Evidence that may be hard to refute could answer questions about whether there was misconduct by police in their response to a complaint about alleged underage drinking at a party in a Menlo Park home Nov. 25.
Personal recording devices captured the conversations of each of the six officers and one sergeant who responded to the complaint, Commander Dave Bertini of the Menlo Park Police Department told the Almanac.
When asked if any of the alleged behavior by police rang true, Cmdr. Bertini said, "not at all," adding that he was precluded from commenting on the specific allegations because it is a criminal case in progress.
The party took place in the 1200 block of Woodland Avenue at the home of Stanford University assistant professor William Burnett, who was arrested and booked into jail on 44 counts of contributing to the delinquency of a minor.
Mr. Burnett, 54, was released the next morning. A court date is set for Jan. 3 if San Mateo County prosecutors decide to proceed to a trial.
Police also arrested Cynthia Benjamin, 48, who is married to Mr. Burnett, but then "un-arrested" her to allow her to look after the couple's teenage son and because of her medical condition, Cmdr. Bertini said. Ms. Benjamin is recovering from back surgery and was using a walker, her family said.
Police have requested prosecution of Ms. Benjamin as well, Cmdr. Bertini said.
Mr. Burnett's defense attorney, Jeffrey Hayden of Redwood City, has not yet responded to an interview request.
Overseeing the police response at the scene was Sgt. Ed Soares, Cmdr. Bertini said.
Audio recordings may be particularly relevant in this case. Allegations of misconduct, provided to the Almanac in an email from Eliza Burnett, Mr. Burnett's 21-year-old daughter, center on verbal exchanges at the party and alleged harsh and discourteous behavior by police.
Mr. Burnett later said that his daughter was not at home at the time of the incident, but he confirmed the accuracy of her statements.
Among Ms. Burnett's allegations:
■ That police handcuffed Ms. Benjamin and took her outside into the night air, allegedly after she asked police to tell her why they were arresting her husband. Ms. Burnett also alleged that police made disparaging remarks to her mother about her parenting skills.
■ That police did not tell Mr. Burnett why he was being arrested and did not read him his Miranda rights, including the right to remain silent and the right to an attorney.
■ That police told Ms. Burnett's younger brother, in tears after seeing the treatment of his mother, to "shut up and get back in line" with some 40 other teens queued up for police interviews.
■ That police did not inform the teens of their rights regarding police interviews.
■ That police detained a 22-year-old woman passing by the party, accused her of bringing drugs for the teens, and threatened her with arrest if she tried to leave.
■ That police did not witness underage drinking and erred in not using breathalyzer tests to prove their contention that the teens had been drinking and were inebriated.
Police response
While proof of inebriation such as through breath analysis data would seem critical to the prosecution's case, it is not, Cmdr. Bertini said. An officer's observations, photographs and interview recordings are sufficient, he said.
As for detaining a passerby, that is legal if police have a "reasonable suspicion" that criminal activity is taking place and that the person being detained is connected to that activity, Cmdr. Bertini said.
Police are not required to inform people of their Miranda rights if they are being detained as opposed to arrested. If during the course of an interview, police decide that an arrest is appropriate, at that time the Miranda warnings would be required, Cmdr. Bertini said.
Recordings encrypted
The officers' audio recordings are kept for at least a year, longer if they're needed as evidence for a trial or an internal investigation, Cmdr. Bertini said. Officers download the recordings to a secure police station server, where they are stamped with ID information, including date, time and the name of the officer.
A trial could be months away. Considering the centrality of the recorded conversations as evidence, the recordings might be a target for editing or other forms of hacking. Could they be hacked?
Not very likely, said Stephen Gaskins, a sales support representative for Riverside-based Versatile Information Products, the vendor for the recorders in use by Menlo Park police.
Deletion of a word or sentence in the original recording is next to impossible because the audio files, once downloaded to the server, are encrypted more strongly than online banking records, Mr. Gaskins said in a telephone interview.
Were someone to log in, extract a copy of an original recording, edit it offline and return it to the server, a tracking system that registers all activity on the server would tell the story and would resist being covered up, Mr. Gaskins added.
"You never want to say impossible, but (hacking) is very unlikely," he said. "It's pretty locked down."
Editor's note: An earlier version of this story incorrectly stated that Mr. Burnett had been bailed out of jail.
Comments
another community
on Dec 2, 2011 at 12:22 pm
on Dec 2, 2011 at 12:22 pm
Recordings don't have to be "hacked" to be misleading. If I were a cop and were going to say something out of order, I would make sure to turn off my recording device during that interchange.
