Chief Daryl Gates passes away on April 16, 2010

From early 1981 to 1992, the year of LAPD Chief Daryl F. Gates' retirement, I served the City of Angels as an LAPD officer under Chief Gates. Chief Gates, age 83, died April 16, 2010 after a bout with cancer. His death, and the many obituaries, have inspired me to jot down some of my thoughts about his tenure as Chief.

At my academy graduation ceremony, Chief Gates eloquently spoke of the need to have "reverence for the law." I later learned that "reverence for the law" was a recurrent theme of the Chief's.

Chief Gates often spoke of the LAPD family. In fact, his retirement party in 1992 was officially called the "LAPD Family Reunion." At this reunion, which was held at the iconic Police Academy across from Dodger Stadium, and from which the media was barred, Department command staff barbecued hamburgers and hot dogs and served them to their subordinates, sworn and civilian alike. And like traditional blood-related families, Chief Gates stood by and supported - sometimes too long - those who made mistakes and strayed from the straight and narrow. The Chief also often showed "tough love" to family members who strayed from the law or from department policies by administering harsh discipline, including termination.

Chief Gates served during a "do more with less" time. At the time of his retirement, 7700 officers served LA. And this for a city of close to 4 million people, legal and otherwise, in a spread-out community of about 450 square miles. Compare this ratio with say, my hometown of Detroit: 900,000 people served by 3500 officers. The City of Los Angeles historically has had one of the lowest ratios of officers to citizens of American large cities. This resulted, I believe, in an aggressive style of policing that emphasized arrests.

Chief Gates and the LAPD have been criticized for its response (lack of response as some would have it) and preparedness to the 1992 riots. The LAPD officers were prepared for the 1992 riots. City officials, including the mayor's office, city council members, and yes, even some of the LAPD managers, backed off sending officers into the riot hot-spots for fear of inciting violence. Truly, that was one of the saddest days of my career. A few thousand of us were ordered to stay at the command post rather than take the streets back. I've often thought of the old military dictum that says to march toward the sound of gunfire.

Daryl F. Gates has often been referred to as a "Cop's Cop." I believe that this refers to his belief that there are evil people who choose to commit evil acts. And that a primary role of the police is to arrest the evil-doers, the crime-doers, and hold them accountable for their actions. And Chief Gates demanded that his officers aggressively, proactively, seek out the criminals. While in the Police Academy, I learned the phrase "Eight for Eight." This meant that as an LAPD officer I was expected to work hard for eight hours for eight hours of pay.

Chief Gates headed up the LAPD during a time of significant innovation. SWAT (Special Weapons and Tactics), DARE (Drug Abuse Resistance Education), and the Drug Recognition Expert (DRE) approach to drugged driving are some of the innovations that occurred under Chief Gates' regime. It was common for the Chief to send me and others notes thanking us for making "the old Chief look good." Chief Gates believed that the best ideas came from the officers and sergeants on the street, and not from high-ranking administrators. He felt that the role of managers and supervisors was to help the officers by providing resources to them. Very forward looking in my opinion. He also was quick to recognize the contributions of his officers. For example, I was fortunate to have authored a number of articles for Police Chief Magazine and other publications under the Chief's name. Chief Gates always made sure that the names of the real writers of his articles were included in the by-line. Not many other chiefs do that.

Chief Gates would often tell us that LAPD officers were the finest officers in the world. He'd frequently tell us how other Chiefs would request a honorary LAPD badge. As Chief Gates would tell it, he'd respond by telling the other Chief that the only way anyone gets an LAPD badge is by earning it.

I am proud to have served under Daryl F. Gates. Yes, I cringed at times when he spouted off to the media. But I never for one second doubted his loyalty to the City of Los Angeles in general, and to the men and women of the Los Angeles Police Department.

Illinois Supreme Court accepts Horizontal Gaze Nystagmus

On February 19, 2010, the Illinois Supreme Court issued a landmark opinion regarding the admissibility of Horizontal Gaze Nystagmus (HGN) testimony. The defense had challenged the admissibility of HGN based on the well-known "Frye" standard. In part, the court ruled in People v. McKown:

"In sum, we adopt the trial court's findings on remand that HGN testing is generally accepted in the relevant scientific fields as evidence of alcohol consumption and possible impairment. We also adopt the trial court's five conclusions of law regarding the admission of HGN evidence and its use at trial. The admissibility of HGN evidence in an individual case will depend on the State's ability to lay a proper foundation and to demonstrate the qualifications of its witness, subject to the balancing of probative value with the risk of unfair prejudice."

