Free Declaration in Support - District Court of California - California

Case 4:07-cv-04894-SBA

Document 53

Filed 06/24/2008

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division ABRAHAM A. SIMMONS (SBN 146400) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94 102-3495 Telephone: (4 15) 436-7264 Facsimile: (4 15) 436-6748 Email: abraham.simmons@usdoj .gov Attorneys for Federal Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, Plaintiffs, v. SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, Defendants.
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No. C 07-4894 SBA SUPPLEMENTAL DECLARATION OF JOHN SILVA IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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I, John Silva, declare as follows:
1.

I am an officer of the Petaluma, California, Police Department. I have personal

knowledge of the facts in this declaration and if called to testify, I would and could competently testify as to the facts herein. 2. I understand that plaintiffs in the above-captioned case allege that their rights were

violated when warrants were issued for plaintiff Keane's arrest and for a search of his residence. I further understand that plaintiffs claim that their rights were violated during the execution of the warrants. As explained herein, I did not make the critical decisions nor was I involved with the pivotal acts that plaintiffs claim result in liability.

3.

I did not take responsibility for the intake of this case. To the best of my knowledge, that

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job was performed by Special Agent Seth McMullen. Similarly, until the warrants were executed, I had precious little, if any, involvement with the case at all. Specifically, I did not make the decisions whether to seek a warrant, how to prepare the affidavit for the warrant, what facts to put into or exclude from the application for a warrant, or even to which court an application for a warrant would be submitted. Nor did I make such operational decisions as how many officers would be present, who would be in the team that would make the initial breach, what the officers who entered would say, how long they should wait after knocking before entering or any other such facts about which plaintiffs complained in the First Amended Complaint. 4. While it is true that eventually I did enter the Keane residence, I did so only after it was

secured by other federal agents. I was outside during the initial entry. By the time I entered the residence, the plaintiffs already were handcuffed- I did not participate in the handcuffing of plaintiffs. I did not provide the handcuffs. Robert Keane did not complain to me about the handcuffs until we were leaving the residence. At that time, I referred him to Special Agent McMullen who would be transporting Keane to the detention center for booking. As I recall, he did not complain about the handcuffs being too tight; rather, he complained about some other issue related to the fact that he was uncomfortable in handcuffs.

5.

I recall that when I was in the residence, I asked a few follow-up questions to either

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Robert Keane or his girlfriend, Chieko Strange. This, as I recall, was an attempt to clarify their responses to some of the questions posed by Special Agent McMullen. None of my follow-up questions were designed to threaten them or otherwise attempt to intimidate them. In general, however, it would not be fair to say that I conducted the questioning of plaintiffs.

6.

I am aware of the DEA policy that requires prisoners to remain handcuffed while being

transported. It would not be proper procedure to uncuff a prisoner if that prisoner is to remain in custody. Attached hereto as Exhibit 1 is a true and correct copy of the relevant and disclosable portion of the DEA Agent's Manual that discusses this policy.

Supp. Declaration of John Silva C 07-4894 SBA

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7.

I am aware that plaintiffs claim no one identified who they were for some period of time

after the initial entry of the residence. This allegation is odd in light of the fact that all the agents who made the initial entry were wearing either raid jackets or some other clothing that identified them as law enforcement.

8.

During the entire operation, I did not see any inappropriate behavior. I did not see

Special Agent McMullen put his boot on anyone's head, I did not see anyone point their guns at plaintiffs and I did not see that plaintiffs handcuffs were tighter than ordinary and safe. The conduct of the officers was professional as demonstrated in the audio tape that was produced by Accornero of his statements to plaintiff. The description of the behavior of the law enforcement officials in the complaint does not describe thc facts as I remember them.

I declare under penalty of perjury under the laws of the United States that the above is true and
accurate. Executed this 17thday in June, 2008, in Santa Rosa, California.

John Silva

Supp. Declaration of John Silva C 07-4894 SBA

Jun 17 08 0 5 :4:07-cv-04894-SBAa Police D e53 Petalum Case 3 0 p Document p t

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To :7077784501
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7.

I am aware that plaintiffs claim no one identified who they were for some period of time

afier the initial enay ofthe residence. T h i s allegation is odd in light of the fact that all the agents
who made the initial mtry wen wearing either raid jackets or some other clothing that identified

them as law enforcement.
8.

Dming the entire operation, I did not see any inappropriate behavior. I did not sa

Special Agent McMulIen put his boot on anyone's head, I did not see anyone point their guns at
plaintiffs and I did not see that plaintiffs handc*
were tighter than ordinary and safe. The

conduct of the offiecrs was professional as demonstrated inthe audio tape that was produced by

Accornero ofhis statements to plaintiff. The descriptiono f the behavior of the law enforcement

officials in the complaint does not describe the facts as I remember them,
I declare under penalty of perjury under the laws of the United States that the above is true and
accmtc.

Executed this 17" day io June, 2008, in Santa Rosa, C l f r i aiona

Supp. Declaration of John Silva

C 074894 SBA

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Case 4:07-cv-04894-SBA

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664 1 Agents Manual-DEA SENSITIVE

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A. Generally, prisoners should be transported fiom the scene of arrest to the DEA omce or other law enforcement facility as soon as possible. However, circumstances may dictate exceptions to this policy (e.g., the prisoner agrees to cooperate by participating in a controlled delivery, etc.). If the prisoner will be cooperating and may leave the judicial district and/or the defendant's cdoperation may preclude a timely initial appearance, the prisoner may be required to sign a waiver of timely initial appearance. This document will be drafted by the federal or state prosecutor and signed by the prisoner i the presence of n at least two agents or law enforcement officers.

B. The following guidelines apply to the transport of prisoners:
1. The prisoner will be thoroughly searched befomhand.

2. The prisoner should be placed in We reat seat, after the rear scat area is first au%fblly checked to ensure there i s nothing present that could be used as a weapon or means of escape.

3. The prisoner will remain handcfied while being transported. Do not handcuff the prisaner to a fixed object in the vehicle.
4, At least two agents, and no more than two prisoners, will be present in a single transpork vehicle. If two prisoners am being transported, both will be placed in the rear seat. When more defendants are arrested than can be safely transported, assistance should be sought Rom local authorities.
5. Insofar as possible, a radio-equipped vehicle should be used with the radio placed "out of service"during transport. Conversation between prisoners may be either prevented or controlled (by separate transport).
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6. Once the transport has been initiated, the vehicle will proceed directly to is destination. t Only in extreme circumstances (e.g., coming to the assistance of agents in physical jeopardy) may the mission be interrupted.

C.The following guidelines apply to transporting a prisoner via commercial airline: