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California Summer 2011 P eaceOfficer PRST.STD. U.S. POSTAGE PAID PERMIT NO. 2840 SACRAMENTO, CA 2011 COPSWEST The Tactical Advantages of Twitter OCSD and it’s Tactical Challenges
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CPOA California Peace Officer Summer

Mar 20, 2016

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Page 1: CPOA California Peace Officer Summer

California

Summer 2011

PeaceOfficer

PR

STS

TD

US

PO

STA

GE

PAID

PE

RM

IT NO

2840S

AC

RA

ME

NTO

CA

2011 COPSWEST

The Tactical Advantages of Twitter

OCSD and itrsquos Tactical Challenges

California Peace Officer | Summer 2011 | 3

FEATURES6 Legislative Update

10 OCSD and its Technical Challenges

12 The Tactical Advantages of Twitter

14 Familial DNA Searching

17 A Look Back at CPOArsquos Past Presidents

18 CPOArsquos 91st Annual Leadership Summit

20 2011 COPSWEST

22 Meet the New Executive Officers

DEPARTMENTS4 Presidentrsquos Message

5 Executive Directorrsquos Message

23 Legal Services Program News

24 General Counsel

26 Advertiser Index

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

The publication of any advertisement by CPO or the California Peace Officersrsquo Association is neither an endorsement of the advertiser nor of the products or services advertised Neither CPO nor CPOA are responsible for any claims made in an advertisement published in California Peace Officer

copy California Peace Officersrsquo Association All right reserved The contents of this publication may not be reproduced in whole or in part without prior written consent of the publisher

The California Peace Officersrsquo Association is committed to developing progressive leadership for the California law enforcement community This is accomplished by organizational networking professional development technology advancement and public policy advocacy The purpose of California Peace Officer is to inform and educate CPOA members to promote professional development to generate interest in association activities and to foster a cohesive and involved membership

table of contents

2011-2012 Executive Committee

PresidentSandra SpagnoliChiefSan Leandro Police Departmentsspagnolisanleandroorg

1st Vice PresidentRick BrazielChiefSacramento Police Departmentrbrazielpdcityofsacramentoorg

2nd Vice PresidentRich LuceroCaptainFremont Police Departmentrlucerocifremontcaus

3rd Vice PresidentMark YokoyamaChief of PoliceAlhambra Police Departmentmyokoyamaalhambrapdorg

4th Vice President Scott JonesSheriffSacramento Co Sheriffrsquos Departmentsjonessacsheriffcom

Treasurer David McGillLieutenantLos Angeles Police Departmentmcgilldlapdlacityorg

Immediate Past President Jim McDonnellChiefLong Beach Police DepartmentJimmcdonnelllongbeachgov

Chairs Regional Advisory CouncilJP BadelCaptainLodi Police Departmentjpbadelpdlodigov

Brian EvanskiCaptain El Segundo Police Department bevanskielsegundoorg

Parliamentarian Edward PapeLieutenantLos Angeles Police Department31313lapdlacityorg

Executive Director Carol Leveroni CAECleveronicpoaorg

PublisherCalifornia Peace Officersrsquo Association555 Capitol Mall Suite 1495Sacramento CA 95814(916) 263-0541Fax (916) 520-2277E-mail cpoacpoaorgwwwcpoaorg

Managing EditorTricia Schomus(916) 263-0541tschomuscpoaorg

EditorLisa Kopochinski(916) 481-0265lisakopsbcglobalnet

Advertising ManagerCici TrinoAssociation Outsource Services(916) 990-9999Fax (916) 990-9991cicitaosincbiz

Layout and DesignLori Mattas

Printing and MailingCopeland Printing

4 | Summer 2011 | California Peace Officer

Leading Through the New Normal

I t is an honor to be appointed as the 91st president of the California Peace Officersrsquo Association Just last month CPOA hosted the 91st Annual Leadership Summit in San Diego which delivered top-notch training networking opportunities and vendor displays

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

Over the next year I am committed to focusing on the public safety issues that impact our members the most We are facing the new normal in public safety and as leaders must adapt to the increaseshift in workload and budget and staffing reductions by looking ahead and planning for the extraordinary changes in our profession The next few months will be critical for law enforcement and we need to focus our efforts on the state budget reform policies and public safety impact related to realignment We canrsquot do this alone and continue the commitment to collaborate with other statewide organizations including California Police Chiefs Association and California State Sheriffsrsquo Association to advocate in the best interest of public safety in California

CPOArsquos legislative priorities for 2011 include the followingbull Protect law enforcement funding ensure that there are appropriate levels of funding for law

enforcement and policy reforms are tied to adequate and permanent funding bull Pension sustainability pension discussions should take into account current benefits pro-

vided to public safety employees and that any reform doesnrsquot cause harmful disruption to the composition of the work force for current and future employees

bull Support adequate funding of POST and their reimbursement programs CPOA opposed the reduction of $208 Million in POST funding and as of the May revise POST has been removed from realignment and fully funded

bull Ensure the safety of police officers remains a priority in policy decisions in the United States last year we saw a 40-percent increase in the number of officers killed in the line of duty and year-to-date in 2011 has been an even deadlier year Policy decisions should enhance the protection of police officers who are protecting the communities in which they serveIn August the CPOA board of directors will meet for the purposes of strategic planning

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

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

Please provide feedback to cpoacpoaorg r

presidentrsquos message

By Sandra Spagnoli Chief of Police San Leandro Police Department

California Peace Officer | Summer 2011 | 5

Help Me Out

I rsquom flummoxed And I know it is serious because I donrsquot use the word lsquoflummoxedrsquo So help me out here

In the three-and-a-half years Irsquove been tasked with the responsibility of managing the Associationmdashduring which Irsquove consistently heard about the benefits of being a mem-ber especially during the years of leadership growth and upward mobility that many of our members seekmdashI still frequently run into law enforcement individuals who say ldquoIrsquove never heard of CPOArdquo or ldquoI didnrsquot know that CPOA was open to just anyonehellipI thought it was only for chiefs and sheriffsrdquo

ReallyOkay so letrsquos review CPOA has been around for 91 years It birthed the California

Police Chiefs Association has historically had a close relationship with the California State Sheriffsrsquo Association and has been a part of the triumvirate of law enforcement groups that is continually called to be part of the public safety conversation at the Capitol It has prob-ably seen more individuals move up through leadership command postsmdashand with direct benefit of their association membership networking contactsmdashthan could be accounted for

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

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

So how is it possible that law enforcement individuals out there donrsquot know about us or what our purpose is

Well obviously this is going to be a discussion we are taking on as a staff We will be reviewing our marketing plan and exploring what channels may be more effective to mak-ing inroads to agencies The board under new president Sandra Spagnoli will also be looking at the associationrsquos program of work as a whole during their August board meet-ingretreat in order to determine what the focus of the association should be

But herersquos the thinghellipit is going to take you tooBuilding on what Irsquove already statedhellipCPOA is an association of collaboration and

networking It is what makes this association unique You donrsquot need to be just a chief (like CPCA) or just a sheriff (like CSSA) in order to be a member You just need to want to be better To advance your career andor your profession

When was the last time you told someone about CPOA Grab a colleague and take them to a state or region meetingtraining Better yet take two Spread the CPOA story Tell them how their participation can enhance their careers And for those members who are at the pinnacle of their careers remember that you have a responsibility to prepare your agency for the next generation of leadersmdashso budget for their membership and participa-tion

So help me out By this time next year (at the conclusion of our May 2012 Leadership Summit in Montereymdashplan for it) I want to be writing that we doubled (nay tripled) our Summit attendance and that CPOA recognition is at an all-time high Whorsquos in r

By Carol Leveroni CAE

executive directorrsquos message

6 | Summer 2011 | California Peace Officer

T he temperature may be high during these summer months but there is another type of heat that is being felt by the Gover-

nor and legislators as they try to craft a budget solution The June 15th constitutional deadline for legislators to send the Governor a budget has come and gone In an unprecedented move the Legislature actually submitted a budget on time The question of whether it was ldquorealrdquo budget with-out accounting gimmicks was debated in political circles And in light of mandate established by Proposition 26 to suspend legislator pay for fail-ure to submit a balanced budget by the deadline many felt as if it was a ploy to merely deliver something to continue to get paid Regardless of the various views the budget was a majority-vote budget that included among other things educa-tion deferrals hits to redevelopment agencies and approximately $7 billion in borrowing It was vetoed by Governor Brown in less than 16 hours In his veto message the Governor stated

ldquoWe canmdashand mustmdashdo better A bal-anced budget is critical to our economic recovery I am once again calling on Republicans to allow the people of Cali-fornia to vote on tax extensions for a balanced budget and significant reforms They should also join Democrats in sup-porting job creation and ending tax breaks for out-of-state companies If they con-tinue to obstruct a vote we will be forced to pursue deeper and more destructive cuts to schools and public safetyndash a trag-edy for which Republicans will bear full responsibilityrdquoA $10 billion deficit still remains in Cali-

fornia and the July 30th expiration date on critical VLF funding is days away After exhaus-tive attempts to find four Republican votes to approve the necessary tax extensions the Gov-ernor and legislative Democrats have released another majority-vote budget plan This budget proposal retains roughly $49 billion in funding

