How do you stand on unjustified search and seizure from various county task forces. Would you support having a civilian observer accompany raids that are conducted by the Humboldt County Task Force to make sure that best practices and ethical actions are taking place?
— Jim McFarlane
Mr. McFarlane, I like how you think. Your policy instinct is good. However, it might be unconstitutional and cause civil litigation for the County. In Wilson v. Layne, 526 US 603 (1999), the Supreme Court held that:
“it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.”
Basically, the Fourth Amendment requires that police actions during the execution of a warrant be related to the objectives of the authorized intrusion, and having a civilian observer may be an actionable invasion of privacy. Now, one could argue that a civilian observer is “in aid of the execution of the warrant,” but it might be a case of first impression if someone filed a civil suit against the County under 42 U.S.C. §1983, and we wouldn’t want that. It could also be by consent of the resident(s), but asking someone to sign a consent form for the presence of a civilian observer after their door gets kicked in might be cumbersome. I am willing to look into it deeper, because maybe there have been civilian observer pilot projects somewhere in America designed and implemented to withstand Constitutional scrutiny.
What I know to be clearly Constitutional and also a best practice is the use of body-worn cameras. I have heard in court a deputy DA in oral argument and a Task Force agent testifying under oath that “it is the policy of the Task Force to not wear body-worn cameras.” This is ridiculous. First of all, the DTF does not have separate written policies and procedures from the Sheriff’s Department, and the Sheriff’s P&Ps state that body-worn cameras should be used during the execution of a search warrant. Second, in what universe would it make sense to have such a policy against body-worn cameras? When your “task” is to use “force” to kick in the doors of our county’s residents and aim guns in the faces of men, women, and children, under color of law, and with the added prospect of financial gain (i.e. forfeiture-eligible drug cases), then it would seem a prudent risk management technique and a best evidentiary practice to require the use of the very reliable and available technology known as the body-worn camera.
We have all heard of the presumption of innocence, which seems nowadays to be not more than a publisher’s disclaimer to government press releases. I would resurrect the presumption of innocence by instituting a presumption of civilian credibility, meaning that if there is disagreement about what transpired during the execution of a search warrant, and an available body-worn camera was not utilized, then I would tend to give more weight to the civilian’s version of the incident in making charging decisions and in resolving cases. After all, the District Attorney represents the People of the State, and a lawyer should be able to believe his client…. unless there is videotape demonstrating that his client is a liar.
So, although, the District Attorney has no direct control over law enforcement’s P&Ps, a presumption of civilian credibility would effectively require law enforcement to utilize body-worn cameras for a prosecution to move forward in the context of search warrants. A presumption of civilian credibility has no legal precedent, but it would be a general principle that would guide my charging decisions. It places on law enforcement the duty to be diligent in protecting their own safety and the civil rights of civilians during the execution of a search warrant. Video evidence also saves countless hours of court time for the County and the State of California.
The other aspect of civil liberties during the execution of search warrants is civil asset forfeiture abuse. It is worth noting that there has been recent legislation in California to curtail the abuse of civil forfeitures, which usually arise out of the execution of search warrants. In 2020, the Humboldt County District Attorney’s office initiated 51 cases of civil asset forfeiture and the value of the assets seized was a staggering $1,554,165.73 of money and other private property. Of those 51 cases, only 33 cases were completed for a disbursement of $391,437.20, which is more than half of the disbursements taken by Alameda County and Orange County whose populations are 1.76 million and 3.176 million people respectively compared to Humboldt County’s rural population of 135,558. So we are 12.9 and 23.4 times smaller than Alameda and Orange counties respectively, yet we take over half as much private property from our citizens? It’s not proportional, and it demonstrates a phenomenon known as “Policing for Profit.”
[For more information on this well-documented phenomenon please see the Institute for Justice’s Policing for Profit publication at: https://ij.org/report/policing-for-profit-3]
About 64.9% of the money disbursed in 2020 went directly to law enforcement agencies’ discretionary funds, with 10% to the DAs office, 24% to the State of California’s General Fund, and 1% to the California District Attorney’s Association. This profit-sharing plan creates a powerful incentive for law enforcement to change their objective from the equal enforcement of laws and deterrence of crime to the maximization of departmental income.
One other aspect of this situation to notice is that 75% of the total value of the assets seized equal to $1,162,728.53, in 2020 was wrongfully seized from citizens. When the DA’s office (who misguidedly participates in pre-arrest investigations rather than focusing its DA investigators on post-arrest trial preparation) and law enforcement agencies are wrongfully seizing private property 3 out of 4 times, there exists a problem. Let’s change that.
Thank you for your excellent question Mr. McFarlane.
[ To see the raw data on civil asset forfeiture in California and in Humboldt County for 2020 go to: https://oag.ca.gov/system/files/media/2020-af_1.pdf]
Well, Mr. McFarlane, I hope nobody is for unjustified raids.
It is a fundamental principle of our society—established as a right by the Fourth Amendment to the Constitution—for us to be free from unreasonable government searches.
Whether a “raid”—also called “the service of a search warrant”—is justified is a legal question that is decided based on the overall circumstances of the search.
A government search of a person, place, or things requires a search warrant, which are issued by judges. There are exceptions to the general search warrant requirement, for example in an emergency, often referred to as “exigent circumstances.”
If the government has a search warrant, then it means that a person (generally a police officer) swore under oath to specific facts that establish probable cause to believe that the search of a specific place, person or thing will likely lead to evidence of the crime. Warrants must be read and authorized by a judge before officers can go about searching.
Appropriately so, search warrants have many technical and procedural legal requirements. As a Deputy D.A. I reviewed officers’ search warrants before they were presented to a judge. This review by an attorney specifically trained in search-and-seizure law is critical for two reasons: 1) An understanding of these legal nuances helps ensure that a subject’s constitutional rights are protected. 2) It takes far less resources from law enforcement and the D.A.’s office to perfect a search warrant on the front-end than it takes to defend a warrant that’s challenged in court.
When I reviewed their warrants, more than a few police officers called me “a pain in the [butt]” or “a nerd” because I always wanted bullet-proof warrants. Some said, “But the judge will sign it!” Maybe. Even so, it is the D.A. who must spend time and money litigating the warrant in court if there is even the smallest flaw.
Again, the D.A. has a duty to protect everyone’s constitutional rights; and that clearly includes a person who is subject to a warrant. In my current work as a public defender, it is my duty to protect those rights for individuals who the government accuses of committing a crime.
Recently, a few police officers have told me that a prosecutor’s review of a search warrant is no longer standard practice in our current D.A.’s office. That is troubling. If the voters elect me as Humboldt County’s next D.A., I will re-establish the prosecutor’s review of search warrants. It is a prudent, cost-effective measure that supports efficiency, effectiveness and fairness in the justice process.
Next, regarding your question about independent civilian observers accompanying the service of a search warrant: the notion may have some appeal as it provides a layer of accountability to the process. Yet the concept poses its own set of serious challenges. For starters, who are these observers? Who chooses them? Do they observe as a free public service or are they paid? If paid, is the observer no longer considered independent? Does the observer need ethics training? Who establishes those ethics? How does the observer assure best practices throughout complex crime scene? If multiple officers are searching a four-bedroom house, does each need a chaperone? Should there be an observer for the observer?
We should be able to trust that our law enforcement officers are acting in a professional manner that is consistent with their training and best ethical practices. In my experience, that is the case the vast majority of the time. The D.A. cannot put an untrustworthy officer on the stand to testify. Our criminal justice system is only effective if the public it serves trusts it
It is easier, more effective way to address concerns about how searches are conducted—and how they are described later in court—is through the use of body-worn cameras. This practice is certainly less of a liability than sending in some “independent” person into a potentially dangerous situation. All officers should have body-worn cameras to ensure accountability. (Obviously, there are some exceptions, for example if the camera would put an undercover officer in danger.)
All the officers I know are in favor of having body-worn cameras because it protects them when false accusations are made. Nearly all local law enforcement agencies have body-worn cameras, with the notable exception of the Humboldt County Sheriff’s Office. A person inside the Sheriff’s Office told me the deputies want body-worn cameras and the office has tested several types. However, our current D.A., when asked about it, did not support the Sheriff’s Office getting the cameras because, she said, “It would be too much work.”
That is unacceptable.
For me, it’s not just my campaign slogan; it’s a promise: We will work hard to take every action we possibly can—from supporting body-cam use to strengthening search warrants—to bring about “justice we can trust.”
For the record, those officers were right. I am a bit of a nerd when it comes to search warrant law.
Thanks for the question.
Dear Mr McFarlane,
I appreciate your concern about this issue. Unjustified searches and seizures violate the Constitution and must be opposed. Law enforcement must follow both the letter and spirit of the law in obtaining search warrants and completing ethical searches.
I do not consider a civilian observer an appropriate check on law enforcement searches for a few reasons: 1) an additional non-professional participant in a search would add to the invasiveness of the activity; 2) even a well-trained observer could face considerable risk; 3) a single observer who made claims of inappropriate behavior by officers would lack corroboration necessitating teams of observers to make credible claims.
Fortunately, body-worn cameras provide a solution to ensuring appropriate conduct by law enforcement. I support the requirement for their use by all officers at all times during searches.
Thank you again for raising this important issue. Please feel free to learn more about my candidacy for District Attorney at staceyeads4da.com.