If the Menlo Park police want to say the allegations of misconduct are disproven by these recordings, why not produce them to the Almanac?
Let's face it, there are 45 witnesses here. I'm more interested in what they have to say rather than recordings that may not have captured everything. I don't believe 45 people are going to lie about something, particularly when only a handful (those arrested, or their family) have any possible motive to lie.
Menlo Park: other
on Dec 2, 2011 at 12:49 pm
on Dec 2, 2011 at 12:49 pm
Seven cops to breakup a high school party in the good part of town. Meanwhile, other (seemingly understaffed) parts of the city have been subjected to a drive-by and a murder in the past couple of months.
I hope they got some overtime, too :)
Menlo Park: Central Menlo Park
on Dec 2, 2011 at 1:01 pm
on Dec 2, 2011 at 1:01 pm
How long have the police been using recording devices? Obvious question: Are they legal in this application? Don't know; hope someone can enlighten. Another question: What are the safeguards in place to ensure the recordings aren't manipulated after the fact?
Registered user
Almanac staff writer
on Dec 2, 2011 at 1:12 pm
Registered user
on Dec 2, 2011 at 1:12 pm
Police do not have to inform people they are being recorded, Cmdr. Bertini told the Almanac via email.
"When speaking to a member of law enforcement, a person has no expectation of privacy and the law is clear that we do not have to advise anyone that they are being recorded," he said.
Registered user
another community
on Dec 2, 2011 at 2:12 pm
Registered user
on Dec 2, 2011 at 2:12 pm
To Hmmmm--This is an active investigation. Releasing the tapes to the Almanac would serve no purpose except to have this tried in the press, which usually ends up with a much different public opinion than the reality of the situation.
To Unhappy--Yes, 7 cops sent to check out a party of over 40 drinking teenagers is appropriate. If they had sent only 2, and a couple of them got rowdy, or maybe even took off in a car and killed somebody while driving when drunk, you would probably be the first to question why they only sent 2 cops. Burnett should be billed for the police overtime, just on the strength of his stupidity and bad judgement.
Then the daughter makes allegations about police conduct at an event that she was not even there to witness. That's as reliable as the "witnesses" we would get if the newspapers had the recordings.
To all of the other sideline experts--Stop all of the second guessing of the police. How about second guessing this upstanding college professor in this upscale part of town. You optimize the very reason that police have such a hard time doing their jobs.
Registered user
Atherton: West Atherton
on Dec 2, 2011 at 2:37 pm
Registered user
on Dec 2, 2011 at 2:37 pm
Dear Srini: RIGHT ON!!!!!!!!!!!!!!
Registered user
another community
on Dec 2, 2011 at 3:47 pm
Registered user
on Dec 2, 2011 at 3:47 pm
I don't know why people think that the daughter writing up the allegations per her family makes them unreliable. My family alleged terrible treatment of a family member at the hands of a local law enforcement officer even though we didn't witness the treatment. There were non-family witnesses who corroborated.
I am not surprised the Ed Soares was involved in this. He had a similar reputation at his former dept. - being unnecessarily harsh & rude to citizens. Apparently, old habits due hard. Why be rude when it's not necessary?
If it's indeed true that Burnett was arrested w/out being Mirandized, why kind of case does MPPD have?
Was there really a complaint/allegation to the cops that there was underage drinking & a party at the home, or were the cars noted by a patrol officer who decided to check out the haps?
It sounds like MPPD is looking to make an example of the Burnetts w/this case.
Maybe Menlo Voter will weight in on this again.
Registered user
Almanac staff writer
on Dec 2, 2011 at 3:57 pm
Registered user
on Dec 2, 2011 at 3:57 pm
If police have a suspect in custody (a term of art that implies an arrest has either happened or is about to) questions about name, date of birth, address and so on do not need to be prefaced by a reading of Miranda rights, Cmdr. Bertini said.
Questions that could lead to an incriminating statement by the suspect are subject to Miranda, he said. Such questions constitute an interrogation, which require Miranda warnings.
If someone is not in custody but rather is detained -- officers have a reasonable suspicion that criminal activity is occurring and that the detained person has a connection -- that is another case in which Miranda is not necessary, he said. But the scope, intensity and duration of the questioning is limited.
Registered user
Almanac staff writer
on Dec 2, 2011 at 3:59 pm
Registered user
on Dec 2, 2011 at 3:59 pm
As for why the police came to the scene, someone unidentified called the business line at the police department and complained of a loud party at which underage drinking might be going on, Bertini said.
