wherearewe intheballgame? - san josé poa · vanguard november 2015 03 san jose police...

OFFICIAL PUBLICATION OF THE SAN JOSE POLICE OFFICERS' ASSOCIATION Volume 43 : No.11 • November 2015

WhereAreWeInTheBallGame?

By Paul Kelly – page 06By Paul Kelly – page 06

WhereAreWeInTheBallGame?

An AppropriateAnd Overdue Title Change

By James Gonzales – page 07

An AppropriateAnd Overdue Title Change

By James Gonzales – page 07

VANGUARDOfficial Monthly Publication Of TheSan Jose Police Officers’ Association

02 November 2015 VANGUARD

Copyright: All rights are reserved and no part, text, or picturesmay be reproduced without written permission. No responsi-bility whatever is assumed by the VANGUARD or the San JosePolice Officers’ Association for unsolicited material. Membersor readers submitting letters to the editor are requested to ob-serve these simple rules:• Address letters to: The Editor,1151 North Fourth St., San Jose, CA 95112or Email to: [email protected]

• Unsigned letters and/or articles will not be used.• Unsolicited articles and letters may not exceed 500 words.• Writers are assured freedom of expression within necessarylimits of space and good taste.

• Please keep letters and/or articles legible.• The editor reserves the right to add editor’s notes to any let-ters submitted if necessary.

• Deadline: 15th of each month.

The VANGUARD is the official publication of the San Jose Po-lice Officers’ Association. However, opinions expressed in theVANGUARD are not necessarily those of the San Jose PoliceOfficers’ Association, and/or the San Jose Police Department.Check out our web site: www.sjpoa.com

The Truth Is Its Own DefenseP.O.A. Tel: 408.298.1133 or x4012 Fax: 408.298.3151

Editor/Assistant Admin. Art Director/Publisher:Advertising/Graphic Design Christopher EllimanNicole Decker [email protected]@sjpoa.comExecutive Director: Administrative Assistant/Joanne Segovia Member [email protected] Maryanne Babiarz

[email protected]

Meeting Dates For 2015:November 3, Tuesday 0730 hrs. December 1, Tuesday 0730 hrs.POA Christmas Open House, Thursday, December 17.Santa at the POA, Tuesday, December 8 and Friday 11.This schedule is subject to change, please contact the POA office forconfirmation of dates and times.

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VANGUARD November 2015 03

SAN JOSE POLICEOFFICERS’ASSOCIATIONBoardOfDirectors

Director

Rick [email protected]

Director

Glenn [email protected]

Director

H. [email protected]

Director

David [email protected]

Director

Edward [email protected]

Director

President

Paul [email protected]

V. P.

J. [email protected]

C.F.O.

Franco [email protected]

Director

J. [email protected]

Director

Kevin [email protected]

Director

Joaquin [email protected]

Director

Dave [email protected]

Legal Counsel

Gregg [email protected]

Director

D. [email protected]

Director

Rob [email protected]

PositionUnfilled

At This Time

President’s Message:Where Are We In The Ball Game? 06

Second Chair’s View:An Appropriate And Overdue Title Change 07

C.F.O.’s Report 08

Legal Counsel:Friedrichs v. California Teachers’ Association And TheAttack On Agency Fee Or Fair Share Agreements: TheNegative Effect “Free Riders” Have On Public EmployeeCompensation 12

Long-Term Investing:Global Financial Markets Rough Seas:How To Navigate Your Financial Lifeboat To Safety 14

Real Estate Perspective:Buying Real Estate 16

SJPOA Elections:Candidate Statements 20

Insurance News:City Open Enrollment 2015:Open Enrollment Ends November13th 24

Real Estate News:Investing In Multi-Unit Or Straight Commercial Properties 25

Training Bulletin:Consent By Parents 28

Home & Auto News:Who Is Your Hero? 29

Reliable Informer 30


VANGUARDContents:

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Legal DefenseFund ReportFranco Vado, LDF Administrator

Requests: 22Approved: 22Denied: 0Board Representative: 21Attorney Request: 1

THIS IS A SYNOPSIS OF LDF TRUSTEE ACTIONS FORthe month of September 2015. Due to an individual's rightof privacy, specific details of LDF cases cannot be revealedby your LDF Trustees without written authorization fromthe involved member.

Your Legal Defense Plan provides you with legal serv-ices for acts or omissions arising in the course and scopeof your employment as a San Jose Police Officer. Be ad-vised that incidents which arise while you are performingduties associated with off-duty employment are excludedfrom coverage under the Plan.


“HOW TO LOVEAND UNDERSTAND

ACOP”Lois-Wilco-Owens, L.M.F.T.

LICENSED MARRIAGE & FAMILY THERAPIST

Serving The San Jose PoliceDepartment since 1993.

Specializing in dealing with policeofficers and their families.

Tel: [email protected]

2461 Marsha Way, San Jose, CA 95125

FULL INSURANCE COVERAGETHRU MHN

b

“At the time of this publi-cation, our brothers and sis-ters in the Federated unionsare negotiating with the Cityon a similar Global Settle-ment Framework to resolvetheir litigation over the dis-astrous Measure B.”I hope that when we are sitting down to negotiate our next

contract that the conversation about invalidating MeasureB and ‘fixing” our department is talk of the past. It has to be,in order for our police department to rebuild. The commit-ment by City Hall to agree to the framework and move for-ward has to be ‘real’ and implemented as soon as possibleor all is lost. The support from our Chief’s Office on these matters has

been and will continue to be crucial as well. Assistant ChiefEddie Garcia sat in the same room during all of the Meas-ure B Framework settlement discussions and MOA contractnegotiations. The support from the Assistant Chief was in-strumental in reaching both agreements and is just as vitaltoday in moving forward. I think we all understand that with the new Academy start-

ing with 10 recruits and officers continuing to resign andretire, that our work is cut out for us. I think, rightly so, thatthere is some hope in the air. But that hope will be gone ifthe City does not complete its work with the Federated unionsand then move quickly to eliminate Measure B and writethe ordinances to implement the Global Settlement Frame-work.So as we continue to work through all of our day-to-day

issues we still must keep our eye on the most important tar-get; invalidation of Measure B, implementation of our frame-work and restoring wages so the SJPD can be competitiveonce again.

Editor’s Note: Please send any comments toPaul Kelly at: [email protected]


AT THE TIME OF THIS PUBLICATION, OUR BROTHERSand sisters in the Federated unions are negotiating with theCity on a similar Global Settlement Framework to resolvetheir litigation over the disastrous Measure B. A settlementbetween the city and all bargaining units must occur priorto approaching the Superior Court to have the Measure Binvalidation process begin. Several current and former SJPD officers have asked if now

is a good time for former officers to return and when willthe new retiree health care plan be put in place. The simpleanswer is that until Measure B is invalidated, the status quostays in place, and the POA can not ethically recommendthat former officers return. As for the retiree healthcare planimplementation, again, until resolution with the Federatedbargaining units is completed, the status quo remains. Wecannot tell anyone to return or come to SJPD with the cur-rent pension benefits or the current retiree health care sys-tem in place. It would not be fair or morally right to give any-one false information in the hopes of filling much neededSJPD boots.

Where Are We InThe Ball Game?

With the ink dried on our Global Settle-ment Framework many, members havebeen asking, “What’s next?” It feels as ifwe are all in a very long lull on the pathto invalidate Measure B and in trans-forming our department to become com-petitive once again with other agencies.This lull does not feel like one of base-ball’s brief seventh innaing stretchesand we all know that when there is alull in developments, rumors and ques-tions fly. So I want to address some ofthose rumors and questions.

