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POINTS AND AUTHORITIES IN
RESPONSE TO ORDER TO SHOW CAUSE WHY EVIDENCE SHOULD NOT BE EXCLUDED
INTRODUCTION
Vehicle Code
section 21455.5 provides that only a governmental agency can operate an
automated enforcement [AE] system, although Vehicle Code section
21455.6
recognizes that the governmental agency may contract with a private
vendor for
the use of such a system. This Court has preliminarily indicated that,
in the
City of San Diego, “the totality of the operation of the system is so
far
outside the operation contemplated by the Legislature that the evidence
obtained from the system lacks the precautions necessary to instill the
confidence required for admissibility.”
The Court’s
preliminary ruling sets forth the following syllogism: (1) the Vehicle
Code
provides that only a governmental agency may operate an AE system; (2)
here,
Lockheed Martin [LM], a private corporation, operates the system; (3)
therefore
the evidence produced by LM is unreliable. This syllogism is not based
on
logic, nor is it justified by the evidence adduced at the hearing on
the motion
to dismiss.
More
importantly, statutory noncompliance by itself cannot result in
suppression of
evidence. Both the California Constitution and case law require
relevant
evidence to be admitted, even though that evidence may have been
obtained in
violation of a statutory provision. Put simply, whether the City
“operates” the
system within the meaning of Section 21455.5, or LM does, admissibility
of the
evidence depends solely on whether there is a sufficient evidentiary
foundation. Here there is a sufficient foundation, so the evidence is
admissible.
ARGUMENT
The Court’s
preliminary indication is that the evidence obtained from the AE system
is
inadmissible, and the Court has ordered the City to show cause why the
evidence
should not be excluded. For the following reasons the People submit the
evidence should not be excluded.
First, under
the Evidence Code, the California Constitution, and case law, all
relevant
evidence is admissible. Second, Vehicle Code section 21455.5 does not
set forth
any mandatory duties or specific evidentiary requirements. Third,
statutory
noncompliance does not preclude the admission of relevant evidence.
Fourth, the
People can provide a sufficient foundation to establish the reliability
and
relevance of the evidence. And fifth, the past and present flaws in the
system
do not affect the sufficiency of the foundation for the evidence.
I
RELEVANT
EVIDENCE
IS
ADMISSIBLE
Evidence Code
section 351 provides that “[e]xcept as otherwise provided by statute,
all
relevant evidence is admissible.” Under Evidence Code section 210,
“relevant
evidence” means evidence having any tendency in reason to prove or
disprove any
disputed fact that is of consequence to the determination of the action.
Generally,
evidence obtained in violation of a statute is nonetheless admissible.
For
example, many cases hold that evidence obtained in violation of various
provisions of the Implied Consent Law is admissible. For example, see
People v.
Ryan, 116 Cal. App. 3d 168 (1981), and People v. Brannon, 32 Cal. App.
3d 971 (1973).
In addition,
Article I, section 28, subdivision (d), of the California Constitution
[Proposition 8], generally eliminated exclusion of evidence as a remedy
for
noncompliance with statutes. For example, in People v. Donaldson, 36
Cal. App.
4th 532 (1995), the Second District Court of Appeal held that if an
officer
arrests a defendant for a misdemeanor offense not committed in the
officer’s
presence in violation of Penal Code section 836(a)(1), the evidence is
nonetheless admissible so long as there was probable cause for the
arrest.
The Donaldson
court explained the effect of Proposition 8:
"[A]lthough section 836 continues
to provide rules
with respect to the lawfulness of a misdemeanor arrest, a court may
admit
evidence obtained incident to an arrest made in violation of section
836 unless
the exclusion is mandated by the federal exclusionary rule applicable
to
evidence seized in violation of the Fourth Amendment."
Id. at 539.
II
THE
SIGNIFICANCE OF THE
REQUIREMENT OF GOVERNMENTAL OPERATION
A.
EVIDENCE CODE SECTION 664 DOES NOT NECESSARILY
PROVIDE A
FOUNDATION FOR THE RELIABILITY OF GOVERNMENTAL OPERATION
The Court
posits that the reason the Legislature set forth the requirement of
governmental operation in Vehicle Code section 21455.5 was so the
evidence
would be trustworthy and reliable. The only authority cited by the
Court in
support of this proposition is Evidence Code section 664, which
provides an
evidentiary presumption that official duties are regularly performed.
To the extent
that the Court believes the Legislature set forth the requirement of
governmental operation in order to enhance the admissibility of the AE
evidence, the statute fails to support that belief because it does not
require
any duties. By way of contrast, in Imachi v. Department of Motor
Vehicles
[DM17], 2 Cal. App. 4th 809 (1992), the court of appeal justifiably
relied on
Evidence Code section 664 because of specific duties that were required
by law.