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

The budget proposal is said to contain a tax swap that redirects 1 percent of the statewide sales tax to counties for realignment As you recall AB 109 was signed into law but is contingent on funding The law enforcement community has been adamant about three things 1) VLF fund-ing must be extended for critical programs 2) AB 109 must be fully funded prior to realignment going into effect and 3) funding must be guar-anteed and permanent To complicate matters a little more than one month ago the Supreme Court issued a decision in the Brown v Plata case forcing the state to reduce its prison population by 33000 inmates over the next two years This strongly emphasizes the need for full funding for realignment

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

Legislative UpdateBy Jennifer Wada

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

legislative update

California Peace Officer | Summer 2011 | 7

Legislative UpdateBy Jennifer Wada

Interoperable Communications Solutions

From the soldier on the battlefield to the deputy sheriff in Los Angeles the men and women who serve our nation depend on Raytheon to deliver interoperable communications that work the first time mdash and every time For daily operations or in times of crisis Raytheon introduces a reliable easy-to-use solution that ensures a unified real-time response across local public safety and federal agencies As a long-term employer in California with a proven legacy of customer commitment Raytheon is proud to serve those who so bravely and tirelessly serve us all

Communications you can count on

Because lives count on you

INNOVATION IN ALL DOMAINSVisit wwwraytheoncomKeyword CA2

copy 2011 Raytheon Company All rights reserved ldquoCustomer Success Is Our Missionrdquo is a registered trademark of Raytheon Company

8 | Summer 2011 | California Peace Officer

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

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

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

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

A $10 billion deficit

still remains in

California and the

July 30th expiration

date on critical

VLF funding is

days away

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California Peace Officer | Summer 2011 | 9

10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 2: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 3

FEATURES6 Legislative Update

10 OCSD and its Technical Challenges

12 The Tactical Advantages of Twitter

14 Familial DNA Searching

17 A Look Back at CPOArsquos Past Presidents

18 CPOArsquos 91st Annual Leadership Summit

20 2011 COPSWEST

22 Meet the New Executive Officers

DEPARTMENTS4 Presidentrsquos Message

5 Executive Directorrsquos Message

23 Legal Services Program News

24 General Counsel

26 Advertiser Index

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

The publication of any advertisement by CPO or the California Peace Officersrsquo Association is neither an endorsement of the advertiser nor of the products or services advertised Neither CPO nor CPOA are responsible for any claims made in an advertisement published in California Peace Officer

copy California Peace Officersrsquo Association All right reserved The contents of this publication may not be reproduced in whole or in part without prior written consent of the publisher

The California Peace Officersrsquo Association is committed to developing progressive leadership for the California law enforcement community This is accomplished by organizational networking professional development technology advancement and public policy advocacy The purpose of California Peace Officer is to inform and educate CPOA members to promote professional development to generate interest in association activities and to foster a cohesive and involved membership

table of contents

2011-2012 Executive Committee

PresidentSandra SpagnoliChiefSan Leandro Police Departmentsspagnolisanleandroorg

1st Vice PresidentRick BrazielChiefSacramento Police Departmentrbrazielpdcityofsacramentoorg

2nd Vice PresidentRich LuceroCaptainFremont Police Departmentrlucerocifremontcaus

3rd Vice PresidentMark YokoyamaChief of PoliceAlhambra Police Departmentmyokoyamaalhambrapdorg

4th Vice President Scott JonesSheriffSacramento Co Sheriffrsquos Departmentsjonessacsheriffcom

Treasurer David McGillLieutenantLos Angeles Police Departmentmcgilldlapdlacityorg

Immediate Past President Jim McDonnellChiefLong Beach Police DepartmentJimmcdonnelllongbeachgov

Chairs Regional Advisory CouncilJP BadelCaptainLodi Police Departmentjpbadelpdlodigov

Brian EvanskiCaptain El Segundo Police Department bevanskielsegundoorg

Parliamentarian Edward PapeLieutenantLos Angeles Police Department31313lapdlacityorg

Executive Director Carol Leveroni CAECleveronicpoaorg

PublisherCalifornia Peace Officersrsquo Association555 Capitol Mall Suite 1495Sacramento CA 95814(916) 263-0541Fax (916) 520-2277E-mail cpoacpoaorgwwwcpoaorg

Managing EditorTricia Schomus(916) 263-0541tschomuscpoaorg

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Printing and MailingCopeland Printing

4 | Summer 2011 | California Peace Officer

Leading Through the New Normal

I t is an honor to be appointed as the 91st president of the California Peace Officersrsquo Association Just last month CPOA hosted the 91st Annual Leadership Summit in San Diego which delivered top-notch training networking opportunities and vendor displays

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

Over the next year I am committed to focusing on the public safety issues that impact our members the most We are facing the new normal in public safety and as leaders must adapt to the increaseshift in workload and budget and staffing reductions by looking ahead and planning for the extraordinary changes in our profession The next few months will be critical for law enforcement and we need to focus our efforts on the state budget reform policies and public safety impact related to realignment We canrsquot do this alone and continue the commitment to collaborate with other statewide organizations including California Police Chiefs Association and California State Sheriffsrsquo Association to advocate in the best interest of public safety in California

CPOArsquos legislative priorities for 2011 include the followingbull Protect law enforcement funding ensure that there are appropriate levels of funding for law

enforcement and policy reforms are tied to adequate and permanent funding bull Pension sustainability pension discussions should take into account current benefits pro-

vided to public safety employees and that any reform doesnrsquot cause harmful disruption to the composition of the work force for current and future employees

bull Support adequate funding of POST and their reimbursement programs CPOA opposed the reduction of $208 Million in POST funding and as of the May revise POST has been removed from realignment and fully funded

bull Ensure the safety of police officers remains a priority in policy decisions in the United States last year we saw a 40-percent increase in the number of officers killed in the line of duty and year-to-date in 2011 has been an even deadlier year Policy decisions should enhance the protection of police officers who are protecting the communities in which they serveIn August the CPOA board of directors will meet for the purposes of strategic planning

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

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

Please provide feedback to cpoacpoaorg r

presidentrsquos message

By Sandra Spagnoli Chief of Police San Leandro Police Department

California Peace Officer | Summer 2011 | 5

Help Me Out

I rsquom flummoxed And I know it is serious because I donrsquot use the word lsquoflummoxedrsquo So help me out here

In the three-and-a-half years Irsquove been tasked with the responsibility of managing the Associationmdashduring which Irsquove consistently heard about the benefits of being a mem-ber especially during the years of leadership growth and upward mobility that many of our members seekmdashI still frequently run into law enforcement individuals who say ldquoIrsquove never heard of CPOArdquo or ldquoI didnrsquot know that CPOA was open to just anyonehellipI thought it was only for chiefs and sheriffsrdquo

ReallyOkay so letrsquos review CPOA has been around for 91 years It birthed the California

Police Chiefs Association has historically had a close relationship with the California State Sheriffsrsquo Association and has been a part of the triumvirate of law enforcement groups that is continually called to be part of the public safety conversation at the Capitol It has prob-ably seen more individuals move up through leadership command postsmdashand with direct benefit of their association membership networking contactsmdashthan could be accounted for

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

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

So how is it possible that law enforcement individuals out there donrsquot know about us or what our purpose is

Well obviously this is going to be a discussion we are taking on as a staff We will be reviewing our marketing plan and exploring what channels may be more effective to mak-ing inroads to agencies The board under new president Sandra Spagnoli will also be looking at the associationrsquos program of work as a whole during their August board meet-ingretreat in order to determine what the focus of the association should be

But herersquos the thinghellipit is going to take you tooBuilding on what Irsquove already statedhellipCPOA is an association of collaboration and

networking It is what makes this association unique You donrsquot need to be just a chief (like CPCA) or just a sheriff (like CSSA) in order to be a member You just need to want to be better To advance your career andor your profession

When was the last time you told someone about CPOA Grab a colleague and take them to a state or region meetingtraining Better yet take two Spread the CPOA story Tell them how their participation can enhance their careers And for those members who are at the pinnacle of their careers remember that you have a responsibility to prepare your agency for the next generation of leadersmdashso budget for their membership and participa-tion

So help me out By this time next year (at the conclusion of our May 2012 Leadership Summit in Montereymdashplan for it) I want to be writing that we doubled (nay tripled) our Summit attendance and that CPOA recognition is at an all-time high Whorsquos in r

