mental health crisis in america - poa · vanguard september 2017 03 ... mental health crisis in...

OFFICIAL PUBLICATION OF THE SAN JOSE POLICE OFFICERS' ASSOCIATION Volume 45 : No. 9 • September 2017

Mental HealthCrisis In America

Mental HealthCrisis In America

By Paul Kelly – page 06

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VANGUARDOfficial Monthly Publication Of TheSan Jose Police Officers’ Association

02 September 2017 VANGUARD

Copyright: All rights are reserved and no part, text, or picturesmay be reproduced without written permission. No responsi-bility whatever is assumed by the VANGUARD or the San JosePolice Officers’ Association for unsolicited material. Membersor readers submitting letters to the editor are requested to ob-serve these simple rules:• Address letters to: The Editor,1151 North Fourth St., San Jose, CA 95112or Email to: [email protected]

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• Deadline: 15th of each month.The VANGUARD is the official publication of the San Jose Po-lice Officers’ Association. However, opinions expressed in theVANGUARD are not necessarily those of the San Jose PoliceOfficers’ Association, and/or the San Jose Police Department.Check out our web site: www.sjpoa.com

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VANGUARD September 2017 03

SAN JOSE POLICEOFFICERS’ASSOCIATIONBoardOfDirectors

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Rick [email protected]

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President

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PositionUnfilled

At This Time

President’s Message:Mental Health Crisis In America 06• Mercury News Article 07• Los Angeles Times Article 08• NBC New York News Article 09

Second Chair’s View:Liar, Liar... 14

C.F.O.’s Report 16

Training Bulletin:Invocation By Attorney 20

Real Estate News:Buying A Second Home 22

Insurance News:Limited Open Enrollment – SJPOA IBT 23

Real Estate Perspective:Continual Drop For Days-On-MarketFor Silicon Valley Homes 24

Financial Securities:How Much Can I Spend In RetirementWithout Running Out Of Money? 28

Reliable Informer 30


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Legal DefenseFund ReportFranco Vado, LDF Administrator

Requests: 10Approved: 10Denied: 0Board Representative: 10Attorney Request: 0THIS IS A SYNOPSIS OF LDF TRUSTEE ACTIONS FOR

the month of July 2017. Due to an individual's right ofprivacy, specific details of LDF cases cannot be revealedby your LDF Trustees without written authorization fromthe involved member.Your Legal Defense Plan provides you with legal serv-

ices for acts or omissions arising in the course and scopeof your employment as a San Jose Police Officer. Be ad-vised that incidents which arise while you are performingduties associated with off-duty employment are excludedfrom coverage under the Plan.



vides ciT training, specialized response units, and fundingfor treatment programs to try to prevent police officers be-ing relied upon to be mental health service providers. ThisNBC News article (found on page 09) provides details as towhat the 21st century cures act provides and how we planon being part of a law enforcement coalition to advocate forfull implementation of the act and full funding for it as well.our voices are breaking through and we need to keep upthe momentum.

The sJPoa will continue to advocate for you going homesafely at the end of your watch. fighting for funding to im-prove how our growing mental health population is man-aged will be a top priority.

We have also been working with our coalition partnerson responding to the constant drumbeat of negativity fromanti-police groups whose sole intent is to drive a wedge be-tween law abiding residents and law enforcement. Thesegroups have grown more violent and more flagrant withtheir lies.

We will continue to call it the way it is and speak truth totheir lies. We will continue to grow and strengthen our re-lationships with other like-minded law enforcement organ-izations to ensue your voice is heard.

Editor’s Note: Please send any comments to PaulKelly at: [email protected]

“The last several OIS episodesin San Jose involved a mentallyunstable individual. There isinadequate training for offi-cers and too few specializedunits that are equipped to ad-dress the ever growing numberof calls that involve a mentallyunstable individual.”

Mental Health Crisis In America

Over the past several months, the SJPOAhas begun to inject the voices of the menand women of our association into thenational dialogue about policing in Am-erica. We have been coordinating withother like-minded law enforcement uni-ons to not only respond to falsehoodspromulgated by anti-police organiza-tions, but we too call for much neededreforms to how we, as American policeofficers, respond to the growing popu-lation with mental health issues.

President’sMessagePaulKelly

This recenT MERCURY NEWS arTicle (found onpage 07) details our initial efforts to advocate for programsand policies that will improve how the american police of-ficer can safely manage suspects or individuals exhibitingdangerous signs or behaviors of having a mental health is-sues.

Too often inadequate funding is provided for the neces-sary programs to provide treatment and medication to thosein dire need of professional help. Too often the family, friends,and neighbors of those with serious and dangerous mentalhealth issues do not intervene before a mental health epi-sode occurs and rely upon officers to attempt to safely man-age the crisis.

The last several ois episodes in san Jose involved a men-tally unstable individual. There is inadequate training for of-ficers and too few specialized units that are equipped to ad-dress the ever growing number of calls that involve a men-tally unstable individual.

This is a national crisis, from the Bay area to los angelesto the Midwest. see this Los Angeles Times article (found onpage 08) to read about impacts in their city. in oklahomacity, since 2012 there has been an 80% increase in callsfor service involving a mentally unstable individual.

in late 2016 the 21st century cures act was adopted bycongress and signed into law by the president. This act callsfor drastic changes in how law enforcement is trained, equip-ped, and manages those with mental health issues. it pro-

By Robert Salonga for The Mercury News, originally published July 12, 2017.

San Jose Union Lobbies Feds To BoostPolice Mental Illness Response: In A YearWhen 6 Of 7 Police Shootings Involved The Men-tally Ill, San Jose Officers Join National CoalitionSeeking Federal Funding To Improve Outcomes


York, and chicago, among others – “want to pivot this intoa good thing for the community and the mentally ill” bylobbying for federal assistance.

The coalition calls for the formation of multi-disciplinaryresponse teams that pair officers and mental-health clinicianswho are on-call for serious police calls that involve a men-tally ill person. Santa clara county is currently pilot testingtwo such teams, one in San Jose and one in South county.

The aim for the Psychiatric emergency response Team isto give officers another avenue to respond to a crisis otherthan a standard police response, which can quickly proveineffective in cases where a person being contacted is un-able to recognize or understand officer commands.

But the two teams are far outpaced by demand in a countyof 1.9 million residents, which is why Toni Tullys, director ofBehavioral health Services for the Santa clara Valley healthand hospital System, welcomes the idea of more fundingand resources for the effort.

“Dedicated and additional funding for these teams, andthe education and training needed to implement the program,would mean more police officers recognizing a person ex-periencing a mental health crisis, understanding what istaking place, and being able to better respond,” Tullys saidin a statement.

Jim and Vicki Showman, whose daughter Diana was shotand killed by San Jose police in 2014, said federal legislativesupport would be a promising sign that the often violent in-tersection of police and the mentally ill is a national priority.Diana Showman, who had bipolar disorder, approachedofficers on Blossom hill road with a cordless drill paintedblack after boasting of having an Uzi in a 911 call she madeherself.

“While we are sensitive to the need to reduce governmentspending, this has become a necessary expense,” the Show-mans said in a statement. “The public has become more andmore distrustful of police, and less-than-lethal approaches

> continued on page 8

SAN JOSE – Amid a string of high-pro-file police shootings involving mentallyill people, San Jose officers have joineda national effort to secure federal fund-ing and resources to better train officerswho are commonly first-responders toviolent mental-health episodes.

The San JoSe Police officerS’ aSSociaTion iSjoining a dozen big-city police unions converging in newYork city on Thursday to formally announce a legislativeagenda dubbed care – compassionate and accountableresponses for everyone – asking the federal government tobankroll new equipment, training, and legal outreach theyassert will drive down fatal clashes with the mentally ill. inSan Jose, six of seven police shootings this year have involvedmentally ill people in crisis, three of which were fatal. Stateestimates from the past few years purport that mental-healthepisodes account for as much as 40 percent of officer-in-volved shootings in california.

“You’ve got too many shootings that involve the mentallyill across the nation every single day,” said Sgt. Paul Kelly,SJPoa president. “We can’t wait to fix a problem just inSan Jose or oakland.”