President’sMessagePaulKelly

cycle certainly have contributed to increased late nightsand weekends, all of which include Joanne.The executive team that consists of the President, Vice

President and CFO, all of whom have other duties, managethe day-to-day running of the POA. 12 years ago the exec-utive team realized that like most corporate boards, a fulltime professional management of the organization is neededto truly be effective going forward. The board then hiredJoanne who had management experience, to run the officeand she became the “POA Office Manager”. For the past12-years and spanning the tenure of the past 5 Presidentsand executive boards, Joanne has not only run the “office”but been part of the executive team implementing the di-rection of the POA through real day-to-day running of theAssociation.I can recall the past few POA presidents commenting on

how “office manager” really does not encompass duties andresponsibilities of the job Joanne has. As this new executiveboard took over at the beginning of the year we have lookedat what other POA’s are doing to see how we shape up. Onething we noticed is that many of them have a civilian Ex-ecutive Director and something clicked. Looking at the du-ties of an Office Manager and what Joanne does here atthe POA just did not match.It might seem like a small thing but you will see a new

title next to Joanne’s name going forward. As the POA Ex-ecutive Director, Joanne will continue to go above and be-yond for this membership as she always has. She has beenan integral part of this organization’s progress and success,and her new title now better reflects what she does here atthe SJPOA.

Editor’s Note: Please send any comments toJames Gonzales at: [email protected]

An AppropriateAnd OverdueTitle Change

Second Chair’s ViewJamesGonzales

On the POA office wall hangs the firstissue of the Vanguard, dated May 1963.The scope and professionalism of ourassociation has been moving forwardsince our formation in 1962. Like thetypewriter used to make the first Van-guard, much has changed at the POA inthe last 53 years. What began as an as-sociation with a heavy emphasis on so-cializing and community service hasturned into a multi million-dollar op-eration employing three full-time em-ployees along with contract accountants,attorneys, media consultants, lobbyists,auditors, and many others dedicated toprotecting the rights of our membersand improving wages, benefits andworking conditions.

BEYOND BARGAINING AND MEMBER REPRESENTA-tion the POA administers an ERISA trust providing insurancebenefits, a legal defense fund, and a non-profit charity forthe benefit of our members. From the moment the doorsopen in the morning at 1151 North 4th Street until they closeat the end of the day, the POA is buzzing with activity. Forsome, including our office manager, Joanne Segovia, thatbuzzing does not stop when the doors close in the evening.Like the police department, the POA has become a 24-hra day operation. Any POA executive will tell you runningthe POA extends far beyond normal working hours. Massivecourt litigation, recent political fights, and the 24-hr news

“Like the police depart-ment, the POA has becomea 24-hr a day operation. AnyPOA executive will tell yourunning the POA extendsfar beyond normal workinghours.”



Non-Kaiser plans. Significant cost increase for active andretired members as well as drastic plan changes are an im-portant issue that the POA is actively working on in additionto filing a meet and confer claim with the City. The POA isinvolved in a citywide working group examining all possi-ble options in controlling the costs for our members whilemaintaining ample health care choices.Vice President Gonzales told the membership that the POA

is part of a coalition of the largest 11 unions in CA (namedProtect California) who are meeting on a regular basis to-wards defeating any of Chuck Reed’s ballot measures. Helet the membership know that Reed has withdrawn the 2016Pension Ballot Measure after not receiving any credible sup-port for it, however, he has submitted two additional meas-ures that are equally as problematic. POA Attorney Gregg Adam updated the quo warranto case

that will be used to remove Measure B, which has onceagain been assigned to Judge Lucas. Gregg is working withthe City attorney’s office to craft ordnances to do away withMeasure B to expedite the process.

Editor’s Note: Please send any comments toFranco Vado at:

Door PrizesVendor: Prize: Name:Golden Harvest $50 Gift Card Mike AlfordCatering Buca di BeppoJohn Nguyen

P&F Retiree $20 Gift Card Katie ZaslyAssociation Peet’s CoffeeMike Alford

Premier One $25 Gift Card Robert Dillion Credit Union StarbucksGina Skylas

Lohbeck $25 Gift Card Steve MellochCapital Group Britannia ArmsPaul Wallin

California $25 Gift Card Joe ArdizzoneCasualty ChipotleValerie Cregan

Derendinger $50 Gift Card Gregg ConnellyInsurance Holder’sMarc Derendinger Country Inn

VICE PRESIDENT GONZALES THEN TALKED ABOUTmedical benefit issues. This year at open enrollment, theCity has eliminated two PPO health plans as well as addedthree additional HMO plans. This is an effort by the City tomitigate the rising costs of health care plans, particularly

“Vice President Gonzales toldthe membership that the POAis part of a coalition of thelargest 11 unions in CA (namedProtect California) who aremeeting on a regular basis to-wards defeating any of ChuckReed’s ballot measures.”

San Jose Police Officers’Association Meeting Notes

Membership MeetingVice President James Gonzales began bynominating all incumbent Board of Di-rectors and CFO for this year’s election.He then took nominations from the floor.

C.F.O.’s ReportFrancoVado


Friedrichs v. California Teachers’Association And The Attack On Ag-ency Fee Or Fair Share Agreements:The Negative Effect “Free Riders” HaveOn Public Employee Compensation

THE TEACHERS BEHIND THE LAWSUIT ARE NON-unions employees represented by the California Teachers’Association (“CTA”); so their contributions are commonlyknown as “fair share” or “agency” fees. Agency fees havebeen permitted in the public sector since 1977, when theSupreme Court ruled, in Abood v. City of Detroit, that whileclosed shops (meaning employees had to be members of aunion in order to be employed) were not constitutionally-permitted in the public sector, agency fee agreements, whichrequire non-members to contribute towards the costs of bar-gaining and representation, were. In recent years, the con-servative majority on the Supreme Court, especially JusticeSamuel Alito, have increasingly signaled their intention totry to overturn Abood, declare agency fee agreements as con-stitutionally prohibited, and effectively make right-to-worklaws the law of the land; notwithstanding the California

The 2015-2016 term of the United StatesSupreme Court just opened in Washing-ton D.C. Among the most closely watchedcases on the Court’s docket this year willbe Friedrichs v. California Teachers’ As-sociation. This is a challenge by a groupof California teachers to the principlethat they contribute financially to thelabor union which represents them, bar-gains for their increased wages and bene-fits, files grievances on their behalf, etc.

Legal CounselGregg McLean Adam

Legislature’s recognition of the critical role agency fee pro-visions play in achieving harmonious labor relations. Socalled “right-to-work” states prohibit union security agree-ments, such as agency fee provisions, enabling “free-riding”as a means to reduce the membership and dilute the powerof labor unions.This time around, after several near-misses, union support-

ers fear that Justice Alito has patched together a five-justicemajority to invalidate agency fee agreements, on the prem-ise that they interfere with the First Amendment rights of non-members. In recent years in Knox v. SEIU (2011) and Harrisv. Quinn (2014), in minority or concurring opinions (i.e.,opinions supported by less than a majority of the Court), mem-bers of the conservative wing of the Court have aggressivelylaid out their case for why state collective bargaining lawsthat allow non-union employees to be charged a fee for theirlabor representation violates such employees’ free speechrights. The fact that the Court has taken another agency feecase so quickly after Harris has union advocates convincedmischief is afoot.

Some BackgroundAN AGENCY FEE OR FAIR SHARE PROVISION IS A

clause (usually appearing in a collective bargaining agree-ment) which allows a labor union which is the exclusiverepresentative of a particular bargaining unit to charge a feeto non-members attributable to the cost to the union of bar-gaining for and representing non-members. Because an ex-clusive representative, such as the POA, has a duty of fairrepresentation to both union members and non-memberswith respect to matters governed by the collective bargain-ing agreement, most collective bargaining laws, including


4. If the Supreme Court renders agency shop clauses un-enforceable for public employees, it will shrink unionmembership because more people will try to gain ser-vices without paying for them (the “free-rider” problem).

5. If the court renders agency-shop clauses unenforceablefor public employees, it will ultimately reduce public-employee compensation by up to 9%.

The San Jose POA has been proactive in recognizing thedangers of an adverse ruling in Friedrichs and it will be partof a nationwide coalition of public safety associations whowill file a friend of the court amicus curiae brief throughPORAC, National Association of Police Organizations,CCPOA, San Francisco POA, Santa Clara DSA and Cal Fire,Local 2881. The brief will be filed in Mid-November andwe will have the privilege of working with the Stanford Uni-versity Law School Supreme Court Clinic and its Director,Professor Pamela Karlan, a top U.S. Supreme Court practi-tioner to present public safety centric arguments about whythe justices should not upset the balance agency fee lawsachieve.