In that case, the court concluded that Section 664 supplies sufficient
indicia
of the trustworthiness of blood alcohol test results to justify
reliance upon
such results to support a license suspension.
Forensic
alcohol testing comes under the jurisdiction of the Department of
Health
Services, which regulates the testing by law enforcement agencies of
blood,
breath, and urine for the purpose of determining the concentration of
ethyl
alcohol in the blood. Health and Safety Code section 100700 (formerly
Section
436.50) provides that the department shall adopt regulations necessary
to
ensure the competence of laboratories and employees to analyze and
report the
results of the testing. Section 100715 (formerly Section 436.52)
provides that
the testing of breath samples of persons involved in traffic accidents
or
violations shall be performed in accordance with regulations adopted by
the
department. The regulations adopted by the department were promulgated
in Title
17 of the California Code of Regulations, Section 1215 through 1222.2.
Article
7 of the regulations sets forth the requirements for breath alcohol
analysis;
Section 1221.4 provides the standards for procedures, Section 1221.2
provides
instrument performance standards, and Section 1221.3 specifies approved
instruments. Other articles regulate forensic laboratories and include
requirements for licensing of forensic laboratories and analysts,
collection
and handling of samples, and methods of analysis. Methods of analysis
must
comply with procedural standards to insure that instruments are in good
working
order and are checked for accuracy and precision. Thus, there are
numerous
duties imposed upon the employees, and the presumption of a duty
regularly
performed applies.
Similarly, a
peace officer’s sworn report introduced at a DMV hearing is presumed
trustworthy based upon the officer’s duty under Sections 13353 and
23158.2 to
report the facts of an arrest for drunk driving and an accompanying
blood-alcohol test. Davenport v. DMV, 6 Cal. App. 4th 133, 143 (1992);
Fisk v.
DMV, 127 Cal. App. 3d 72, 77 (1981).
In contrast,
Vehicle Code section 21455.5 sets forth no duties. A governmental
agency has no
duty to operate an AE system. The statute merely provides that only a
governmental agency may operate an AE system.
B.
THE LEGISLATURE CONTEMPLATED A PUBLIC-PRIVATE
PARTNERSHIP
The Court also
opined that the purpose of the limiting language “was to guarantee that
those
to whom the public entrusts the operation of law enforcement would
continue to
be in charge and that the information obtained from the red light
cameras would
be trustworthy.” On the one hand, the People agree that to at least
some extent
the Legislature intended for a governmental agency to be “in charge” of
an AE
system. For example, the Legislature would not have approved of a
wholesale
delegation whereby a private entity would install a camera system,
develop
pictures and print notices to appear, and file citations with a court
without
guidelines from, supervision by, or cooperation with a law enforcement
agency.
On the other hand, it is equally clear that the Legislature intended to
allow
the involvement of private entities, considering the high cost of the
camera
systems and the immense task of issuing a great volume of citations.
The Court
recognizes that Vehicle Code section 21455.6 authorizes a city or
county to
contract with a private entity for the use of an AE system. The first
such AE
systems in California were apparently used by the Los Angeles County
Metropolitan Transit Agency [MTA] to reduce accidents caused by
motorists
driving around rail crossing gates. In a 1994 bill allowing the use of
AE
systems the legislative analyst reported cameras had been installed at
crossings by the MTA, and that “the film is processed by the system
vendor
which then checks with the DMV to obtain information on the vehicle’s
registered owner.” Legislative Staff Analysis, SB 1802 (July 7, 1994).
It was
also noted that Los Angeles County Sheriffs deputies have been
integrally
involved in the AE program, including loading/unloading film and
interviewing
individuals receiving citations. Legislative Staff Analysis, SB 1802
(August
10, 1994).
In addition,
there was some concern about the privacy of motorists whose photographs
are
used by the vendor, not the governmental or law enforcement agency, to
identify
the registered owner using DMV records. Legislative Staff Analysis, SB
1802
(June 26, 1994). This concern was alleviated by the addition of Section
2
1455.5(b) providing that the photographic records were confidential.
To the extent
that the bill was approved based upon the legislative analysis,
processing and
developing the film, accessing DMV records, and processing citations
was
contemplated to be performed by private vendors. Logically, these tasks
may be
delegated to a private entity by the agency “operating” the system.
If nothing
else, the statute and the legislative history contemplate a private
vendor
processing and preparing citations. Relative to that, the Court points
out that
here the decision not to issue a citation is not reviewed by the law
enforcement agency. A rational part of the process of preparing
citations would
include not preparing citations if the motorist is not identifiable
because of
glare, a sun visor, or the vehicle had no front license plate. The law
enforcement agency would not need, or desire to review citations that
were not
able to be issued.