By Carol Leveroni CAE

executive directorrsquos message

6 | Summer 2011 | California Peace Officer

T he temperature may be high during these summer months but there is another type of heat that is being felt by the Gover-

nor and legislators as they try to craft a budget solution The June 15th constitutional deadline for legislators to send the Governor a budget has come and gone In an unprecedented move the Legislature actually submitted a budget on time The question of whether it was ldquorealrdquo budget with-out accounting gimmicks was debated in political circles And in light of mandate established by Proposition 26 to suspend legislator pay for fail-ure to submit a balanced budget by the deadline many felt as if it was a ploy to merely deliver something to continue to get paid Regardless of the various views the budget was a majority-vote budget that included among other things educa-tion deferrals hits to redevelopment agencies and approximately $7 billion in borrowing It was vetoed by Governor Brown in less than 16 hours In his veto message the Governor stated

ldquoWe canmdashand mustmdashdo better A bal-anced budget is critical to our economic recovery I am once again calling on Republicans to allow the people of Cali-fornia to vote on tax extensions for a balanced budget and significant reforms They should also join Democrats in sup-porting job creation and ending tax breaks for out-of-state companies If they con-tinue to obstruct a vote we will be forced to pursue deeper and more destructive cuts to schools and public safetyndash a trag-edy for which Republicans will bear full responsibilityrdquoA $10 billion deficit still remains in Cali-

fornia and the July 30th expiration date on critical VLF funding is days away After exhaus-tive attempts to find four Republican votes to approve the necessary tax extensions the Gov-ernor and legislative Democrats have released another majority-vote budget plan This budget proposal retains roughly $49 billion in funding

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

The budget proposal is said to contain a tax swap that redirects 1 percent of the statewide sales tax to counties for realignment As you recall AB 109 was signed into law but is contingent on funding The law enforcement community has been adamant about three things 1) VLF fund-ing must be extended for critical programs 2) AB 109 must be fully funded prior to realignment going into effect and 3) funding must be guar-anteed and permanent To complicate matters a little more than one month ago the Supreme Court issued a decision in the Brown v Plata case forcing the state to reduce its prison population by 33000 inmates over the next two years This strongly emphasizes the need for full funding for realignment

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

Legislative UpdateBy Jennifer Wada

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

legislative update

California Peace Officer | Summer 2011 | 7

Legislative UpdateBy Jennifer Wada

Interoperable Communications Solutions

From the soldier on the battlefield to the deputy sheriff in Los Angeles the men and women who serve our nation depend on Raytheon to deliver interoperable communications that work the first time mdash and every time For daily operations or in times of crisis Raytheon introduces a reliable easy-to-use solution that ensures a unified real-time response across local public safety and federal agencies As a long-term employer in California with a proven legacy of customer commitment Raytheon is proud to serve those who so bravely and tirelessly serve us all

Communications you can count on

Because lives count on you

INNOVATION IN ALL DOMAINSVisit wwwraytheoncomKeyword CA2

copy 2011 Raytheon Company All rights reserved ldquoCustomer Success Is Our Missionrdquo is a registered trademark of Raytheon Company

8 | Summer 2011 | California Peace Officer

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

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

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

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

A $10 billion deficit

still remains in

California and the

July 30th expiration

date on critical

VLF funding is

days away

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California Peace Officer | Summer 2011 | 9

10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 3: CPOA California Peace Officer Summer

4 | Summer 2011 | California Peace Officer

Leading Through the New Normal

I t is an honor to be appointed as the 91st president of the California Peace Officersrsquo Association Just last month CPOA hosted the 91st Annual Leadership Summit in San Diego which delivered top-notch training networking opportunities and vendor displays

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

Over the next year I am committed to focusing on the public safety issues that impact our members the most We are facing the new normal in public safety and as leaders must adapt to the increaseshift in workload and budget and staffing reductions by looking ahead and planning for the extraordinary changes in our profession The next few months will be critical for law enforcement and we need to focus our efforts on the state budget reform policies and public safety impact related to realignment We canrsquot do this alone and continue the commitment to collaborate with other statewide organizations including California Police Chiefs Association and California State Sheriffsrsquo Association to advocate in the best interest of public safety in California

CPOArsquos legislative priorities for 2011 include the followingbull Protect law enforcement funding ensure that there are appropriate levels of funding for law

enforcement and policy reforms are tied to adequate and permanent funding bull Pension sustainability pension discussions should take into account current benefits pro-

vided to public safety employees and that any reform doesnrsquot cause harmful disruption to the composition of the work force for current and future employees

bull Support adequate funding of POST and their reimbursement programs CPOA opposed the reduction of $208 Million in POST funding and as of the May revise POST has been removed from realignment and fully funded

bull Ensure the safety of police officers remains a priority in policy decisions in the United States last year we saw a 40-percent increase in the number of officers killed in the line of duty and year-to-date in 2011 has been an even deadlier year Policy decisions should enhance the protection of police officers who are protecting the communities in which they serveIn August the CPOA board of directors will meet for the purposes of strategic planning

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

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

Please provide feedback to cpoacpoaorg r

presidentrsquos message

By Sandra Spagnoli Chief of Police San Leandro Police Department

California Peace Officer | Summer 2011 | 5

Help Me Out

I rsquom flummoxed And I know it is serious because I donrsquot use the word lsquoflummoxedrsquo So help me out here

In the three-and-a-half years Irsquove been tasked with the responsibility of managing the Associationmdashduring which Irsquove consistently heard about the benefits of being a mem-ber especially during the years of leadership growth and upward mobility that many of our members seekmdashI still frequently run into law enforcement individuals who say ldquoIrsquove never heard of CPOArdquo or ldquoI didnrsquot know that CPOA was open to just anyonehellipI thought it was only for chiefs and sheriffsrdquo

ReallyOkay so letrsquos review CPOA has been around for 91 years It birthed the California

Police Chiefs Association has historically had a close relationship with the California State Sheriffsrsquo Association and has been a part of the triumvirate of law enforcement groups that is continually called to be part of the public safety conversation at the Capitol It has prob-ably seen more individuals move up through leadership command postsmdashand with direct benefit of their association membership networking contactsmdashthan could be accounted for

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

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

So how is it possible that law enforcement individuals out there donrsquot know about us or what our purpose is

Well obviously this is going to be a discussion we are taking on as a staff We will be reviewing our marketing plan and exploring what channels may be more effective to mak-ing inroads to agencies The board under new president Sandra Spagnoli will also be looking at the associationrsquos program of work as a whole during their August board meet-ingretreat in order to determine what the focus of the association should be

But herersquos the thinghellipit is going to take you tooBuilding on what Irsquove already statedhellipCPOA is an association of collaboration and

networking It is what makes this association unique You donrsquot need to be just a chief (like CPCA) or just a sheriff (like CSSA) in order to be a member You just need to want to be better To advance your career andor your profession

When was the last time you told someone about CPOA Grab a colleague and take them to a state or region meetingtraining Better yet take two Spread the CPOA story Tell them how their participation can enhance their careers And for those members who are at the pinnacle of their careers remember that you have a responsibility to prepare your agency for the next generation of leadersmdashso budget for their membership and participa-tion

So help me out By this time next year (at the conclusion of our May 2012 Leadership Summit in Montereymdashplan for it) I want to be writing that we doubled (nay tripled) our Summit attendance and that CPOA recognition is at an all-time high Whorsquos in r

By Carol Leveroni CAE

executive directorrsquos message

6 | Summer 2011 | California Peace Officer

T he temperature may be high during these summer months but there is another type of heat that is being felt by the Gover-

nor and legislators as they try to craft a budget solution The June 15th constitutional deadline for legislators to send the Governor a budget has come and gone In an unprecedented move the Legislature actually submitted a budget on time The question of whether it was ldquorealrdquo budget with-out accounting gimmicks was debated in political circles And in light of mandate established by Proposition 26 to suspend legislator pay for fail-ure to submit a balanced budget by the deadline many felt as if it was a ploy to merely deliver something to continue to get paid Regardless of the various views the budget was a majority-vote budget that included among other things educa-tion deferrals hits to redevelopment agencies and approximately $7 billion in borrowing It was vetoed by Governor Brown in less than 16 hours In his veto message the Governor stated

ldquoWe canmdashand mustmdashdo better A bal-anced budget is critical to our economic recovery I am once again calling on Republicans to allow the people of Cali-fornia to vote on tax extensions for a balanced budget and significant reforms They should also join Democrats in sup-porting job creation and ending tax breaks for out-of-state companies If they con-tinue to obstruct a vote we will be forced to pursue deeper and more destructive cuts to schools and public safetyndash a trag-edy for which Republicans will bear full responsibilityrdquoA $10 billion deficit still remains in Cali-

fornia and the July 30th expiration date on critical VLF funding is days away After exhaus-tive attempts to find four Republican votes to approve the necessary tax extensions the Gov-ernor and legislative Democrats have released another majority-vote budget plan This budget proposal retains roughly $49 billion in funding

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

The budget proposal is said to contain a tax swap that redirects 1 percent of the statewide sales tax to counties for realignment As you recall AB 109 was signed into law but is contingent on funding The law enforcement community has been adamant about three things 1) VLF fund-ing must be extended for critical programs 2) AB 109 must be fully funded prior to realignment going into effect and 3) funding must be guar-anteed and permanent To complicate matters a little more than one month ago the Supreme Court issued a decision in the Brown v Plata case forcing the state to reduce its prison population by 33000 inmates over the next two years This strongly emphasizes the need for full funding for realignment