Editor’s Note: To contact Gregg McLean Adam,email: [email protected]

all of California’s, permit the union to charge the non-mem-bers an amount for this burden. The law is well-developedon what expenditures may or may not be charged: costs as-sociated with collective bargaining and administering thecollective bargaining agreement generally may be charged;costs associated with political activity on behalf of the uniongenerally may not.In terms of process, a union will base what it charges a non-

member on its expenditures in the prior year. Non-charge-able items (political expenditures primarily) will be separatedfrom collective bargaining related expenditures. So, for ex-ample, if 75% of the union’s expenditures in year 1 werecollective bargaining related, then, in year 2, a non-memberwould be given the opportunity to opt-out of paying the fullrates paid by a member and instead only pay 75% of themember rate. If the non-member does not exercise her opt-out rights, she will be charged the same fee as a full member.Members who have a bona fide religious objection to

contributing to labor unions can elect instead to pay theiragency fee amount to a designated charity.

Why This Matters?AT A BASE LEVEL, THIS MATTERS BECAUSE THE IDEA OF

some employees getting the benefit of better wages, bene-fits and working conditions, but relying on other employeesto foot the bill for achieving them is morally objectionable.This “free-riding” is particularly problematic in the tightly-knit public safety workplace.But going beyond that, lest anyone doubt that this is a criti-

cal issue for labor unions, including POA’s, the EconomicPay Institute – contemplating a post-Friedrichs world wherefair share fee provisions are declared unconstitutional, hasconcluded that eliminating fair share fees and making pub-lic employment “right-to-work” would increase what it callsthe “pay penalty” for working in state and local government –in other words, if agency fees are invalidated, the economicdata strongly suggests police office pay will decrease sig-nificantly over time.The Economic Pay Institute’s study made five key findings:1. State and local government employees earn less thansimilar private-sector workers, even though their edu-cation level (the most important predictor of earnings)is higher; however, they receive better health benefitsand pensions

2. Public-sector unions raise wages of public employeescompared with similar non-union public employeessomewhere to the order of 5%-8%, which helps to nar-row the private-public wage gap in those unionizedsectors.

3. However, public-employee unions in full collective-bargaining states that permit union security (i.e., agencyshop clauses) raise total compensation to competitivemarket standards set by the private sector. In other words,only public employees in states with full collective bar-gaining make as much as their private-sector peers.


Global Financial Markets RoughSeas: How To Navigate Your FinancialLifeboat To Safety

Turmoil InFinancial MarketsON 8/25/15, MR. LUKE KAWA, BUSINESS WRITER FORBloomberg noted that Goldman Sachs’ U.S. Financial Con-ditions Index, which tracks changes in interest rates, creditspreads, equity prices, and the value of the greenback, roseto a five-year high on the heels of the market turmoil: Ahigher value equates to tighter financial conditions.Economist Sven Jari Stehn stated the steady rise of theU.S. dollar against other major currencies since mid-2014has contributed significantly to the tightening of financialconditions seen over the past year, and the recent tumble

Long-Term Investing EdwinK.Stephens

The confidence which we have inourselves gives birth to much ofthat which we have in others.

– LA RouchefoucauldThe world is my country, all man-kind are my brethren, and to dogood is my religion.

– Thomas Paine: Rights of ManCan a person manage their long-term financial goals when the glo-bal financial markets appear vol-atile?Answer: Yes. But one must do theirhomework and seek the advice of goodfinancial counselors before charting asafe course to financial independence.

in equities and widening credit spreads have exacerbatedthe magnitude of these more restrictive conditions.Mr. Stehn added that the more restrictive financial con-ditions hamper growth in a variety of ways. A loftier currencyweighs on net exports, higher interest rates and wider creditspreads discourage investment, and the negative wealth ef-fect that accomplishes lower stock prices can crimp con-sumption. Economist Stehn further noted that the net effectof this deterioration in financial conditions since July 2014,or the “impulse of growth”, currently amounts to a 0.5 per-centage point drag on real GDP growth, and under Gold-man’s baseline scenario, could shave 0.8 percentage pointsof growth by year end.However, the good news is that the American consumerwill receive an offset in the form of even lower prices at

“When President Obamapredicted in his State of theUnion Address in Januarythat ‘the typical family thisyear should save $750 at thepump’, he was probably right.If you multiply the $1.60 agallon by the nation’s 115million households and youget a total savings of over$86 billion.”


Arabia and Kuwait, but also the likes of Brazil, Norway andAngola, and Canada. Each country will have to adjust to lessincome and lower employment in oil-related businesses.The nation’s that stand to lose the most, though, are Rus-sia, Saudi Arabia, Iran and Iraq – in that order, the biggestoil exporters in the world. Coincidently or not, these coun-tries pose huge potential risks to the rest of the world if theireconomies crater and they become unstable, or I should sayin most cases here, more unstable. So, in a way, low oil pricesalmost become more of a political problem than an eco-nomic one.In short, we may be in a long-lasting era of low oil prices.

American consumers and businesses will mostly win. How-ever, there will be tough times for some people who workin either traditional energy or new sustainable energy busi-nesses. The big worry is how low oil prices will impact cer-tain global economies, and what that means for the rest ofus.

Editor’s Note: For more investment advice visit EdwinStephens’ web site at: www.policeone.com/columnists/Edwin-Stephens/. Securities transactions throughMcClurg Capital Corporation. Member FINRA andSIPC.

the pump, something not accounted for by this Goldmanindex.

Cheap Oil’s Effect On TheGlobal Financial MarketsON 8/25/15, MR. ANDY SERWER, BUSINESS WRITER

for Yahoo Finance noted that the price of benchmark WestTexas Intermediate crude oil recently dipped below $39 abarrel, which is down from $140 in 2008. This is an incred-ible drop of 72 percent. This drop in oil prices also pushesdown gasoline prices. At $2.60 a gallon, gas is now abouta dollar below where it was last year at this time. And itcould continue to fall. Some analysts are looking for pricesto drop below $2.00, maybe even down toward $1.60 agallon, the low during the Great Recession in early 2009.When President Obama predicted in his State of the UnionAddress in January that “the typical family this year shouldsave $750 at the pump”, he was probably right. If you mul-tiply the $1.60 a gallon by the nation’s 115 million house-holds and you get a total savings of over $86 billion. Accord-ing to analysts at Bank of America Merrill Lynch, lower gas-oline prices help poor people in particular, households withincomes of less than $50,000 spend 21% of their incomeon energy in 2012, while households earning more than$50,000 spend 9 percent. In addition, Americans who livein colder regions like New England and the Midwest couldsave another $750 or so on energy bills.And of course businesses make out as well. Automakerssell more cars and especially higher-margin trucks when gasis cheap. Over the past four years, as gas prices have drop-ped, total vehicle sales have climbed from 12 million amonth to nearly 18 million. Trucking companies and rail-roads benefit tremendously from lower fuel costs. So, too,do fertilizer makers or any business that has to heat a fac-tory or that has to pay a fuel bill. So, overall, $40 oil is ahuge positive for the United States economy.And yet there is a downside to cheap oil. First thing to con-sider is U.S. employment in the oil and gas business. It ap-pears that there are some 500,000 Americans who work inthe oil and gas business in the United States. That numberhas been dropping since late last year, which will especiallyhurt the big five oil producing states: Texas, Oklahoma, NorthDakota, California and Alaska. While these states in partic-ular will suffer from declining employment in this industry,overall America can absorb the hit, and furthermore, lowerenergy prices will more than make up for it.Another problem with cheap oil, though, is that it willlikely derail efforts to develop alternative sustainable en-ergy sources like solar, wind and hydro. These businessessuddenly become uneconomical when the price of oil dropsprecipitously. But the biggest problem with cheap oil maywell be the destabilizing effect that it can have on oil-de-pendent nations around the world. There are 19 countiesthat produce over a million barrels of oil a day, and it is adiverse group, including, of course, the United States, Saudi

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ask "how do you know that’s your limit?" and the answer isinevitably the same – I used an online mortgage calculator.Getting preapproved is a 100% free, no obligation way tofind out what you can really afford from someone who spe-cializes in mortgages. If you are represented by an estab-lished agent (see above) he or she may be able to get you abetter rate than the one you were quoted online or by an-other lender. Be honest with yourself about what you canafford every month and remember that you don’t have tospend the max amount you can qualify for. Find a monthlypayment amount you are comfortable with and stick withthe correlating loan amount.3. Create A Hierarchy of Priorities. I subscribe to the HouseMD theory of Real estate sales (i.e. everyone lies) but it’s notthat clients are intentionally being misleading, rather theyreally don’t know what they ultimately want because theydon’t know the inventory and they may not know what feat-ures are must haves and what features would be nice to have.Buyers should consider everything before looking at homes:price, beds/baths, square footage, outdoor space, parking,location, walkability, floorplan and neighborhood. Be real-istic about what you can afford and then sit down and ac-tually write down what features are essential, and whichwould be nice but are not deal breakers. Try to rank thefeatures because you will ultimately be forced to compareand decide. No buyer at any price gets 100% what theywant, everyone makes concessions and compromises.

