A case in which a Palo Alto man was arrested on three felony drug and weapon charges was thrown out because Palo Alto police failed to do "due diligence," a Santa Clara County Superior Court judge ruled in January.
On April 23, 2009, Jerold Rob Reed Jr. was at his apartment at 657 Homer Ave. when police showed up at his door, allegedly looking for another man, Raymond Ernest Presta. Reed Jr., who is a convicted felon, told officers he was the only one at the apartment. One of the officers, who knew Reed, instructed him to exit the apartment. Police began an exploratory search for Presta, who was suspected in connection with a burglary, according to Lt. Sandra Brown.
No evidence of Presta was found. However, officers discovered nine marijuana plants in a courtyard, a .22-caliber handgun and a .22-caliber rifle stolen from Menlo Park situated next to the bed stand, ammunition and a homemade silencer.
Since Reed admitted he was the only resident at the apartment, he was arrested and booked on three felony charges.
But Reed's defense attorney, John Cahners, successfully argued in court that Palo Alto police were negligent because they did not thoroughly verify that Presta lived at the Homer Avenue address. Although Presta had resided there in the past, according to court documents, he had moved to 427 Alma St. a year earlier and had provided the Alma Street address at least six months prior to various authorities.
Presta provided the Alma address to a police officer after receiving a ticket, according to Brown.
Presta had also provided the Alma Street address when he was booked into San Mateo County jail on March 12, 2009, Cahners said.
But Presta's driver license listed Homer as his street address, and his probation officer and a neighbor on Homer told police he resided at the house.
Further complicating matters, his Department of Motor Vehicles record listed both the Homer and Alma Street addresses, police acknowledged.
Officers never searched the Alma residence, however, according to court records.
That lapse, Cahners argued, showed police negligence. Presta was incarcerated for more than a month before the Homer Avenue search, and police and the Santa Clara County probation department should have had that information, along with his new address, he said.
But police didn't know he was in jail because that information never got to his probation officer, Brown said. Palo Alto police followed the information given to them by the probation department, she said.
So officers acted on three pieces of information: an address on the DMV printout, the probation officer's information and an interview with a Homer Avenue neighbor a day before police searched the home.
The prosecution's case against Reed fell apart when Brian Vierra, a private investigator hired by Reed's attorney, testified he spoke with the Homer Avenue neighbor, Joe Periera. Periera told him police never asked about Presta and only about Reed, according to court documents.
Periera said if police had asked about Presta he would have told them the suspect had not lived at the residence for more than a year, Vierra testified.
Brown, however, said Periera had recanted his previous statements to police. She also defended the officers' conduct, saying they were still within their rights to search the property based on the probation officer's information.
"If Probation says he lives there that's enough authority to be in the house," she said.
Cahners stated in court papers the police should have searched databases to find out if Presta was in custody before searching the home.
Police can search Santa Clara County databases to see if a suspect is in jail but not records in other counties, such as San Mateo. Presta's probation officer was in Santa Clara County and also did not easily have information of his arrest in another county, according to Brown.
"The two counties don't necessarily talk to each other," she said.
But Cahners disagreed that the information system is to blame.
"Failure to spend a reasonable time using the information available to law enforcement to find the readily available information concerning Mr. Presta's whereabouts and true address, by itself, deprived the defendant (Reed) of his right to privacy and freedom from 'unreasonable' searches and seizures," he told the court.
Timothy Pitsker, a retired Santa Clara County deputy district attorney who prosecuted the case, said the district attorney's office does not plan to re-file charges against Reed.
"It was a close call, in my opinion. The judge could have found the officers in good faith."
About the danger that Reed poses, Pitsker said, "The guns were basically garbage. If they were mine I'd be afraid they would blow up in my face if I tried to fire them. The silencer wasn't really a silencer -- it was a wannabe silencer. The court gave the defense a break," he said.