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

Legislative UpdateBy Jennifer Wada

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

legislative update

California Peace Officer | Summer 2011 | 7

Legislative UpdateBy Jennifer Wada

Interoperable Communications Solutions

From the soldier on the battlefield to the deputy sheriff in Los Angeles the men and women who serve our nation depend on Raytheon to deliver interoperable communications that work the first time mdash and every time For daily operations or in times of crisis Raytheon introduces a reliable easy-to-use solution that ensures a unified real-time response across local public safety and federal agencies As a long-term employer in California with a proven legacy of customer commitment Raytheon is proud to serve those who so bravely and tirelessly serve us all

Communications you can count on

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INNOVATION IN ALL DOMAINSVisit wwwraytheoncomKeyword CA2

copy 2011 Raytheon Company All rights reserved ldquoCustomer Success Is Our Missionrdquo is a registered trademark of Raytheon Company

8 | Summer 2011 | California Peace Officer

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

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

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

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

A $10 billion deficit

still remains in

California and the

July 30th expiration

date on critical

VLF funding is

days away

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Additional information available reference wwwfleetchryslercompolice specifications guide upfitters guide Chrysler Dodge and HEMI are registered trademarks of Chrysler LLC Fleet operations is a division of Chrysler LLC Based on a comparison of the HEMIreg powered Dodge Charger Police Vehicle measured against the Ford Police Interceptor and the Chevrolet Impala Police Vehicle Offer expires 93111

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10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

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Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

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16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 4: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 5

Help Me Out

I rsquom flummoxed And I know it is serious because I donrsquot use the word lsquoflummoxedrsquo So help me out here

In the three-and-a-half years Irsquove been tasked with the responsibility of managing the Associationmdashduring which Irsquove consistently heard about the benefits of being a mem-ber especially during the years of leadership growth and upward mobility that many of our members seekmdashI still frequently run into law enforcement individuals who say ldquoIrsquove never heard of CPOArdquo or ldquoI didnrsquot know that CPOA was open to just anyonehellipI thought it was only for chiefs and sheriffsrdquo

ReallyOkay so letrsquos review CPOA has been around for 91 years It birthed the California

Police Chiefs Association has historically had a close relationship with the California State Sheriffsrsquo Association and has been a part of the triumvirate of law enforcement groups that is continually called to be part of the public safety conversation at the Capitol It has prob-ably seen more individuals move up through leadership command postsmdashand with direct benefit of their association membership networking contactsmdashthan could be accounted for

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

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

So how is it possible that law enforcement individuals out there donrsquot know about us or what our purpose is

Well obviously this is going to be a discussion we are taking on as a staff We will be reviewing our marketing plan and exploring what channels may be more effective to mak-ing inroads to agencies The board under new president Sandra Spagnoli will also be looking at the associationrsquos program of work as a whole during their August board meet-ingretreat in order to determine what the focus of the association should be

But herersquos the thinghellipit is going to take you tooBuilding on what Irsquove already statedhellipCPOA is an association of collaboration and

networking It is what makes this association unique You donrsquot need to be just a chief (like CPCA) or just a sheriff (like CSSA) in order to be a member You just need to want to be better To advance your career andor your profession

When was the last time you told someone about CPOA Grab a colleague and take them to a state or region meetingtraining Better yet take two Spread the CPOA story Tell them how their participation can enhance their careers And for those members who are at the pinnacle of their careers remember that you have a responsibility to prepare your agency for the next generation of leadersmdashso budget for their membership and participa-tion

So help me out By this time next year (at the conclusion of our May 2012 Leadership Summit in Montereymdashplan for it) I want to be writing that we doubled (nay tripled) our Summit attendance and that CPOA recognition is at an all-time high Whorsquos in r

By Carol Leveroni CAE

executive directorrsquos message

6 | Summer 2011 | California Peace Officer

T he temperature may be high during these summer months but there is another type of heat that is being felt by the Gover-

nor and legislators as they try to craft a budget solution The June 15th constitutional deadline for legislators to send the Governor a budget has come and gone In an unprecedented move the Legislature actually submitted a budget on time The question of whether it was ldquorealrdquo budget with-out accounting gimmicks was debated in political circles And in light of mandate established by Proposition 26 to suspend legislator pay for fail-ure to submit a balanced budget by the deadline many felt as if it was a ploy to merely deliver something to continue to get paid Regardless of the various views the budget was a majority-vote budget that included among other things educa-tion deferrals hits to redevelopment agencies and approximately $7 billion in borrowing It was vetoed by Governor Brown in less than 16 hours In his veto message the Governor stated

ldquoWe canmdashand mustmdashdo better A bal-anced budget is critical to our economic recovery I am once again calling on Republicans to allow the people of Cali-fornia to vote on tax extensions for a balanced budget and significant reforms They should also join Democrats in sup-porting job creation and ending tax breaks for out-of-state companies If they con-tinue to obstruct a vote we will be forced to pursue deeper and more destructive cuts to schools and public safetyndash a trag-edy for which Republicans will bear full responsibilityrdquoA $10 billion deficit still remains in Cali-

fornia and the July 30th expiration date on critical VLF funding is days away After exhaus-tive attempts to find four Republican votes to approve the necessary tax extensions the Gov-ernor and legislative Democrats have released another majority-vote budget plan This budget proposal retains roughly $49 billion in funding

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

The budget proposal is said to contain a tax swap that redirects 1 percent of the statewide sales tax to counties for realignment As you recall AB 109 was signed into law but is contingent on funding The law enforcement community has been adamant about three things 1) VLF fund-ing must be extended for critical programs 2) AB 109 must be fully funded prior to realignment going into effect and 3) funding must be guar-anteed and permanent To complicate matters a little more than one month ago the Supreme Court issued a decision in the Brown v Plata case forcing the state to reduce its prison population by 33000 inmates over the next two years This strongly emphasizes the need for full funding for realignment

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

Legislative UpdateBy Jennifer Wada

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

legislative update

California Peace Officer | Summer 2011 | 7

Legislative UpdateBy Jennifer Wada

Interoperable Communications Solutions

From the soldier on the battlefield to the deputy sheriff in Los Angeles the men and women who serve our nation depend on Raytheon to deliver interoperable communications that work the first time mdash and every time For daily operations or in times of crisis Raytheon introduces a reliable easy-to-use solution that ensures a unified real-time response across local public safety and federal agencies As a long-term employer in California with a proven legacy of customer commitment Raytheon is proud to serve those who so bravely and tirelessly serve us all

Communications you can count on

Because lives count on you

INNOVATION IN ALL DOMAINSVisit wwwraytheoncomKeyword CA2

copy 2011 Raytheon Company All rights reserved ldquoCustomer Success Is Our Missionrdquo is a registered trademark of Raytheon Company

8 | Summer 2011 | California Peace Officer

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

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

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

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

A $10 billion deficit

still remains in

California and the

July 30th expiration

date on critical

VLF funding is

days away

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Additional information available reference wwwfleetchryslercompolice specifications guide upfitters guide Chrysler Dodge and HEMI are registered trademarks of Chrysler LLC Fleet operations is a division of Chrysler LLC Based on a comparison of the HEMIreg powered Dodge Charger Police Vehicle measured against the Ford Police Interceptor and the Chevrolet Impala Police Vehicle Offer expires 93111

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California Peace Officer | Summer 2011 | 9

10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

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Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

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16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

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COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

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DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

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POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

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resource guide

Page 5: CPOA California Peace Officer Summer

6 | Summer 2011 | California Peace Officer

T he temperature may be high during these summer months but there is another type of heat that is being felt by the Gover-

nor and legislators as they try to craft a budget solution The June 15th constitutional deadline for legislators to send the Governor a budget has come and gone In an unprecedented move the Legislature actually submitted a budget on time The question of whether it was ldquorealrdquo budget with-out accounting gimmicks was debated in political circles And in light of mandate established by Proposition 26 to suspend legislator pay for fail-ure to submit a balanced budget by the deadline many felt as if it was a ploy to merely deliver something to continue to get paid Regardless of the various views the budget was a majority-vote budget that included among other things educa-tion deferrals hits to redevelopment agencies and approximately $7 billion in borrowing It was vetoed by Governor Brown in less than 16 hours In his veto message the Governor stated

ldquoWe canmdashand mustmdashdo better A bal-anced budget is critical to our economic recovery I am once again calling on Republicans to allow the people of Cali-fornia to vote on tax extensions for a balanced budget and significant reforms They should also join Democrats in sup-porting job creation and ending tax breaks for out-of-state companies If they con-tinue to obstruct a vote we will be forced to pursue deeper and more destructive cuts to schools and public safetyndash a trag-edy for which Republicans will bear full responsibilityrdquoA $10 billion deficit still remains in Cali-

fornia and the July 30th expiration date on critical VLF funding is days away After exhaus-tive attempts to find four Republican votes to approve the necessary tax extensions the Gov-ernor and legislative Democrats have released another majority-vote budget plan This budget proposal retains roughly $49 billion in funding