III
STATUTORY
NONCOMPLIANCE
DOES
NOT
ALLOW EXCLUSION OF EVIDENCE
A.
STATUTORY NONCOMPLIANCE DOES NOT LEAD TO EXCLUSION
The Court has
expressed the view that the San Diego Police Department’s AE system
does not
comply with the directive of Vehicle Code section 21455.5 that only a
governmental agency may operate an AE system. However, the mere fact of
statutory noncompliance does not lead to exclusion of evidence.
For example,
in People v. Sangani, 22 Cal. App. 4th 1120 (1994), the defendant was
charged
with several violations of the Hazardous Waste Act. The defendant
contended
that evidence of a chemical analysis of the waste should not have been
admitted
because the laboratory which performed the analysis was not certified
by the
Department of Toxic Substance Control, as required by the statute.
Relying on
People v. Adams, 59 Cal. App. 3d 559 (1976), the court of appeal found
that
despite the statutory noncompliance the evidence showed that the three
foundational requirements for scientific evidence (the apparatus was in
proper
working order, the test was properly administered, and the operator was
competent and qualified) were met, so the lack of certification merely
went to
the weight, not the admissibility of the evidence. Id. at 1137.
In Sangani the
relevant statute (Health and Safety Code section 25198) provided that
the
analysis of any material required by the chapter “shall be performed by
a
laboratory certified by the department” and prohibited a person or
public
entity from contracting with an uncertified laboratory for
environmental
analysis for which the department required certification. The Sangani
court
held that despite the fact the statute was not complied with, because
there was
a proper foundation the evidence was admissible. Just as in Sangani,
here the
Court believes a statute was not complied with. Just as in Sangani, if
there is
a proper foundation the evidence is admissible.
The Court
seems to acknowledge that evidence with a proper foundation is
admissible
despite statutory noncompliance. However, the Court’s opinion does not
discuss
the foundation required, and in what respect the foundation is lacking,
but instead
focuses on the alleged statutory noncompliance. The Court compares the
noncompliance to the noncompliance in People v. Williams, 89 Cal. App.
4th 89
(2001). [[See special "Williams" note at top of this Web
page.]] The comparison is inapt.
B.
COMPLIANCE WITH TITLE 17 PROVIDES A FOUNDATION FOR
BREATH TEST EVIDENCE
In People v.
Williams [[see special "Williams" note at top of this Web page]] the
court discussed whether the results of a preliminary alcohol
sensor [PAS] test were admissible. Evidentiary breath tests, including
the PAS,
come within the ambit of the regulations promulgated in Title 17.
Chemical tests
performed by forensic laboratories in compliance with Title 17 provide
the
foundation for admission into evidence o test results. Imachi, 2 Cal.
App. 4th
at 816. Thus, because the regulations establish a standard for the
competency
of the test results, “[c]ompliance with the regulations establishes
both a
foundation for admission of tests results into evidence in any
proceeding and a
basis for finding such results to be legally sufficient evidence to
support the
requisite finding in such proceeding.” Davenport, 6 Cal. App. 4th at
142. If
compliance with Title 17 is demonstrated, the prosecution may not need
to
otherwise prove the qualifications of the testing personnel, the
accuracy of
the equipment, and the reliability of the method followed. See Adams,
59 Cal.
App. at 567.
But if
compliance with Title 17 does not provide a basis for admissibility,
the
prosecution must prove up the qualifications of the personnel, the
accuracy of
the equipment, and the reliability of the method. For example, in
Coniglio v.
DMV, 39 Cal. App. 4th 666 (1995), the court held that Title 17 does not
apply
to a PAS test used to detect the presence of alcohol. Because Title 17
does not
apply, the prosecution must “show that the PAS test meets general
foundational
requirements” when used to detect the presence of alcohol. Id. at 683—84
C.
NONCOMPLIANCE GOES ONLY TO THE WEIGHT OF THE
EVIDENCE AND DOES
NOT REQUIRE EXCLUSION PROVIDING AN ALTERNATIVE FOUNDATION OF
RELIABILITY IS
ESTABLISHED
In Adams, 59
Cal. App. 3d at 559, the court recognized that the Title 17 regulations
“are an
expressed standard for competency of the test results,” and, in effect,
“are a
simplified method of admitting the results into evidence.” Id. at 567.