The new York announcement is also firmly political, drivenin large part by a recent murder and manslaughter indict-ment against new York city police Sgt. hugh Barry, whofatally shot a mentally ill woman in the Bronx last fall. Thepolice unions are assembling to present a united front againstthe prosecution of officers they say are placed in a no-winsituation when confronted with a mentally ill subject.

“it’s all put on one cop’s back in that call for service,”Kelly said.

Besides lamenting the indictment, Kelly said the unions –also including those from San francisco, los angeles, new


> continued from page 7

…with people in crisis would go a long way toward build-ing and restoring trust in law enforcement.”They added: “On a practical level, we believe that we’llsee fewer tragedies when calling for help from the police.”In what is likely its most challenging proposal, the coalitionof police groups is calling for federal legislation to selectivelyoverride medical privacy restrictions so that officers canknow if a person they’re called out to contact has recentlyhad a psychiatric hold so they can respond accordingly.A more familiar proposal in the unions’ legislative agendais creating a national standard curriculum for crisis-inter-vention training, which schools officers in areas like de-es-calation techniques, having baseline knowledge of howpeople act under the influence of different narcotics, anddiscerning between a person who is maliciously angry and

violent and one who is in a mental-health crisis.CIT training is mandatory in the San Jose Police Depart-ment, and the instruction is being disseminated throughoutthe force, though not as quickly as desired due to under-staffing.“We don’t have enough time to get guys off the street fortraining,” Kelly said. “But even in a perfect world, whereeveryone gets CIT, does it fix everything? Absolutely not.We have to have all the other stuff.”San Jose Police Chief Eddie Garcia said there is a needfor more services for the affected population to defuse ten-sions before police have to get involved.“Having that funding is imperative. Police cannot be theonly option, the burden cannot simply fall on them,” he said.“It’s a problem that’s coming to light, but it has also been aproblem for as long as officers have been patrolling.”

LAPD Union Joins National Push For FedsTo Help Prepare Police For Contacts WithMentally Ill

Los Angeles’ police union has thrownits support behind a national push forfederal funding and other resources tohelp officers better prepare for interac-tions with people who are mentally ill.

THE L.A. POLICE PROTECTIVE LEAGUE IS ONE OF MOREthan a dozen police unions nationwide – including thosein New York, San Jose and Chicago – calling on the federalgovernment to pay for crisis-intervention training, less-lethaldevices and officers who team up with mental health pro-fessionals to respond to emergency calls.Their agenda, dubbed Compassionate and AccountableResponses for Everyone, was formally unveiled at a newsconference Thursday morning in New York.”Our national mental health crisis is a social problem, nota police problem,” said Jamie McBride, one of the LAPDunion’s directors, on the steps of City Hall in Manhattan.Teaching police how to appropriately respond to someonewho has mental health issues is nothing new – agencies haveoffered such training for years. But those interactions havedrawn renewed attention in recent years, particularly after

By Kate Mather for the Los Angeles Times, originally published July 13, 2017.

several high-profile police shootings of people who werediagnosed with mental illnesses.Mental health advocates and police said that officers areoften first responders in situations involving people who couldbe better helped with treatment or other services. Officersfrequently describe feeling pressured to act not just as a po-lice officer, but also as a therapist or social worker whenresponding to such calls – a difficult task, they say, if theencounter is volatile.“This is an issue that’s not going away. We have to dealwith it,” McBride said in an interview. “Enough is enough.”The coalition hopes that federal involvement will standard-ize mental health training for officers across the country andhelp departments create teams pairing police and mentalhealth clinicians that respond to people who are in crisis.The unions are also calling to modify federal law that keepscertain medical information private, so that officers respond-ing to a call would know if the subject had any prior men-tal health-related issues.The unions have tied their effort to the case of a New Yorkpolice sergeant charged with second-degree murder afterfatally shooting a mentally ill woman who had a baseballbat, a case that one union leader from Oklahoma called a“political prosecution” at the news conference Thursday.The ultimate goal, McBride said, is to ensure that police

New York Police Department convinced the 66-year-oldDanner to put down the scissors she'd been wielding butwhen she lunged at him with a baseball bat, he fatally shother, according to police accounts.

“She was not a monster,” said Wallace Cooke Jr., Dan-ner’s cousin and a retired New York police officer. “She wasmentally ill.”

how police respond to persons with mental illness is anissue that law enforcement agencies have grappled with fordecades.

“Police are the front responders to people in crisis,” saidron honberg, senior policy advisor at the National Allianceon Mental Illness. “Why are so many people reaching thispoint? What can we do to reduce the burdens on police, andwhat can we do to prepare police to respond to these situ-ations?”



Police Unions Join Forces To Rally ForMental Health Reform: Unions Involved WithCompassionate And Accountable Responses ForEveryone Push For The Funding Of NationalLegislation Aimed At helping Officers

Deborah Danner coped with schizophre-nia for more than three decades, describ-ing it as a “curse” and a “nightmare”whose only “saving grace” was that itwas not fatal. But she knew that an en-counter with police could change every-thing.

“We Are ALL AWAre Of The ALL TOO freqUeNTnews stories about the mentally ill who come up againstlaw enforcement instead of mental health professionalsand end up dead,” Danner wrote in a 2012 essay, “LivingWith Schizophrenia.”

Last year, on Oct. 18, police arrived at her apartment afterher neighbors – not for the first time – called 911 about a“disturbance” in the Bronx building. Sgt. hugh Barry of the

By Caroline Carballeira for NBC New York News, originally published August 24, 2017.

officers across the country have the appropriate tools inplace.

“I think once anybody hears this, they’re going to look atthis like this is a no-brainer,” McBride said of the overallagenda. “It’s something that’s needed. It’s not going to bethe fix-all, but it’s going to be a step in the right direction.”Louis Dekmar, the police chief in LaGrange, Ga., and firstvice president of the International Assn. of Chiefs of Police,said the national policing group launched its own effort lastyear, trying to get agencies to pledge to craft policies andtrain officers to better handle situations involving mentallyill people. So far, he said, only 140 of about 18,000 agen-cies have signed on.

The challenge, he said, is a lack of resources.“We’ve taken what should be a public health issue and

we’ve turned it into a criminal issue,” he said. “And the sadcommentary is, of the 900 and some fatal police shootingsa year, about 25% are affected by mental illness.”

In Los Angeles, four of the 28 people struck by police gun-

fire in 2016 showed signs of mental illness, according toLAPD data. The previous year, nearly a third of the 38 peo-ple shot by police were perceived to be mentally ill.

LAPD officers receive 15 hours of training specific to men-tal health while in the academy, said Lt. Brian Bixler, whoruns the department’s crisis response section. The depart-ment is in the process of providing 40 additional hours oftraining to officers – almost 1,350 have received it – withplans for an eight-hour refresher course at two-year intervals.

Training for police is key, said Laura Usher, a senior man-ager with the National Alliance on Mental Illness. Officersmust recognize that people experiencing a mental healthcrisis may not respond to normal police commands, she said.

As a result, her organization partners with local agenciesto teach strategies such as how to back away, lower yourvoice and build rapport with the person who needs help.

“There are cities and counties that are doing amazing work,”she said. “And then there are others that really have few re-sources and haven’t been able to take any steps.”



Push For PoliciespoliCe unions FroM Around tHe Country CAMe

together in June to try to improve officers' responses. theycall their effort Compassionate and Accountable responsesfor everyone, and are focused on implementing mental healthpolicies laid out in the 21st Century Cures Act, signed byformer president barack obama in december.

the law includes changes to federal mental health poli-cies regarding law enforcement training, coordination amongmultidisciplinary response teams and clarification of the medi-cal privacy law, the Health insurance portability and Ac-countability Act, which protects the information of patients.

police officials would like to remove obstacles to retriev-ing that information on medical history, such as a record ofpast contact with the mental health system. the law calls fora review of HipAA to eliminate ambiguity in what informa-tion can be shared.

the 21st Century Cures Act authorizes the departmentof Justice to appropriate $50 million each fiscal year from2017 to 2021 to cover the large number of reforms includedin the section of the law regarding mental illness.