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

The budget proposal is said to contain a tax swap that redirects 1 percent of the statewide sales tax to counties for realignment As you recall AB 109 was signed into law but is contingent on funding The law enforcement community has been adamant about three things 1) VLF fund-ing must be extended for critical programs 2) AB 109 must be fully funded prior to realignment going into effect and 3) funding must be guar-anteed and permanent To complicate matters a little more than one month ago the Supreme Court issued a decision in the Brown v Plata case forcing the state to reduce its prison population by 33000 inmates over the next two years This strongly emphasizes the need for full funding for realignment

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

Legislative UpdateBy Jennifer Wada

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

legislative update

California Peace Officer | Summer 2011 | 7

Legislative UpdateBy Jennifer Wada

Interoperable Communications Solutions

From the soldier on the battlefield to the deputy sheriff in Los Angeles the men and women who serve our nation depend on Raytheon to deliver interoperable communications that work the first time mdash and every time For daily operations or in times of crisis Raytheon introduces a reliable easy-to-use solution that ensures a unified real-time response across local public safety and federal agencies As a long-term employer in California with a proven legacy of customer commitment Raytheon is proud to serve those who so bravely and tirelessly serve us all

Communications you can count on

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INNOVATION IN ALL DOMAINSVisit wwwraytheoncomKeyword CA2

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8 | Summer 2011 | California Peace Officer

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

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

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

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

A $10 billion deficit

still remains in

California and the

July 30th expiration

date on critical

VLF funding is

days away

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California Peace Officer | Summer 2011 | 9

10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

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Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 6: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 7

Legislative UpdateBy Jennifer Wada

Interoperable Communications Solutions

From the soldier on the battlefield to the deputy sheriff in Los Angeles the men and women who serve our nation depend on Raytheon to deliver interoperable communications that work the first time mdash and every time For daily operations or in times of crisis Raytheon introduces a reliable easy-to-use solution that ensures a unified real-time response across local public safety and federal agencies As a long-term employer in California with a proven legacy of customer commitment Raytheon is proud to serve those who so bravely and tirelessly serve us all

Communications you can count on

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INNOVATION IN ALL DOMAINSVisit wwwraytheoncomKeyword CA2

copy 2011 Raytheon Company All rights reserved ldquoCustomer Success Is Our Missionrdquo is a registered trademark of Raytheon Company

8 | Summer 2011 | California Peace Officer

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

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

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

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

A $10 billion deficit

still remains in

California and the

July 30th expiration

date on critical

VLF funding is

days away

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California Peace Officer | Summer 2011 | 9

10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

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Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

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16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 7: CPOA California Peace Officer Summer

8 | Summer 2011 | California Peace Officer

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

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

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

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

A $10 billion deficit

still remains in

California and the

July 30th expiration

date on critical

VLF funding is

days away

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Additional information available reference wwwfleetchryslercompolice specifications guide upfitters guide Chrysler Dodge and HEMI are registered trademarks of Chrysler LLC Fleet operations is a division of Chrysler LLC Based on a comparison of the HEMIreg powered Dodge Charger Police Vehicle measured against the Ford Police Interceptor and the Chevrolet Impala Police Vehicle Offer expires 93111

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California Peace Officer | Summer 2011 | 9

10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 8: CPOA California Peace Officer Summer

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10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

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Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

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please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 9: CPOA California Peace Officer Summer

10 | Summer 2011 | California Peace Officer

OCSD and Its Technology ChallengesBy Kevin McDonald

A s with many public safety organizations the Orange County California Sheriffrsquos Department has suffered drastic cuts in funding while still expected to keep their dutiful promises to

the public The current economic situation has led OCSD and many other law enforcement organizations to seek efficiencies through new management models and the use of advanced technology After Sheriff Sandra Hutchensrsquos initial appointment in June 2008 she immediately recognized that while OCSD had internal talent managing the depart-mentrsquos technology there was a need for a fresh and independent view Sheriff Hutchens determined that she needed an independent evaluation on how the department was currently leveraging technology for safety and efficiency and professional advice on how they could improve

Considering the drastic budget cuts of nearly $70 million since 2009 the question became ldquoHow could OCSD possibly get the high level analysis and information technology (IT) management and secu-rity consulting it needed without incurring significant expenserdquo

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

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

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

After the first group of CTAC members were cleared the vetted group met with Sheriff Hutchens OCSD Acting CIO Kirk Wilkerson and Government Affairs Manager Ryan Burris to discuss the Sheriffrsquos vision for technology within OCSD After that initial meeting the group began to plan tours of the various critical facilities of the depart-ment We also began to look at administrative aspects of the operations CTAC is now assisting in defining the future of technology within the department and identifying areas where leveraging technology can lead to improvement and efficiencies throughout the department

It is important to note that the newly activated CTAC is 100 per-cent independent of the department and conflict free We interface with several members of the departmentrsquos sworn and civilian personnel but report to Sheriff Hutchens directly CTAC is focused on technology and security through best practices that can improve efficiency help to ensure security and increase return on tax dollars invested Where pos-sible CTAC helps to facilitate relationships with vendors and looks out for the best interests of the department and Orange County taxpayers CTAC generally acts as direct advisors and sound boards to the sheriff and other department leadership

new tactics equipment and technology

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 10: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 11

As of the writing of this article OCSDrsquos CTAC is well into the process interfacing with key person-nel The group has already completed tours (in some cases several times) of key facilities including the jails the primary data centers the OC Emergency Operations Center the coronerrsquos operations and The Newport Harbor among others The CTAC mem-bers are participating in ride-alongs with deputies and scheduling shift shadowing with others like dis-patch and investigations A summary bulleted list of findings from the first set of tours was provided to the Sheriff earlier this month

ldquoI have received the first set of observations from the CTAC and they contain actionable observations that can have immediate positive impact with mini-mal budget pressurerdquo said Sheriff Hutchens ldquoI am convinced more than ever that the CTAC members have a great deal to offer our department They are making a positive impactrdquo

The CTAC operates under strict confidence and non-disclosures to be sure that no operations are compromised and that vital confidential informa-tion is not released to the public ldquoAll members of CTAC have formally agreed that they will not solicit or otherwise look for profit within the confines of Sheriffrsquos Department or Coronerrsquos office This shut-ters any questions about motive and allows those who interact with CTAC members to be completely open and honest about the current state of OCSDrsquos technologyrdquo said Ryan Burris

CTAC will continue its review and report func-

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

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

Kevin B McDonald is Executive Vice President and Director of Compliance Practices at Alvaka Networks a 28-year strong network services and security firm in Irvine Calif He is also Chairman of the Orange County SheriffCoronerrsquos Community Technology Advisory Council (CTAC) President of the Tech Coast Venture Network (TCVN) a member of the Crime Survivorsrsquo Council and The High Tech Crimes Consortium McDonald is a trusted technology and security expert and public policy advisor to some of Americarsquos most influential people and organizations He serves as a senior advisor to corporate executives federal and state legislators law enforcement high worth individuals charitable boards abuse prevention professionals and organizations municipalities and businesses He is a highly sought after consultant writer and presenter He can be reached at kmcdonaldalvakanet

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

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COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

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CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

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DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

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UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

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Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 11: CPOA California Peace Officer Summer

12 | Summer 2011 | California Peace Officer

T he verdict in a contention case is expected in a matter of weeks and no matter what the juryrsquos decision the city streets are

likely to fill with protestors and it could get really ugly As highly trained law officers you know what needs to be done Until reckoning day you create the integrated policing unit you meet you plan you train The front line and support officers are well prepared and well provisioned1 Incident Command Structure designed

CHECK2 Critical personnel identified CHECK3 Support systems in place CHECK4 Front-line provisions Shields Batons Tasers

CHECK CHECK CHECK5 Twitter CHECK

Whoa Wait Whaaaaa Twitter How could it be possible that something with

a name like Twitter could be a serious law enforce-ment tactic One very macho Nebraska cop once said ldquoI wonrsquot use Twitter until they come up with more manly termsrdquo That was more than a year ago It probably comes as no surprise that to this day he doesnrsquot tweet But despite its name and the turquoise feathered mascot it doesnrsquot mean Twitter isnrsquot really useful for law enforcement operations

Here are three ways Twitter could be used in a situation like the one described above to create tactical advantages no kidding1 Talk directly to any antagonist in the moment2 Follow any POI without them knowing3 Map a tweet to see exactly from where it came

geographically

Talk Directly to Any Antagonist I like to also call this one ldquoseizing the virtual

scenerdquo Any protestor these days as she is doing what protestors do is tweeting as they do it But they donrsquot necessarily follow each other So how can they communicate via Twitter and know that other protesters see what they tweet The answer is in the hashtag Law enforcement can use the same opportunity to inject its messages of public safety directly into that same conversation and thereby taking control of the virtual scene

Whatrsquos a Hashtag A hashtag on Twitter is simply a word or an

acronym that is preceded with the hash mark aka pound sign () In Twitter beginning a word with that symbol makes it clickable You click on it and you get all the tweets sent with that hashtag in them Whatrsquos the relevance If you just tweet as the PD especially in a contentious situation the people you really want to see those tweets prob-ably wonrsquot Maybe some of your followers will see them But the protestors wonrsquot because they arenrsquot following you theyrsquore following the hashtag(s) for the event