But what
if there is noncompliance with Title 17? After examining the
legislative
history of Title 17 and reviewing the case law, the Adams court held
that:
"Noncompliance with [Title 17]
regulations goes only
to the weight of the blood alcohol. . . evidence. In accordance with
prior case
law, the validity of the test itself is to be determined in accordance
with
general scientific standards as to the foundational elements of
properly
functioning equipment, properly administered test, and qualified
operator."
Id.
The rule that
noncompliance with Title 17 goes to the weight but not the
admissibility of
evidence is well established. See People v. French, 77 Cal. App. 3d
511, 522
(1978); People v. Rawlings, 42 Cal. App. 3d 952, 956 (1974); People v.
Perkins,
126 Cal. App. 3d Supp. 12, 18(1981).
Accordingly,
provided the test results are relevant, they may not be excluded. In a
prosecution for driving with a blood alcohol level of .08 percent or
above, the
defendant’s blood alcohol level is relevant, and if the test result is
credible
it is admissible under Proposition 8 and Evidence Code
section 351. Cases such
as Adams and Davenport make it clear that the test results are credible
if
either Title 17 is complied with or the three alternative foundational
requirements are satisfied. For example, in Nick the evidence
established the
results of the intoxilyzer test were obtained in compliance with Title
17, and
such compliance was sufficient to establish admissibility, even over
the
appellant’s testimony that the intoxilyzer was malfunctioning and the
test was
performed improperly. Nick v. DMV, 12 Cal. App. 4th 1407, 1418 (1993).
Conversely, the court found that there was no foundation to admit the
PAS
result because it was not in compliance with Title 17— it was not
licensed, and
the arresting officer did not testify so no alternative foundation was
established. See Nick, 12 Cal. App. 4th at 1418 n.6. Accordingly, where
the
results are shown to be credible because the Adams foundation is
satisfied, the
evidence must be admitted.
Adams and its
progeny clarify that noncompliance with Title 17 goes to the weight of
scientific evidence but not its admissibility; if it is established
that (1)
the apparatus utilized was in proper working order, (2) the test was
properly
administered, and (3) the operator was competent and qualified, then
the
evidence is admissible. As shown above, Title 17 sets forth numerous
regulations that provide an indicia of trustworthiness of the results,
and
provide a basis for admissibility. That same indicia of trustworthiness
can be
provided by meeting the three Adams foundational elements.
The
requirements of Title 17 are related to, but not identical to, the
foundation
required under Adams. Some of the requirements of Title 17 are probably
so
vital to the trustworthiness of the test results that if they are not
met, the
results would not satisfy the Adams foundation and would not be
admissible. For
example, if a breath testing device had been used for one year and its
accuracy
had never been checked during that time, there would be a violation of
Title 17
and a failure to satisfy the Adams foundation. Conversely, other Title
17
requirements, such as the fifteen-minute waiting period, would not
necessarily
undermine the trustworthiness of the results. If two identical breath
test
results were obtained by using a fully compliant, licensed breath
testing
device, and the samples were obtained after waiting fourteen and
one-half and
fifteen minutes, there would be a violation of Title 17 but not a
failure to
satisfy Adams.
Under Adams if
Title 17 is not complied with the question is not whether there was
substantial
or insubstantial compliance. Rather, the relevant questions are, was
the
apparatus in working order? was it properly administered? and was the
operator
competent and qualified? If each of those questions is answered in the
affirmative, the tests results were trustworthy, and the trial court
should
admit the results.
Similarly, if
the Court here finds Section 21455.5 was not complied with, the
question is not
whether there was substantial compliance, but whether an alternative
evidentiary foundation can be laid. If a foundation can be laid, the
evidence
must be admitted.
D.
THE WILLIAMS DECISION IS WRONG-HEADED AND POORLY
REASONED
In Williams
[[see special "Williams" note at top of this Web page]] the court
reviewed the procedures used in administering the PAS device and
compared them to the requirements of Title 17 and the Adams
requirements. The
court found that there was not “substantial” compliance with Title 17
and ruled
that the PAS result was therefore inadmissible. Williams, 89 Cal. App.
4th at
97—100.
The Williams
[[see special "Williams" note at top of this Web page]] court paid lip
service to the rule of Adams and its progeny that evidence with
a proper foundation is admissible despite statutory noncompliance.
However,
even though the court discussed the three evidentiary foundations, the
court
focused on its belief in the need for “substantial compliance” with
Title 17,
and its perception of “a government agency’s intentional failure to
comply with
mandatory duty.” Id. at 97. The court cautioned that peace officers and
their
agencies “would be mistaken to assume they may seek haven in the good
faith
exception to the exclusionary rule, for example, and find a license to
be
casual or, worse, careless.” Id. at 100. The court then pointed out
that the
exclusionary rule is a judicially created remedy designed to deter such
conduct, and then created a new rule of law: Breath
test
evidence is only admissible if there is
substantial
compliance with Title 17.