“the vehicle is there, but it needs to be funded,” said JohnGeorge, president of the Fraternal order of police in okla-homa City, where calls for mental health crises have increasedby 88 percent in the past four years. “this is a crisis.”

the coalition of organizations includes unions from losAngeles, san Jose, san Francisco, oklahoma City and omaha.At its inception, it also included organizations from newyork and Chicago, according to the los Angeles times.

the police efforts come against a backdrop of an under-resourced mental health system and the absence of quality,consistent care.

“i don’t think there’s enough resources provided for men-tal health throughout this country,” Cooke Jr. said. “debbiewas confused and had her issues, but she still was a very in-telligent young woman…and didn’t have to die in her bed-room.”

About 43.4 million adult Americans live with mental ill-ness, 9.8 million of them with a severe illness. For thoseAmericans whose serious illness goes untreated, an encounterwith law enforcement is 16 times more likely to be fatalthan for other civilians, according to a 2015 treatment Ad-vocacy Center study.

“the real story is the failure of the mental health system,”said louis dekmar, the incoming president of the interna-tional Association of Chiefs of police. “there's just not alarge political constituency for the mentally ill, unless lawenforcement or family members advocate.”

the national attention to the opioid epidemic could spursome improvement. As studies emerge that overdose deathnumbers are higher than previously thought, president don-ald trump has declared the crisis a national emergency. “Alot of times, if you read profiles of people who overdosed

on opioids…there's an underlying mental illness,” Hon-berg said.

Education In De-escalationFunds provided by tHe 21st Century Cures ACt

would allow police departments to send more officers toreceive training in mental illness – and enable them to payovertime to other officers to cover their shifts. Accordingto rebecca skillern, an officer in the Houston police de-partment's mental health division, just 12 crisis interven-tion response teams are available for the city's populationof 2.3 million.

“We're terribly understaffed,” skillern said. “While wedo try to provide the training to as many personnel as pos-sible, we constantly have officers asking for more units.”

training to deal with these types of crises differs from tra-ditional police protocol, according to Amy Watson, a pro-fessor at the Jane Addams College of social Work at theuniversity of illinois at Chicago.

“standard police training is to come into a situation andtake control, gain compliance very quickly and resolve it.that doesn't necessarily work when you’re responding tosomeone who’s in crisis,” Watson said. “if they’re really agi-tated, they’re not processing police officers’ commands asquickly as officers want them to…and may be very fright-ened.”

in the case of deborah danner, barry, an eight-year vet-eran, was charged with second-degree murder in May. Hehas pleaded not guilty.

danner herself addressed the importance of the issue oftraining, writing that “teaching law enforcement how to dealwith the mentally ill in crisis,” was a “very serious problem”that warranted attention.

though the 21st Century Cures Act just became law lastyear, some law enforcement and mental health profession-als recognized the need for improved training in the late1980's and established a model with a lasting influence.

Crisis intervention team international, an organization thatbegan in Memphis, tennessee, in 1988, developed a 40-hourcourse that incorporates expertise from mental health pro-fessionals and law enforcement. it works to build empathyfor persons with mental illness and to prepare police offi-cers with real-life scenarios, according to Michael Woody,president of Cit international.

“When the officers leave, they seem to have the confi-dence to handle these mental health calls more compas-sionately,” Woody said.

in Woody’s home state of ohio, 65 percent of law enforce-ment agencies have officers who have received Cit training.“they’re able to recognize [mental illness], and they havelearned communication skills, both verbal and non-verbal,to engage the person more effectively…accessible bodylanguage, speaking in lower volume, lower pace, being alittle more patient, knowing how to not confirm false be-liefs but be respectful,” said Mark Munetz, chair of psychi-atry at northeast ohio Medical university.A situation that could have escalated and become danger-


ous is instead defused into someone willing to go for help,he said.

As CARE calls for an increase in CIT and similar trainingacross the country, some officials caution against shiftingfrom voluntary to mandatory training without consideringindividual officers’ passion for handling crises.

Julie Solomon, the chief administration officer at CIT In-ternational, believes that states and communities moving torequire CIT training for all officers should build a voluntarycomponent, where officers who are passionate about re-sponding to crisis calls would receive advanced training.

“As a parent, the last thing I want is someone who wasjust forced to go through the 40-hour training to be the oneto respond,” Solomon said.

The International Association of Chiefs of Police called forgreater attention to the issue in 2016. The One Mind cam-paign asks agencies to sign a pledge that commits depart-ments to train 100 percent of officers and selected staff, suchas dispatchers, in mental-health first aid and 20 percent ofofficers in CIT training.

By the 2017 follow-up, 139 out of about 18,000 agencieshad signed the pledge.

Dekmar cites a widespread lack of funding as a reason forthe underwhelming pledge numbers, but believes improvingmarketing efforts through partnerships with mental healthorganizations could improve results.

“We expected that there would be more,” Dekmar said.“Everywhere that we go, this is an interest.”

All Hands On DeckThE 21ST CENTuRY CuRES ACT ALSO CALLS FOR A

report to Congress on the progression of coordination ef-forts between law enforcement and relevant agencies, suchas behavioral health providers.

“We have to be able to talk to each other…and have amutual sense of compassion. Law enforcement is asked tobe the first responders to a medical crisis,” said CharlesLennon, a program manager who oversees joint efforts be-tween the Los Angeles Department of Mental health andthe Los Angeles Police Department.

Experts say that police often do not have sufficient optionsonce they have de-escalated a situation besides arrest or anemergency room visit, so the individual involved may not havethe opportunity to receive further mental health support.

“We need to have other options at that point of contactwith police,” Watson said. “A crisis isn’t a crime.”

The mental health crisis in the u.S. can in part be tracedto a broad movement in the mid-20th century referred to as“deinstitutionalization.” The introduction of the first antipsy-chotic drugs in 1955 and the implementation of Medicareand Medicaid under former President Lyndon B. Johnsonprecipitated the widespread closures of mental health hos-pitals. Individuals receiving inpatient care were left lackingclear support systems in their communities, contributing tomore encounters with law enforcement.

“The jails and prisons have become the mental healthhospitals,” said Kathy Forward, executive director at the

National Alliance on Mental Illness chapter in Santa ClaraCounty.

Sgt. Paul Kelly, president of the San Jose Police Officers’Association in California, recognized the need for actionafter six people with mental illness were shot by city policeofficers this year, including 35-year-old Francis De La Cruz.Police officers took non-lethal measures to diffuse the situ-ation before fatally shooting De La Cruz, who had pickedup an axe and pointed it at the officers on the scene. De LaCruz had previously spent time in mental health institutions.

“When we realized what was going on across the nation,we needed to do something…not only on a local level, but anational level,” Kelly said. “But it can't just be police unionsknocking on D.C.’s door…I think you're going to have thelocal elected leaders hold hands on this.”

After Danner’s death, New York City Mayor Bill de Blasioand NYPD police Commissioner James O’Neill condemnedthe shooting.

“Something went horribly wrong here,” de Blasio said im-mediately afterward. “It’s quite clear our officers are sup-posed to use deadly force only when faced with a dire sit-uation and it’s very hard for any of us to see that that stan-dard was met here.”

“Deborah Danner should be alive right now, period,” deBlasio added. “If the protocols had been followed, she wouldbe alive. It’s as simple as that.”

Presidents of the five unions involved with CARE recentlyattended a press conference in New York in July, joiningother union officials in protesting Barry’s indictment.

“The scapegoating of police officers for the failing mentalhealth system ends today,” Jamie McBride, director of theLos Angeles Police Protective League, said at the press con-ference.

The “accountable” in Compassionate and AccountableResponses for Everyone refers to responsibility across theboard, not just for police officers but also the support sys-tems of the persons with mental illness.

The unions plan to launch public service announcementsintended to show what goes through the minds of policeofficers and the protocol they follow when, for example,they pull a driver over.

The police efforts follow years of outcry – and accusationsof racial discrimination – over the deaths of unarmed blackmen shot by officers. Often the officers were not charged inthe deaths or if they were, they were acquitted after trials.

The Washington Post reported 643 police shooting deathsthis year. Mental illness played a role in a quarter of theshootings, according to the Post.

