Wednesday, December 21, 2011

Santa Maria Superior Court Judge Kuns Rules Police Misconduct in Robbery Case, the use of “Ruse Affidavit” is basis for Misconduct!

 
Definition of RUSE: A ruse is an action or plan which is intended to deceive someone.

“Law enforcement cannot violate the law to enforce the law,” Santa Maria Superior Court Judge Kuns said in her opening statement.

The “Ruse Affidavit’ files used in this case can be viewed @ http://magicinsantabarbara.files.wordpress.com/2011/12/eliz-docs-ruse-warrant.pdf

http://www.kcoy.com/story/16361987/judge-rules-police-misconduct-in-santa-maria-robbery-case#.TvE1zAfzuak.facebook
Judge Rules Police Misconduct in Santa Maria Robbery Case, the use of “Ruse Affidavit” to be basis for misconduct! Posted: Dec 20, 2011 8:45 AM PST Updated: Dec 20, 2011 8:45 AM PST
SANTA MARIA – Jesus Quevedo is an alleged Santa Maria gang member and is accused of two home invasion robberies earlier this year in April. Two detectives assigned to the Santa Maria Police Department's Gang Suppression Unit got a search warrant for Quevedo's home to collect evidence in the case against him. 
When the detectives went to Santa Barbara County Jail to show Quevedo the search warrant order signed by a judge, they also showed him what's called a "ruse affidavit" containing false information and witness accounts. A ruse affidavit is a police tactic used in criminal cases involving gang members to get confessions in order to avoid problems like witness intimidation. If no such witness even exists (Many times the witness is a fictional character so the need for a ‘Ruse’ does not even exist)
In the Quevedo ruse, the police detectives used information involving unsolved robbery cases in Santa Maria and even one in Santa Ynez. Jesus Quevedo's  y filed a motion for misconduct and the judge ruled in Quevedo's favor. 
"They included information about a legitimate victim where the victim supposedly ID'd my client, that wasn't true and so the court made a ruling that they had unnecessarily endangered members of the community, she found that to be a basis for misconduct", says Quevedo's defense attorney David Bixby, "she also found that they had brought disrepute to the judiciary by affixing a false document to one that was legitimate where a judge had actually signed the order."

"At the time the ruse was proposed to us by the police department, based on our legal analysis it was a proper ruse," says Chief Deputy District Attorney Stephen Foley, "the judge has disagreed with us and we respect the judge's decision and we will move forward.  (Maybe it is time for our Santa Barbara District Attorney’s office and Law Enforcement to start learning and practicing the Law) The courts have routinely allowed the police to use ruses and ruses are particularly effective in gang cases because they are so hard to solve."(Definition of RUSE: A ruse is an action or plan which is intended to deceive someone. By definition it seems it would be a crime if used by law enforcement and those prosecuting the case)
The judge's ruling means any evidence collected with the search warrant and ruse affidavit cannot be used in court case against Jesus Quevedo. The two Santa Maria Police Officers involved in the use of the ruse affidavit remain on duty and were not sanctioned by the court.( Why not and what is to prevent anyone from committing this crime again?) But they were admonished by the judge in her ruling for what she called skirting the law to enforce the law. A preliminary hearing for Jesus Quevedo is planned for the coming weeks. In the meantime he remains in custody at the Santa Barbara County Jail. END OF STORY
Based on the Judges actions my concerns are founded!
Several weeks ago I received a request from a reader of my blog (www.santabarbaracriminalcourtcorruptionblogspot.com) for some help. They felt I might be able to help expose their legal concerns about the use of a “Ruse Affidavit ‘in a Santa Maria Superior Court Criminal case. So I reviewed the forwarded file and immediately had some very serious concerns. This statement where the investigating officer admits he committed perjury in an effort to obtain what could only be considered a false conviction sent up huge red flags.