The Williams
[[see special "Williams" note at top of this Web page]] court thus
judicially legislated an exclusionary provision for Title 17 when
the Legislature declined to do that very thing. See Adams, 59 Cal. App.
3d at
565; Brannon, 32 Cal. App. 3d at 977. Judicial activism such as this
led to the
people of California amending the state constitution by initiative in
1982
through Proposition 8. The California Supreme Court discussed
Proposition 8’s
effect on judicially created exclusionary rules in In re Lance W., 37
Cal. 3d
873, (1985):
"Implicit
in. . . the courts’ power to exclude relevant evidence to the
enumerated
statutory exceptions is a limitation on the power of the court to
create
nonstatutory exclusionary rules, whether denominated rules of
procedure, rules
of evidence, or substantive rules, for the exclusion of unlawfully
seized evidence
if those rules afford greater protection to a criminal defendant than
does the
Fourth Amendment."
"...The
express intent of section 28(d) is to ensure that all relevant evidence
is
admitted. That purpose cannot be effectuated if the judiciary is free
to adopt
exclusionary rules that are not authorized by statute or mandated by
the
Constitution."
Id. at 888—89.
In the face of
this indictment of judicially-created exclusionary rules, the Williams
[[see special "Williams" note at top of this Web page]] court
improperly created its own exclusionary rule. Similarly, this Court
would
create a new exclusionary rule: if an AE system is not operated by a
governmental agency, evidence obtained by use of that system is
inadmissible.
Such a rule would be unconstitutional.
IV
BECAUSE
THE EVIDENCE IS
RELIABLE, IT IS ADMISSIBLE
As stated
above, if a proper evidentiary foundation is laid, evidence must be
admitted
despite statutory noncompliance. Here, a proper foundation will be
laid. In
addition, concerns expressed by the Court do not obviate the foundation.
A.
THE PROPER FOUNDATION EXISTS
The People are
prepared to lay the following foundation for the admission of the
photographic
evidence establishing the guilt of the defendants:
1. Duncan Hughes,
Associate Traffic Engineer employed by the City, can testify that: he attended monthly coordination meetings
held by the police department; he attended site meetings with
representatives
of LM and the electrical subcontractor to the placement of the loops
and other
equipment; he reviewed and approved plans submitted by LM for the
installation
of camera systems; and he reviewed and approved construction plans
submitted by
LM. (See Exhibit 1, Declaration of Duncan Hughes.)
2. Tony
May, a Construction Field Coordinator
[CFC] employed by LM, can testify that: he oversaw subcontractors who
installed
the AE systems; he coordinated the placement of the loops in the
pavement; and
he measured the distances between the loops and inputted that
information into
the camera unit. (Declaration of Tony May to be filed.)
3. Erik
Storer, a Field Service Technician
[FST] employed by LM, can testify that: he
conducted regular, periodic inspections and
maintenance of the camera
systems; he removed and replaced the film and the memory card; he
checked the
system phase indicators (red, yellow and green) to insure they were
functioning
properly; he checked that the loop sensors were detecting all vehicles
passing
over them; he verified that the flash system was operating properly;
each
inspection he verified the operation of the system by a minimum of two
test
shots; he inspected the loops and camera system for damage and
performed
preventative maintenance on the camera system; he performed a system
self-check
to confirm that the sensor loops, computer and camera functioned
properly;
verified that the required signs were posted; and contemporaneously
completed
an FST log. (See Exhibit 2, Declaration of Erik Storer.)
4. Denver
Tatoy, a Traffic Service Agent [TSA]
employed by LM can testify that: he received memory cards from FSTs
with data
from the AE system; he downloaded memory card data into a software
database; he
saved film negatives to computerized images; he entered into the
Citeware
software program data including the license plate of the vehicle; he
accessed
DMV databases to determine registered owners; he printed citations for
review
by the law enforcement agency; and he mailed citations to drivers
identified by
the AE system. (See Exhibit 3, Declaration of Denver Tatoy.)
5. San
Diego Police Officer A.V. La Prath can
testify that: after the camera system was installed at each
intersection, he
went to the intersection in order to take measurements for preparation
of a
diagram of the intersection to be used in trials; after taking the
relevant
measurements he prepared the diagrams; in May 2001 he remeasured the
intersections and discovered that at three intersections the
loops had been
moved; later in May he went to all sixteen intersections involved in
the
instant case to verify the measurements and pitch setting; he found
that no
other loops had been moved, the pitch settings in the camera units were
identical to the pitch settings on the pitch setting sheet, with two
minor
variations, and apart from minor variations caused by wear and tear the
loop
measurements had not changed. (See Exhibit 4, Declaration of A.V. La
Prath.)
6. April
Lobell, or her representative, can
testify to the overall operation of the AE system, and specifically
regarding:
the physical layout of and connection of the loops and camera system;
that the
software records yellow light duration, and after the signal turns red
records
violations; that the system requires a minimum vehicle speed set by
SDPD; that
the system takes two photographs, one when the front of the vehicle
passes the
leading edge of the second loop, and one when the vehicle is within the
intersection; that the software determines the vehicle speed and the
duration
of the red light when the signal is activated, which allows a
computation to
determine where the vehicle was in relation to the limit line when the
signal
turned red; that if the photograph reveals a violation, DMV records are
accessed to determine the identity of the driver through the vehicle
registration; that if the violator is identified, a citation is
prepared for
police review and approval; and that if the citation is approved, a
notice to
appear is mailed to the violator, pursuant to statutory requirements.
The evidence
would thus show that the AE system was properly installed and working
accurately; that within days of each violation the AE system was
checked for
proper operation and found to be functioning correctly; and that loops
were
intact and working properly. The evidence would further show that the
film
showing violators was promptly processed, and that violators were
identified by
accessing DMV records. Finally, the evidence would establish the
citations were
prepared for review and approval by SDPD and filed with court, and
violators
were mailed notices of the violations.
B.
THE COURT’S CONCERNS DO NOT OBVIATE THE FOUNDATION
In Williams
[[see special "Williams" note at top of this Web page]] the court
explained why the noncompliance with Title 17 regulations impaired
the evidentiary foundation for the breath test, examining each of the
three
prongs of the Adams test. In contrast, here the Court has supplied no
explication of why the alleged statutory noncompliance undermines the
evidentiary foundation, other than to express concerns that: (1) a
private
entity, rather than the government, maintains the system; (2) LM is
remunerated
from fine proceeds; and (3) an employee of LM allowed reconfiguration
of loop
placement without ensuring that the camera unit was properly
reprogrammed.
Whether considered singly or together, these concerns are not fatal to
the
foundation for the AE evidence.
C.
THE PUBLIC-PRIVATE PARTNERSHIP DOES NOT MAKE THE
SYSTEM LESS
TRUSTWORTHY
The Court
reiterates the opinion that the reason the Legislature set forth the
requirement of governmental operation in Vehicle Code section 21455.5
was so
the evidence would be trustworthy and reliable, relying on Evidence
Code
section 664, which provides an evidentiary presumption that official
duties are
regularly performed. However, as discussed above, there are no official
duties
specifically relating to the day-to-day operation of AE systems.
In addition,
the premise that government employees are more trustworthy than private
employees is a doubtful one. One need only recall testimony regarding
DNA
evidence in the criminal trial of O.J. Simpson: the criminalists of the
Los Angeles
Police Department were reviled, while the work of the private Cellmark
Diagnostics, Inc., was respected.
Interestingly,
the Court found that “the most disturbing testimony” at the hearing on
the
motion to dismiss came from Officer Smalley regarding the issuance of
citations
to persons who appeared not to be the offending motorist. The
procedures
adopted under Vehicle Code section 40520(c), the “section D”
procedures, were
formulated by the law enforcement agency, not the private entity.
Finally,
CALJIC 2.20 sets forth factors to be considered in judging the
believability of
witnesses. “Government employee” is not a factor that enhances
believability,
and “private employee” is not a factor that detracts from
believability.
Accordingly, whether film is loaded into a camera by a government
employee or a
private employee, for example, should not affect the admissibility of
evidence.
D.
THE REMUNERATION OF LM FROM FINE PROCEEDS DOES NOT
AFFECT THE
RELIABILITY OF THE EVIDENCE
The contract
between the City and LM provides that LM is to be remunerated from fine
proceeds. This arrangement is beneficial to the City and taxpayers
because it
requires very little from the City in start-up costs, and requires the
City to
pay the fee only if the City receives income from the use of the
cameras. Under
this taxpayer-friendly arrangement, if the City receives fine proceeds
it
shares them with LM, but if the City receives no proceeds it pays
nothing.
The fee
agreement for LM is similar to the contingency provided for in Health
and
Safety Code section 11372.5 for criminalistics laboratories. Subsection
(a)
provides that persons convicted of certain controlled substances
offenses must
pay a $50 criminal laboratory analysis fee. Subsection (b) provides
that the
court must transfer the money to a county’s criminalistics laboratories
fund,
and the money must be used exclusively to fund costs incurred by
criminalistics
laboratories providing chemical analysis of controlled substances, for
the
purchase and maintenance of equipment for use in performing chemical
analysis,
and for training of scientists employed by the laboratories. The fee is
not a
contingency fee in the strictest sense, in that the fee is paid for
controlled
substance convictions even if the laboratory did not perform an
analysis, and
there is a middleman. Nonetheless, if a laboratory analyst fails to
find a
controlled substance, performs a shoddy analysis, or testifies poorly,
and a
suspect is not charged or is found not guilty, the laboratory does not
get the
fee; but if the laboratory analyst does a good job in a case and a
conviction
results, the laboratory does get the fee. The contingency is less
direct than
the contractual arrangement with LM, but the laboratory benefits from
conviction in an arrangement approved by the Legislature.
A more direct
fee arrangement was approved in Brown v. Edwards, 721 F.2d 1442 (5th
Cir.
1984). In that case an arrestee brought a civil rights action against
the
constable who arrested him, on the ground that the Mississippi fee
system,
which compensated constables ten dollars for each arrest they made that
resulted in conviction, violated his rights. The Court found that there
was no
violation, stating that the allegation against the constable “relates
solely to
what is generally authorized and contemplated by Mississippi law and is
not
related to personal or class characteristics of the arrestee or his
conduct
apart from that giving rise to probable cause for the arrest and
charging.”
E.
THE CONTINGENT NATURE OF THE FEE TO LM DOES NOT
AFFECT THE SRELIABILITY OF LM EMPLOYEES AND THE EVIDENCE
THEY PRODUCE
Because LM is
remunerated out of fine proceeds received by the City, the Court
intimates that
the contract is void, citing Von Kesler v. Baker, 131 Cal. App. 654
(1931). In
Von Kesler the plaintiff apparently procured the testimony of certain
facts
that would successfully support a civil lawsuit. In condemning the
arrangement,
the court relied primarily on Hare v. McGue, 178 Cal. 740 (1918). In
that case
the court stated:
"It is the contingency on one hand
and the agreement
to furnish a given set of facts essential to a successful litigation on
the
other, and both of which in their nature are calculated to induce false
charges
and the production of perjured testimony, to subvert the truth and
pervert
justice through fraud, trickery, and chicanery at the hands of private
detectives on [or] other conscienceless persons, which has impelled the
law,
with wisdom, to declare such contracts illegal."
Id.
In Brown v.
Edwards, discussed above, the Court also noted the dangers of undue
influence.
The Court cited Tumey v. Ohio, 273 U.S. 510 (1972), where the Supreme
Court
invalidated an Ohio law whereby the mayor of a village acted as the
trier of
fact and received fees and costs upon convictions, but not after
acquittals.
The Court also cited Connally v. Georgia, 429 U.S. 245 (1977), where
the Court
invalidated a fee system where a magistrate received five dollars for
each
warrant issued, but nothing if issuance of the warrant was denied.
The cases
illustrate that it is dangerous for a witness or judge to have a
direct,
personal, and substantial pecuniary interest in the outcome. Here, the
employees of LM do not have a direct, personal, and substantial
pecuniary
interest in the outcome of the cases. Although it is true that LM, as a
corporate entity, receives more income if there are more violations,
there is
no evidence that any employee of LM receives more income if more
citations are
issued. It cannot be reasonably argued that LM employees would attempt
to alter
photographs, falsify data that is used for speed calculations, or
prepare
perjured affidavits.
Moreover, the
evidence produced by LM is not subject to the same dangers. Here, there
is no
criminal informant who may commit perjury for monetary reward or to
avoid
imprisonment. Here, there is not even a breath test that is manipulated
by a
person each time it is used, that must be constantly checked for
accuracy and
calibrated, and must be administered in a very specific way in order to
obtain
reliable results. Instead, the situation here is much more comparable
to the
use of radar for speed enforcement.
Radar, which
is accepted almost without question, uses an instrument that measures
vehicular
speed by use of radar. The instrument is normally tested each day with
a
self-check, to ensure that the basic electronics are functioning. The
user then
simply points and clicks at a vehicle to determine its speed. Although
an
officer could intentionally lie about the readout, or measure the speed
of a
different vehicle and falsely blame a different motorist for the speed,
the
instrument itself is essentially error-proof The instrument does not
require
adjustment, it cannot be “fooled” by such things as mouth alcohol or
Wonder
Bread, and its accuracy does not depend on the actions of the test
subject.
Similarly, the AE evidence is obtained with an unbiased, essentially
error-free
camera system that also does not require adjustment, cannot be fooled,
and the accuracy
of which does not depend on the actions of violators.
