By Paul T. Rosynsky
Oakland Tribune
OAKLAND, Calif. — Two Oakland police officers embroiled in the department’s search warrant imbroglio will have to meet with an Alameda County Superior Court judge next week to prove the existence of confidential informants the officers said were used to purchase suspected drugs on the street, the judge ruled Thursday.
Acting on a request from the county public defender’s office, Judge Sandra Bean requested that Officers Francisco Martinez and Alan Leal meet with her for a closed-door session to answer questions from defense attorneys and provide information proving the existence of informants.
Bean’s request is the latest development in the department’s search warrant dilemma, which was revealed in late September when the department admitted almost two dozen officers made faulty statements to judges as they sought search warrants on the homes of suspected small-time drug dealers in East Oakland.
The department has acknowledged that officers told judges that substances bought on the street by confidential informants or through undercover operations had been tested, even though the department’s crime lab had not proved the substances to be drugs.
The admission immediately put dozens of criminal cases in question and, so far, has resulted in the dismissal of criminal charges against 10 defendants. In addition, it sparked an internal affairs investigation and led the department to place at least eight police officers on paid administrative leave.
Given the admission that at least one fact in the officers’ sworn affidavits was false, the public defender’s office questioned Thursday the validity of other statements in the affidavits.
Specifically, attorneys questioned whether officers even had confidential informants or actually purchased substances on the street before seeking the warrants.
“Everything in these search warrants is called into question now,” said Jeff Chorney, a legal assistant with the public defender’s office who argued the motion Thursday. “This is an officer who has already lied once to someone you share the bench with.”
Although Bean agreed more information needs to be gathered, she declined to force the department to produce its confidential informants, saying she will try to prove their existence through interviews with the two officers.
“At this step, I will do this in a stepwise fashion,” she said. “If I feel I need to hear from the confidential informant and other officers (after the meeting), I will call them.”
Thursday’s hearing marked a new phase in the search warrant controversy as the district attorney’s office has begun refusing to simply drop criminal cases built around the questionable warrants.
While most of the first wave of questionable warrants was written by one officer, Karla Rush, other cases involve warrants written by a host of officers, some of whom have only one warrant in question.
As a result, the warrants could be salvaged based upon an officer’s history and other statements made in the sworn affidavits.
“Each one of these cases are different and needs to be examined on a case-by-case basis,” said Kevin Wong, a deputy district attorney handling the questionable warrants. “Some of these officers may not have as many warrants in question; some of them have only one.”
In fact, Superior Court Judge Allan Hymer refused this week to throw a case from court, ruling that a search warrant based on a faulty affidavit still was legal. Hymer ruled the officer involved was negligent but did not perjure himself or purposely lie about the status of a drug test.
The case involved the arrest of Noble Johnson, who was caught with cocaine base in his home during a police raid in March. The police officer involved in the case wrote in a sworn affidavit March 16 that drugs purchased by an informant had been tested. Evidence in the case, however, showed the drugs had not been tested until three days later.
Hymer ruled that based on the officer’s experience and the proximity of the test to the sworn affidavit, the officer simply had made an error and was not purposely trying to deceive the court.
“The only conclusion I could draw was that the officer had not been truthful, "... but the judge found negligence,” said Edward Bell, a defense attorney who represented Johnson. “Obviously, we are disappointed.”
Wong argued in court Thursday that other search warrants might meet a similar fate and cautioned against jumping to conclusions.
“The statement that (officers) lied, I think that is something that still needs to be determined,” he said. “To state, at this point, they are lies is premature.”
Nevertheless, Andrew Steckler, an assistant public defender also working on the issue, said officers must be interviewed by judges to determine what is factual and what is erroneous in the sworn affidavits.
“We’re pleased with the judge’s ruling today,” he said.
Copyright 2008 Oakland Tribune