POLICE REVIEW COMMISSION

Policy Report:

Evidence Theft within the

Berkeley Police Department

APPROVED OCTOBER 12, 2007

BY THE SUBCOMMITTEE ON EVIDENCE THEFT ISSUES

Members:

William White, Chairperson

Sharon Anne Kidd, Commissioner

Sherry Smith, Commissioner

Jim Chanin, Community Member

Andrea Prichett, Community Member

Staff:

VICTORIA URBI, PRC OFFICER

TABLE OF CONTENTS

I. PREAMBLE……………...…………………………………………………………. 4

II. ACKNOWLEDGMENTS. ………………………………………………………….5

III. INTRODUCTION………………………………………………………………….. 6

A. Legal Authority: Berkeley Municipal Code, Chapter 3.32.010, Police Review Commission Ordinance

B. Objectives of the Subcommittee Investigation

C. Not a Personnel Investigation

D. Limitations of Investigation

IV. OVERVIEW OF INVESTIGATION………………………………………………. 8

A. City Manager directive

B. Formation of Subcommittee

V. FACTS…………………………………………………………………………….. 10

A. Cary Kent: 18 year veteran of Berkeley Police Department

B. Sergeant Kent’s responsibilities

C. Theft of narcotics from Property Room

VI. EARLY WARNING SIGNS……………………………………………………… 13

A. Officers noticed problems/early warning signs

B. Officers who suspected substance abuse

VII. MANAGEMENT RESPONSE…………………………………………………… 15

A. Captain Gustafson’s supervision of Sergeant Kent

B. Performance Evaluations

C. Reasonable Accommodation

D. Conflict of Interest

VIII. THEFT OF MONEY FROM SUSPECTS…………………………………...…… 18

IX. MONITORING OF EVIDENCE ROOM/DRUG VAULT….………………… 19

X. CRIMINAL INVESTIGATION OF EVIDENCE THEFT……………………….. 20

XI. FINDINGS………………………………………………………………………. ..22

XII. RECOMMENDATIONS………………………………………………………… 24

XIII. EXHIBITS

A. Timeline of Incident

B. Observations of Sergeant Kent

C. Chief Hambleton’s interview transcript

D. Memorandum to Mayor and City Council dated April 14, 2006

E. Memorandum to Police Review Commission dated April 19, 2006

F. Letter from Berkeley Police Union dated April 26, 2007

G. Newspaper articles

H. APPLICABLE LAW AND POLICIES

1. Health and Safety Code, Section 11550

2. Penal Code Section 487

3. Penal Code Section 503

4. City of Berkeley Drug-Free Workplace Policy

5. Reasonable Accommodation Policy

6. Performance Evaluation Policy

I. BERKELEY POLICE DEPARTMENT POLICIES

1. General Order C-62: Subpoenas and Court Appearances

2. General Order D-4: Special Enforcement Unit (SEU)

3. General Order E-13, Complaint Intervention – Early Warning System

4. General Order P-26: Personnel Complaint Procedure and Disposition and the Internal Affairs Bureau

5. General Order P-28: Performance Appraisal Report

6. General Order P-65, Procedures for Care and Handling of Property Evidence

7. General Order R-4: Responsibility and Accountability of Delegated Authority

8. Police Regulations, Chapter 4: Duties and responsibilities of the Ranks and Department Organization

9. Asset Management Manual

a. Chapter 1 – Property Room Procedures

b. Chapter 2 – Special Enforcement Unit Procedures

c. Chapter 3 – Property Room/Asset Seizure Account Codes

d. Chapter 4 – Asset Management Process

I. PREAMBLE

While the Police Review Commission has investigated hundreds of incidents of individual allegations of police misconduct over its 34-year history, rarely has a single case had such an impact on the public trust as the case of former Sergeant Cary Kent. The possibility that a sworn and armed officer was not only working while under the influence of narcotics, but that he was able to steal drugs from what should have been the most secure location in Berkeley, cast a shadow of doubt on the entire department. Revelations six months later that theft from the department continued to be a problem further shook the public confidence.