A hashtag can be created immediatelymdashright on the spot If the media or the public hasnrsquot cre-ated a hashtag that is relevant to your event create it yourself Keep it as short as possible as it uses up some of your 140 characters in every tweet Then check to see that itrsquos not being used to sig-nify something else (with a quick Twitter search) then just use it in your tweets Others (media) will follow and also use the hashtag

In the above-described scenariomdashas in any mob situationmdasha few people are really angry andor motivated and the rest are just following along On Twitter all it takes is one or a few of them to begin to suggest acts of violence or spread rumors that might agitate Until Twitter you had no way of communicating directly to them in the moment The officers at the scene even if they could get through to them donrsquot really know the details themselves But back at incident command details are known So put a communications offi-cer in the fusion center and feed him or her some tweets and use the hashtag

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

The Tactical Advantages of TwitterBy Lauri Stevens

Law enforcement

can use the same

opportunity to inject

its messages of public

safety directly into that

same conversation and

thereby taking control

of the virtual scene

new tactics equipment and technology

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 12: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 13

The Tactical Advantages of TwitterBy Lauri Stevens

Lauri Stevens is an interactive media professional with more than 25 years of media experience and works exclusively with law enforcement professionals to help them leverage social media in their outreach and operations She is the founder of The SMILE Conference (Social Media the Internet and Law Enforcement) and the ConnectedCOPSnet blog She can be reached at (978) 764-9887 or laurilawscommnet

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

Superintendent Mark Payne of the West Mid-lands (UK) Police experienced this phenomenon first hand last year during a protest between the two groups ldquoEnglish Defense Leaguerdquo and ldquoUnited Against Fascismrdquo Both groups were using Twitter to communicate and had incorporated the hashtags edl (English Defense League) and uaf (United Against Fascism) in their messaging Prior to the event they had used Twitter to spread misinforma-tion about the other resulting in increased tensions Superintendent Payne (then a Chief Inspector) decided to work directly from the scene of the protests He wrote this about the event on the Con-nectedCOPS blog

Using the iPhone I was able to use Tweetdeck to monitor a range of messages from all sides of the argument I was in touch with the command cell and able to dispel rumours instantly Before the start of the protest there was a message posted on Facebook that EDL members had smashed the windows of a mosque overnight I checked found it was not true and tweeted a message to say so Then a tweet was circulated that an EDL steward had been stabbed by UAF sup-porters again after checking I was able to refute the allegation This carried on throughout the day When the EDL broke through police lines I was able to update people straight away and all significant events during the day were subject to messages mdashSuperintendent Mark Payne West Midlands PoliceThe added benefit is that the media will closely

follow the tweets as well increasingly the likelihood of accurate reporting on the outcome

Two Ways to Secretly Follow any POI With Twitterrsquos list feature users can create up

to 20 lists Each list can be made public or private Leading up to any public safety event or for any long-term surveillance reasons put persons of inter-est on a list and keep it marked ldquoprivaterdquo Then follow that list (either manually within Twitter or with Twitter management tools such as TweetDeck or HootSuite) without the knowledge of those listed

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

Put Tweets on a MapBoth Google and Bing have Twitter mapping

functionality that for the users who have geo-loca-tion enabled allow you to see the exact location of their tweets

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

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

Grist for the MillNo social media tool is the magic answer to law

enforcementrsquos toolbox and neither should social media be seen as the holy grail within your overall communication scheme But when approached with proactive planning and realistic expectations social media can prove to be a very valuable tactical device for law enforcement r

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

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Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 13: CPOA California Peace Officer Summer

14 | Summer 2011 | California Peace Officer

F amilial DNA is nothing new to the fields of genetics or forensics We all inherit our DNA from our mother and father Because of the way

our DNA is inherited it allows us to perform paternity tests to determine the father of a child or identify human remains in mass disasters Familial DNA searching in a criminal investigation uses the way that genetic markers are inherited from our parents to provide an investiga-tive lead Specifically familial DNA searching looks at the genetic markers shared between a father and his son or two brothers to aid in helping solve crimes Another kind of DNA called Y-STRs (Short Tandem Repeats) is also used This DNA can be found on the Y chromosome of male individuals A father and son or two brothers will have the same Y-STR type if they are related

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

the California Department of Justice would use a new genetic search technique called ldquofamilial DNA search-ingrdquo

Currently the FBI software used nationwide in the CODIS (Combined DNA Index System) is designed to look for a direct match between a DNA profile developed from crime scene evidence and an offenderrsquos profile It can also look for case-to-case matches The CODIS is not configured to count shared alleles or types looking for a close relationship between a crime scene sample and a convicted offender Although one could do this manually by hand although it would take a great deal of time to do so especially if you are comparing the crime scene sample to the approximately 13 million convicted offender profiles in the California DNA data bank (For familial searches the CA DOJ does not search the crime scene sample against arrestee samples) Software called the Ratiometer created by the CA DOJ does this for us Not only does it compare the number of shared alleles but more importantly it focuses on the rarity of the

Familial DNA SearchingBy Jill Spriggs

Jill Spriggs is the Bureau Chief for the California Department of Justice Bureau of Forensic Services She can be reached at jillspriggsdojcagov or (916) 319-9368

new tactics equipment and technology

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 14: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 15

alleles that are shared between family membersThere is nothing new or novel about comparing the

number of shared alleles from the DNA of a crime scene sample to the DNA of a convicted offender samplemdash but what is new and novel is the software developed by CA DOJ to do this At the click of a computer button the crime scene sample is compared to more than 13 million convicted offenders who are then ranked using kinship likelihood ratios to indicate those who have a greater likelihood of being related to the crime scene samplemdashbased on the number of shared alleles and their rarity CA DOJrsquos validation studies indicate that the most likely candidate among the over 13 million con-victed offenders is within the top 200 ranked offender samples Y-STRs are run on the approximately 200 can-didates and compared to the crime scene sample Y-STR type If a match is found the CA DOJ Familial Search Committee meets to discuss issuing the name to the CA DOJ Bureau of Investigation and Intelligence (BII) BII conducts a computer-style investigation to assess addi-tional information bearing on possible kinship between the perpetrator and the convicted offender The Familial Search Committee reviews the computer data provided by BII and discusses whether to provide the name to the law enforcement and prosecuting agencies as an investi-gative lead

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

Currently the CA DOJ has completed 19 familial DNA search requests with two familial search hits Both resulted in apprehension of the perpetrator Under the direction of Attorney General Kamala Harris the famil-ial search unit presently does two searches per month Unlike routine CODIS searches in which all unknown evidence profiles are searched against all offenders at the same time familial searches are conducted for a specific profile within a single case The Familial Search Com-mittee meets regularly to discuss incoming cases and prioritizes the requests Familial Search Committee Chairperson Gary Sims can be contacted at the Jan Bash-inski Laboratory in Richmond California by calling (510) 620-3305 or by email at garysimsdojcagov r

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 15: CPOA California Peace Officer Summer

877-827-3228governmentHughescompolice

middot Up-to-the-minute command updates to all locations

middot Relay command information departmental news and events

middot

Apprissreg JusticeXchangereg is now available through LexisNexisreg Accurintreg for Law Enforcement Access timely and authoritative data from the most comprehensive jail booking network in the US

LexisNexisreg Accurintreg for Law Enforcement now offers seamless connectivity and instant access to a system presently containing more than 54 million records ndash growing at an estimated half-a-million per month and including 10 million booking photos ndash empowers law enforcement officials as never before

Investigators can rapidly uncover vital information tobull Locate persons of interest

bull Locate fugitives and non-compliant sex offenders

bull Uncover suspectsrsquo prior arrest histories

Some restrictions may applyAccurint for Law Enforcement may not be used in whole or in part as a factor in determining eligibility for credit insurance employment or another permissible purpose under the FCRA Due to the nature of the origin of public record information the public records and commercially available data sources used in reports may contain errors Source data is sometimes reported or entered inaccurately processed poorly or incorrectly and is generally not free from defect This product or service aggregates and reports data as provided by the public records and commercially available logo are registered trademarks of Reed Elsevier Properties Inc used under license Accurint is a registered trademark of LexisNexis Risk Data Management Inc JusticeXchange is a registered trademark of Appriss Inc Other products and services may be trademarks or registered trademarks of their respective companies Copyright copy 2011 LexisNexis Risk Solutions All rights reserved

Contact us today for a Free TrialFor More Information and to Sign up for a Free Trial

please visit us at lexisnexiscomriskjxtrial

16 | Summer 2011 | California Peace Officer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 16: CPOA California Peace Officer Summer

Chief Jerry Adams retired from the Lodi Police Department in 2007 after 30 years of experience in the law enforcement profession His career as a law enforcement officer included service in a variety of assignments including commander of a SWAT

team detectives patrol and administrative services divisions During his tenure as chief of that department for seven years he managed 120 full-time staff positions 150 volunteers and operated an annual budget of $16 million Chief Adams was only the tenth police chief for the city of Lodi since its incorporation He taught specialized courses in the Role of the Chief training program and shared his lessons learned from the Lodi Terrorism Case which received substantial notoriety during his leadership of that department