I Sergeant Cohen had previously prepared a ruse affidavit. The ruse affidavit contained details of two crimes for which the possible suspect was being investigated. “Many of the details were true, and many were fabricated”.
When confronted about using a judge's signature on a signed warrant with an untruthful Affidavit, sworn under penalty of perjury, Sgt. Cohen advised David M. Bixby, attorney for the defendant, that he received his instructions to do so from the District Attorney's Office.
  After reading Officer Cohen’s statement I just cannot believe that law enforcement was unaware that they had committed perjury and with the assistance of the Santa Barbara County District attorney’s office no less. Deputy District Attorney Bramsen did not return phone calls from the Sun reporter but Chief Deputy District Attorney Steve Foley confirmed Police Officer Cohen had met with Bramsen before employing the ruse.“Our office was consulted by the police department on this particular ruse,” Foley said. “The police did in fact say, ‘Would this be a legal ruse?’ and [Bramsen] researched it and felt, based on her legal research, it was a legal ruse.”
In order to make my point about how utterly ridiculous the idea of a ‘Ruse Affidavit’ is or that it could even exist. I Googled the term in hopes of finding a definition, none was found. However I was able to find separate definitions for Ruse and Affidavit;

Definition of RUSE: A ruse is an action or plan which is intended to deceive someone.
Definition of AFFIDAVIT: A sworn statement in writing made especially under oath or on affirmation before an authorized magistrate or officer that the information before him is true and verifiable.
Now here is my attempt to define the term ‘Ruse affidavit’ based on how it is being used in the Santa Barbara District Attorney’s office;

Definition of RUSE AFFIDAVIT:  obtaining a judicial signature with a fabricated sworn statement included as part of the affidavit. The only purpose of this act is to induce statements from a suspect under investigation, by presenting these known false statements and or facts as true.

In closing even presiding Judge Kuns knows that “Law enforcement cannot violate the law to enforce the law,” as reflected in her opening statement. So what happens next, are charges going to be filed against the attorneys from the District Attorney’s office with the California State Bar?  As well as against the police who committed perjury when they used the “Ruse Affidavit’ in their efforts to obtain a false conviction.

Sometimes all we really need is a little common sense!


Below is a copy of the Santa Maria Sun story that appeared last week.  
http://www.santamariasun.com/cover/7541/walking-the-line/

