess what: Even if the owner of the asset is never convicted of any crime as it relates to the suspected criminal activity for which the asset was seized, the asset is not returned to the owner.

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In earlier blog posts, I discussed the CalGang Database, a database collected and used by law enforcement throughout California. I discussed how this database is kept in secret and many who are included in the database are unaware of their inclusion and worse yet, many who are listed in the database are listed in error.

In a victory for the civil liberties and social justice organizations that pushed for it, a new law was just signed by the governor, to go into effect on January 1, 2018, that is designed to end the secrecy of this database and give those on the database an opportunity to contest inclusion of their name on the database. This is an important piece of legislation because inclusion on this database can have serious consequences and affects the due process rights of those who have been placed on a gang database.

As I previously discussed in earlier blog posts, a person might be put in a gang database for simply being in detained by the police in a certain neighborhood or even put on the database in error. For those later arrested for a crime, being in the database will, in many cases, result in the prosecution alleging gang enhancements, which necessarily carry greater punishments than the underlying crime itself. For undocumented immigrants, being included on a gang database can be cause for their deportation without hearing, even if they are mis-classified on the database.

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In 2015, Orange County Superior Court Judge Thomas Goethals removed the Orange County District Attorney’s Office from the trial of Scott Dekraai, who was accused and since convicted of the worst mass murder in Orange County. Judge Goethals booted the District Attorney’s Office from the case after an investigation initiated by the defendant’s lawyer revealed that law enforcement investigating the case withheld material evidence from the court. Law enforcement officers are agents for the District Attorney and as such, the judge found that the District Attorney’s Office was responsible for the illegal withholding of evidence in the trial. Although Judge Goethals found that the district attorneys on the case had committed serious misconduct, but concluded that their actions were not intentional.

Some legal observers would beg to differ with the judge’s ruling. Many defense attorneys have long suspected, or even known, that the District Attorney’s Office regularly withholds exculpatory evidence at trial. Sometimes a trial seems more like a competition, with the District Attorney out to win at all costs, than the right guaranteed by our Constitution for a fair and impartial presentation of facts to be heard and decided by a trial of peers. This is not only a violation of the defendant’s due process rights but it perverts the criminal justice system. The withholding or distortion of evidence denies a defendant a fair trial and, worse—it can (and has) result in the conviction of an innocent person.

Jumpstarted by the events in Judge Goethals courtroom, Assembly Bill 1909, was signed into law by Governor Brown last month. This law, which will be added by a subdivision to Penal Code section 141, punishes prosecutors who are found to abuse their power by “intentionally and in bad faith” tampering or withholding evidence in a criminal trial. The new law requires that the prosecutor knew the evidence was “relevant and material to the outcome of the case” and acted with “specific intent.” In the Orange County case, Judge Goethals found that the district attorneys did not act intentionally. So even though this new law was prompted by the actions in that trial, the district attorneys involved would not be prosecuted under this new law.

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Zulmai Nazarzai was never convicted of a crime; he was never even charged with a crime. Yet he has been sitting in solitary confinement in the Orange County jail for six years now. That is a long time to spend in solitary confinement.

In 2010, the California attorney general filed a civil lawsuit against Mr. Nazarzai accusing him of running a boiler-room telemarketing scam that bilked elderly people to the tune of $2 million. This was a civil lawsuit; the attorney general did not charge Mr. Nazarzai with any criminal acts. The attorney general won the civil suit and Mr. Nazarzai was ordered to pay a hefty sum of $4 million in penalties and restitution. It was known to the attorney general that Mr. Nazarzai had withdrawn $360,540 from his business bank account. The judge who made the restitution order, ordered Mr. Nazarzai to turn over those funds.

Mr. Nazarzai told the judge he did not have the money. He actually told the judge some absurd story about how the money was lost. The judge called his story incredulous and held Mr. Nazarzai in contempt of court for willful disobedience of the court’s order. (Code of Civil Procedure §1209 (a)(5))

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Beginning in the 1970’s, California police departments started a system of filling out 5- by 7-inch index cards, known as “field cards”, whenever the officer encountered a person suspected of having a gang affiliation. The cards included the person’s name, their “gang moniker”, gang affiliation and other identifying information. Back in those days, the cards were filed in cabinets. Cops still collect field cards but these days, the information is placed in a statewide database called CalGang.