After years of representing buyers ofreal estate I decided it was time to writea post that would give advice to anyonedipping their toe in the real estate homebuying pool for the first time or for thefirst time in a while. The current econ-omy has pros (low interest rates) andcons (high unemployment, shaky econ-omy) like any others but I firmly believethat one thing holds true in any econ-omy – the advantages of buying far out-weigh renting for most people in mostcities. So without further ado, here’sthe advice that I can offer after 30 yearsof buying, owning, investing in, man-aging, leasing, and selling real estate.

“Find an experienced, hon-est, straight shooting, fulltime real estate agent. Thisis not a shameless plug! Ifirmly believe that smart,successful people surroundthemselves with smart, ex-perienced, experts that canhelp guide them to a wellthought out decision.”

BuyingReal Estate

Real Estate PerspectiveKarenNelsen

1. Find an experienced, honest, straight shooting, full timereal estate agent. This is not a shameless plug! I firmly be-lieve that smart, successful people surround themselves withsmart, experienced, experts that can help guide them to awell thought out decision. If you don’t buy and sell real es-tate every day all day for a living, how could you possiblyunderstand the real estate home buying process and all ofthe nuances and intricacies of the available inventory, pur-chase contract, title insurance and mortgage process? Howcould you possibly know what a good deal or a great deallooks like? You can’t! You can easily find out who the topagents are. Keep looking until you find someone you feelhas the experience, resume and personality to representyou and your interests.2. Get Preapproved. This is synonymous with get pre-qual-ified. Every day soon to be buyers of real estate call and tellme what the upper limit of their property search is. I always

4. See Everything. Obviously you shouldn’t literally seeeverything but you should plan on seeing enough homesso that when you are ready, willing and able to pull thetrigger when you see the right one, you can. Somewherein the 5-10 range is probably reasonable. Take advice fromyour agent on which homes you should see because he orshe has likely seen many with other clients or during bro-ker’s open houses.5. Enjoy the Journey. There is one thing I am entirely cer-tain of and that is that buying real estate should be a fun,enjoyable process with an equally fun and satisfying end-ing. There will be inevitably be stress and emotion becauseof the costs, time, complexities and personalities involvedbut at the end of the day try to enjoy the process. Work withsmart, honest agents and lenders who make you feel com-fortable and allow you to breath, smile and just maybe evenlaugh occasionally.

Editor’s Note: Article brought to you by Karen Nelsen,GRI REALTOR® Intero Real Estate Services, 175 EastMain Avenue, Suite 130 Morgan Hill, CA 95037.Office: 408.778.7474 Cellular: 408.461.0424Email: [email protected] License: 00891921



S.J.P.O.AWINTERELECTIONSCandidate Statements

Chief Financial Officer

FrancoVado

DEAR POA MEMBERS, I WOULD LIKEto thank you for the support you havegiven the POA and me in one of the worsttimes this organization has seen. As wecautiously look to rise from the ashes it isthe POA’s goal to rebuild this department.With the settlement framework in placewe now have the heavy lifting to get it

over the goal line. There will still be ordinances to draft anddetails to negotiate over. This will take some time but I as-sure you the POA is up for the task. One of the most difficult tasks has been the POA budget.

Since taking over as CFO I have had to trim nearly $400Koff the budget from the pay reductions and reduced staffing.

SJPOA ELECTIONS

F. Vado

It has been my #1 goal to attempt to minimally affect theprograms the POA provides while not increasing dues, andcontinuing to fund our court battle to beat back Reed’s pen-sion reforms. With the settlement we also received restitu-tion money from the city that will now thankfully put offany dues increases for some time.As we look at what is happening with increases to our

medical we know we have to develop a more affordablelong-term plan for our members. Your POA is continuouslylooking for the best practice models to weather this stormby monitoring other agencies and how they manage theseissues. Our primary goals are to get more money to the mem-bers, ensure that our retirement remains competitive, andcreate an environment where people want to come and stay.I have spent a great deal of time in this effort and wouldfeel honored if you allow me to continue in what we havestarted. Thank you again for your support as CFO.

Board Of Directors

EddieChan

THE PAST TWO YEARS HAVE THEmost challenging times the membershiphas faced. Despite the fact that we havereached a pending settlement with thecity in regards to Measure B and wages,there are new battles looming on the hori-zon. If elected, I will continue to give100% on behalf of the membership.

E. Chan

RobImoberstegI WOULD LIKE TO ASK FOR YOUR

vote for re-election as a Director of theSan Jose Police Officers’ Association. Forover 22 years, I have been a POA mem-ber and part of the San Jose Police De-partment. I was born and raised in SanJose. My family and I still live in San Jose.After earning a Bachelor of Science De-

R. Imobersteg

POA including Camp Hoosegow. I feel it is time to startgiving back to the organization that I have been a part ofsince I started at the department. I believe I can bring afresh officer perspective to the board. We are at a time ofthe change and growth within our department and I wantto see that our rights are protected with equality across theranks and assignments. I would like to bring some ideas tothe board including POA sponsored workshops in areassuch as Workers Comp Rights, and Peace Officer Bills ofRights. I ask you do you research and cast your vote forwhoever you see fit. We need to have proper representa-tion in the boardroom and make sure all voices are heardand represented.

Please Don’t Forget To VOTE!


SJPOA ELECTIONS

gree from SJSU in Business Administration, I had the honorof being hired by the San Jose Police Department.As an Officer and Sergeant, I have been assigned to sev-

eral Special Operations units and the FTO Program. Throughout this time, I have continually benefited from the effortsof those that have come before us in the Department andPOA. On a daily basis, I am impressed by the dedicationand efforts of hard working street cops and investigators. Inmany ways, their dedication is more impressive given therestricted resources of the Department and financial strains

AnthonyKilmer

I WOULD LIKE SEEK YOUR VOTE FOR POA DIRECTOR.I have been a police officer with San Jose for approximatelyfourteen years. In my time with the department I have hadthe opportunity to work in GIU-Gang Investigations Units,VCET-Violent Crimes Enforcement Team, METRO, and GSU-Gang Suppression Unit. I am currently an FTO assigned toDistrict Lincoln on Swings. Over the years I have been in-volved in incidents requiring POA assistance from repre-sentation at IA to an attorney. I have also had the opportunityto participate in the several social event sponsored by the

Officers are under. As a Director, I have represented you during this challeng-

ing time and will continue to represent you with future chal-lenges that are sure to arise. I believe a consistent and soundlegal strategy will continue to be needed. As a resident ofSan Jose and a member of the Department, I will work toprotect our department and its hard working members. I amhonored to accept the nomination to run for Director and Iam asking for your vote during the election.

BOI has been very eye opening with regards to the day today operations of the departmentWith all that being said, our POA has worked tirelessly

in an effort to rid us of Measure B and Chuck Reeds failedpolicies. For that I am very grateful but moving forward weneed to make staffing, recruiting, and retention a priority.Our pay needs to be competitive and we need to make surethe department’s policy regarding body worn cameras pro-tects our members. I have also been involved in several stressful IA investiga-

tions. I feel it is absolutely necessary to have someone rep-resenting you who understands the process and can helpyou through an already stressful and difficult situation. In closing, I ask for your vote as POA Director. I have be-

longed to several police unions throughout my career whichgives me a slightly different perspective than others. I be-lieve that I posses the experience and understanding of thecurrent and future issues that is needed to be an effectivedirector. I appreciate your consideration of my candidacy and ask

for your vote.

