The "On Ice" Case

It was around 10:30 p.m. as they watched the car drive into the driveway and park. A very large black man got out. The young white man from the house came out and greeted him with a handshake, and then a hug. They spoke for a minute, and the large man got back into his car and drove away. It appeared as though there were three other black men in the car.

The word was sent out by cell phone to stop him, as he had tinted windows. Although this was taking place in the City of Rialto, once the stop was made, a San Bernardino City Police Detective approached the car, opened the driver's side door, and tried to pull the man out. His size and weight made that impossible. The detective told him "now you are resisting arrest."

Blu had never been arrested. He had no criminal history. He was a mystery man to the cops on surveillance. They ran his plates, and it came back to a woman. When the detective finally got his hands on Blu, he searched him and cuffed him, and walked him to another vehicle. Another cop looked into the car and realized that the other three persons were young men, juveniles. So, he got into the car and drove it down the street to a parking lot. He told the boys to get out and sit on the curb and shut up. They complied. Then, the search of the vehicle began. In a backpack they found about three thousand dollars cash. They also found some receipts for utility bills for a particular address in Rialto. Nothing of an illegal nature was found, and consent was not sought or given for the search of the vehicle.

Blu was kept in cuffs in the back seat of a patrol car. By the time they took him to the San Bernardino City Police Department and locked him in a cell, it was after 3:30 a.m. He had been detained for four hours for tinted windows.

I was retained by Blue about a year after his case began. He had seen me in court in Fontana, and asked me for a card. He told me that he would call me that afternoon, and did. We met the next day. We clicked. He told me his story, and asked whether I thought anything could be done for him. He believed that the search of his car was illegal. He also thought that the warrantless search of his home--at 4:00 a.m., conducted while he was being held without charges and without any way to communicate with the outside world--was also illegal. They had found a rather large amount of marijuana when they searched Blu's home, and had charged him with possession of marijuana for sale. His lawyer was trying to talk him into pleading guilty and serving 16 months in state prison. He thought someone should be fighting for him, and thought I was the man to do it. I agreed with him.

After a couple of appearances, I spoke with the DA about future events. I told her that I would be filing a motion to suppress, as well as a Pitchess motion (a California motion for police personnel records). She told me "I think I can beat you, Gary." We bantered a bit, and agreed to disagree. She believed that the search was just fine, and that Blu's sweetheart had given consent to search. We knew better, and I began to lay out the story of the case as one where the outrage of the betrayal must be felt by the Judge hearing our motion. This case would never get before a jury. It would be won or lost at the suppression hearing, and I needed the Judge to get into the hide of Blu's significant other, whom I will call Rae.

In order to grant the motion, the Judge needed to feel the terror she felt when a team of white cops came pounding on Blu's door at four in the morning, threatening to break it down if she didn't open it. I needed the Judge to know that Rae had been through this kind of thing many times in the past when the cops would break into her home looking for her brother. I needed the Judge to know how strongly she felt about adhering to Blu's rule about never opening the door to anyone when he was gone. I needed to show the Judge how Rae felt when she finally did open the door, and the cops came charging in and took control of the home, and her life. I needed the Judge to feel the betrayal Rae felt, once again, as the cops had come into her life like Nazi storm troopers. That was all she had ever known from cops.

Rae and Blu had a son together. However, Rae had been at Blu's on the particular evening/morning to care for Blu's Mother who had a stroke, and was not recovering well. When the cops started pounding on the door at 4:00 a.m., Rae was terrified. She had just discovered that Blu had been arrested, as the grandmother of the three juveniles (Blu's Auntie) had been called to come and get them, and relayed the story to Rae. When the cops started pounding on the door, she called Blu's Auntie back and told her what was happening. Auntie said don't open that door, and she didn't. For approximately twenty minutes they pounded on the door, demanding entry, and threatening to break the door down. The pounding got louder, and as the tension mounted, Auntie told Rae that she might want to open the door and speak with them, otherwise they would probably break the door. Rae opened the door, and the cops rushed in, and ordered her to sit on the couch. They searched the entire house. They found Blu's mother in a bedroom. She was still suffering from paralysis. They broke open the safe, and found money. I learned that a good deal of was missing.

Based upon what they claimed was a consent search, they got a search warrant, and reported all that they had found during the initial "consent" search. They reported some cash, and the marijuana. Obviously I could never prove that Blu was missing any particular amount of cash, but the theft of his money appeared to be consistent with conduct by the same cops, about which I would become aware at a later date.

I filed both the Pitchess and suppression motions. Shortly thereafter, while at home recovering from a knee surgery, I got a call. Caller ID told me who it was, which was a man I did not know, but knew to be a cop. He said:

"Gary, I don't want to identify myself other than to say that I am a police officer, and you know who I am. Do you have a fax number?"