Registered user
another community
on Dec 2, 2011 at 4:16 pm
Registered user
on Dec 2, 2011 at 4:16 pm
Thank you for the additional info, Mr. Boyce. Would Mr. Burnett have been held overnight after being arrested w/out being Mirandized? In other words, was it legally necessary to Mirandize him in order to arrest & book him or did they not ask incriminating questions, this they didn't legally have to Mirandize him? Even given your explanation, pardon my dimness.
Registered user
Almanac staff writer
on Dec 2, 2011 at 5:12 pm
Registered user
on Dec 2, 2011 at 5:12 pm
My sense is that police can observe and take pictures and come away with probable cause to justify for an arrest, during which they would not ask incriminating questions, leaving that for the DA's office. Miranda is not necessary by the police in such a scenario.
When police take suspects to the San Mateo County jail, once booked they come under the jurisdiction of the Sheriff's Office.
Since the jail tends to be overcrowded, deputies at the jail have no real interest in keeping someone incarcerated if they don't have to, Bertini said.
"They try to get them released as soon as possible," Bertini said. "It's really up the person in custody what they want to do."
In other words, a suspect can bail out. Why Mr. Burnett did not bail out that night is a question I cannot answer.
Registered user
Atherton: other
on Dec 2, 2011 at 6:03 pm
Registered user
on Dec 2, 2011 at 6:03 pm
I'll comment on this as a non-attendee of the party and a friend of the Burnett's--an admittedly biased observer. I'm 19, a college freshman, and have been drinking for a couple of years. I do so responsibly and have never caused anyone any harm while drinking, as is the case with the vast, vast majority of my friends. This notion that teenagers aren't going to drink is absurd; it will happen so we might as well be teaching teens to do it responsibly. It reminds me of teaching abstinence in schools (it doesn't work). At college, I've witnessed firsthand the difference in how kids drink who have had some experience and teaching versus those who are drinking for the first time in college. The preacher's daughter goes crazy as soon as she get's 20 feet from home, if you get my metaphor.
Obviously parties can get out of hand and at the point where it becomes dangerous the police should intervene and I think a fine for the homeowner is totally valid. But to arrest a dad simply for allowing kids to drink seems incredibly excessive, and in the end futile as well. While there probably won't be anymore parties in that house (which could've been accomplished with significantly less force) I guarantee none of those kids stop drinking. Atherton and MP police don't deal with the actual crime that officers in towns like Redwood City or Palo Alto do, and in turn overreact to petty violations for the sake of pleasing their entitled residents who don't like having to share space with young hooligans.
Registered user
Almanac staff writer
on Dec 2, 2011 at 6:11 pm
Registered user
on Dec 2, 2011 at 6:11 pm
One point that Cmdr. Bertini made during his interview with the Almanac: Pacifica, where he spent 25 years on the police force, enacted an ordinance that allows the city to cite the host of a party such as this one with the equivalent of a code enforcement violation, resulting in a fine of $1,000.
The criminal option is still available, but officers have another option at their disposal.
Registered user
Menlo Park: other
on Dec 2, 2011 at 7:42 pm
Registered user
on Dec 2, 2011 at 7:42 pm
The police are not required to mirandize anyone unless they are under arrest and they wish to use any statements gathered from said interogation against the arrestee. If this [portion deleted] professor was arrested and not questioned regarding this case, or if the police didn't care whether they could use his statements against him no miranda warning was necessary. It is also not necessary to mirandize someone in order to book them into jail.
Registered user
Menlo Park: other
on Dec 2, 2011 at 9:36 pm
Registered user
on Dec 2, 2011 at 9:36 pm
Srini says "This is an active investigation. Releasing the tapes to the Almanac would serve no purpose except to have this tried in the press, which usually ends up with a much different public opinion than the reality of the situation."
and in response, Atherton Resident yells, "RIGHT ON!!!!!!!!!!!!!!".
The Menlo Park police releases innuendo to the public/press that the recordings contain information that exonerate the officers of misconduct they have been accused of. Some posters here ask for the actual tapes to be played, and they (not the Menlo Park police who released the innuendo without facts to back it up) are the ones attempting to have this case tried in the press?
It doesn't seem that way to me.
Menlo Voter is basically correct on Miranda. However, once someone is arrested, it is always proper police practice to Mirandize them because anything they say (whether solicited or not) can be used against them. If the police did not Mirandize them after an arrest, anything they said is (and should be) inadmissible even if it was not solicited by the police.
Registered user
Menlo Park: other
on Dec 2, 2011 at 11:47 pm
Registered user
on Dec 2, 2011 at 11:47 pm
Mr. Boyce states: "One point that Cmdr. Bertini made during his interview with the Almanac: Pacifica, where he spent 25 years on the police force, enacted an ordinance that allows the city to cite the host of a party such as this one with the equivalent of a code enforcement violation, resulting in a fine of $1,000. The criminal option is still available, but officers have another option at their disposal."
But let's not forget that even without the code enforcement ordinance on the books, the officers had options at their disposal they did not use. For example, they were not required to arrest anyone, even if it were legally permissible to do so. They could have just broken up the party, and sent the minors home via their parents. They could have warned Mr. Burnett that if this happened again, they could utilize the arrest option.
Every day people do things they can be arrested for, such as jaywalking, but that never happens.
What was best for the minors involved? From a practical perspective, I tend to agree with the posters who have suggested that in a neighborhood with relatively sophisticated urban teenagers, police officers coming down heavy on Mr. Burnett and his wife did not teach any lesson other than to resent police officers. Announcing to the group, "Hey, kids, you're not legally permitted to be drinking. Mr. Burnett should have known better than to allow you to consume alcohol on his premises. We actually could arrest him – and all of you - for this, but we'd prefer everyone go home and think about this. We're calling your parents to pick you up, and we assume you'll be discussing what happened tonight with them."
Maybe anyone who was at that party could comment on which approach would have caused more thought than resentment.
Registered user
Menlo Park: other
on Dec 3, 2011 at 8:58 am
Registered user
on Dec 3, 2011 at 8:58 am
Rev Loon:
I'm sorry, but anything anyone says that is not in repsonse to a question IS admissable as evidence if not mirandized. You are correct that it is good practice to mirandize an arrestee, however it is not required. I booked plenty of people into jail without mirandizing them.
Registered user
Woodside: other
on Dec 3, 2011 at 9:02 am
Registered user
on Dec 3, 2011 at 9:02 am
Aside from the simple fact that it is against the law to serve alcohol to underage drinkers (and that law is very different in magnitude from jaywalking), I want to call out one thing that keeps appearing in these posts that I find very troubling. The point has been made several times that because this is a 'good' neighborhood, the police should either have turned a blind eye or not pressed charges.
We do not live in a country whose laws are created for certain people and neighborhoods. Our laws, whether we like them or not, are created for all of us. If you don't like a law, go out into the world and change it. But, please, do not ask that it be lifted because someone who broke it lives on the 'right' side of the tracks.
Imagine, for a moment, a father and mother living in East Menlo, doing their best to keep the kids in school and a roof over their heads. Imagine them reading these comments that suggest that they or their neighbors should be arrested for serving alcohol and yet someone in West Menlo Park, simply because they live in West Menlo Park, should not be.
A person lives in Menlo Park, Woodside, Atherton, Portola Valley because of their income--not because they are better people. Good people are everywhere, and so are their counterparts.
The fabric of a person is determined by moral choices not zip codes. One of those choices includes how a person chooses to care for the world outside their own four walls. From this article, it seems that thirty nine of the choices made that night came from that very place.
If you don't like a law, work to change it. But let's keep our laws for everyone, and never suggest that any citizen is above them. I apologize on behalf of us all to those readers who live in the 'other' part of town.
Registered user
Menlo Park: other
on Dec 3, 2011 at 9:40 am
Registered user
on Dec 3, 2011 at 9:40 am
Think, that's a good straw man argument. I happen to agree that laws shouldn't depend on zip code. But it's a straw man argument since no one I've seen has said different laws should apply in this situation because it's an upscale neighborhood. Personally, I think this was poor judgment by the police officers, however legal it might be. If they had done this in East Palo Alto, I'd be equally against the decision. I'd argue it's less likely to happen in East Palo Alto, since the officers there have "real" crime to deal with. I'd also argue that the resentment caused by the poor judgment of the police officers with the minors involved would be even higher, with worse consequences. Whenever police officers in upscale neighborhoods exercise poor judgment, they defend the behavior by crying out that rich people expect to be treated differently.
Registered user
Menlo Park: other
on Dec 3, 2011 at 10:45 am
Registered user
on Dec 3, 2011 at 10:45 am
Rev Loon:
rich people DO expect to be treated differently. All you have to do is read the posts on this thread and the other related thread, one of which said "I was at a party in Atherton and all the police did was break it up." There's your epectation of different treatment because of neighborhood and wealth. I also spent ten years in law enforcement in a large city that had both well to do and poor neighborhoods. I worked in all of them and can tell you from practical experience those living in the more affluent neighborhoods had a different expectation of how the police should act and what laws they should enforce. That is why many on this forum are up in arms about what the Menlo Park Police did. We live in a "good" neighborhood and kids drinking isn't really that big a deal so the police should turn a blind eye.