Walking the line

Legal questions arise in interrogation tactics used on suspected gang members

BY JEREMY THOMAS

Dressed in a light blue jumpsuit, Frank Godinez is led into the Inmate Reception Center at Santa Barbara County Jail. Once locked inside, he turns around, stoops low enough for the guard to remove his handcuffs through a slot in the door, and approaches the jailhouse phone. Brow furrowed, his voice carries tinges of anger and desperation.
“I’m getting railroaded,” he says through the receiver. “I’m getting crucified for something I didn’t do, and the tactics the Gang Task Force is using to build a case against me are unethical.”
Godinez, who police say is a Northwest gang member, has been behind bars since March 13, following his arrest on a parole violation and his suspected role in the stabbing of a Tulare man at a Santa Maria motel, for which he was subsequently charged with attempted murder.
On Nov. 3, while still incarcerated, Godinez was also charged in connection with the cold case murder of Michael Christie, who was killed by a single gunshot wound outside a Santa Maria apartment complex in December 2005. Santa Maria police had tagged Godinez as the prime suspect at the time of the murder, but didn’t have enough evidence to charge him with the crime.
However, in April, the Santa Maria Police Department’s Gang Task Force, working in concert with the Santa Barbara County District Attorney’s office, obtained “newly acquired information” on the case—specifically, sources say, an audio recording police have interpreted as a confession.
Godinez, who has a protective court order barring him from personally accessing discovery in his case, claims he had nothing to do with the murder, and contends law enforcement violated his rights in the method used to obtain the new information. Godinez says—and anonymous sources close to the case confirm—it came through the use of a little-known and legally questionable police tactic known as a “ruse affidavit.”
“They attached a false affidavit to a search warrant under penalty of perjury and gave it to me,” Godinez said. “They’re using this fake affidavit against me and trying to pass it off as being true in a court of law. They’re trying to get me to admit to something I didn’t do.”
Unbeknownst to Godinez at the time, his cellmate, whom he’d known for years, was actually a wired informant who tried to get him to talk about the fabricated information in the affidavit for several hours. The ruse lists several real names as well as false details, including Godinez bragging about committing the murder, eyewitnesses at the scene positively identifying Godinez as the shooter, a 22-caliber handgun traced to Godinez, and a declaration by Christie after he’d been shot, uttering the name “Frank” with his dying breaths.
“It was all made up,” Godinez says. “They’re trying to say I’m a hardcore gang member or whatever. They’re saying I’m one of the top dogs, but it’s all a bunch of lies. … Basically they’re using these guys as their little decoys, and if I’m this hardcore gang member, you’re putting their lives in danger over fake paperwork.”
Given Godinez’s history as a multiple felon, it would’ve been easy to dismiss his claims as the last-ditch fantasies of a man facing the rest of his life behind bars—if not for the fact there are others sharing similar stories. One by one, the Sun received calls from inmates over a period of nearly two months, each claiming they had been similarly handed false paperwork, passed off as legitimate court documents.
If it all seems fantastic, think again. In at least one of the cases, it’s proven to have occurred.
The case of Jesus Quevedo
In October, the Sun received a letter from a Santa Maria man named Jesus Quevedo, who wrote from county jail. An alleged West Park gang member already being held on two charges of home invasion robberies, Quevedo expressed outrage with the tactics used on him by the SMPD’s Gang Task Force.
“While I was already in custody on an unrelated charge, Detective Sgt. Daniel Cohen of the SMPD presented an affidavit to the Honorable Judge Jed Beebe so that he could issue a search warrant for my residence,” Quevedo wrote. “Judge Beebe granted the warrant in good faith. Sgt. Daniel Cohen detached the original affidavit and attached a ruse affidavit.”
To qualify as valid, search warrants must be signed by both a judge and a police officer; the officer signing as a sworn affiant to the basis for the search warrant request under penalty of perjury. In Quevedo’s view, the officer had broken the law.
“These people need to be exposed,” Quevedo continued. “This is a true injustice.”
Police reports obtained by the Sun verified Quevedo’s claims, showing SMPD Gang Task Force officers had indeed presented Quevedo with a search warrant issued by Judge Beebe on April 15, with a false document included.
“I had previously prepared a ruse affidavit,” Cohen wrote in his report in Quevedo’s case. “The ruse affidavit contained details of two crimes for which Quevedo was being investigated. Many of the details were true, and many were fabricated.”
The ruse highlights several actual unsolved robberies, including a home invasion in Santa Ynez, where an eyewitness describes a man matching Quevedo’s characteristics fleeing the scene. A mugshot of a smiling Quevedo is circled with a “100%” marked over his name, indicating the victim of the invasion also had positively identified Quevedo as the robber.
Other fabrications include an anonymous neighbor seeing a car matching Quevedo’s parked outside the scene of one of the robberies, as well as statements from confidential citizens alleging Quevedo’s strong ties to the Mexican Mafia.