I gave him the number and waited. Within a few minutes I got several pages. The documents were self-explanatory, the most significant of which was a "Booking Log", which was type written and had Blu's name on it. I read the document from left to right, with each box containing information about Blu's arrest, including date, charge, time of arrest, and other booking information, including the last category indicating the estimated time of release. In the other named bookings listed, each box had specific information about the individual and his/her arrest. In each of Blu's boxes was an "n/a", with the last box stating that his time of estimated release was "n/a subject is on ice."

I called the cop and told him I would like to discuss these documents. I can say that we met, he gave me additional documents, and it helped me understand the breadth of what was happening.

Over the next year I was contacted by numerous individuals in law enforcement who had information about what was happening in relation to Blu's case. All of the callers had information for me about the cops involved in Blu's case, and their rogue-type behavior. I used this information to stay ahead of the DA while litigating the motions I had filed.

While representing Blu, I was the recipient of numerous "anonymous" tips, and numerous documents and heard some recordings. One of the recordings was of the Sergeant in charge of Blu's case being asked how he was going to justify detaining a particular man without a warrant or probable cause while he sought to search his home, to which he replied "I'll think of something when the time comes," or words to that effect. Another recording included a cover up by a Lieutenant for that Sergeant, and documentation about a subsequent formal complaint against the other Sergeant who recorded the call. This material was also getting leaked to the media by someone within the police department. Thus, there was a proverbial storm of information being made public. The media had not covered much until an independent newspaper, The San Bernardino County Sentinel got a copy of my pleadings and quoted them verbatim in a front page article. Then the local newspapers got into the game. The "On Ice" case had become a hot topic.

To my motion to suppress, the DA filed a response that urged that the four a.m. visit to Blu's home was a "knock and talk", and that Rae gave consent to the cops to enter and search. I responded with, among other issues, that:

"...A "KNOCK AND TALK" AT 4:00 a.m. IS OUTRAGEOUS AND FLAGRANT MISCONDUCT"

In People v. Colt (2004) 118 Cal. App. 4th 1404, 1410, the Court made it clear that a "knock and talk" had to be conducted within the realm of respect and reason, done peacefully and openly, and at "high noon", with honest intent, and respect for the concept of a man's castle being his last vestige of sanctity and freedom from outrageous police conduct.

" '[T]here is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's "castle" with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.' " (United States v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1109; Joseph, Warrantless Search Law Deskbook (2003) § 7:3, p. 103.) Federal jurisprudence describes this police tactic as "knock and talk." (United States v. Cormier, supra, 220 F.3d at p. 1109; see also Davis v. United States (9th Cir. 1964) 327 F.2d 301, 303.) Our own California Supreme Court has similarly said: "[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority." (People v. Michael (1955) 45 Cal.2d 751, 754 [290 P.2d 852].) [Emphasis added]

Clearly, the Court is warning all concerned: "Conduct yourself in a respectful manner. Do not act like you have a right to demand anything from a person in their home—absent legal process—much less enter one's "castle" with an attitude of entitlement to be there, and to snoop and search and take over.

"High noon", "castle", "honest intent", "courteously made", "not accompanied with any assertion of right to enter or search or secure answers" are all terms indicating that there is a basic respect being shown to any given citizen when officers come calling at the home, or better put the "castle" of a man or woman, with the honest and sincere intent of engaging in a discussion, and without appearing to assert a right to do so. Can anyone honestly claim that such conduct is reflected with an "honest intent" and "courteously made" at four o'clock in the morning, with pounding on the door for ten to twenty minutes?

B. CONSENT TO SEARCH MUST BE GIVEN FREELY AND VOLUNTARILY..." I argued the obvious.

The procedure for a Pitchess hearing is that upon a finding of a preliminary showing by the defendant, the court will conduct an in camera hearing with the custodian of records and counsel representing the public entity that employs the officer/deputy who is the subject of the motion. This is done in the Judge's Chambers, without defense counsel or the prosecutor.

During one Pitchess hearing I was given the hand-written version of the booking log showing Blu's arrest. It was found in the Internal Affairs file regarding a separate investigation of the Sergeant in Blu's case.

I was given an 8.5" x 11" copy, but had already been informed that the original document was much larger, and that I should demand the larger version, as there would be some very telling information thereon. I did so, and there was quite a bit of "telling" information. Someone had been a bit too obvious in their efforts to alter the document, which did not show on the smaller version. On the larger version, you could actually see where information had been erased, then written over with different handwriting than that which remained on unchanged "n/a" boxes. Attempts were made to fill in the nature of the arrest, and the charges for the arrest. Yet, whoever made the effort neglected to effect changes to the ultimate bit of information, to wit, that Blu had been put "on ice."

