In this country, we are supposed to protect the rights of the accused, not only because we have the presumption of innocence until proven guilty – at least in theory. And if we end up tossing the charges against some guilty people, that is supposed to be the price for protecting the right of the innocent.
This isn’t a theoretical question because, as we have seen, thousands of people have been proven to be wrongly convicted and we have enough data to know that factors such as police misconduct and hiding of evidence play a role.
On the other hand, I have found that people are likely to be energized when an innocent person is framed and their rights are violated. When it is someone guilty of committing a horrible crime, it is harder to fight that level of indignation. But that becomes a problem for innocent people as well. We hear language like good faith searches and harmless error that prevents justice for the wrongly convicted – in many cases because we are afraid of risking a guilty man going free.
That brings us to the case of a likely serial rapist in San Francisco – the Rideshare Rapist. His public defender just filed a motion to quash and traverse based on illegally obtained evidence by the police.
Is he guilty? He is entitled to his due process under the law, but there are several key pieces of evidence against him starting with a DNA match to the victims, a positive identification by two of them, and license plate evidence as well.
The problem is that the DNA evidence appears to be illegally obtained and the rest are “fruit from a poisonous tree.”
Here is what happened. The police spot the vehicle driven by the defendant in the 500 block of Howard on July 7, 2018. It happens to be the location of three of the rapes as well as a bar where women frequent – he is driving around the block multiple times and someone becomes suspicious.
But what Inspector Lee does is curious. Instead of pulling him over because he had reasonable suspicion that he might the Rideshare Rapist, he has a uniformed officer follow him and they attempt a DUI investigation.
They end up pulling him over, detain him for 20 minutes to get a PAS device, and instead of just having him blow on it like they would in a DUI investigation, they have him lick it and spit on it, so they can get a good sample of DNA and attempt to match it to the rapist.
Assistant DA Lailah Morris argued that “his erratic driving… provided probable cause for the rapes.
“They would have been well within their rights under the 4th Amendment to arrest him for all four rapes,” she claimed. “But Mark Lee, having done this type of work for years knew that he wanted to make sure that it stuck… so that this predator would be off the street for good.”
She argued, “There is nothing in the constitution that says they have to divorce themselves from a very serious case when presented with a DUI.”
The problem is the DA appears to be concocting a story to cover for the cops in this case, as public defender Sandy Feinland pointed out.
He argued, “It is shocking and astonishing that the DA would tell this court that Inspector was conducting a valid DUI stop.” Instead, he said, “this was a staged DUI investigation.”
The whole purpose of the PAS device is not to determine whether he was drinking, but to get his DNA. And as he pointed out, this doesn’t fall under implied consent, where one has to specifically submit and agree to a chemical test and they have to read him an admonishment.
Worse yet, the cops got caught in their own lie by their own body worn camera.
The conversation that they heard had Inspector Lee saying, “Why did you pull him over?” Mr. Feinland argued, “Officer Rosales had no reason.”
He continued, “We hear Officer Lee say, ‘Just fuckin’, just tell him whatever. Just tell him we saw you swerve.”
Officer Smith testified that he asked Inspector Lee, “What about the Fourth Amendment?”
According to Mr. Feinland, Inspector Lee did not indicate that there was not a Fourth Amendment problem in this case. He didn’t cite the probable cause from observations in the field. He didn’t say that he was suspicious that he was drunk driving.
Instead, Inspector Lee said, “Don’t worry about it. Everyone on the road consents to having chemical tests done.”
He argued that’s “completely wrong” and that “there is no implied consent to the PAS device.” In fact, it’s the opposite and people get admonished that they can refuse that chemical test.
“This conduct is flagrant your honor,” he said. “A superior officer directing rookies to do these things, directing them to lie to Vilchez Lazo.”
“Now they’re trying to Monday morning quarterback to say, we had probably cause anyway,” he added.
But the judge didn’t seem to get it and it seems unlikely that he will throw out this case.
Judge Bruce Chan is the judge who not only heard the evidence last week, he signed the warrant AFTER the fact and he told the court he felt he had probable cause to sign the warrant based on what the police already knew. The problem, as the defense points out, is none of that was known without the illegal DNA search.
The judge did not seem to grasp the fact that none of this evidence was obtained without the tainted DNA evidence.
In the end, it seems unlikely that a judge will allow the high profile Rideshare Rapist to walk based on the illegal collection of this evidence. They can’t even argue this was good faith – Inspector Lee knew he had nothing and directed his young officers to lie.
Our only solace: at least this time they got someone who is clearly guilty. The next person they catch illegally may not be so fortunate.
—David M. Greenwald reporting