Service to CPOAChief Adams became a member of CPOA in 1984 and served on various committees

including membership training and region board He was the Region Board Chair and served as the Regional Advisory Chair to the Executive committee In 2000-2001 he was elected to the Executive Board as a Vice President and assumed the presidency in 2004 During his presidency a new executive director was hired and the associationrsquos staff was reorganized

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

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

Further AccomplishmentsIn April of 2008 Jerry Adams joined the California Governorrsquos Office of Homeland

Security and served as the Directorrsquos Public Safety Liaison He continued in that role when the Homeland Security and Office of Emergency Services were consolidated In this role he coordinates with law enforcement and various public safety agencies in support of the mission of the California Emergency Management Agency r

A Look Back At CPOArsquos Past Presidents

Jerry Adams 2004-05 CPOA PresidentBy Sal Rosano

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

past presidents

California Peace Officer | Summer 2011 | 17

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 17: CPOA California Peace Officer Summer

C POArsquos 91st Annual Leadership Summit took place in San Diego at the beautiful Omni Hotel This yearrsquos theme ldquoDevel-

oping Excellence in Leadershiprdquo set the bar for the Summit The theme challenged us to bring the best in training worthy of branding itself ldquotop-notchrdquo as Summit attendeersquos expected nothing less The Summit also provided some fabulous networking opportunities to bring colleagues together to share inspire and have fun with one another

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

The Summit opening session and CPOArsquos annual business meeting commenced with the nominating committeersquos recommendation on the slate of officers for the 2011-2012 fiscal year the Treasurerrsquos and Executive Directors reports were delivered

The Installation of the Officers followed at lunch where Sandra Spagnoli Chief San Leandro Police Department was installed as CPOArsquos Presi-dent for 2011-2012 by former CPOA President and Executive Director of POST Paul Cappitelli Rounding out the executive committee board members are First Vice President Chief Rick Bra-ziel of the Sacramento Police Department Second Vice President Captain Rich Lucero of the Fremont Police Department Third Vice President Chief Mark Yokoyama of the Alhambra Police Depart-ment and Fourth Vice President Sheriff Scott Jones of the Sacramento County Sheriffrsquos Department

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

CPOArsquos 91st Annual Leadership Summit

18 | Summer 2011 | California Peace Officer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 18: CPOA California Peace Officer Summer

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

while maximizing the reach of the agencyrsquos success through new media communications On the final day of the Summit Dr James Reese discussed stra-tegic leadership skills and prepared the attendees to plan and respond to lead in an ever-changing world

The program concluded on Friday with the CPOA Awards Luncheon The awards recognize and celebrate those California law enforcement officers who have shown tremendous acts of self-lessness and who went above and beyond the call of duty during 2010 Recipients were applauded and honored with awards ranging from the Professional Achievement Awards of Distinction and Awards of Valor to the Sherman Block Memorial Award Please visit the CPOA website for a complete list-ing of award recipients

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

California Peace Officer | Summer 2011 | 19

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 19: CPOA California Peace Officer Summer

A re you interested in the future of law enforcement Perhaps you would like to see the latest and greatest tactical gear

or may be yoursquore looking for new badges or chal-lenge coins Do you think itrsquos about time to make a change to your agencyrsquos uniforms Are you a techie looking to make your life a bit simpler No matter what your preference I can bet that the latest police vehicles and accessories are of inter-est to you Now look at your calendar and be sure that the week of November 7 is blocked out with ldquoCOPSWEST Ontariordquo

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

For those of you who arenrsquot really sure what the ldquoCOPSWEST Experiencerdquo entails here is a sam-ple of what you will find

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

20 | Summer 2011 | California Peace Officer

By Marc Shaw

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 20: CPOA California Peace Officer Summer

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

If you have the need for speed and want to see one of only two sanctioned law enforcement vehicle tests in the country then you need to be at the Auto Club Speedway in Fontana on Thursday Each of the ldquoBig 3rdquo automakers will be partici-pating in the Los Angeles County Sheriffrsquos Police Vehicle Test Day and those in attendance will enjoy vendor booths screeching tires and revving motors and of coursehelliplunch

Two of CPOArsquos goals include providing professional development and organizational net-working opportunities By attending Mondayrsquos Leadership Training Day you will experience both

first hand If you arenrsquot already a CPOA member now is a great time to join the more than 3000 law enforcement professionals who have already found the value in a CPOA membership When you sign up for the Leadership Training Day you will find a payment package that offers a CPOA membership at a greatly reduced price

By participating in the ldquoCOPSWEST Expe-riencerdquo you will enjoy a fantastic opportunity where you can learn about the most cutting-edge products and services available to the public safety community listen to the experts talk about everything from vehicles to investigations enjoy some great food and meet a few new friends along the way Mark you calendars for November 7-10 2011 and register today at wwwcpoaorg Remember itrsquos only free for a limited timehellip r

Perhaps you are still on the fence and not sure if the show is right for you Let me offer

you one more value-added benefit that will cer tainly sway your decision COPSWEST

is free if you pre-register Thatrsquos right You can attend the tradeshow and vehicle test

free of charge if you log on to wwwcpoaorg and register before October 21 Simply

enter the code ldquoCPOMAG11rdquo when checking out and you are set

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

California Peace Officer | Summer 2011 | 21

cpoa bulletins

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 21: CPOA California Peace Officer Summer

22 | Summer 2011 | California Peace Officer

President ndash Sandra Spagnoli

Sandra Spagnoli was appointed as the Chief of Police for the city of San Leandro in 2011 after serv-ing four years as the Chief of Police in the City of Benicia As Chief she has been successful in implementing contemporary public safety initiatives incorpo-rating grant funding to start new programs and using technology to enhance the delivery of police services

She began her law enforcement career in 1983 as a Police Explorer and was appointed as an Offi-cer in 1990 Promoted to Sergeant in 1996 she supervised patrol officers implemented commu-nity policing programs developed a streamline hiring process and established a recruiting team In 1998 she was promoted to Commander and supervised patrol investigations and administra-tion operations

Sandra holds a masterrsquos degree in pub-lic administration and a bachelorrsquos degree in human services management from Notre Dame She attended the FBI Academy (Class 2000) Executive Leaders Program (ELP) at the Naval Postgraduate SchoolCenter for Homeland Secu-rity and Defense and POST Command College

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

First Vice President ndash Richard Braziel

Rick Braziel was sworn in as the Sacramento Police Departmentrsquos 43rd Chief of Police on January 9 2008 He has been a member of the Sacramento Police Depart-ment since 1979 Chief Brazielrsquos prior assignments include Deputy Chief of the offices of operations investigations technical services and homeland security and emergency services

He received his bachelor of arts and master of arts degrees in communication from Califor-nia State University Sacramento In 2006 Chief Braziel received a master of arts degree in security studies from the US Naval Postgraduate School He is a graduate and class spokesperson of the

POST Command College and a graduate of the Police Executive Research Forumrsquos (PERF) Senior Management Institute for Police

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

Second Vice President ndash Richard Lucero

Richard Lucero is a Cap-tain with Fremont Police Department He has been a police officer for 23 years and has served his entire career with Fremont His assignments have included patrol SWAT nar-cotics internal affairs and street crimes He is presently the Investigations and Special Opera-tions Division Commander He is a graduate of POST Command College (class 40) and a life-time member of the California Narcotic Officersrsquo Association He is also a graduate of San Jose State University and Santa Clara University School of Law He received the CALI Excellence for the Future Award in the study of local government law and is a member of the California State Bar

He has served CPOA at the region level and on the Executive Committee as the Northern California Region Advisor before being elevated to the position of Third Vice President Cap-tain Lucerorsquos present area of responsibility with CPOA is legislative and public policy advocacy Currently he is participating in providing law enforcement commentary regarding development of budget related realignment efforts

Third Vice President ndash Mark Yokoyama

Mark Yokoyama began his law enforcement career in 1986 as a Police Recruit at the Golden West College Criminal Justice Training Center Upon graduation he joined the La Palma Police Department pro-gressing through the ranks working various field and administrative assignments In 1999 Mark joined the Newark Police Department as a Lieu-tenant and was promoted to Captain in 2002 In

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

Mark holds a bachelor of arts degree in public administration from the University of La Verne a masters of arts degree in behavioral science from Cal State Dominguez Hills and a second masterrsquos degree in executive leadership from the University of Southern California He is also a graduate of the FBI National Academy LAPD West Point Leadership program POST Command Col-lege POST Supervisory Leadership Institute and the University of Southern California Delin-quency Control Institute