Before we concluded that day, the Judge said that he would like to hear how a warrantless search at four in the morning could be considered "consensual." I reminded the Judge that I had addressed that issue in my pleadings. I knew our Judge was smart enough to get to see what had happened, anyone could. He was scholarly, and never missed a beat. It was whether he would do anything about it that had me worried. Judges are political animals. Cops vote, big time. Thus, Blu's liberty hung in the balance of whether a Judge would be willing to support the rights of a young black man who was alleged to be in possession of a large quantity of marijuana against a group of cops who were operating across city boundaries, allegedly stealing money from "suspects"--all of whom appeared to be young African-American men; conducting searches without warrants or consent, and detaining "suspects" for indefinite periods of time without probable cause or warrants. Would a local judge be so courageous, especially when there was a great deal of front page news coverage? Would he have any choice? It seemed to me that the more information I acquired, and was able to show existed, the more likely we would prevail.

Around the middle of this time, the San Bernardino City Police Officers union cast a 92% no confidence vote in the administration, and shortly thereafter the Chief of Police retired. His contract was expiring anyway. The street team that I was learning about was being disbanded, and the main player, that particular Sergeant--I will call him "Lee"--had been placed on administrative leave for something to do with his conduct during an unspecified search.

A few months later, I got a call from another "anonymous" person who told me to file another Pitchess motion, and ask for the "outside investigator's" report. He told me that this particular investigator had been hired by the new Chief of Police, and had uncovered twenty-three cases like Blu's. He told me that "Lee" had been carefully surveilled during the course of his request for money for an alleged controlled drug buy, but that no such case or buy existed, and that Lee had pocketed the money, and was under investigation for grand theft. I filed the motion.

Later, "Lee" was suspended as a result of his conduct in the requisition of funds for an alleged drug buy that didn't happen, but the money seemed to be missing. He came back to the police department one day to refuse to answer questions, and had a fall on the only stairwell in the police department that did not have cameras. He made a claim for disability coverage for the injury he claimed he suffered as a result of his fall.

With the filing of that last Pitchess motion, the DA knew that I knew, and that "Lee" was now completely compromised. I waited to see what would come next.

One of the last events in Blu's case was to continue with the motion to suppress. I would begin cross-examination of the detective who had arrested Blu. Then, the Sergeant, "Lee", was up for grabs. I really wanted to cross-examine him. I had every intention of showing the scene at Blu's house at four in the morning, and that "Lee" had made a routine of this kind of conduct.

Of course, Blu sitting in a holding cell "on ice", without any method of contacting home, a lawyer, or a friend was an important part of the picture. That was the purpose of the "on ice" technique. Take a man off the street and hold him without a call, or without anyone knowing his whereabouts, and go search his home without a warrant, and claim that someone there gave consent--at four in the morning! Add the race factor, to wit, that every single young man who was the subject of this kind of conduct was African-American. My position was that young black men were selected because the cops involved believed that no one would care if they limited their victim population to young black men, especially if they could throw around the "gang" allegation. Once that is attached to a case, who cares whether "they" are being treated with all constitutional guarantees?

My preparation for that cross-examination had spanned several months. The list of information had grown, as had my list of questions. Setting the scene was not a complex task, but had to be done carefully. However, the unwritten rule of law is that cops have a presumption in their favor. If they say it, it must be true, and absent some very convincing proof to the contrary, they will be believed, and their conduct upheld. They will always have a story justifying their behavior.

In the interim, I received information about the "outside investigators report" and was proceeding to another Pitchess motion. During this time, there was media coverage about the "outside investigator" and his report. The allegation of the existence of the report was a matter of public record by way of my pleadings, and was reported by the Sentinel. The Sentinel reporter had done his own homework, and it was disclosed that the outside investigator was a PhD Psychologist/Criminologist who had worked for the FBI, the CIA, and other agencies feared but unnamed. He had gone to great lengths to determine whether "Lee" and his team were acting outside the law. He concluded that they were, and reported that "Lee" was being investigated for grand theft, and sundry other crimes, and that there were in fact an additional twenty-three cases like Blu's, including one involving the kidnapping of the woman.

I never got a chance to cross-examine "Lee." The DA in Fontana dismissed the case against Blu and Rae.

In addition to the money and marijuana seized at Blu's home, the cops took four vehicles: one registered to his Mother; one his sister; another registered to a friend, "G", and one registered to Rae. As part of the dismissal, the prosecution agreed that all property seized--except the marijuana--would be returned to Blu.