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Monday, May 13 2013 11:00 PM

Give witnesses back their phones, Sheriff

By The Bakersfield Californian

The more we learn about the Kern County Sheriff's Office's seizure of two witnesses' mobile phones -- specifically, the manner in which they were seized -- the more we are troubled.

Less than three hours after Maria Melendez and an unidentified male friend shot separate cellphone video of sheriff's deputies apparently beating a man to death outside Kern Medical Center around midnight the morning of May 7-8, deputies allegedly barged into Melendez's apartment -- uninvited, according to Melendez, and without a warrant -- and demanded their phones. The male witness eventually complied at about 8 a.m., saying he didn't want to be late for work.

Based on his five-hour holdout, one can surmise that the sheriff's deputies -- still unwelcome and still without a warrant -- had refused to leave without his cellphone or allow him to leave with it. A judge finally issued a search warrant at 11:37 a.m. May 8, an astounding 81/2 hours after deputies first burst into the apartment, and only then did Melendez relinquish her phone.

The two video clips are thought to have captured images of seven sheriff's deputies and two California Highway Patrol officers beating David Sal Silva with batons or otherwise participating in his apprehension (for lack of a better word). Silva was pronounced dead within an hour of the beating; autopsy results are awaiting toxicology tests.

The warrant says the reason for confiscating the phones is that they most likely contain video evidence of the incident. It's fair to assume it's evidence that sheriff's administrators -- and perhaps a jury -- will want to review for purposes of an internal investigation and potential trial. That's a legitimate reason for seizing the phones.

The manner in which the phones were confiscated is not. The Sheriff's Office will argue that the male witness gave up his phone voluntarily and that Melendez surrendered hers after deputies produced the warrant. But the fact that the male witness "voluntarily" handed over his phone only after five hours in the close company of deputies who apparently had no intention of leaving otherwise, smacks of intimidation and coercion. And, if Melendez's description of the manner in which the deputies entered her apartment that night is accurate, the KCSO may well have violated her Fourth Amendment rights against unreasonable search and seizure.

The U.S. Department of Justice needs to take a look at the behavior of the Sheriff's Office in this case if it hasn't already initiated an investigation. An outside agency should conduct the obligatory incident review.

The Sheriff's Office also needs to return the phones, video intact, to the two witnesses immediately. Sheriff Donny Youngblood has said once evidence is in law enforcement's hands only a judge can authorize its release. If the devices themselves were used in the commission of a crime, or otherwise physically relevant, that would indisputable. But in this age of digital everything, it seems like a quaint technicality. The deputies who came to Melendez's door could have simply asked her to text the video to their boss's phone. No fuzz, no muss, no 3 a.m. hostage taking. To insist on keeping the phones smells like the Sheriff is trying to quash criticism and embarrassment.

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