The Police Review Commission (PRC) established the Subcommittee on Evidence Theft Issues. The following report represents a review, not of individual officer conduct, but of systems within the department that provide for the security of drug related evidence and accountability for the officers and supervisors who manage these cases. The basic questions for this report focused on identifying these systems and evaluating their effectiveness in addressing these issues.

While some have characterized this investigation as simply a policy review, it must be remembered that policies are only one part of the systems required to effectively manage a police department. Well-written policies are useless without thorough implementation, training, assessment and supervision of the employees charged with implementing the policies. In addition, policies of the police department require interaction between the Berkeley Police Department (BPD), PRC, the City Auditor, the Finance Department and the City Manager. It is hoped that this report will provide insights as to areas where interagency coordination could be improved for the benefit of the citizens of Berkeley.

The purpose of this report is not to place blame or to accuse individual employees of the City of Berkeley. Former Sergeant Kent served the City honorably for many years. The personal failings of one individual may be forgiven. The systemic failure of a department to identify and remedy major lapses in security, personnel management and administration must be addressed immediately. The hope is that those who read this report will understand that a systemic failure of this magnitude represents an urgent need for improved management, and will work to address the findings in this report.

II. ACKNOWLEDGEMENTS

This report is a collective effort by the citizens of Berkeley. Subcommittee Chairperson William White, Commissioner Sharon Kidd, Commissioner Sherry Smith, and community members Jim Chanin and Andrea Prichett spent countless hours conceptualizing the investigation’s areas of concern, pouring over 800 pages of the police report, writing various pieces and meeting monthly to analyze the evidence. All the Subcommittee members were highly committed to contributing their insight and making thoughtful findings and recommendations.

PRC Investigators Fred Vides and Barbara Mann gathered evidence on narcotics symptoms and detection, lupus, summarized officer interviews and conducted research on the court cases.

Maritza Martinez and Rebecca Webb assisted in coordinating the Subcommittee meetings, copying and collating the report.

U.C. Berkeley interns Stephanie Ahn and Melodie Yashar read through the reports and provided interview summaries, news stories and additional questions.

James Mason of the City’s Human Resource Department provided an historical City perspective on drug testing.

III. INTRODUCTION

A. Legal Authority: Bmc, Ch. 3.32.010, Police Review Commission Ordinance (Section 1 and 10b selected)

Section 1. The general purpose of this chapter is to provide for community participation in setting and reviewing Police Department policies, practices and procedures and to provide a means for prompt, impartial and fair investigation of complaints brought by individuals against the Berkeley Police Department. (Ord. 4644-NS § 1, 1973)

Section 10 b. The Commission established by this Ordinance shall have the following powers and duties: to review and make recommendations concerning all written and unwritten policies, practices and procedures of whatever kind and without limitations (emphasis added), in relation to the Berkeley Police Department….

B. Objectives of the subcommittee investigation

The original intention of the Subcommittee was to identify policies related to the handling and storage of drug evidence, money, and evidence related to drug cases and to evaluate whether these policies were adequate to provide proper management and to prevent irregularities such as mismanagement or even theft in the future. As the Subcommittee’s investigation progressed, it became clear that policies related to the supervision of officers, personnel policies, early detection of problematic behavior as well as policies directly related to the handling and auditing of physical evidence also required some examination. This report addresses some of our findings and recommends policy changes as well as additional actions to be taken by the City Council.

C. Not a personnel investigation

The Subcommittee believed the investigation should focus on a policy review and not a personnel investigation. First, Government Code §3304, which states that investigations of peace officers must be completed within one year, had already expired, so the issue would have been moot for any disciplinary recommendations. More importantly, there were no specific allegations of misconduct against any specific officer remaining in the department.

In February of 2007, the PRC voted to open an investigation into BPD’s evidence theft issues as a policy complaint. The subcommittee believed that the larger issue was not about officer misconduct or a failure of any one individual, but that a policy review of the incident would render lasting impact and guidelines for command staff to consider in dealing with similar evidence theft issues.

D. Limitations of investigation

The Subcommittee attempted to gather further information by interviewing members of the department with direct experience in the handling of evidence and the prosecution of drug related cases. Although one officer was interviewed, this process was abandoned after objections from the Berkeley Police Association (BPA). The BPA’s attorney wrote to Chief Hambleton and threatened to sue the City if officers were interviewed about this incident. The objections raised were connected with the recent California Supreme Court decision in Copley Press Inc. v. Superior Court, (2006) 39 Cal.3d 1291 and the Berkeley Police Association v. City of Berkeley and City of Berkeley Police Review Commission ACSC No. 2002 057569, which has essentially suspended the hearing of complaints in Berkeley.

Despite the assurance that information gathered by the Subcommittee was specifically related to evaluation of policies and procedures within the department, and the fact that no discipline issues were being investigated, the Subcommittee was forced to desist from its effort to interview officers. The Subcommittee believes that not being able to interview officers concerning the incident was a major setback to the investigation, because the Subcommittee could not obtain follow-up information that was lacking from the police report. The PRC Ordinance states that the Commission can review BPD policies without limitation (emphasis added).

The Subcommittee believes that the Chief of Police and the City Manager should have ordered the BPD to have individual officers appear for interviews so long as there was a clear understanding that such interviews would only further policy development and would not constitute an investigation of individual officers. The City Manager and BPD Chief Hambleton took the position that line officers could not contribute to policy development since policy was set by the Command Staff and the City Manager. The Subcommittee believes otherwise. While these officers do not make policy, their insight is extremely helpful towards suggesting needed change. The failure to have these officers provide their perspective is unfortunate and this information would have been beneficial to the City of Berkeley.

The Berkeley Police Association’s reaction was unfortunate, but characteristic of its critical attitude toward the concept of civilian review in general and the Police Review Commission in particular. The citizens of Berkeley have every right to suggest policy changes for their own police department, as civilian control of the military and the police is a cornerstone of democracy. It is very unfortunate that individual police officers either refused or were prevented from providing their perspective as to why these incidents took place and how they could be prevented or minimized in the future.

IV. OVERVIEW OF INVESTIGATION

A. City Manager directive

In April of 2006, City Manager Phil Kamlarz issued a memorandum to the PRC to inform them that the Peace Officer Standards and Training (POST) would conduct an independent review of BPD’s narcotics-handling procedures. Mr. Kamlarz advised that the appropriate role of PRC was to review and comment on the POST recommendations. Our suggestions regarding the POST recommendations are included in this report and none of the report’s recommendations were opposed by the Subcommittee. They are a good first step toward regaining control and providing accountability.

B. Formation of Subcommittee

On May 24, 2006, the Police Review Commission voted to approve the formation of a Subcommittee to examine the department’s investigation of Sergeant Kent and report back to the full Commission. On September 13, 2006, in light of the second criminal investigation involving the theft of evidence, the Commission voted to accept the Subcommittee’s proposal to expand its purpose by reviewing evidence theft problems within BPD.

The Subcommittee examined the police report related to the investigation of Sergeant Kent (#06-3074). In addition, the police report for the investigation of Officer Steve Fleming (#06-41966) was also reviewed. On May 3, 2007 Chief Hambleton met with the Subcommittee and answered questions from Subcommittee members. City Auditor Anne-Marie Hogan also met with the Subcommittee in order to identify information that the Subcommittee would need in order to understand the processing of assets seized and booked into evidence and to review the effectiveness of policies regulating these transactions and the handling of such evidence.

The Subcommittee made oral and written requests to Chief Hambleton for documents and information related to the investigation. Our written communication dated April 23, 2007 included a request for the following information:

· A total inventory of the missing drug evidence including quantities as measured in grams, ounces, etc.

· A copy of the CRIMES database as well as the results of any audits or inquiries made about the CRIMES database or any investigations or inquiries concerning theft or loss of evidence in the BPD’s possession.

· Any audits, policies or procedures related to maintaining an asset forfeiture account of any kind,

· Any policies related to the processing of drug evidence, other property or cash seized in drug arrests or from any arrests,

These requests for information were not honored and the Subcommittee believes that greater cooperation would have increased the quality of our inquiry and the value of this report in terms of recommending policy changes and identifying areas of concern for the department and the City.

A basic assumption of the department’s investigation of the evidence tampering was that the missing drugs were being used by Sergeant Kent to supply his personal addiction to drugs. He was the only identified suspect in the investigation. During the time of the investigation, the City of Berkeley had a 1988 resolution adopted by the City Council, which prohibited the City from conducting any drug or alcohol testing on any of its employees, except the federally mandated drug testing required by the Department of Transportation regulations for commercial drivers. On June 26, 2007, the City Council repealed the law prohibiting drug testing of City employees.

Although Sergeant Kent’s suggested addiction to drugs was never independently confirmed, court records show that he participated in the Continuing Care Program at the John Muir Behavioral Health Center for Recovery.

Without knowing the total amount of drugs missing, the possibility that the amount of missing drugs was more than what would have been required to supply one addict can not be ruled out. It is important to note that, in addition to 286 tampered envelopes, it was also discovered that Sergeant Kent purchased drugs at least 2-3 times per week from informants (BPD Report #06-3074 Supplemental Report pg.3 and Interview with CRI #1 January 31, 2006).

If the quantity of drugs missing, plus what he purchased, is greater than what one drug addicted person could consume, the question remains as to what happened to the rest of the drugs. As Inspector Scarlett #214 wrote in his Affidavit for Search Warrant, “ I believe, based on the facts above, that any evidence removed from sealed BPD drug evidence envelopes could be sold, traded, provided to others, or used by Sergeant Kent #S24”.

Were these drugs consumed or did they leave the department? Were other individuals with access to the drug locker also involved in removing drugs? To the Subcommittee’s knowledge, these troubling questions remain uninvestigated.

V. FACTS

A. Cary Kent: 18 year veteran of Berkeley Police Department

Cary Kent, 55 years old, was a Sergeant in the Administrative Narcotics Unit of BPD. He worked for approximately eighteen years before retiring in March of 2006. He enjoyed baseball and would attend games with fellow officers. He coached Little League, was a swim team judge and, in 1997 he competed in the U.S. Masters Swimming Men’s competition and finished among the top five.

Chief Hambleton stated he “earned a reputation as being a very thorough, very, very good investigator. He had….a number of informants. He seemed to be getting very good information on cases.” Sergeant Kent taught officers how to conduct surveillances of drug dealers and drug pushers.

B. Sergeant Kent’s responsibilities

Sergeant Kent worked as the Administrative Narcotics Sergeant. His responsibilities included retrieving narcotics envelopes from the drop safe in the SEU (Special Enforcement Unit) office and the Property Room. His duties also included making certain that evidence was properly entered into the CRIMES database. He was also expected to note the chain of evidence when he picked up the evidence from the drop safe and process it so that it could be ready for use as evidence and that the evidence could be located when needed.

Sergeant Kent was also required to check the court board to see what cases were going to court, so that he could know which officers need certain evidence. He was supposed to check the SEU box to determine what cases had been charged. On parole violation cases, he was expected to take those envelopes to the lab and have the narcotics tested. It was Sergeant Kent’s responsibility to pick up the envelopes from the lab and obtain the lab reports.

In an email dated July 8, 2006 Captain Gustafson outlined Sergeant Kent’s responsibilities. The following list of responsibilities was sent to Sergeant Kent:

I depend on you for these things:

1. Processing, tracking, and storing all drug evidence.

2. Reviewing drug evidence for in-custody cases, determining which cases should be lab tested, and insuring that the drug evidence is tested and returned prior to being needed in court.

3. Being in the office and available to distribute drug evidence to officers who are called to testify, on the mornings that they are due in court. I would appreciate it if you were in the office by 0800 hours on these days to handle any problems, but it is fine if you are in the office no later than 0830 hours. Officers should have their evidence and leave for court by 0845 hours to avoid having to return to the afternoon session.

4. Processing assets that are seized in SEU cases, and monitoring the forfeiture process.

5. Preparing the SEU monthly report by the 10^th of each month.

6. Preparing other statistical reports related to the disposition of drug evidence as assigned.

7. Attending the Monday morning staff meeting.

8. Maintaining a liaison with the DA’s office regarding SEU cases.

Work Schedule:

Monday-Thursday

Court days – 0830 to 1830

Non-court days – no later than 0930, please, without prior approval.

Please don’t flex or take time off, without prior approval.

Availability:

Please be readily available by your departmental Nextel during your work hours. I usually don’t have a need to contact you, but when I do, it is usually somewhat urgent, and related to court/evidence matters.

If you have the time, working on these things would be a great benefit to the unit.

1. Participating in SEU operations (when it does not conflict with your other duties).

2. Interviewing prisoners to gather intelligence information.

3. Aggressive investigation and pursuit of financial assets that are associated with any SEU case.

C. Theft of narcotics from Property Room

Sergeant Kent was scheduled to rotate out of the SEU in mid-January 2006. He had intended to conduct the scheduled drug burn that would have destroyed any evidence of drug evidence tampering. The January 6, 2006 audit of the evidence locker was in keeping with departmental policy (General Order P-65 section 100) that when a new Property Officer is appointed, a joint inventory should be conducted.

Chief Hambleton explained that as a result of contradictory information about Sergeant Kent’s physical fitness for duty, he decided to conduct the audit of the drug evidence locker.

According to Chief Hambleton, there is no written policy regarding what should be done if an officer fails to report for a physical examination. In fact, Sergeant Kent failed to report for a medical examination on several occasions. When he finally did report for his physical examination on December 28, 2005, he refused to submit to a blood test or an EKG and was deemed unfit for duty. Additional medical clearance forms were faxed to the department on January 5, 2006 by Dr. Peterson, which cleared Sergeant Kent for administrative tasks. He was allowed to return to work to continue to process drug evidence envelopes for destruction.

On January 5, 2006, Captain Stephanie Fleming stated during the Captains’ staff meeting that she had serious concerns about Sergeant Kent, who had been the subject of discussion for the previous months.

On January 6, 2006, former BPD Sergeant Kent was placed on administrative leave due to BPD’s preliminary audit that discovered that evidence envelopes in the property room had been tampered with. After Lt. Cynthia Harris and Inspector Mark Scarlett, from the District Attorney’s Office, conducted an investigation, Sergeant Kent was charged with grand theft by embezzlement, possession of methamphetamine and possession of heroin. On January 13, 2006, the Berkeley Police Department issued a press release regarding the initiation of an investigation into “irregularities in the handling of some evidence.”

In March of 2006, Sergeant Kent retired from BPD. On April 18, Sergeant Kent pled guilty to all three counts. Judge Don Clay sentenced Sergeant Kent to five years probation and one year in county jail, which Sergeant Kent completed through the Contra Costa County Sheriff’s alternative custody program (electronic home detention). Sergeant Kent provided no statement to investigators regarding the issues of missing drug evidence or his activities while employed by BPD.

On May 12, 2006, the police report on the investigation of Sergeant Kent’s activities was made public. Based on this report, the Police Review Commission (PRC) began its inquiry.

VI. EARLY WARNING SIGNS

A. Officers noticed problems

1. Twenty-one (21) officers noticed that Sergeant Kent had problems. (See Exhibit B, Observations of Kent). Most officers observed that Sergeant Kent gained weight. Other comments concerning his health and behavior included:

· “sweat,”

· “eyes had dark circles,”

· “sallow look,”

· “unkempt,”

· “falling asleep,”

· “tired,”

· “depressed,”

· “eyes bloodshot,”

· “withdrawn,”

· “appearance disheveled,”

· “less reliable,”

· “tore up,”

· “sniffles frequently, long lasting symptoms of a cold,”

· “extremely talkative,”

· “behavior erratic,”

· “wore old clothes,” and more.

2. Officer Bjeldanes stated that on a Saturday at about 1:40 am, he and Officer Smith saw Sergeant Kent in the department parking lot behind the Public Safety Building. Officer Smith asked Sergeant Kent what he was doing; Sergeant Kent said he was getting ready for a purge of the dope. Ofc. Bjeldanes said he was shocked at Sergeant Kent’s appearance and he looked “weird.” Ofc. Bjeldanes said, “…it would be like if my mom told me that she was a heroin addict….I mean if that’s what it is….everything about that stuff and what it does to you and how it brings you down and makes you a criminal and makes you do stupid things like rob banks. And I mean for him to do that I can’t, I can’t imagine.”

3. Twelve officers (12) stated that Sergeant Kent had been late or missed a