In the case of mental illness, police officers say they areparticularly frustrated with the public's lack of understand-ing of the difficulties they face when they respond to crisesand they want their side of the story known. They say theywill hold politicians accountable if they over-politicize po-lice encounters.



during his reign of terror, and this flushed over 80 milliondollars in training costs right down the toilet. I can go onand on, but you get the picture.We, as an association, have an obligation to not allow PeteConstant to do to any other city what he did to San Jose.After Constant worked in conjunction with Chuck Reedand Pierre Oliverio to nearly destroy the San Jose PoliceDepartment, he decided that his political career in San Josewas over, so he sold his home and moved to Roseville, Cali-fornia. He joined his former co-conspirator Chuck Reed ina group called, “Retirement Security Initiative.” He now fliesall over the nation peddling his poison and mistruths aboutwhat a great idea the unlawful Measure B was. He fails totell them that Measure B was thrown out and replaced witha negotiated settlement and that the City agreed to pay aportion of our legal fees. He fails to tell his marks that Meas-ure B depleted our department of over 500 officers, increased911 response times, and created skyrocketing crime rates inour city. Our friends at the Omaha and Louisville Police Officers’

Associations have advised us that he has been in their neckof the woods trying to spread his love there as well.I now want to talk to the residents of Roseville: Pete Con-stant will lie; he will tell you his grand plan to get elected.He will tell you what you want to hear, but I warn you now,that is not what you are going to get. Just ask the residentsof San Jose. To be continued…

Editor’s Note: Please send any comments to JohnMoutzouridis at: [email protected]

“After Constant worked inconjunction with Chuck Reedand Pierre Oliverio to nearlydestroy the San Jose PoliceDepartment, he decided thathis political career in San Josewas over, so he sold his homeand moved to Roseville, Cali-fornia.”

Second Chair’s ViewJohn Moutzouridis

RECENTLY, SGT. PHIL MANCINI, THE PRESIDENT OFthe Roseville Police Officers’ Association and former mem-ber of the SJPD, called me and said six words, “PETE CON-STANT is running for council.” I won’t lie to you, I was silentfor about three seconds. I then told Phil, when do you needus up there to help you tell the story of what Pete did to SanJose? As you can imagine, Phil was relieved. Then I explainedto him that not only will the SJPOA be there, but that I wassure Local 230 and many others would not miss this oppor-tunity to expose Constant for the charlatan that we believehim to be. In fact, I don’t think any police officer or fire fighterassociation in the state of California will sit this one out. When Phil and I hung up the phone, all I could think ofwas the last seven years! The millions of taxpayer dollarswasted in Pete, Chuck, and Pierre’s effort to take away dis-ability protections for public safety workers and how theylied to try and get their way. I can’t forget Measure B and howthe fallout from that divisive, dishonest, and despicable meas-ure destroyed our police department. I can’t forget all thevictims of crime that need our help, but because there areso few of us left, their calls for help go unanswered. All dur-ing this time, Pete Constant is enjoying a disability pension,the very disability protection he tried to strip from you.Former police officer Pete Constant voted Yes on the 10%pay cut for all employees. He voted Yes to firing 66 policeofficers and 49 firefighters. In turn, over 500 hundred SanJose Police Officers left to go work for other jurisdictions

Liar, Liar…

Well, I think we knew this day wouldcome. As I sit here at my dining roomtable shaking my head, I’m strugglingto find the words to express my dismayand outrage over the news of Pete Con-stant’s latest charade. As you read thisarticle, I imagine you will also be shak-ing your head and getting charged up,even getting mad, that after what PeteConstant did to our police departmentand city, he wants to do to another po-lice department and city.



“These encounters are being filmed, [with] more and moretragic outcomes,” Honberg said. “All of that has escalatedthe visibility of these situations. What happens is that thepolice get blasted...and sometimes it’s justified and some-times it may not be as cut and dry.”

Union officials say that they plan to lobby local city offi-cials and congressional delegations to implement and fundthe 21st Century Cures Act policies.

“When the mental health system is not funded properly,it’s a danger to the citizens, puts a strain on law enforcementand it hurts the quality of life in any environment, any city,”George said.

One sign of progress was the Senate confirmation earlierthis month of psychiatrist Elinore McCance-Katz to a posi-tion created as part of the legislation, an assistant secretaryfor mental health and substance use disorders.

John Snooks, executive director at the Treatment AdvocacyCenter, believes police unions’ support can only help.

“If you can have law enforcement making the case for im-plementing the programs…that’s going to be really power-ful...and changes the conversation for the public,” Snookssaid. “And lawmakers always listen to law enforcement be-cause they're the ones on the ground.”


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VEBA is established. It will take time to educate the mem-bership on what will be a very personal decision.Lastly, there are a lot of statewide and national bills that

can impact the working conditions of police officers through-out the state and in the country. The POA has been workingon these with PORAC on the state level, and other large eastcoast departments like The Sergeant’s Benevolent Associa-tion in New York in Washington, D.C. These bills relate tofunding for the families of fallen officers, body worn cam-eras, and de-escalation. We will continue to fight for ourmembers and oppose some of these bills.

Editor’s Note: Please send any comments toFranco Vado at: [email protected]

AUGUST 08, 2017

PRESIDENT KELLY THEN REMINDED THOSE IN ATTEN-dance that Camp Hoosegow is 8/19-8/20, and that this is agood opportunity to spend time with your kids. There havebeen some questions about the 1 year shift change that issupposed to be implemented at 1,009 sworn staffing orMarch of 2018, whichever comes first. We believe that thereare some logistical issues that may make this difficult, in-cluding the department wanting to make the annual shiftchange every September. Be prepared for the potential ofthis being moved to September of 2018.President Kelly then updated the membership on Tier 2

retiree medical and the VEBA. The city along with POA andLocal 230 asked the retirement board to suspend Tier 2 re-tiree contributions into the retirement system until the VEBAis established, which will be sometime in early 2018. Theretirement board agreed, and this will result in the Tier 2contributions reducing 9.51% to 15.17% until the VEBA isestablished. For those Tier 1’s who are considering optinginto the VEBA, that will not occur until 6-8 months after the

San Jose Police Officers’Association Meeting Notes

Membership MeetingPresident Paul Kelly began the meetingby updating the membership with cur-rent staffing numbers. Total sworn staf-fing is 974 (865 not including FTO & theacademy), and 788 for full duty sworn.

C.F.O.’s ReportFrancoVado

VisitProtectSanJose.comRegularly for the latest Public Safety News


have his attorney present during questioning, has been fore-closed by the United states supreme court in Moran v.Burbine (1986) 475 U.s. 412, 106 s.ct. 1135, 89 L.ed.2d410 and McNeil v. Wisconsin (1991) 501 U.s. 171, 183,111 s.ct. 2204, 115 L.ed.2d 158.

in Moran the court held that the respondent validly waivedhis Miranda rights even though he was unaware counsel ob-tained on his behalf sought to speak with him but had beenturned away by the police. (Moran v. Burbine, supra, 475U.s. at p. 421, 106 s.ct. 1135.) "events occurring outsideof the presence of the suspect and entirely unknown to himsurely can have no bearing on the capacity to comprehendand knowingly relinquish a constitutional right." (id, at p.422, 106 s.ct. 1135.) in a footnote, the U.s. supreme courtrejected "a novel ‘agency’ theory of the Fifth amendmentunder which any perceived deception of a lawyer is auto-matically treated as deception of his or her client. this ar-gument entirely disregards the elemental and establishedproposition that the privilege against compulsory self-in-crimination is, by hypothesis, a personal one that can only beinvoked by the individual whose testimony is being com-pelled." (Id. at p. 433, fn. 4, 106 s.ct. 1135, emphasis added.)

in McNeil v. Wisconsin, supra, 501 U.s. at p. 183, 111s.ct. 271*2712204, the United states supreme court heldthat the petitioner's invocation of his sixth amendment rightto counsel at the initial hearing to set bail did not operateto also invoke his Fifth amendment right to counsel. (Id. atpp. 173, 178, 111 s.ct. 2204.) the court declined to adoptsuch a rule as a matter of public policy because the result

“N.B. California Penal Codesection 825(b) makes it a mis-demeanor if a police officerdoes not allow a suspect tomeet with his attorney afterthe attorney has been con-tacted by the suspect or hisfamily and is present at thestation.”

Miranda Rights Are PersonalMIRANDA rights can not be invoked by third

parties. Miranda rights are personal and can only be invokedby the suspect. in this case, def's lawyer attempted to makeblanket invocation on client's behalf even as to crimes thelawyer was not appointed for. P v. Beltran 75 ca4th 425

def's pub def files document invoking Miranda on def'sbehalf for any future investigations. heLd: document ismeaningless. you cannot invoke Miranda UntiL you arein custody facing immediate questioning. 75 ca4th 416People v. Avila

Attorneys Cannot Place ABlanket Invocation AboutOther Crimes

the proposition that coUnseL in one case canfile a blanket invocation preventing the police from ques-tioning their client about any other case, even where theclient voluntarily waives his rights to remain silent and to

InvocationBy Attorney

Recently a defense attorney came to thestation where his client was being held.For some reason he was allowed accessto the suspect even though the suspecthad not yet been given his Miranda warn-ings or asked for counsel. Nonetheless theattorney told the officers he representedthe suspect and that the suspect wouldremain silent and the officers would notbe speaking to the suspect. The attorneythen left. Officers then provided the Mir-anda warnings to the suspect and he con-fessed. How can that be legal?

TrainingBulletinThird DegreeCommunications:

Charles Gillingham


would be that “most persons in pretrial custody for seriousoffenses would be unapproachable by police officers sus-pecting them of involvement in other crimes, even thoughthey have never expressed any unwillingness to be ques-tioned. Since the ready ability to obtain uncoerced confes-sions is not an evil but an unmitigated good, society wouldbe the loser. Admissions of guilt resulting from valid Mirandawaivers are more than merely ‘desirable’; they are essentialto society's compelling interest in finding, convicting, andpunishing those who violate the law.’” (Id. at p. 181, 111S.Ct. 2204, emphasis in original, quoting Moran v. Burbine,supra, 475 U.S. at p. 426, 106 S.Ct. 1135.)

If the attorney tries to invoke on behalf of her client, dis-regard, get a valid waiver and question.N.B. California Penal Code section 825(b) makes it a mis-

demeanor if a police officer does not allow a suspect to meetwith his attorney after the attorney has been contacted bythe suspect or his family and is present at the station. Takethe extra time (protect yourself) and get a warrant!

Editor’s Note: This article was presented by The Prin-cipals of Third Degree Communications, Paul Francoisand Enrique Garcia. Tel. 866.766.7575 Email. [email protected] or visit www.tdcorg.com

I LOVE A COP*Lois-Wilco-Owens, L.M.F.T.

LICENSED MARRIAGE & FAMILY THERAPIST

Serving The San Jose PoliceDepartment since 1993.

Specializing in dealing with policeofficers and their families.

Tel: [email protected]

2461 Marsha Way, San Jose, CA 95125

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*Please Note, I am not the author of the book with this title.

v


3. How do you help client "budget" to buy a second home?if a client is looking to purchase an income property, wehave an investment property worksheet that considers thetotal cost of the property, income generation, and profitabil-ity of the investment. lining up all the costs can help youdetermine your home purchase price, anticipate operatingcosts, and research rents in the area you are looking to buy.this is more of an objective approach to purchasing a sec-ond home. often there are emotional factors that can at-tach a client to a specific home purchase that may not beas profitable as other options. an example would be to buya family vacation home in a specific area for personal use,and to rent when not being used. in this situation a buyerneeds to weigh both the financial and emotional consider-ations, and be content with the tradeoffs.4. When would you advise against buying a second home?When a client is living beyond their means or if the newhome puts them in danger of such an event. if a client isconsidering purchasing a second home, we would run acash flow scenario and analyze the impact on their finan-cial situation. if the financial impact was negative we wouldeducate the client on their situation. However, timing is an-other factor to consider as well. is it a good time personallyfor the client to purchase another home? Have they antici-pated other major expenses in the next few years that maynot have anything to do with the home purchase? Finally,there can be circumstances during the closing period, likean inspection report which shows major issues and can makethe purchase less attractive.

Before jumping into another home in the snow, moun-tains or sand be sure to decide the reason for the purchase.is this a second home? a rental/income property? Keep thefinances in mind and consider management costs if the homewill be a rental property. only then should you go secondhome hunting.

Editor’s Note: Keith Rockmael is a POA and real es-tate advocate and agent. He can be reached by email [email protected]

Buying ASecond Home

Real Estate NewsKeithRockmael

Besides consulting a real estate agent and acPa, it may be wise to talk with a financial planner beforejumping into a second home purchase. san Francisco basedsenior Financial advisor Julie davis answered a few ques-tions about buying a second home.1. What should buyers be aware of when thinking aboutbuying a second home? When considering a second home,potential buyers really need to assess why they are buyingone, and what they are trying to achieve. For instance, areyou buying a second home for rental income and capitalappreciation, or is it a vacation home? depending on whatyour intent is for the second home it will effect where youlook to buy, what type of home you are seeking, and theoutcome you are seeking from your purchase.2. What are the biggest landmines that your clients haveexperienced with second homes? Many second home pur-chasers underestimate the operating costs of a second home.For instance, management fees, property taxes, maintenancecost (i.e., a/c repairs or replacement, new roof, painting,etc.). another pitfall is when clients think they will be ableto use short term rental programs like airbnb to cover themortgage, or when an unforeseen event occurs which re-sults in a loss. a recent example happened this past winterin tahoe. Many clients did not plan for all the maintenancelike having the snow shoveled, roads cleared, etc. also, somevacation home owners lost out on rent because the heavysnowfall prevented the renters from getting to the property.

With the prices of homes in the Bay Area,it remains a distant thought for mosthomeowners to consider buying a secondhome. That being said, many currenthomeowners wish to take advantage ofshort term rental platforms (such asVRBO, Airbnb) or just want somewhereto head for the weekend.

“Many second home purchas-ers underestimate the operat-ing costs of a second home.”


Critical Illness plan must be purchased before retirement,in order to keep it after you retire.The $100 Wellness Benefit is paid as long as you are not

hospital confined. There is an additional MammographyBenefit, so guys, enroll your spouse.

How To Enroll: • Download application from:www.derendingerins.com/allstate

• Request an Application [email protected] or • Phone us at 408.252.7300Enroll now, during Open Enrollment, and keep this plan

for life!

Editor’s Note: The Derendinger Insurance Agency hasserved as our SJPOA Insurance Broker since 1968. Marccan be reached at 408.252.7300 or by email at [email protected]. You may find more informationabout individual insurance plans at www.derendin-gerinsurance.com(California license numbers 06446176 and 0563986)Follow Us on Twitter @DerendingerIns

“Group Critical Illness is thecheapest of all the supplemen-tal plans ($3.80 to $12.80 formembers under age 50). It paysa cash benefit of up to $30,000when you have a Heart Attackor Stroke. There are additionalbenefits paid for Coronary By-pass Surgery, major organ trans-plants, and Alzheimer’s.”

Limited OpenEnrollment– SJPOA IBT

GROUP CRITICAL ILLNESS IS THE CHEAPEST OF ALLthe supplemental plans ($3.80 to $12.80 for members underage 50). It pays a cash benefit of up to $30,000 when youhave a Heart Attack or Stroke. There are additional benefitspaid for Coronary Bypass Surgery, major organ transplants,and Alzheimer’s.

Allstate Open EnrollmentsOnly Occur Every 5-7 YearsDESPITE THE LOW COST, THE PLAN CONTAINS AN

annual cash-back benefit of $100, when covered memberscomplete one of the specified wellness screens, listed below(limited to one test per covered family member per calen-dar year):• Lipid panel (total cholesterol count)• Pap Smear, including Thin Prep Pap Test• PSA (blood test for prostate cancer)• Stress test on bike or treadmill• Electrocardiogram (EKG)• Echocardiogram• Blood test for triglycerides

We are pleased to announce a limitedopen enrollment for the Allstate CriticalIllness Plan, which was the focus of lastmonth's article. Members who enroll inthis plan before retirement may keep itfor life.