MichaelNassar

MANY OF YOU DO NOT KNOW MEand I would like to take this opportunityto introduce myself and describe some ofmy qualifications for the position of POABoard Member.I am entering my ninth year at San Jose

PD, and my fiftieth year in law enforce-ment.Prior to coming to San Jose, I worked for

the New Orleans Police Department. After four months ofworking patrol, I was assigned to a street crimes task forcewhich is very similar to our metro unit. After a few years, I moved to California and worked for

the Santa Cruz County Sheriff’s Office as a patrol deputy. Ithen worked for the Union City Police Department where Iwas an FTO and worked a collateral assignment with ourinvestigations division. Since coming to San Jose, I workedmidnight patrol until I came up to SAIU in 2013. Being in

M. Nassar


SJPOA ELECTIONS

me tell you what I think is my best character trait for thisposition. If I think something is wrong, whether it affects mepersonally or not, I get indignant and will fight to change it.I would like the opportunity to represent you to the board,but even more importantly to represent you to I.A. We havehad a tough several years and have made definite positivegains but we have not solved the problem yet. There is stilla long road ahead of us and I would appreciate the oppor-tunity to work for your interests. Thank you.

SteveWilson

WELL I WOULD LIKE TO START OFFby thanking the current board. They haveput in a lot of work during a very difficulttime, in order to gain us the best resultspossible. My named is Steve Wilson andI have worked here for 25 years. I thinkmost of you know me and know how out-spoken I can be, but if you don’t then let

S. Wilson

ciate the impact it can have on you. And although I hopethat none of you will have to share this same experience, Iwould like the opportunity to give back to you, to supportyou, to look at each of you and without hesitation – you willknow that my words are genuine, my actions are real, and“I will have your back” in that same way. Through experience comes knowledge and like the old

adage, “knowledge is power”. While I am appreciative ofmy experiences one of the things that I have valued the mostis the ability to effectively communicate with my peers andthe ability to develop and maintain positive relationships atall levels, Officer-Chief. Whether in business or more spec-ifically within our POA, fostering good relationships at alllevels is vital to success. For those that know me, that have worked with me and

around me, you know and understand that my commitmentto this department and more importantly to you as individ-uals will never waiver. There are many things that need tobe accomplished as an association and although I have ex-pressed to you the need to be there for you, that need is notlimited just to disciplinary matters. While I have certain views and opinions as each of you

does on the improvements needed within our organizationI will not overwhelm you with lengthy words. But pleasemake no mistake my intentions reach much further in tak-ing on this great responsibility that goes along with servingyou as a board director. Whether it’s looking to improvemorale through personal job satisfaction, increasing ourrecruitment and retention efforts while not sacrificing ourstandards, working to support increased awareness andmanagement of family-work induced issues, or finding waysto change the way discipline is vetted and handed down,my commitment will be equal in all that WE face. Our suc-cess will be a direct reflection of the commitment to ac-complish goals in a united effort! – Respectfully Yours.

SeanPritchard

WHO HAS YOUR BACK WHEN IT’Sagainst the wall? History has shown usthat when CHANGE occurs it can have aprofound and long lasting effect. What-ever changes do occur, the change mustbe well thought out, done for the rightreasons, and with the intentions the re-sults will be for the greater good of notone but all.

Helping bring about that change and continuing to buildupon the efforts that our POA have fought ever so hard foris at the very core of why I have intended to run for a posi-tion as a director on the board.I have been with the department for 20 years and I have

always refused to go quietly when it comes to my work ethicand endeavors that I have been led to. That commitment tohard work in whatever assignment I have been assigned tois the foundation of who I am.My reasoning for electing to run for a position is plain,

simple, and straightforward. I want to GIVE BACK TO YOU.As some of you have experienced and I certainly know I have,when your back is against the wall and you are facing issueswith the potential of significant discipline, the last thing thatshould be entering your thoughts…is someone watching outfor me? When someone speaks to you, is able to look youin the eye and genuinely understand how you are feelingand understand the thoughts that may be going through yourmind, the thought of someone “having your back” and watch-ing out for you should be answered. I have been through that very experience, experienced

those very thoughts, and thankfully for me it was the supportfrom our POA that assisted me in dealing with what was alife changing experience. Until you have truly been throughsomething of this magnitude you will not be able to appre-

M. Nassar



SJPOA ELECTIONS


Greg Connolly

NO STATEMENT OR PICTURE.

HowardJohnson

NO STATEMENT.

H. Johnson

Visit ProtectSanJose.comregularly for ALL the latest updates

“Adult children betweenages 19 and 26 are eligiblefor City medical plans with-out regard to student ormarital status.”


Flexible SpendingAccounts (FSAs)OPEN ENROLLMENT IS ALSO THE TIME TO RE-ENROLL

in the flexible spending account plans, which the IRS re-quires annually if you wish to participate. FSA plans aregenerally a good tax bargain for you, which is why the IRShas scaled back the medical reimbursement account FSA to$2,500. Consider changing your medical plan to a highercopayment or deductible plan, and designate some of thosepremium savings into the FSA Account.

City Contacts:CONTACT HUMAN RESOURCES: • Phone: 408.535.1285 • E-mail: [email protected] Careful benefit planning saves money in the long-run.

Spend some time on it before November 13th!Follow Us: https://twitter.com/DerendingerIns

Editor’s Note: The Derendinger insurance agency hasserved as our SJPOA Insurance Broker since 1968, andis a Certified Insurance Agent with the new CoveredCalifornia heathcare exchange. Marc can be reached at408.252.7300 or by email at [email protected] pricing for child health plans at:www.derendingerinsurance.com

THIS YEAR’S OPEN ENROLLMENT BEGAN OCTOBER28th and continues to Friday November 13th. This is thetime of year to add/delete dependents from your plan, orto consider changing plans, dropping plans etc.Heads-up regarding children: City plans use different de-

pendent eligibility rules: For example, • Adult children between ages 19 and 26 are eligible forCity medical plans without regard to student or maritalstatus.

• For dental, vision and the EAP, the wording has beenlimited to adult children between ages 19 and 24 mustbe unmarried and full-time students.

Double-check with HR to make sure you understand thelatest dependent eligibility. Caution about new Obamacare penalties: When your child

turns 26, he or she is required by law to have qualifyinghealth insurance coverage. Penalties are increasing in 2016,to the greater of $695 or 2.5 percent of income. Private mar-ket medical insurance starts at under $300 monthly for sin-gle persons Age 26 in most Northern California counties. For help finding coverage for your adult children, phone

us at 408.252.7300 x27 or email [email protected].

New Blue Shield HMO PlansIF YOU ARE CONSIDERING THE NEW BLUE SHIELD

“SaveNet” HMO plans, please be advised that these newplans use a narrower provider network than the traditionalHMO plans (which continue to be offered by the City). The“SaveNet” plans save premium costs by excluding the ma-jority of physicians in Sutter Health and Palo Alto MedicalGroups (note: these providers are still available in the reg-ular HMO plans). Check your provider’s participation if youare interested in these new plans.

City Open Enrollment 2015:Open Enrollment Ends November13th

The purpose of this article is to encour-age SJPOA families to take full advan-tage of the city Open Enrollment season.

Insurance NewsMarcF.Derendinger

scenario of down payment, ROI (Return on Investment) plusloan and tax scenarios. An investment for one person mightnot work for another. All investors seek to make a profit. Profitability can be

made from not just creating more revenue but also decreas-ing expense. Hooks adds, “The best way to improve theprofitability of a commercial (5+ Units, Mixed Use, orStraight Commercial) building after it is purchased wouldbe to understand the ways revenues can be increased and/orthe expenses decreased. Commercial Real Estate Profes-sionals often use terms such as Cap Rates (CapitalizationRates) or GRMs (Gross Rent Multipliers) to use as a basicmetric for the performance of the building. Obviously in-creasing the profitability would enhance these perform-ance measures.”Like any other investment, creating a goal and strategy

remain key components to any real estate purchase. Someinvestors believe more in the stock market. Others play thehigh risk with commodities. Real estate investing may notbe for everyone but the fact that you can theoretically livein your investment if things go south gives it a leg (or atleast a toe) up on other investments.