In addition,
the fee paid to LM is not for testimony to establish specific facts,
and
essentially not even for testifying. The fee remunerates LM for posting
signs,
for the use of incredibly expensive cameras, for developing film and
accessing
DMV records, and for processing citations—none of which involves
courtroom
testimony, let alone specific facts.
F.
THE RELOCATION OF LOOPS AT THREE OTHER INTERSECTIONS
SHOULD NOT
AFFECT THE FOUNDATION IN THE REMAINING CASES
The Court also
expressed concern over the relocation of the loops at three
intersections. An
employee of LM apparently decided the functioning of the loops could be
improved if they were moved and had them moved, but whoever was in
charge of
the loop relocation did not ensure that the cameras were reprogrammed
to
reflect the move and that the police department was aware of the move.
Although
the People believe that no one received a citation at these
intersections
unless there was a violation, the People chose to dismiss all citations
from
the intersections rather than use photographs with incorrect
information in the
data boxes on the evidence prepared for trial. For several reasons, the
relocation of the loops should not undermine the foundation for the
evidence of
violations at other intersections.
First, none of
the defendants before the Court received tickets from the three
intersections,
and there is no evidence that loops were relocated at any other
intersection.
Accordingly, the relocation of the loops should have no bearing on the
foundation for evidence from the other intersections.
Second, the
loop relocation error was not intentional, but was the result of
negligence.
There is no evidence whatsoever of a motive to deceive, to fabricate
evidence,
or to prosecute innocent motorists.
Finally, the
City itself has suffered similar failures of communication in other
endeavors
it has conducted. Whether public or private, employees sometimes make
mistakes.
V
THE
FLAWS IN THE SYSTEM
SHOULD NOT AFFECT ADMISSIBILITY OF THE EVIDENCE
The Court has
heard evidence concerning every bug, glitch, miscue, and error that
occurred
with the City’s AE system. Some of the problems cropped up and were
corrected.
Some of the problems continued over a period of time because of
insufficient
communication. Even now, there are
elements of the system that could be improved upon. To that end, the
City has
commissioned an independent audit. The entity performing the audit is
asked to
assess numerous aspects of the system, including verifying the validity
of the
functioning of the camera system, providing recommendations for
improving the
system, and surveying system protocols and management. (See Exhibit 5,
Photo
Red Light Enforcement Evaluation bid request.)
However, today
the Court is not deciding whether AE is the best tool to enforce the
prohibition against running red lights. The Court is not ruling on
whether the
City may use AE in the future. The Court is not weighing the net
benefit of the
system in punishing red light runners and inhibiting others from
running red
lights against the net cost to the City, the courts, and the citizens.
The
Court is not deciding whether, if the Court were in charge of traffic
enforcement,
the Court would use an AE system. The Court is ruling on one question
only: can
the People establish an adequate evidentiary foundation for the
admission of
the photographic evidence.
If the Court
believes the People cannot establish the reliability of the system,
based not
on past mistakes or the rhetoric of defense attorneys, but rather based
on the
objective evidence, the Court may properly exclude the evidence. But if
the
Court finds the People can establish a foundation for the reliability
of the
evidence, the Court must find the evidence admissible. The People
submit that
the evidence is reliable, and the Court should therefore admit the
evidence,
and not punish the People for past sins.
Finally, to
this point the Court has suggested the evidence lacks foundation
“because the
system is for far outside the operation contemplated by the
legislature.” If
this Court excludes the evidence, in light of the importance of the
issues the
Court should specify exactly how the foundation is wanting. Does the
Court
believe that the motorists accused of the infractions are not the
registered
owners or persons otherwise identified as drivers? Does the Court
believe that
the camera was not operating properly? Does the Court believe the loops
were
not located as depicted? Does the Court believe LM employees
manipulated
photographic evidence? If the Court believes that someone or something
is
attempting to subvert the truth and pervert justice through fraud,
trickery, or
chicanery, then the Court should explain its belief. If it cannot
justify such
a belief, the Court should not exclude the evidence.
CONCLUSION
For the
reasons set forth above, the People respectfully request the Court not
exclude
evidence obtained from the AE system.
Dated:
August 24, 2001
CASEY GWINN, City Attorney
By [[sig]]
Steven K. Hansen
Deputy City Attorney
Attorneys for Plaintiff
[[This Response to
Order to
Show Cause was OCR'd in December 2006 by highwayrobbery.net, from the
original court
document, and may contain minor errors. You may freely re-publish
all of it, or any portion, on your website or in your
publication. However, highwayrobbery.net would appreciate
attribution. Highwayrobbery.net has not yet OCR'd the
declarations of Hughes, Storer, Tatoy, May, and Officer La Prath, or
the June 2001 RFP for an evaluation of the system. If there is
sufficient public interest, these documents can be added.]]
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