Insurance NewsMarcF.Derendinger

WWW.PROTECTSANJOSE.COM


area altogether. They have been priced out and unable tomove up within the same area. So they’re leaving the BayArea entirely.The lessening number of days on the market is telling.

Downtown San Jose and Rose Garden have experiencedthe most notable drop in the past six months. In downtownSan Jose, the average number of days on the market for asingle-family home was 29 in the last six months. In the pastthirty days, that number has dropped to just 14 days on themarket. This is less than half of its previous six month aver-age.Meanwhile, over in Rose Garden, the average number of

days on the market over the past six months was 37. In thepast thirty days, it’s been shortened to 23. That’s two weeksless than it was before.

Silicon Valley real estate is selling asquickly as ever with even lower days onthe market for single-family residences.During the first six months of 2017, it’sclear that throughout this highly desir-able area of the state, inventory is lowand demand is incredibly high. As aresult, the number of days on the mar-ket for residential real estate is becom-ing fewer and fewer.

Continual Drop For Days-On-Market For Silicon Valley Homes

Real Estate PerspectiveKarenNelsen

WHEN DAYS ON THE MARKET DECREASE, IT’S A SUREsign that properties are selling fast. The reasons behind thisare typically due to a high demand and low supply.

Tech Fuelled ResidentsIN SILICON VALLEY, IT’S A COMMON TREND FOR

buyers in the area to be working in tech. As the alreadybooming tech industry in the area continues to grow, moreand more people from around the world continue to flockto Silicon Valley for career opportunities that simply don’texist elsewhere.But despite the influx of new residents, few homeowners

are selling their property. Below are the numbers of activelistings for single-family residences among Silicon Valleyneighborhoods and cities this week. All of these numbersare drastically lower than they were a year ago at this time:Almaden Valley: 25 Cambrian: 32 Campbell: 12Cupertino: 22 Santa Clara: 27 Saratoga: 45Willow Glen: 32 San Jose: 426

Why So Few Sellers?WHAT’S THE REASON BEHIND THE LACK OF SELLERS?

It may very well be because they have nowhere to move to.Of those that are selling, the majority are moving out of the

“The fewer number of dayson the market is indicative ofthe substantial jump betweenwhat a property is listed forand what the actual salesprice ends up being. Over thepast six months in downtownSan Jose, the average listprice for a single-family homecame in at $775,642. But theaverage sales price in thesame area hit $790,804 –roughly $15,000 higher.”


What Fewer DaysOn The Market Mean

The fewer number of days on The markeT isindicative of the substantial jump between what a propertyis listed for and what the actual sales price ends up being.over the past six months in downtown san Jose, the averagelist price for a single-family home came in at $775,642. butthe average sales price in the same area hit $790,804 –roughly $15,000 higher.

rose Garden saw an even greater difference, with an av-erage list price of $1,020,841 compared to an average salesprice of $1,049,210 – almost $30,000 higher.

some areas have seen a similar or equal number of dayson the market recently as they have in the past six months– but properties here continue to sell for much higher thanthe price indicated on the listing.

Take Cupertino as an example. The average number ofdays on the market for the past six months has been 14, thesame number as within the past thirty days. The average listprice, though, is substantially lower than the average salesprice, at just $2,019,726 compared to the latter’s $2,180,054.what this means is that despite the number of days on themarket remaining unchanged, prices are still continuing togo up.

How To Get Into Silicon Val-ley Real Estate As A Buyer

so, how does one break inTo The siliCon Valleyproperty market at a time when inventory is low and pricesare high? There are still areas where home prices are belowthe million dollar mark in santa Clara County.

remember, there is always a way to break into the hous-ing market. Get good representation by a knowledgeablerealtor and your property search will be successful!

What About Sellers?as a seller, you haVe an adVanTaGe in The Cur-

rent silicon Valley real estate market. but this alone doesn’tnecessarily guarantee that your house will sell for its maxi-mum potential. an experienced real estate agent and cus-tomized marketing plan specifically designed for your prop-erty are imperative to success.

Editor’s Note: Article brought to you by Karen Nelsen,GRI REALTOR® Intero Real Estate Services, 175 EastMain Avenue, Suite 130 Morgan Hill, CA 95037.Office: 408.778.7474 Cellular: 408.461.0424Email: [email protected] License: 00891921


Have you done the calculations to figure out how muchyour ideal retirement will cost? How much it will cost eachyear? Have you figured out the exact number – how muchwealth you’ll need socked away in your retirement accountto generate passive income sufficient to pay for that idealretirement lifestyle?No?This is a tricky calculation at best, since you know neither

what you'll earn in any given year, nor what the rate of in-flation will be, nor how long you'll live. On the followingpage, there are three different schools of thought to deter-mine what percentage of your nest egg you can safely spendeach year for 30 years, without running the risk of entirelyrunning out of money.

Editor’s Note: Contact the team at Liquid Equity Part-ners to set up your Living Benefits Account or to see someof the other strategies that may be fit for you. Liquid Eq-uity Partners. 1190 Silvergate Dr. #102 Dublin, CA94568. Liquidep.com, Telephone: 925.587.3204 [email protected]

HowMuchCan I Spend In RetirementWithout Running Out Of Money?

Financial SecuritiesJohnMontoya DucQuach

LET’S CONSIDER THE REALITIES OF REAL LIFE…Typically, as income increases, so does spending. This life-

style is temporarily sustainable, but is it practical for thelong-term?

It’s time to ask the hard questions: Have you taken the timeto figure out exactly what your family needs to live hap-pily ever after? Have you done any serious thinking aboutwhether you really need that bigger house, nicer car, ornewer T.V.?

Have you differentiated what you really need as opposedto what you want?

Most people think retirement planningstarts when they earn a higher salaryand have more disposable income. Theidea that you need more money to ach-ieve future stability is a path to failure.Creating a better strategy or having areliable roadmap to retirement is a bet-ter solution than the idea of “just makemore money.”

“It’s time to ask the hardquestions: Have you takenthe time to figure out exact-ly what your family needs tolive happily ever after? Haveyou done any serious think-ing about whether you re-ally need that bigger house,nicer car, or newer T.V.?”


How Much Can I Spend In Retirement Without Running Out Of Money?Assumptions: A 65-year-old couple begins with a $1 million portfolio consisting of 50/50 stocks and bonds. Thestrategies below assume annual spending will never dip below $15,000 in inflation-adjusted terms over 30-years.

Strategy

Description OfStrategies

Calculation NETSpending Rate:

Gross Return< Fees >< Taxes >< Inflation >

Net Spending Rate

Initial NETSpending Rate

Descriptions OfSpending Rates

Range Of AnnualWithdrawals

Best Case

Average

Worst

ConstantInflation-AdjustedSpending

Retirees begin bywithdrawing a givenpercentage of theirinitial retirement

portfolio. Each yearthereafter, the

withdrawal amountis increased to

match theinflation rate.

2.85%

Rate adjusts tokeep withdrawals

steady withinflation.

$28,500

$2,679,300

$795,000

$17,900

Bengen’sFloor-And-Ceiling

Rule

In the first year,retirees withdraw agiven percentage oftheir portfolio. After

that, withdrawalscould increase byup to 25% in bull

markets, ordecrease by notmore than 10%in bear markets.

3.29%

Rate is allowedto fluctuate withincertain upper and

lower limits accordingto the strength of

the market.

$28,000 - $39,500

$2,149,800

$709,000

$17,100

Guyton AndKlinger’s

Decision Rules

Withdrawals areincreased each yearto match inflation,

except in yearswhen the portfolioloses money. If the

withdrawal rate everrises to more than120% of the initial

rate, that year’swithdrawal is cut by10 percent. In goodyears, withdrawalsmay increase by

10 percent.

4.95%

Rate fluctuates tokeep withdrawals

steady with inflationand to reflect bull

markets.