Editor’s Note: Keith Rockmael is a POA and real estateadvocate and agent. He can be reached by email at:[email protected]


Investing In Multi-Unit OrStraight Commercial Properties

With interest rates still low and moneyflowing freely, many people think aboutinvesting in real estate. Real estate nov-ices will often stick their toe in the waterby purchasing a single family home asa rental property. Other investors thinkbigger by seeking a 2-4 unit buildingbecause depending on the area it willlikely cost less to buy a four-plex versusfour single family homes. Think of itlike getting a quality discount.

Real Estate NewsKeithRockmael

WHAT ABOUT CONSIDERING 5+ UNITS OR A STRAIGHTcommercial building purchase?To be a solid investor, sometimes (but not always) you need

to think like a bank. Banks operate to make money and asreal estate investor that would be a main goal. Unless youhappen to have a substantial amount of cash available orhave a partner to invest with, investors need to get a loan.Banks look at 2-4 unit buildings similar as they would asingle family home. In other words, lenders look more atthe income of the borrower and less at the building.Steven Hooks a commercial lender at Opes Advisors says,

"The bank looks at the 5+ unit (as well as mixed use or straightcommercial) property as a business entity and its overallprofitability." More specifically it looks at the revenues lessthe expenses.” For 2-4 units, the loan will depend on theindividual’s earning power. Lenders will factor in a percent-age of the rents on a 2-4 unit building into the borrower’squalifying income for debt ratio calculations.For risk, think in terms of a 6-unit building versus a 2-unit

building. If you happen to lose a tenant (even in this hotrental market) in a six-plex then you lose about 16 percentof your revenue versus 50 percent in a duplex. Banks willconsider these factors but be even more conservative whendetermining a loan to finance the deal.The right investment can be a matter of creating the right

“The right investment can bea matter of creating the rightscenario of down payment, ROI(Return on Investment) plusloan and tax scenarios. An in-vestment for one person mightnot work for another.”


“Generally speaking if thesuspect is an adult living withthe parent, the parents’ au-thority is greatly reduced. Ifthe child has a landlord-ten-ant arrangement with theparents, the parents may nothave the ability to consent.”• Is there an agreement that the parents will not enterthe room without the child’s permission? If the answer to any of these questions is “yes”, the oddsare that parental consent will not be valid. There was a caseof a 19 year-old man who wanted to blow up a communitycollege. He had a bolt lock on his door and the parentstestified they had not been in his room in years. That is asituation where the parent’s consent may not be valid be-cause their son lived in their house like a tenant. If the relationship is not a landlord-tenant arrangement,parents would generally have the ability to consent to thelocations that are shared. Be careful of cell phones and com-puters that the parents either do not access or do not control.Irrespective of who purchased or paid for the computer orphone, if the parents do not have the ability to access themobile device they may be unable to legally consent toyour search.

Minor Children PARENTS HAVE THE RIGHT TO CONSENT TO SEARCHeverything belonging to a minor child. The minor does noteven have the right to object.

Editor’s Note: Article written by Charles Gillingham.This article was presented by The Principals of ThirdDegree Communications, Paul Francois and EnriqueGarcia. Tel. 866.766.7575 Email. [email protected] visit www.tdcorg.com

WHETHER A CHILD IS AN ADULT OR A MINOR ISoften the determining factor in a consent scenario.

Adult ChildrenGENERALLY SPEAKING IF THE SUSPECT IS AN ADULTliving with the parent, the parents’ authority is greatly re-duced. If the child has a landlord-tenant arrangement withthe parents, the parents may not have the ability to consent.Ask questions of the parents: • Does the child is pay rent? • Does the child have a lock on the door? • Do the parents have access to the room?

ConsentBy Parents

Often officers make contact with theparents of children and wish to get con-sent from the parents to search prop-erty belonging to the child. When mayan officer receive valid consent from aparent?

TrainingBulletin

CharlesGillingham

Third DegreeCommunications:

them to dinner to teach etiquette techniques, helps the stu-dents learn how to correctly put on a tie and has purchasedsuits for students who have to attend formal functions. “Ijust do it as my contribution to make our society a betterplace,” he said. Thomas was May’s Hero of the Month.April’s Hero was Kentucky State Trooper Todd H., honored

for the many ways he gives back to his community. He’sbeen a judo coach and helped a friend after his house wasrobbed. Todd not only advised the homeowner on how topreserve the crime scene, but spent over 70 hours of hispersonal time to investigate and solve the case.Leslyn W. is a healer. She is known as the person who will

stop and give care to a person or a small animal in need.She’s a nurse at an Arizona hospital. She heard a two yearold crying during her shift at the intensive care unit. Thechild had been burned after pulling a pot of coffee from thestove. Even though he wasn’t her patient, she held and rockedhim to sleep. Away from the hospital, Leslyn is known forher Wednesday potlucks for friends and family and for keep-ing track of everyone’s birthday. She also finds time to vol-unteer at the ARC as a yoga teacher for adults with Downsyndrome and autism. She also volunteers at Camp Couragefor kids who have survived burns. Leslyn was the MarchHero of the Month.California Casualty’s Social Media Manager Scott Ran-

dolph said, “We felt compelled to pass these stories of hero-ism along and honor the men and women who do extra-ordinary things every day. We hope more people will showtheir appreciation for those who are giving so much withthe Nominate A Hero program.”If you know a deserving firefighter, law enforcement offi-

cer, nurse or educator working hard to make their commu-nity better, share their story at http://nominatemyhero.com,and show the world good men and women do exist. Your hero could be named the Hero of the Month and re-

ceive a $250 gift card and their place on the Wall of Heroes.It’s just another way California Casualty lives up to the

promise that “We protect American heroes.”

Editor’s Note: This article contributed by CaliforniaCasualty, your SJPOA auto & home insurance pro-gram. If you have a question regarding an existing pol-icy or need to obtain your free, personalized quotationplease phone one of our knowledgeable, friendly, profes-sional representatives today at 1.888.532.6994.


CALIFORNIA CASUALTY CONTINUES TO BE HEART-ened by the remarkable men and women who have beenhonored in the Nominate A Hero program. Each month, awell deserving person receives a $250 gift card and theirplace on the “Wall of Heroes.” They remind us that heroescome from many different professions and towns across theUnited States. Instead of masks and capes they wear streetclothes and the uniforms of their trade. They are people whoput helping others ahead of themselves and their dedica-tion and caring inspires others.

Who Are These Heroes?JOE B. IS A SOUTHERN CALIFORNIA FIREFIGHTER. HE

volunteered for years before going full-time with the Los An-geles County Fire Department. He worked with San Diegofirefighters saving numerous homes and lives during one ofthe area’s worst wildfire seasons. He sustained injuries dur-ing the valiant effort and is now a fire inspector. He wasthe Hero of the Month for June.Thomas K. finds new ways to reach students at the Geor-

gia middle school he teaches at. Thomas has taken it uponhimself to mentor a special group of 7th graders, giving themlife-skills that will help them in the future. Thomas takes

Home & Auto NewsValerie Cregan

WhoIsYourHero?

She’s pretty, still dresses up as a princ-ess but can also handle the stress of alifesaving rescue or fire. Meet KatelinL., captain of a Tennessee volunteer firecompany and substitute teacher. Shealso portrays Disney princess Elsa forchildren’s birthday parties and commu-nity events. Katelin finds time to “do itall” because she always gives 110 per-cent. Katelin makes such a positive im-pact in her community that she wasnamed the February Hero of the Monthin California Casualty’s Nominate AHero program.