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

Fourth Vice President ndash Scott Jones

Sheriff Scott Jones was elected Sheriff by the citi-zens of Sacramento County and began his term in Janu-ary 2011 He joined the sheriffrsquos department in 1989 and was assigned to work at the brand new main jail In 2000 after graduating law school Jones was assigned as the departmentrsquos Legal Advisor a position he held for over seven years Jones was promoted to Sergeant Lieutenant and finally Captain in January 2007 As a Captain he worked various assignments and also served as Sheriff John McGinnessrsquo Assistant and Legal Advisor

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

Meet the 2011-2012 Executive Officers

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 22: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 23

In Bardzik v County Of Orange (Mar 28 2011) 635 F3d 1138 the Ninth Circuit Court of Appeals set limits on when elected

department heads can use the ldquopolicymaker exceptionrdquo to retaliate against managers for polit-ical reasons The case concerned Jeff Bardzik a lieutenant with the Orange County Sheriffrsquos Department Lt Bardzik was the departmentrsquos Reserve Division Commander in 2005 Then he endorsed the incumbent sheriffrsquos rival in an upcoming election Shortly thereafter the Sheriff transferred him to a position in court operations where he only supervised three people He was denied pay increases and promotional opportu-nities even after his transfer

Elected officials cannot retaliate against most public employees for their political activities or affiliations However the ldquopolicymaker excep-tionrdquo allows elected officials to appoint ldquosome high-level personally and politically loyal offi-cials who will help him implement the policies that the public voted forrdquo As a result if a man-ager counts as a ldquopolicymakerrdquo an elected official can retaliate against him for political activity

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

contact with elected officials and 9) responsive-ness to partisan politics

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

However the Court decided the policy-maker exception applied because of the other five factors The Court emphasized Bardzikrsquos dis-cretion over the Reserve Division and noted he often reported directly to the Sheriff The Court also decided he had special skills and extensive authority over members of the Reserve division Finally the Court decided Bardzik wielded sig-nificant influence over specific programs in the Division a distinction the Court identified as ldquothe most critical factorrdquo in its analysis As a result the Court decided the sheriff was allowed to retaliate against Bardzik when he served as division commander

The Court stressed however the retalia-tion crossed the line after the transfer In Court Operations Bardzikrsquos job duties were limited to implementing rather than making policy Thus the Court held his First Amendment rights barred continued retaliation for his political activity r

legal service program news

Ninth Circuit Limits Political Retaliation Against ldquoHigh Levelrdquo ManagersBy Jeffrey R A Edwards Esq

Apply online at

wwwcpoaorg for CPOArsquos Legal

Service Program

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

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 23: CPOA California Peace Officer Summer

24 | Summer 2011 | California Peace Officer

There is no dispute that if a peace officer has been issued a cell phone by hisher agency and the agency policy states that it is to be used only

for official business anything contained on that phone (text messages phone numbers photos) belong to the agency In addition in the absence of unusual circum-stances normally there is no reasonable expectation of privacy on the part of the officer to information within that phone However the issue which appears to be rais-ing concerns focuses on whether there is a reasonable expectation of privacy on the part of the officer if the officer has a personal cell phone while on duty

Agency Issued EquipmentSince the advent of business computers pagers and

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

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

The Court examined the Fourth Amendmentrsquos protection against unreasonable searches by the govern-ment It stated that the Amendment ldquoguarantees the

privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the Govern-mentrdquo In addition the Court held that it ldquoapplies as well when the Government acts in its capacity as an employerrdquo The Court also noted that the question of ldquowhether an employee has a reasonable expectation of privacy must be addressed on a case by case basisrdquo

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

The Court held that ldquoit would be necessary to con-sider whether a review of messages sent on police pagers particularly those sent while officers are on duty might be justified for other reasons including performance evaluations litigation concerning the lawfulness of police actions and perhaps compliance with state open records lawsrdquo (Emphasis added)

The Court pointed out that ldquoalthough as a general matter warrantless searches lsquoare per se unreasonablersquo under the Fourth Amendment there are lsquoa few spe-cifically established and well-delineated exceptionsrsquo to that general rulerdquo According to a prior decision of the Supreme Court ldquothe special needs of the workplace [would] justify one such exceptionrdquo

For example ldquowhen conducted for a non-investi-gatory work-related purpose or for the investigation of work related misconduct a government employerrsquos warrantless search is reasonable if it is lsquojustified at the inceptionrsquo and if lsquothe measures adopted are reasonably related to the objectives of the searchhelliprdquo Furthermore held the Court Quon ldquoas a law enforcement officerhellipwould or should have known that his actions were likely to come under legal scrutiny and that this might entail analysis of his on the job communicationsrdquo

general counselrsquos message

Accessing an Officerrsquos Personal Cell Phone RecordsBy Martin J Mayer

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

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 24: CPOA California Peace Officer Summer

California Peace Officer | Summer 2011 | 25

Personal Equipment Carried While On DutyAs stated above it is fairly easy to see how commu-

nications by an officer while on duty using department issued equipment are considered agency ldquopropertyrdquo and accessible by the department But what about commu-nications by an officer on his or her personal cell phone which occur while the officer is on duty That issue was decided by the New Mexico Court of Appeals in the case of State of New Mexico v Marty Ortiz August 13 2009 2009-NMCA-092 While this decision is not binding in California it can be cited as persuasive argument

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

The prosecutor ldquoasserted that Defendant was not entitled to private communications on an officerrsquos pri-vate cell phone numberrdquo The defense attorney argued that he ldquowas only asking for records of communications the officer had within the relevant six-minute periodrdquo in question Defense counsel argued further that ldquothe officer did not have an expectation of privacy of his cell phone records while on duty on patrol in a marked unit during an emergency or arrest situationrdquo

The court granted the Defendantrsquos motion for dis-covery stating in part that (1) it was for a very finite period of time and (2) ldquoif there were personal matters irrelevant to the case the State could file a motion for an in camera reviewrdquo The State continued to refuse to comply with the order and ldquothe court found that the State had flaunted the courtrsquos order for simple discovery and that Defendant was prejudiced The court entered a written orderhellipgranting Defendantrsquos motion to dismiss with prejudicerdquo

The Court of Appeals held that ldquoDefendant showed that the cell phone records were in the control of the State because they were in the possession of the officer during the time in questionrdquo The court said that ldquothe officer was an arm of the State and that therefore his private telephone records were within the possession custody or control of the State making them subject to disclosurehelliprdquo under the relevant state statutes

The court ruled that ldquoDefendant showed that the cell phone records were potentially material to his defensehelliprdquo and ldquoa defendant need only show circum-stances that reasonably indicate that records may contain information material to the preparation of the defenserdquo

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

In California a county district attorney notified all law enforcements agencies within that county that video and audio tapes taken by officers on patrol are poten-tially evidence in cases and must be preserved by the agency The DArsquos memo states that in addition to the information potentially being evidence against a suspect it is their obligation to determine whether such videos and audios portray any exculpatory or contradictory evidence which would then have to be disclosed to the defense pursuant to Brady v Maryland There is noth-ing to distinguish such evidence which is on an officerrsquos personal cell phone from that on a department issued cell phone

ConclusionAll law enforcement policy manuals state in words

or substance that information gathered by its officers andor employees while acting in the course and scope of employment belongs to the agency It is obvious as stated by the United States Supreme Court in the Quon case that a law enforcement officer would or should know that ldquohis actions were likely to come under legal scrutiny and that this might entail an analysis of his on the job communicationsrdquo

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

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

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 25: CPOA California Peace Officer Summer

26 | Summer 2011 | California Peace Officer

BOOKS AND TRAINING MATERIALSLexis NexisPlease see our ad on page 16

COMMUNICATIONSHughesPlease see our ad on page 16

RaytheonPlease see our ad on page 7

SHORTELPlease see our ad on page 2

CREDIT UNIONSan Francisco Police Credit Union(415) 242-6488 bull wwwsfpcuorgPlease see our ad on page 26

CUSTOM DUI TRAILERSMOBILE COMMAND CENTER TRAILERSTPD Trailers Inc(916) 381-0532 bull wwwtpdttrailerscomPlease see our ad on page 9

DRIVER LICENSE READERSE-Seek Inc(714) 545-3316 bull wwwe-seekcomPlease see our ad on page 15

LEGAL SERVICESMastagni Holstedt Amick Miller Johnsen(916) 446-4692 bull wwwmastagnicomPlease see our ad on page 8 amp 27

POLICE FLEET AND ACCESSORIESFolsom Lake Dodge(916) 355-9999 bull wwwfolsomdodgecomPlease see our ad on page 9

SIMULATION TRAININGFAAC Inc(734) 761-5836 bull wwwFAACcomPlease see our ad on page 16

UNIVERSITYAmerican Military University(877) 777-9081 bull wwwPublicSafetyatAMUcomPlease see our ad on page Back Cover

AD INDEXAmerican Military University Back Cover

E-Seek Inc 15

FAAC Inc 16

Folsom Lake Dodge 9

Hughes 16

Lexis Nexis 16

Mastagni Holstedt Amick Miller Johnsen 8 amp 27

Raytheon 7

San Francisco Police Credit Union 26

SHORTEL 2

TPD Trailers Inc 9

resource guide

Page 26: CPOA California Peace Officer Summer