$15,800 - $61,000

$1,114,200

$345,000

$43,900

Money Left After 30 Years

Contact Liquid Equity Partners to find out how a 4% guaranteed account could save youa lot of headaches, discover all your options and download our in-depth worksheet at

LiquidEP.com, email: [email protected] or call: 925.587.3204


A Search Warrant For The Residence Of AnInternet Account Subscriber Did Not Ex-tend To Search Of A Second ResidentialUnit On The Premises

In executing a search warrant, a peaceofficer may search those locations thatare described in the warrant. To whatextent may that search extend to a sec-ond residential unit when the warrantauthorizes search of the primary unit?

Reliable InformerLanceBayer

In this month’s issue of the Reliable Informer, I will cover two cases, one decided by the California SupremeCourt and one decided by the California Court of Appeal. These cases look at the law relating to searches ofresidences and the crime of making a criminal threat.

RECENTLY, THE SIXTH DISTRICT OF THE CALIFORNIACourt of Appeal looked at this question in the case of Peo-ple v. Nguyen (2017) Cal App. 5th .In the Nguyen case, a detective in Santa Clara County in-

vestigated child pornography on the Internet. In conductinghis investigation, the detective identified an IP address (In-ternet Protocol address) that was used by an account holdersharing child pornography online. The IP address identifiesa device on a network, such as a router, computer, or printer.The IP address allows the device to be identified and locatedby other devices. At the time a user connects to the Internetthrough a router, the user’s Internet service provider assignsan IP address to the user’s router. In that manner, user’s de-vices using the Internet will generally have an IP address asan identifier.The detective contacted the Internet service provider that

provided service to the suspect’s device. The detective hadbeen able to determine the suspect’s IP address and requestedthat the service provider give him the name and address ofthe account holder. The service provider gave the detectivethe name of a woman living at a particular residence addressin San Jose. The detective researched the residence address and deter-

mined that three names were associated with the address.One of the persons was the account holder. One of the otherpersons was a man named Kevin Nguyen. The detective useda well-know computer map program to get an overhead viewof the property. There were two distinct structures on the lot:a house facing the street and a separate L-shaped structureabout 25 feet behind the main structure. The L-shaped struc-ture was approximately 1,000 square feet in size. The detective went to the location and looked at the prop-

erty from the street. He observed what appeared to be asingle-family residence. There was one driveway and oneset of street numbers. The only part of the L-shaped structurethat he could see was a garage door. From the street, therewas no indication that anything existed on the property ex-cept for a single-family home and a detached garage.From his position in front of the residence, the detective

used a wireless computer to look for wireless network sig-nals. He did not find any “open” signals. All of the wirelesssignals he located were “password protected.” The detectivecould not determine whether any of the signals were asso-ciated with the suspect IP address. He was not able to de-termine whether there were any wireless routers on theproperty. The detective obtained a search warrant to search the prop-

erty. The property was described as a “single story singlefamily residence.” In addition to the residence, the warrantauthorized search of “any and all yards, garages, carports,outbuildings, storage areas and sheds assigned to the above-described premises.” The affidavit in support of the warrantstated that the person responsible for the child pornographycan be anyone with access to the internet signal associatedwith the residence. The affidavit did not mention Kevin

of a lawful search is defined by the object of the search andthe places in which there is probable cause to believe that itmay be found. If the scope of the search exceeds that per-mitted by the terms of a validly issued warrant or the char-acter of the relevant exception from the warrantrequirement, the subsequent seizure is unconstitutionalwithout more.”

The Court continued, “The scope of a warrant is determinedby its language, reviewed under an objective standard with-out regard to the subjective intent of the issuing magistrateor the officers who secured or executed the warrant. Phraseddifferently, the scope of the officer’s authority is determinedfrom the face of the warrant. As many courts have observed,officers executing a search warrant are required to interpretit, and they are not obligated to interpret it narrowly. To sat-isfy the objective standard, the officer’s interpretation mustbe reasonable.”

The Court looked at the question of whether the search ofNguyen’s residence exceeded the scope of the language ofthe search warrant. The Court stated, “We find no languagein the warrant authorizing a search of Nguyen’s residence.The warrant identified “a single story single family residence”to be searched – i.e., the front house on the street, which thewarrant described in detail. The warrant makes no mentionof Nguyen’s residence. As to the claim his residence wasincluded under the term ‘garages’ in the warrant, the trialcourt made a factual finding that the rear structure was not‘simply a garage’ but was ‘plainly a separate residence.’ Un-der our standard of review, we are bound by the trial court’sfinding if it is supported by substantial evidence.”

The Court continued, “Abundant evidence supports thefinding that Nguyen’s residence was not a garage. By all ac-counts, the rear structure was previously a garage that hadsince been converted to a residence through additional con-struction. The building had a bedroom, a kitchen, a bathroom,a living space, and a separate doorway apart from any garagedoor. And Nguyen actually lived there. A garage, by contrast,is ‘a building or compartment of a building used for housingan automotive vehicle.’ The record contains no evidencethat an automotive vehicle was housed in the structure, orthat it was even capable of housing a vehicle. While we do


Nguyen by name. When officers arrived at the residence to execute the war-

rant, the account holder answered the door. She told the of-ficers that Kevin Nguyen was her landlord and lived in back,referring to the L-shaped structure. She said that she had akey to an outer, metal door of Nguyen’s residence, but didnot have a key to the inner, wooden door.

Officers discovered a computer router in the front house.They did not know whether the signal from the network ex-tended to the rear structure and did not know whether Nguyenhad a password to access the network.

Officers used the account holder’s key to open the outerdoor to the residence in the L-shaped structure, but had touse a battering ram to get through the inner door. Inside theresidence, officers located a laptop computer. A forensicsearch of the computer revealed suspected child pornogra-phy. Officers searching the primary residence located an-other laptop computer belonging to the husband of the ac-count holder. That computer also contained suspected childpornography.

Nguyen was arrested and was charged with possession ofchild pornography. The husband of the account holder alsowas charged with possession of child pornography.

In the trial court, Nguyen made motions to quash and tra-verse the search warrant and suppress the evidence obtainedin the search. Nguyen asserted that the affidavit failed toestablish probable cause connecting his residence to crim-inal activity and that the detective intentionally or negligentlyfailed to include material facts. The trial court denied themotion to traverse the warrant and found that the officersconducted a reasonable investigation. However, the Courtgranted the motion to quash the warrant on the ground thatthe execution of the warrant was overbroad. The Court or-dered the evidence suppressed..

The State appealed the trial court’s order to the Court ofAppeal. The Court of Appeal reviewed the case and upheldthe trial court’s decision.

In its written decision, the Court first stated, “The WarrantClause of the Fourth Amendment categorically prohibits theissuance of any warrant except one ‘particularly describingthe place to be searched and the person or things to be seized.’It is axiomatic that a warrant may not authorize a searchbroader than the facts supporting its issuance. The scope


“Inside the residence, officers located a laptop computer.A forensic search of the computer revealed suspected childpornography. Officers searching the primary residence lo-cated another laptop computer belonging to the husbandof the account holder. That computer also contained sus-pected child pornography.”

with a main building. A small building appurtenant to a mainbuilding, and generally separated from it; e.g. outhouse;storage shed.’ The record holds no such evidence Nguyen’sresidence was used in connection with the main house, orthat it served as an outhouse, a storage shed, or anythingelse besides a separate residence for Nguyen. Images of theresidence show it is not a ‘small building,’ but a sizeablestructure nearly as large as the front house. It was not anoutbuilding; it was a separate residence.”

The Court then looked at whether, even if the warrant in-cluded authorization to search Nguyen’s residence, there wassufficient probable cause to support the search. The Stateasserted that there was sufficient probable cause becausethere was an IP address assigned to a user at that propertythat was in use at the time alleged child pornography wastransferred. The Court responded by pointing out that therewas no evidence that Nguyen or any other person in the L-shaped structure had access to any Internet signal emanat-ing from the primary structure. There was no evidence thatNguyen had a password to the wireless signal and there wasno evidence that there was any wire connection betweenNguyen’s residence and the primary structure to carry thenetwork signal.