In the report, Cohen goes on to say he attached a copy of the false affidavit to the face pages of the search warrant signed by Judge Beebe, which he and SMPD Det. Michael Parker then handed over to Quevedo in his holding cell on April 18.
An informant wired for audio—the same one used in Godinez’s case—was then sent in to speak with Quevedo regarding the information in the ruse. However, convinced his cell was wired, Quevedo wasn’t talking, and the officers reported nothing of value from the encounter. In the report, Cohen states that he returned to Quevedo’s cell and took the paperwork back, telling Quevedo he’d been given it in error.
Quevedo’s lawyer, David Bixby, contends that Cohen’s actions were criminal violations of Penal Code 118—a state perjury law making the use of a false court document a felony—as well as a section in the government code making the falsifying or altering of court documents a felony. Bixby said when he confronted task force officers regarding the ruse, they responded that they’d taken their orders from the District Attorney’s Office.
 In September, Bixby filed a motion for prosecutorial misconduct in Quevedo’s case and requested that the court disallow any evidence gained through the use of the affidavit, as well as further sanctions to “send a resounding warning to the over-zealous prosecution.”
“What happened is just flat wrong,” Bixby wrote in the motion. “It is disheartening to see that the District Attorney’s Office is submerging this misconduct in a pool of argument that continuously side-steps the question of why management in the prosecutor’s office would not only sanction, but abet, this kind of behavior.”
In a written opposition to the motion, the DA argued there was nothing improper about the use of the ruse affidavit in Quevedo’s case, because prosecutors and police never intended the document to be used in court, either to obtain a search warrant or to coerce a false confession.
When questioned by the court regarding the motion, Sgt. Cohen testified he’d approached Deputy District Attorney Ann Bramsen for her advice on the legality of the ruse affidavit. Bramsen testified she’d never seen or read the affidavit and couldn’t recall exactly what advice she’d given the officers.
Asked to comment, the Santa Maria Police Department referred all questions regarding Quevedo’s case—and the ruse tactic in general—to Chief Deputy District Attorney Steve Foley and Deputy District Attorney Bramsen. Bramsen did not return phone calls from the Sun, though Foley confirmed Cohen had met with Bramsen before employing the ruse.
“Our office was consulted by the police department on this particular ruse,” Foley said. “The police did in fact say, ‘Would this be a legal ruse?’ and [Bramsen] researched it and felt, based on her legal research, it was a legal ruse.”
The DA’s office argues the officers were only given conceptual approval on the ruse affidavit and not a “green light” to actually implement it.
“We don’t tell [police] what to do,” Foley told the Sun. “What we do is tell them whether it would lead to admissible evidence or not, and it’s done in a general way. It’s not like the police say, ‘We want to do this on this case; give us the OK.’”
Foley added that courts have routinely validated police use of ruses, which are especially important in gang crimes because of the heightened threat of witness intimidation. Foley further explained the basis for the DA’s opposition to the misconduct motion.
“The ruse was never something submitted to a judge,” Foley said. “It was a true search warrant. The only thing that was a ruse was something created by the police officer. Based on our research, we had a good-faith belief that was a legal ruse.
“Our aim is to hold those accountable who commit crime, and that includes violent crime committed by gang members,” Foley added. “Here at the District Attorney’s Office, we are dedicated to doing justice and being ethical, and we will continue to ethically prosecute crimes.”
On Dec. 5, Santa Barbara County Superior Court Judge Kay Kuns ruled on Bixby’s motion, announcing that while the court found the ruse didn’t constitute perjury because there was no intent on behalf of the police or prosecution to publish or use the false document in court, it “skirted the boundaries” of legality.
“Law enforcement cannot violate the law to enforce the law,” Kuns said in her opening statement.
“Did law enforcement violate the law?” she concluded. “I can’t say they did. However, they came very close to doing so, especially on the falsifying charge.”
With several Santa Maria police officers—including Mark Streker and Parker—looking on in the courtroom, Kuns then ruled there had been misconduct on the part of the prosecution and police in two areas. Firstly, the use of the ruse had endangered the safety of citizens in the community, Kuns ruled. Putting false information in the hands of defendants, she said, placed victims at greater risk of being further victimized and resulted in a “heightened sense of jeopardy and danger” in both victims and witnesses.
Kuns also found misconduct in a second area, ruling that by using an actual court order made to appear as if the court officially sanctioned it, the DA and police undermined public confidence in the court system.
“To the extent that this particular ruse in this court’s mind did erode integrity in the court and its orders, and gave the appearance the court is somehow collaborating with law enforcement in the ruse, this type of conduct cannot be tolerated, and the court finds it to be misconduct,” Kuns declared.