A Peace Officer De-tained The OccupantOf A Stopped VehicleBy Activating Emer-gency Lights But TheDetention Was BasedOn A Reasonable Sus-picion Of CriminalActivity

When officers respond to a call of adisturbance, there may be a vehicle atthe location with occupants who mayhave been involved. Under what cir-cumstances are the occupants detainedif the patrol vehicle has activated itsemergency lights?

Reliable InformerLanceBayer

In this month’s issue of the Reliable Informer, I willcover two cases, one decided by the California Sup-reme Court and one decided by the California Courtof Appeal. These cases look at the law relating to de-tentions and the crime of residential burglary.

RECENTLY, THE CALIFORNIA SUPREME COURT LOOKEDat this question in the case of People v. Brown (2014) Cal.4th . The previous decision of the CaliforniaCourt of Appeal was reported in the Reliable Informer. In the Brown case, a call was made to a 911 communi-cations dispatcher on a spring evening in San Diego County.The caller told the dispatcher that a fight was taking placeat a specified location. The caller said that there were anumber of people in the adjacent alley and that there was

a loaded gun possibly involved. Deputy Geasland of the San Diego Sheriff’s Office re-sponded to the location. He was driving a marked patrolcar and arrived within three minutes of the call. The deputydid not see anyone in the alley, but saw a man who wasdriving his car out of the alley. The deputy called to the manand asked him if he had seen the fight. The man did not re-spond and continued to drive out of the alley. Deputy Geas-land was concerned, because the car drove from the exactlocation of the fight and because the man did not respond. Deputy Geasland turned his car around and drove in thedirection that the car had taken. Once he began in that di-rection, the deputy saw the vehicle parked along the sideof the road. The vehicle had its brake lights on. The deputywas concerned about a possible firearm based on the calland was also concerned that the man might be injured. Thedeputy pulled his patrol car behind the vehicle and activatedhis overhead emergency lights. Deputy Geasland got out of his patrol car and walked overto the vehicle. He contacted the driver, who was identifiedas Shauntrel Brown. Brown appeared to be intoxicated. Hehad bloodshot, watery eyes and was mumbling. He appearedto be flustered and had an odor of an alcoholic beverageemanating from his person. When the deputy asked Brownif he had been drinking and if he had been in a fight, Brownadmitted to both.Based on his objective symptoms of intoxication, and

“Brown appeared to be in-toxicated. He had bloodshot,watery eyes and was mum-bling. He appeared to be flus-tered and had an odor of analcoholic beverage emanat-ing from his person. When thedeputy asked Brown if he hadbeen drinking and if he hadbeen in a fight, Brown admit-ted to both.”

flashing lights can amount to a show of authority. Here, Dep-uty Geasland arrived at the scene with lights and sirens ac-tivated. Brown did not respond to Geasland’s initial inquiryin the alley. After checking the scene, Geasland drove afterBrown. He stopped behind Brown’s legally parked car andturned on his emergency lights. Under these circumstances,a reasonable person in Brown’s position would have per-ceived Geasland’s actions as a show of authority, directedat him and requiring that he submit by remaining wherehe was.”

The Court then stated, “To be clear, we do not adopt abright-line rule that an officer’s use of emergency lights inclose proximity to a parked car will always constitute a de-tention of the occupants. Any assessment as to whether po-lice conduct amounts to a seizure implicating the FourthAmendment must take into account all of the circumstancessurrounding the incident in each individual case. As an ex-ample, a motorist whose car had broken down on the high-way might reasonably perceive an officer’s use of emergencylights as signaling that the officer has stopped to render aidor to warn oncoming traffic of a hazard, rather than to in-vestigate crime. Ambiguous circumstances may be clarifiedby whether other cars are nearby or by the officer’s conductwhen approaching. Here, no circumstances would haveconveyed to a reasonable person that Deputy Geaslandwas doing anything other than effecting a detention. Underthe totality of these circumstances, Brown was detainedwhen Geasland stopped behind the parked car and turnedon his emergency lights.”

The Court then looked at whether the deputy had sufficientreasonable suspicion to detain Brown. The Court stated, “The[United States] Supreme Court recently summarized the gov-erning principles: The Fourth Amendment permits brief in-vestigative stops when a law enforcement officer has a par-ticularized and objective basis for suspecting the particularperson stopped of criminal activity. The reasonable suspicionnecessary to justify the stop is dependent upon both the con-tent of information possessed by police and its degree of re-

> continued on page 32

after a traffic unit arrived and conducted additional inves-tigation, Brown was arrested for driving under the influence.Based on his prior history, Brown was charged with felonydriving under the influence with having suffered three ormore prior convictions and with having a blood alcohollevel of .15 or greater.

In the trial court, Brown made a motion to suppress theevidence. He argued that the deputy violated his FourthAmendment rights against unreasonable seizures by acti-vating his emergency lights. The trial court denied Brown’smotion and he pleaded guilty. He was sentenced to servetwo years in local custody.

Brown then appealed his conviction to the Court of Ap-peal. He argued that the trial court should have granted hismotion to suppress the evidence. The Court reviewed Brown’scase and upheld his conviction. Brown then requested thatthe California Supreme Court review his case. The SupremeCourt agreed to hear the case and upheld his conviction.

In its written decision, the Court first stated, “An officermay approach a person in a public place and ask if the per-son is willing to answer questions. If the person voluntarilyanswers, those responses, and the officer’s observations, areadmissible in a criminal prosecution. Such consensual en-counters present no constitutional concerns and do not re-quire justification. However, when the officer, by means ofphysical force or show of authority, has in some way re-strained the liberty of a citizen, the officer effects a seizureof that person, which must be justified under the FourthAmendment to the United States Constitution. In situationsinvolving a show of authority, a person is seized if in viewof all of the circumstances surrounding the incident, a rea-sonable person would have believed that he was not freeto leave, or otherwise terminate the encounter.”

According to the Court, the first issue in Brown’s case waswhen a detention actually occurred. The State argued thatBrown was not detained at the time the officer activated hisoverhead emergency lights. The Court disagreed. The Courtnoted that United States Supreme Court case law has pro-vided that a detention requires a showing that a person yield-ed to a show of authority. In Brown’s case, the question iswhether the activation of the emergency lights caused Brownto yield to the officer’s authority.

The California Supreme Court noted that previous caselaw involved a person refusing to yield to the officer by con-tinuing to flee when officers gave chase. The Court notedthat Brown did not drive away when he saw the emergencylights. Instead, he stayed in his parked car. The Court notedthat, when an individual’s submission to a show of govern-mental authority takes the form of passive acquiescence, thetest for when a seizure occurs is when, in view of all of thecircumstances surrounding the incident, a reasonable per-son would have believed that he was not free to leave orotherwise terminate the encounter. The Court ruled that Brownsubmitted to the deputy’s show of authority by staying in hiscar at the scene. The Court stated, “The [United States] Sup-reme Court has long recognized that activating sirens or


have a loaded gun. Geasland arrived at the scene withinthree minutes of being dispatched and while the caller re-mained on the line. Brown was driving away from the lo-cation of the fight and was the only person in sight in theresidential alley just after 10:30 p.m. The very recent reportof a crime in progress, Brown’s close proximity to the crimescene, and the lack of other vehicle or pedestrian traffic inthe residential alley are all significant factors. Deputy Geas-land also attributed significance to the fact that Brown ig-nored the deputy’s attempt to question him about the fightand continued driving away from the scene. The deputy re-counted that Brown drove directly past his marked patrolcar in the ‘kind of tight’ alley. Geasland rolled down his win-dow and ‘yelled out’ to defendant, ‘Hey. Did you see a fight?’Brown neither responded nor acknowledged the question....[T]he fact that Brown drove away without responding leftGeasland with no alternative short of a detention to identifyhim and determine if he had been involved in the fight.Notably, when Geasland turned around to follow Brown’scar, he found it parked...only a few houses down from thehouse behind which the fight had occurred. Brown’s deci-sion to drive back towards the residence, along with the re-port of a possible weapon, provided an objective reason tosuspect that he might present an ongoing danger to the oc-cupants of the house and the deputies who had respondedto investigate.” The Court also noted that the detention wasexceptionally brief and nonintrusive, only involving the useof the emergency lights.The Court stated, “An officer who lacks the precise level

of information necessary for probable cause to arrest is notconstitutionally required to simply shrug his shoulders andallow a crime to occur or a criminal to escape.” The Courtnoted that, in Brown’s case, the caller stated that a fight oc-curred at a certain location. The caller and the dispatchercould hear screaming and the caller remained on the line.Shortly afterwards, Deputy Geasland arrived. According tothe Court, “The citizen who called for [law enforcement]help would surely hope the officer would do more to securethe safety of his neighborhood than shrug and drive away.”The Court’s decision in the Brown case is extremely sig-

nificant. The Court clearly has noted that the use of emer-gency equipment may trigger a detention even if the occupantof a vehicle is parked and passive. However, the Court alsohas demonstrated its understanding of the practical realitiesencountered by law enforcement in considering the reason-able suspicion necessary to justify a detention.