The Court stated, “Even assuming [the primary] residencewas broadcasting a wireless network signal, we reject theassertion that police had probable cause to search any otherresidence in range of the signal. Probable cause requiresmore than mere speculation or bare suspicion; probablecause requires reasonably trustworthy information sufficientto convince a person of reasonable caution that an offensehas been or is being committed. Residents in urban areasmay find themselves in range of numerous wireless networksignals at any given time, many of which are not accessiblewithout a password. Conversely, a user broadcasting a wire-less signal may put a large number of unwitting strangerswithin its range. If the signal is password-protected, few ofthose strangers are likely to have access to the network. Aperson of reasonable caution would not be convinced thatany given person within range of a wireless network hasaccess to that network.”

The Court stated, “We hold that the police lacked proba-ble cause to search Nguyen’s residence because the policehad no basis to believe the network with the suspect IP ad-dress was accessed from Nguyen’s residence.” The Courtfurther ruled that the officers did not act in good faith to ex-cuse them from the lack of probable cause because nothingin the warrant or the affidavit could reasonably be interpretedas probable cause that Nguyen had actually accessed thenetwork associated with the suspect IP address. Accordingto the Court, “The good faith exception to the exclusionaryrule applies when police act in objectively reasonable re-liance on a search warrant issued by a detached and neu-tral magistrate.”

The Court’s decision in the Nguyen case is a significantapplication of the rules regarding search warrants to thetechnology that is used to access the Internet.


Reliable Informer> continued from page 31

not interpret warrants narrowly, we must interpret them rea-sonably. No reasonable interpretation of the term ‘garage’would include Nguyen’s residence.”

The Court further stated, “Nor did the inclusion of the term‘outbuilding’ on the warrant authorize the search of Nguyen’sresidence. An outbuilding is ‘something used in connection

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“When the officer returnedto his seat, he looked over andnoticed that a couple of thetattooed men were staring athim in an intimidating way. Theofficer noticed that at least oneof the men had a gang tattoo.The officer continued to watchthe table and noticed that thewoman and her companionsbegan to leave the restaurantwhile continuing to stare atthe officer.”several tattooed men, including a man later identified asMario Gonzalez.When the officer returned to his seat, he looked over and

noticed that a couple of the tattooed men were staring athim in an intimidating way. The officer noticed that at leastone of the men had a gang tattoo. The officer continued towatch the table and noticed that the woman and her com-panions began to leave the restaurant while continuing tostare at the officer.The officer watched through the restaurant window. He

saw two men, including Gonzalez, get into an SUV that wasparked in the restaurant’s parking lot. As the SUV began toleave the parking lot and as it passed by the restaurant’s frontwindow, Gonzalez made a gang sign with his hand. He alsopointed his finger in the air toward the ceiling in a mannerthat simulated a gun. The officer and his companions sawthe gesture. They feared for their safety and the safety ofothers at the restaurant. Gonzalez was arrested and was charged with five counts

of making criminal threats, one for each person at the offi-cer’s table. Gonzalez also was charged with sentencing en-hancements for acting in furtherance of a gang and with sen-tencing enhancements for prior convictions for serious fel-onies and for having previously been committed to prison.In the trial court, Gonzalez made a motion to dismiss the

case after the preliminary hearing. He argued that there wasno evidence he made any threat orally or in writing. Thetrial court agreed, and dismissed all of the charges exceptfor a misdemeanor charge. Gonzalez pleaded guilty to vi-olating the misdemeanor. The People then appealed the trial court’s ruling to the


The Crime Of Mak-ing Criminal ThreatsMay Not Be Commit-ted By Engaging InNon-Verbal Conduct

California Penal Code section 422makes it a crime for a person to will-fully threaten to commit a crime whichwill result in death or great bodily in-jury to another person, with the specificintent that the statement, made verbally,in writing, or by means of an electroniccommunication device, is to be taken asa threat, even if there is no intent of ac-tually carrying it out, which, on its faceand under the circumstances in whichit is made, is so unequivocal, uncondi-tional, immediate, and specific as to con-vey to the person threatened, a gravityof purpose and an immediate prospectof execution of the threat, and therebycauses that person reasonably to be insustained fear for his or her own safetyor for his or her immediate family'ssafety. Under what circumstances maya non-verbal threat violate section 422?


RECENTLY, THE CALIFORNIA SUPREME COURT LOOKEDat this question in the case of People v. Gonzalez (2017) Cal. 5th . The Gonzalez decision overturned a pre-vious decision of the California Supreme Court that wasreported in The Reliable Informer.In the Gonzalez case, an off-duty police officer and friends

were eating dinner on a spring evening in Riverside County.The officer got up from the table and walked towards therestroom. While he was walking, the officer spotted a femalecustomer and smiled at her. The woman smirked back. Theofficer recognized the woman as an acquaintance from highschool. The officer noticed that the woman was sitting with


POST CertificateRequirementsBasic• Successful completion of the PoliceAcademy.

• 1 year police service.

Intermediate(5% incentive pay)• 4 years of law enforcement experiencewith an Associate Degree.

• 2 years of law enforcement experiencewith a Baccalaureate Degree.

Advanced(2.5% incentive pay)• 9 years of law enforcement experiencewith an Associate Degree.

• 6 years of law enforcement experiencewith a Baccalaureate Degree.

• 4 years of law enforcement experiencewith a Master Degree.

* Please submit your paperwork to the Training Unit 60days in advance of your anniversary date. Officers shouldhave copies (not originals) of college degrees, transcriptsand/or any course certificates on file as part of their train-ing files. These documents need to be attached to POSTcertificate applications.

Officer RobertWIRHT,Badge #1596Killed on September 8, 1988,while on a police motorcyclepursuing a speeding motorist,and then being struck by an-other errant motorist in traffic.

In Memoriam

Reliable Informer> continued from page 33

Court of Appeal. The Court of Appeal reviewed the case,overturned the trial court’s decision, and ordered the fivecounts of violation of section 422 reinstated.Gonzalez then requested that the California Supreme Court

hear his case. He argued that the Court of Appeal did notcorrectly interpret section 422. The Supreme Court agreedwith Gonzales and ruled that there was insufficient evidence toshow that any violation of Penal Code section 422 occurred.In its written decision, the Court noted that a violation of

section 422 requires that the statement must be “made ver-bally, in writing, or by means of an electronic communica-tion device.” The Court stated, “Because defendant’s gestureswere not conveyed ‘in writing’ or ‘by means of an electroniccommunication device,’ the sole issue is whether they mayconstitute a statement ‘made verbally.’ Dictionary definitions of‘verbal’ include ‘of, relating to, or associated with words,’ and‘expressed in spoken rather than written words; oral.’ ....”The Court noted, “In 1998, Penal Code section 422 was

amended to insert the language at issue here, requiring arelevant statement to be ‘made verbally, in writing, or bymeans of an electronic communication device.’ ....Thereseems little doubt that the Legislature’s 1998 amendmentwas primarily focused on expanding the reach of Penal Codesection 422 to include electronic communications. How-ever, the Legislature’s choice to explicitly describe a threat‘made verbally’ must be given significance. After the amend-ment, Penal Code section 422’s express reference to a state-ment ‘made verbally’ seems to exclude nonverbal conduct,at least when such a statement is not in writing or made viaan electronic communication device....” The Court noted,with examples, that the Legislature knows how to definenonverbal conduct as a means of communication when itwants to and that the Legislature has acknowledged in dif-ferent statutes the difference between verbal communica-tion and nonverbal conduct.The Court concluded, “In sum, we conclude that a threat

made through nonverbal conduct falls outside the scope ofsection 422 as currently written. This conclusion gives sig-nificance to the Legislature’s use of the phrase ‘made ver-bally,’ as well as the language and legislative history of sec-tion 422 and related provisions pertaining to threats andthreatening conduct.”The Court’s ruling in the Gonzalez case is an extremely im-

portant clarification of the law relating to criminal threats.

Editor’s Note: Lance Bayer is a private attorney spe-cializing in police training and personnel issues in theBay Area and can be reached by writing to: Lance Bayer,443 Lansdale Avenue, San Francisco, CA 94127, by cal-ling 415.584.1022, or by email at [email protected]

S.J.P.O.A.1151 N. Fourth St.San Jose, CA 95112

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