Orange’s ‘Gang Book’ Flunks a Legal Test : Police: A state appeals court rules that the gathering of photos of gang suspects by detectives violates the youths’ constitutional rights. Conviction is upheld, however, due to other evidence in the case.

Orange police detectives improperly compiled photographs of suspected gang members, then used their “gang book” in the prosecution of a teen-ager for murder, a state appellate court has ruled.

The 4th District Court of Appeal held that the common police practice of photographing youths who are suspected of gang involvement but not arrested for any crimes is a violation of the youths’ civil rights.

“Public concern and outrage over the crime and senseless violence caused by street gangs is understandably strong (and) the effectiveness of the gang book identification procedure is verified by its success in this case,” Justice Edward J. Wallin wrote in a ruling made public Thursday. “But the police policy before us constitutes too significant an intrusion on individual liberties to be justified by the public interest.”

Although they criticized police tactics, justices did not overturn the conviction of Mynor Arnold Rodriguez, a 17-year-old who was tried as an adult for the shooting death of a 20-year-old Corona man.

The appellate court found there was ample evidence, aside from the gang book, to convict the teen-ager, who was sentenced to 15 years to life in prison for the 1990 shooting death of Roberto Eddie Gonzalez.

Orange Police Chief John Robertson could not be reached for comment. The department’s spokesman, Lt. Timm Browne, said the department will review the ruling before deciding whether to change its policy.

The ruling drew lukewarm reviews from defense attorneys as well as lawyers for the American Civil Liberties Union.

Robin Toma, an ACLU staff attorney in Los Angeles, said he opposes the police use of gang books, but he still found the decision troubling.

The court indicated such photos violate a defendant’s Fourth Amendment right to be protected from unlawful search or seizure. But, Toma said, the court also allowed police to continue using the photos if investigators ultimately find separate evidence--apart from the photos--to prove a defendant’s guilt.

“I think it sends out a mixed message,” he said.

Defense attorney Jill Bojarski of Newport Beach welcomed the court’s comments about the gang books: ‘I firmly believe that merely stopping people and taking their picture for some intelligence gathering operation is just not permissible.”

The ruling is not published, which means it does not alter existing law. Therefore, it is unknown whether the case will affect how local authorities battle street gangs. Orange County Dist. Atty. Michael R. Capizzi declined to discuss the ruling Thursday night, saying he wanted to study it.

The district attorney’s office uses a computer system that stores profiles and photos of thousands of suspected gang members. Prosecutors have declared it one of their main weapons in fighting gangs.

Among other agencies that maintain gang books is the Santa Ana Police Department.

Earlier this year, the Fountain Valley Police Department modified its gang book policy to require officers to obtain written consent before taking such photographs. The change came after parents of Asian American teen-agers protested that their children were unfairly being branded as gang members.

Bojarski, who argued the appeal on behalf of Rodriguez, contended that police identified her client only through a photograph obtained during what she said was an illegal gang sweep.

Three days before her client pulled the trigger to kill Gonzalez, Orange detectives Don Hearn and John Whitely detained Rodriguez and four other suspected gang members as they stood outside an apartment complex on East Adams Street in Orange.

Detectives testified that the complex was a known hangout for the South Side F-Troop gang and that Rodriguez and his companions were dressed in a manner consistent with gang membership. Rodriguez wore a jacket with the words “Dreamer” on front and “F-Troop” on back.

But Rodriguez and his friends appeared to be doing nothing more than socializing, Wallin wrote, noting that the officers asked each youth his name, address and date of birth, and took a photograph of each. Hearn later testified that it was his department’s policy to place such information in police files “for potential later use regardless of whether or not that individual is at the time involved in criminal activity.”

Wallin, who was joined by Justices Sheila Prell Sonenshine and Thomas Crosby in the opinion, said that “mere membership in a street gang is not a crime.”

“While this policy may serve the laudable purpose of preventing crime, it is prohibited by the Fourth Amendment,” he wrote.

The appeals court, however, stopped short of reversing Rodriguez’s conviction, noting that three witnesses identified Rodriguez from a picture other than the snapshot taken by police.

Prof. Ron Talmo of Western State University College of Law said collecting data on gang members who are not accused of wrongdoing smacks of racism.

“You see a Latino, wearing a white T-shirt hanging way down or a flannel of any sort, and it’s (the police mentality that) ‘Obviously, this is a gang member,’ ” said Talmo.

He said fashion trends are such that many “good” kids mimic stereotypical gang dress, thereby making them a police target.

Orange County defense attorney Milton Grimes agreed, saying gang books can lead to people being unfairly summoned for police line-ups or increasing their chances of being wrongly accused of a crime.