With the passage of the STEP Act in 1988, prosecutors were able to add gang charges and enhances to charges where the conduct was alleged to be gang related. Upon the creation of the CalGang database, law enforcement and prosecutors had a new tool to quickly identify and prosecute gang-related crime. With CalGang, officers in the field are able to instantly determine whether an individual has been identified to have gang ties—no more digging through filing cabinets.

Not surprisingly, law enforcement and prosecutors are enthusiastic users of CalGang: Law enforcement feeds the database, sometimes with dubious information, and prosecutors use it at every opportunity. Today the database has grown to include more than 150,000 names and a recent state audit found that individuals as young as nine-years-old are included in the database. CalGang casts a wide net and sometimes individuals are included in the database simply for being in the wrong area.

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Look up in the sky! No, it’s not Superman, it’s a drone. Well, maybe some of you are too young to get the reference but drones are becoming a modern version of Superman. They can, and are, being used to ferret out criminal activity and fight forest fires. They are also becoming a menace.

Drones were first offered for sale to private individuals about six years ago and until recently have been subject to few regulations. As their use become ever more common among hobbyist and for commercial purposes (photography, reconnaissance   services, etc.) can the law be far behind?

As of August 29, 2016 a commercial drone operator must follow the new set of FAA operational rules ( Part 107 of the Federal Aviation Regulations). Among the requirements are that the operator must be at least 16 years old and have a “remote pilot airman certificate” as well as pass TSA vetting. The drone must fly no more than 400 feet above ground level and below 100 mph. Fortunately for the rest of us, a drone being used for commercial purposes must not fly over people. (I don’t know how that would work for a photography drone operator filming a wedding, for example.) You know those Amazon packages that are going to be delivered by drone? Not happening under Part 107. While the new regulations permit delivery by drone, the rule also requires that the drone remain in the operator’s sight at all times.

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CalGang Database Contains Numerous Errors and Incorrect Information

Beginning in the 1970’s, California police departments started a system of filling out 5- by 7-inch index cards, known as “field cards”, whenever the officer encountered a person suspected of having a gang affiliation. The cards included the person’s name, their “gang moniker”, gang affiliation and other identifying information. Back in those days, the cards were filed in cabinets. Cops still collect field cards but these days, the information is placed in a statewide database called CalGang.

With the passage of the STEP Act in 1988, prosecutors were able to add gang charges and enhances to charges where the conduct was alleged to be gang related. Upon the creation of the CalGang database, law enforcement and prosecutors had a new tool to quickly identify and prosecute gang-related crime. With CalGang, officers in the field are able to instantly determine whether an individual has been identified to have gang ties—no more digging through filing cabinets.

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WALKING THE GANGPLANK

In 1988, the California Legislature enacted the STEP Act; STEP stands for “Street Terrorism and Enforcement.” This legislation added penalties for participation in a street gang (Penal Code §186.22(a)) and provided for sentencing enhancements [1] (Penal Code 186.22(b)) to a felony conviction that is found to be connected to criminal street gang activity. Since the STEP Act was enacted, committing a crime as a gang member or even just for the “benefit” of a street gang really is like walking the gangplank because the Act can add decades on to a defendant’s prison sentence.

STEP enforcement is law enforcement’s—and by extension the prosecutor’s—own little fiefdom. Once labeled a gang member by law enforcement, always a gang member.

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NUTTY THIEVES

My father always reminded me that “money doesn’t grow on trees.” Well, that’s not exactly true.

In California’s Central Valley thieves with computer hacking skills have stolen millions of dollars of tree nuts. Yes, tree nuts — like almonds, pistachios, and cashews. These high-tech thieves hack into shipping chain databases and by changing or using the shipping information they are able to pick up nut cargo loads from unsuspecting nut growers or hijack the load, using no force at all, while the nuts are in transit.

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