Reliable Informer> continued from page 31

liability, taking into account the totality of the circumstances.Although a mere ‘hunch’ does not create reasonable suspi-cion, the level of suspicion the standard requires is consid-erably less than proof of wrongdoing by a preponderanceof the evidence and obviously less than is necessary forprobable cause. Where a reasonable suspicion of criminalactivity exists, the public rightfully expects a police officerto inquire into such circumstances in the proper exerciseof the officer’s duties. Brown argued that the caller to 911 in his case was anony-

mous and asserted that the Court should rule that there wasinsufficient corroboration. Brown relied on the United StatesSupreme Court decision of Florida v. J.L., which ruled thatthe anonymous call to a police dispatcher could not be pre-sumed to be reliable. The California Supreme Court, look-ing at Brown’s case as well as recent case law noted that, inthe situation of an anonymous call to a 911 line, there areseveral factors to support a traffic stop: (1) A caller’s person-al knowledge lends significant support to the tip’s reliabil-ity; (2) The caller’s contemporaneous report is treated asespecially reliable, such as when the caller describes theactivity as it is taking place; (3) The caller’s use of the 911emergency system itself, because the system has some fea-tures that allow for identifying and tracing callers and pro-vides some safeguards against making false reports; and (4)The report coming from a private citizen reporting criminalactivity generally has no bias or motive other than goodcitizenship, and therefore tends to be reliable.The Court then looked at whether the deputy had reason-

able suspicion to believe that Brown was involved in thefight that was the reason for the initial call to 911. The Courtruled that, although there were no suspect descriptions, un-der the totality of the circumstances, there was sufficientreasonable suspicion to support the detention. The Courtstated, “The reported crime was serious. It involved a violentfight between at least four people, one of whom claimed to


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RECENTLY, THE SECOND DISTRICT OF THE CALIFORNIACourt of Appeal looked at this question in the case of Peo-ple v. Vasquez (2015) Cal.App.4th .In the Vasquez case, a woman purchased a residenceand closed escrow on a summer day in Ventura County. Onthe same day, she received the keys to the residence. Thewoman was planning to live in the house. She walked aroundthe neighborhood and introduced herself to one of her fu-ture neighbors. Before closing escrow, the woman arrangedfor the utility bills for the residence to be put in her name.She also notified her credit accounts of her new address.The woman planned to do some work on the house be-fore she moved all her belongings. She hired a contractorand planned to rip up the carpets, replace the windows anddoors, and paint the interior. The day after escrow closed,the contractor came and began removing the acoustic ceil-ing. The woman came to the house later in the day. Shebrought painting supplies and tools and planned to havesome of her friends help her to paint the interior of the res-idence. The woman also brought several patio chairs and alarge canvas bag containing a change of clothing and per-sonal grooming items.The woman was not planning to spend the night. She plan-ned to wait until the doors and windows were replaced. Thatevening, the woman and her friends painted the interior ofthe garage. They made a party of it. A friend brought a caseof bottled water, plastic cups, and cookies. They finished upfor the night at approximately 8:00. The woman left the can-vas bag, painting supplies, tools, and snacks inside the res-idence. She locked up for the night and went over to a friend’sapartment to sleep. The next morning, one of the woman’s new neighbors sawa truck parked near the woman’s home. They saw a manthey recognized as Robert Vasquez along with two womeninside the truck. They also recognized one of the women.

A Suspect Committed The Crime Of Bur-glary Of An Inhabited Dwelling By Enter-ing A House That Was Recently PurchasedBy A Person Who Had Not Yet Slept There

California Penal Code section 460(a)provides that every burglary of an in-habited dwelling house is a burglary ofthe first degree. When a person enters aresidence that was recently purchased,when does that residence become “in-habited?”


They knew Vasquez and the woman as former tenants ofthe newly-purchased house.The neighbors saw Vasquez walk up to the front door ofthe house and then saw him look into a garage window.Vasquez then returned to his vehicle, spoke to one of thepassengers, and then he made a phone call. The neighborsthen observed Vasquez walk through the side gate of theresidence. Five minutes later, the female passengers of thevehicle walked up to the front door of the residence andentered through the front door. Vasquez was seen leavingthe residence. He returned to his truck, and then returned tothe residence and walked through the side gate. The neigh-bor also saw a second man arrive at the residence.The neighbor knew that Vasquez no longer was a tenantat the residence and she knew that the property had beensold. She called 911. A few minutes later, the woman who bought the homereturned. She was met there by officers of the Ventura Po-lice Department. When she entered the residence, she ob-served that the contents of her canvas bag had been emptiedon the floor. Her personal grooming items had been taken.The bottled water, cookies, paint jars, cordless screwdriver,and a mobile GPS also were missing. The woman securedthe residence the best she could and went to a hardwarestore to purchase door locks. When the woman returned, sheobserved that the contents of the canvas bag again had beenemptied on the floor. There was a wristwatch on the showerrail in the bathroom. In addition, there was a stack of bricksbeneath a bathroom window that was partially open.Vasquez was apprehended and arrested. He was ques-tioned by police officers. He told them that he was a formertenant of the residence and that he returned because hewanted to “check it,” because he was considering rentingit again. He said that the women who were with him werefriends of his brother and wanted to shower. He admittedtaking some food from the residence, but said that he be-lieved the food belonged to him as a former tenant.Vasquez was charged with residential burglary and withmisdemeanor trespass. He also was charged with a sentenc-ing enhancement for having previously served three priorprison terms. Vasquez took his case to a jury trial. He wasconvicted and was sentenced to serve three years in stateprison. Vasquez then appealed his conviction to the Court of Ap-

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peal. He argued that there was insufficient evidence to sup-port his conviction for residential burglary. The Court of Ap-peal reviewed Vasquez’ case and upheld his conviction. Heargued that the dwelling was not “inhabited.”

In its written decision, the Court stated, “Section 459 pro-vides, “‘[I]nhabited’ means currently being used for dwel-ling purposes, whether occupied or not. The use of a houseas sleeping quarters is not determinative; it is but one cir-cumstance in deciding whether a house is inhabited.”

The Court then looked at the facts of Vasquez’ case andstated, “Sufficient evidence and all reasonable inferencestherefrom support the burglary conviction. [The victim] testi-fied that she inhabits the property. She introduced herself toa neighbor, transferred the utilities to her personal accounts,notified creditors of her new address, and began paintingand renovating the home. She added window locks and lefttools and personal belongings, including several chairs andsnacks, inside the home. Aside from her temporarily sleep-ing at a girlfriend’s apartment, [the victim] was generally inor around the premises of her new home. This increased thedanger of personal injury and the risk of a violent confronta-tion during a burglary. Indeed, [the victim] narrowly missedeach of Vasquez’ intrusions....”

The Court’s ruling in the Vasquez case is a helpful clarifi-cation of the law relating to residential burglary.

Editor’s Note: I look forward to hearing from you aboutideas for future columns, as well as any other commentsyou might have. Lance Bayer is a private attorney spe-cializing in police training and personnel issues in theBay Area and can be reached by writing to: Lance Bayer,443 Lansdale Avenue, San Francisco, CA 94127, by cal-ling 415.584.1022, or by email at [email protected]


Officer John J.COVALESK,Badge #70Shot and killed on November15, 1950, by an armed burglarwhom Covalesk found burglar-izing a business.

In MemoriamVisit

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