This case would not have resulted in this successful conclusion without the perseverance and professionalism of Elizabeth Earleywine, the state's Traffic Safety Resource Prosecutor.

The prosecution witnesses included me, Dr. Kark Citek, Dr. Zenon Zuk, and Illinois State Police Sergeant Tony Lebron.

Finally, challenges to the admissibility of Drug Recognition Expert testimony are currently being evaluated in the states of Kentucky and New Jersey.

Nebraska Supreme Court Decision says DRE meets Daubert!

http://www.supremecourt.ne.gov/opinions/2009/november/nov20/s08-192.pdf
 
State of Nebraska, Appellee v. Jacob J. Daly, Appellant
Filed November 20, 2009, No. S-08-192

Marcie Hagerty, formerly a Deputy County Attorney with the Lancaster County, Nebraska, County Attorneys Office, reports that the Nebraska Supreme Court ruled that DRE meets the Daubert standard.

In part, the court wrote: "A law enforcement officer with the training and experience offered by 'drug recognition expert' certification is sufficiently qualified to testify, based on his or her evaluation, that a suspect was under the influence of drugs."

Congratulations to Marcie Hagerty, Officer Jesse Hilger, the DRE in the case, and the expert witnesses who testified in support of DRE. (Expert witnesses were: Karl Citek (optometry), Zenon Zuk (medical doctor), Michelle Spirk (toxicology), and me.)

Certification training in Miami Beach, FL, November 6, 2009

On November 6, 2009, I had the honor of meeting with DREs and DRE Candidates from South Florida at a certification training event in Miami Beach, FL.  Sergeant Luis Taborda of Miami PD supervised and conducted this event.  Luis is to my immediate right.  I gave a short overview of the history of the DRE program and discussed the development of some of the certification steps.  We also discussed situations in which an officer is unable to conduct the classic 12 steps of the evaluation process, and how this is not necessarily fatal to the case.  The key point I made was that if some of the steps are missing, the DRE must still reach the same level of certainty as he/she would in a full evaluation.

My complements to Luis for the professionalism and leadership he showed during this training.

Drug Category versus calling a specific drug question

In response to a discussion on the Impaired Driver forum.....

This discussion was initiated by an inquiry from one of the true mainstays of Drugged-driver prosecution, Susan Glass, the Traffic Safety Resource Prosecutor of Missouri.  Susan asked:

"Has anyone ever successfully tried a DWI-drugs case where the only evidence of the presence of a controlled substance in the defendant's blood was the testimony of a DRE that he was impaired?"

"I'm assisting on a case where the sole evidence of drug use is DRE testimony that the subject was impaired by cannabis and a CNS depressant. We have no toxicology, no admissions regarding drug use, and no other manifestations of use (i.e. odor, puncture or track marks, drugs/ paraphernalia in the car). We now have to convince the court that the DRE testimony alone is sufficient to sustain a conviction. Any case law on the issue would be much appreciated, thanks!"

Steve Talpins, also a mainstay, responded:

"Does your law require you to prove a specific drug or drugs? If so, I do not believe your case is provable without something allowing you to specify the substance (ie. odor, presence of cannabis, drug paraphernalia, toxicology, anything). DREs call categories, not specific substances. I'm cc'ing these guys and asking DREs to comment on this as well."

At that point I responded.  This is a very common issue.  In fact I have written on this in the past.  Here's my response:

In California DREs have historically identified the specific drug, rather than just the category. This has been the case in arrests and investigations for 11550 Health and Safety Code. This law, sometimes referred to as "internal possession," prohibits use and/or being under the influence of specified controlled substances, not just a category of drugs. This law has nothing to do with driving. Neither does it have anything to do with a "public place." Historically, it was designed to break the cycle of addiction. And also historically, California courts have ruled that someone can be prosecuted for 11550 H&S (e.g., "under the influence of cocaine") and for DUI-drugs, "under the influence of a CNS Stimulant." The determination by the officer that the specific drug is cocaine, rather than just a generic CNS Stimulant is based upon many factors,including signs of ingestion, knowledge of drug trends in the community, suspect's statements, drugs and paraphernalia possessed, etc. Usually (again historically), the officer's opinion states that the signs and symptoms exhibited by the suspect were consistent with cocaine (or the specific drug in question). Decision about prosecuting understandably awaits the toxicology report.

By the way, I discuss this when I'm asked to present on the history and development of DRE. There was already an expertise and acceptance of officers making under the influence of drugs arrests in Los Angeles prior to DRE. I believe that DRE became accepted in Los Angeles first because of this.


And yes, Susan, there have been many cases in which individuals have been convicted of DUI-drugs without supporting toxicology. There have also been cases in which convictions have resulted even though toxicology was negative. I can refer you to the, Los Angeles City Attorney's Office (Ellen Sarmiento or Dan Jeffries if you want specific information.

Steve then asked me if this was unique to California.  My response:

I think that Nevada, for one, has a similar law.

Yes, the officer must be able to articulate why he/she concludes that the person is under the influence of a specific drug, and not just a category. It's usually not that difficult. And frankly, there is almost always corroborating evidence in DRE cases, such as an admission, possession of the drug itself, paraphernalia that is usually used with one specific drug, methods of administration (Eg many fresh puncture wounds point to a short-acting drug such as cocaine), duration of effects (A four hour duration surely points to heroin much more than extremely short-acting fentanyl), and much more. Again, the officer must be able to convincingly articulate why he concludes that it is a specific drug. And that conclusion is based on a lot more than solely the presenting signs and symptoms. And if that conclusion is supported by toxicology (cocaine corroborated by benzoylecgonine for example), well, what's the defense!

As I think about this issue, I suspect that DREs world-wide,and not just California, would be able to identify the specific drug, and not just the category, with a high degree/percentage of corroboration. My guess - 80%.

I was in a south Florida supermarket the other day - Publix - when I saw a young lady - probably 25 but aged like she was 40, with pimples, stringy hair, grossly underweight, shabby clothes that were too big, bad teeth, jerky movements. CNS Stimulants certainly. I think it's reasonable to conclude that it wasn't just too many lattes that caused her appearance and behavior. I'd certainly suspect methamphetamine. In fact, this person looked at me while I looked at her, and high-tailed it out of the store without making a "purchase." I relate this little story to emphasize that DRE determinations are based on the totality of observations, and not solely the DRE procedure itself.

In 1995, the Royal Canadian Mounted Police hosted the first Canadian DRE School in British Columbia. (See prior blog entry.) After successfully completing the classroom phase of the training, students entered into the certification phase of the training. Much of the certification training was conducted in Los Angeles at the Parker Center jail. Many of the Canadian officers wore their local uniforms while they conducted evaluations. As you can imagine, more than one intoxicated suspect expressed surprise that he was now in Canada! And in typical police humour (Canadian spelling), we posted the Canadian Maple Leaf flag next to the breath testing instruments!

This picture, which includes me on the right, was taken in front of Parker Center, more formally known as the Police Administration Building. This facility, known to suspects and good-guys alike as “The Glass House,” was closed in October of this year. At this writing, the jail remains temporarily open until a new jail is ready for full occupancy (hopefully!). As one wag said, “A full jail is a happy jail.”

The Canadian officers took the “Systematic and Standardized” DRE mantra to heart. As an example, the Canadian officers began giving “Miranda” warnings to suspects in Canada! When I reminded the officers that “Miranda” was an American procedure, one Canadian officer told me that because of the infiltration of American television north of the border, all Canadians know about “Miranda,” and that suspects routinely ask officers to “read me my rights."

DRE Flashback: Certification, continued

Certification Progress Log

The development and adoption of the Certification Progress Log itself by the LAPD DRE Unit was a response to a problem.  In the late 1980s the DRE program began to grow rapidly.  As it grew, it was increasingly difficult to determine which candidate DRE was approaching readiness for certification.  For one thing, it was time-consuming for the DRE Unit to research the records, including the number of evaluations, on each candidate. Also, candidate DREs often didn't have a good idea of where their progress toward certification stood. We adopted the philosophy that was being used in the training of LAPD probationary police officers: that the candidate DRE would maintain a log of his/her progress, and that this log would be presented to DRE instructors at each certification event.  Not only did this help the candidate DRE, it helped the instructor to more adequately assess the candidate's progress.

The first Certification Progress Log was printed on an old dot matrix printer!  Remember those?  Over time, as standards developed, the progress log was modified to incorporate these new standards.