San Francisco – It should have been a simple case, as the defendant Roger Arriago Rodriguez was detained for the alleged violation of San Francisco’s sit-lie ordinance by sitting on the sidewalk. Officer Custodio, patrolling the area looking for felons with an outstanding warrant, saw the man sitting on the sidewalk.
The officer asked for his ID and he didn’t have one. He gave a false name to the officer – Marco Accosta.
There was a backpack in front of him, and the officer asked to search it – the defendant granted that search and the officer found substances that turned out to be heroin, cocaine, fentanyl, and methamphetamine.
Mr. Rodriguez was charged with four felonies for possession with the intent to sell.
It was during the preliminary hearing that things started going sideways. The first problem for Assistant District Attorney Allison Schultz – asking simple questions.
In order to ask questions about evidence, an attorney has to lay the foundation. In fact, the district attorney’s office has a script for how to do this, but the ADA, apparently new to the office having moved to San Francisco from Arizona, struggled.
At one point, as she had Officer Custodio try to identify the drug evidence in bags, the officer was struggling to read the labeling.
She asked the judge if the witness could open the evidence bags – without taking the precaution of putting on gloves. “Can he open the bag?” she asked the judge. Judge Northway stated, “It’s your evidence.”
“I can’t see it – that’s the problem,” the ADA said, referring to the labeling of the evidence.
Later, a frustrated judge said, “You’re jumping all over the place,” as the ADA again struggled to ask questions in a coherent manner.
At one point, the judge had a question. The ADA said “if you allow me to ask my questions” but the judge interjected, “It’s your case, but if the trier of fact has a question, it might seem like a good idea to address that question.”
In order to establish that the drugs allegedly possessed by the defendant were possessed for sale, Ms. Schultz had to have Officer Custodio declared an expert.
The defense objected to his being qualified as a witness. Part of the problem was he had only testified as a witness a handful of times. There were questions as to his experience and training, particularly on the use and sale of the drugs.
However, Judge Northway ultimately stated that “the bar is not all that high.” She said, “It is whether the expert has knowledge over and above what an average person would know.”
Officer Custodio offered the opinion that the drugs were possessed for sale for two primary reasons – first their quantity and the bundling into individual bindles. Second, he testified that the defendant did not have any paraphernalia in his possession, which would have been suggestive of personal use.
Ms. Schultz then stated that she had no further questions.
Judge Northway said, “Are you sure?”
This caused the ADA to pause and attempt to consult with a colleague.
The judge then stated, “You’re either concluded or you aren’t. You don’t have the time to consult with a colleague.”
At this point, Ms. Schultz, unsure as to whether she had missed something, indicated that she had no further questions.
Under cross-examination, Deputy Public Defender Seth Maisels established that the officer was looking for people with outstanding warrants and that he was not looking for his client when he came upon him simply sitting on the sidewalk near the fence line.
The officer testified that, based on the violation of the sit-lie ordinance, the defendant was detained. He said that he did not attempt to stand up upon being told that he was in violation of the ordinance, and instead told him to stay there as they attempted to identify who he was and eventually gained permission to search the backpack.
Mr. Maisel requested judicial notice on the San Francisco Police Code section 168. In particular, he raised in his argument support of his motion to suppress the evidence, the section of the ordinance that states: “No person shall be cited under this Section unless the person engages in conduct prohibited by this Section after having been notified by a peace officer that the conduct violates this Section.”
In other words, Mr. Rodriguez was not in violation of the sit/lie ordinance unless he was informed of the violation and then refused to move.
In this case, Mr. Meisels argued, the officer said that you can’t sit here but then ordered him to remain in place by telling him he was being detained.
This provoked a back and forth between the judge and Mr. Meisels as to whether the officer indeed ordered him not to move, or whether the defendant had a chance to stand up.
Ms. Schultz countered that Mr. Rodriguez was sitting on a public sidewalk and that the defendant continued to sit. He was asked questions, gave a false name, and granted the search.
Mr. Meisels countered that was after the officer warned him that he was not free to go. He argued that he had no right to detain him at that point and there was no reasonable suspicion or probable cause to search the bag.
But Judge Northway ruled, “I’m satisfied there was probable cause.” She did not agree on the time elapsed and ruled that “the search was consensual.”
Mr. Meisels continued, “Now we’re slicing hairs here.” He added that the officer was basically using a pretext to stop and search the defendant, pointing out again, “It is not illegal to sit on the sidewalk until you’ve been warned.”
However, the judge not only rejected the motion to suppress, but she also upheld the charges for the four felony counts. “There is sufficient cause and the defendant is held to answer,” she said.
She did agree to release him into home detention in lieu of $20,000 bail, which Mr. Meisels argued that in light of his financial arrangement was tantamount to mandatory pretrial detention.
—David M. Greenwald reporting