While the judge stopped short of issuing any sanctions against Cohen, Parker, or the DA’s office, she ruled all evidence obtained through the use of the ruse affidavit would be inadmissible in Quevedo’s case.
“The police can do a lot of things,” she said. “But when they use a false affidavit, intending for it to be believed as true, with the judiciary’s signature, that conduct cannot be tolerated.”
Is it legal?
David Bixby, Quevedo’s attorney, had mixed feelings about Kuns’ decision. While he applauded the judge’s findings of misconduct, he felt the ruling could have gone further.
“I respectfully disagree that the court did not make a finding that [police] specifically committed crimes, because I think they did,” Bixby told the Sun. “The bottom line is … they knew they were incorporating false information in those documents. I don’t see where just because you’re a police officer out to get crooks gives you the right to violate a statute.”
Bixby said the use of the tactic, in addition to being legally questionable, has given gang members more incentive to commit violence against law enforcement, jail guards, and the community.
“As far as I’m concerned, they still don’t get it,” Bixby said. “I’m going to bring this to the proper authorities to make sure they understand they can’t be acting like this.”
When asked to comment, Foley said the DA’s office is considering Kuns’ ruling and has had discussions with police about how to move forward.
“Certainly the judge disagreed with our legal analysis,” Foley said. “We disagree with her interpretation of the law, but we definitely respect the decision of the judge.”
With the apparent legal gray area surrounding the use of false affidavits, the Sun sought outside experts in proprietorial methods to comment on the matter.
Laurie Levenson, a professor of criminal law at Loyola Law School in Los Angeles and a former federal prosecutor, said while police are allowed to use ruses to interrogate suspects, involving the court in the ruse, as happened in Quevedo’s case, went too far.
“It’s troubling,” Levenson said. “Personally, I think this crosses the line, because you’re taking a court document and altering it. That has the stamp of the court on it, and I think that involves the court in the deception. That’s where I think it’s problematic, and I think many judges would agree.”
With no case law to fall back on, Levenson said prosecutors didn’t necessarily break the law. However, she said she would never have personally done it, and never saw it done in all her years as a U.S. attorney.
“There are all sorts of ruses I’ll admit we would use, but switching out court documents or altering court documents, I would not have done,” she said. “I would be worried about giving [police] a green light to make up any facts they want and putting them on what appears to be a legal document, and then letting everybody else suffer the fallout.”
Even if the tactic isn’t illegal, Levenson said, it doesn’t mean it’s an appropriate method of prosecution, regardless of whether or not the documents were intended to be used in court. She added she felt Kuns made the right ruling in disallowing evidence obtained using the ruse against Quevedo.
“You don’t get to profit from your bad behavior,” Levenson said. “They may need to rethink their strategy.”
The Sun also contacted the Los Angeles County DA’s office to weigh in on the tactic. A spokesman for the office said it’s not their practice to comment on the tactics of other law enforcement agencies, but appeared surprised by the inclusion of false court documents in the process.
Michelle Gregory, a spokeswoman for the state Attorney General’s office, told the Sun the office was “unaware” of such a ruse tactic, but declined further comment.
The Southern California American Civil Liberties Union’s senior staff attorney Peter Bibring also weighed in from Los Angeles.
“Deliberately creating false court documents undermines the integrity of the courts and our justice system, and is not something police or prosecutors should be doing,” Bibring said.
More importantly, he added, “Police and prosecutors who falsely identify people as witnesses against a suspected violent criminal put those people in danger, likely in violation of not only the Constitution but also their basic duty to protect the public. An officer who deliberately put members of the public in danger to solve a case will likely be held responsible by courts for any harm that results.”
 It remains to be seen what impact Kuns’ ruling will have on other defendants who claim to have had ruse affidavits used on them for interrogation purposes.
Godinez, who appears likely to be the most affected, is scheduled back in court on Dec. 15 for a hearing in front of Santa Barbara County Superior Court Judge Edward Bullard, whose signature appears on the original search warrant issued in his case.
Godinez’s lawyer, Brad Cornelius, said he’s planning to file a motion similar to Bixby’s, and Godinez himself believes Kuns’ ruling could open the door for his murder charge to be dropped.
“I’m not going to let them bulldoze me in court,” Godinez said. “I’d like the truth to come out and go back home with my family.”
Staff Writer Jeremy Thomas can be contacted at jthomas@santamariasun.com.
The “Ruse Affidavit’ case files used in the Santa Maria Robbery case can be viewed @ http://magicinsantabarbara.files.wordpress.com/2011/12/eliz-docs-ruse-warrant.pdf
S.B.C.C.C. The place where COMMON SENSE never goes out of style!

S.B.C.C.C. The place where COMMON SENSE never goes out of style!

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