Sorry, but the law is the law. It's there for a reason and if the people decide it's a bad law there are methods in place to change those laws. Simply asking the police to turn a blind eye is not among those methods.
To those that think it's no big deal, substitute cocaine for alcohol and see how you feel about this [portion deleted] professor. Would you be ok with him giving your children cocaine? Both alcohol and cocaine are illegal for juveniles.
Registered user
Atherton: Lindenwood
on Dec 3, 2011 at 11:06 am
Registered user
on Dec 3, 2011 at 11:06 am
Anyone who is interested in facts regarding supervised underaged drinking can look here:
Web Link
"youngsters who drank in front of adults were more likely to have drinking problems several years later than those who abstained."
“Kids need parents to be parents and not drinking buddies. Adults need to be clear about what messages they are sending. Kids need black and white messages early on. Such messages will help reinforce limits as teens get older and opportunities to drink increase,”
Registered user
Menlo Park: other
on Dec 3, 2011 at 2:41 pm
Registered user
on Dec 3, 2011 at 2:41 pm
Menlo Voter says: "rich people DO expect to be treated differently. All you have to do is read the posts on this thread and the other related thread, one of which said 'I was at a party in Atherton and all the police did was break it up.'"
He is assuming the poster added the sentence "because we live in a rich neighborhood and shouldn't have to obey the laws" to that poster's quote, but I took the poster as having just used Atherton as an example of another community in which the police officers didn't arrest anyone at such a party, not because Atherton is a rich area, but because they used different judgment than the Menlo Park officers that night.
Registered user
Menlo Park: Central Menlo Park
on Dec 3, 2011 at 3:20 pm
Registered user
on Dec 3, 2011 at 3:20 pm
As the detained woman passing by the party, I can attest that Eliza's allegations are very true and the behavior I witnessed by the Menlo Park Police was atrocious to say the least. I personally was denied my freedom that night for apparently looking suspicious walking down the street of the house party, and given no chance to explain myself by Officer Soares. Instead, I was treated as a criminal and told to "turn around little girl." So much for innocent until proven guilty, right? These recordings should more than prove that the police were out of line that night, if the 50 or so witnesses are not credible enough to be listened to.
Registered user
Menlo Park: other
on Dec 3, 2011 at 8:53 pm
Registered user
on Dec 3, 2011 at 8:53 pm
LO's response certainly does shine a new light on this incident.
I'll go way out on a limb: even with 50 witnesses, and recordings, verifying misconduct, the Menlo Park police department does not admit it did anything wrong.
Registered user
another community
on Dec 5, 2011 at 1:03 pm
Registered user
on Dec 5, 2011 at 1:03 pm
LO,
I am a journalist pursuing this story.
Can you or anyone else who was there that night contact me about what happened?
Thanks.
Curtis Vogel
[email protected]
Registered user
Atherton: Lindenwood
on Dec 6, 2011 at 7:41 pm
Registered user
on Dec 6, 2011 at 7:41 pm
The allegations of misconduct towards the teens does not surprise me at all. As a student, I have been treated both very poorly and very well by Menlo Park police. I can personally attest that on officer involved in the case (I won't state his name) can be very rude and harsh towards teens, for no apparent reason other than that he thinks he is better than them. Last year he threatened to arrest me for walking around La Entrada at 10 pm (before curfew), with a group of friends. He was completely ridiculous and mean, nearly bringing me (14 at the time) to tears. When I explained my parents knew exactly where we were, he yelled at me for back talking, and accused me of lying to him, and did not apologize when he called my parents and found out I was not. Police have a better shot at getting through to teens if they are polite and do not talk to us like we are useless, delinquent scum.
Registered user
Almanac staff writer
on Dec 8, 2011 at 1:46 pm
Registered user
on Dec 8, 2011 at 1:46 pm
Link to William and Cynthia Burnett, the parents in this incident, being interviewed for the Today show this morning, Dec. 8. Includes backgrounder with comments by Cmdr. Dave Bertini of the Menlo Park Police Department.
Web Link
Registered user
Woodside: Mountain Home Road
on Dec 13, 2011 at 7:36 pm
Registered user
on Dec 13, 2011 at 7:36 pm
To cvo,
You should contact the teen who was at the party and admitted on this website to the drinking and keys being confiscated by the Burnetts.
Here is the quote:
"Posted by teen, a member of the Menlo-Atherton High School community, on Nov 29, 2011 at 10:03 pm
teen is a member (registered user) of Almanac Online
As a teen at the party I would just like to state that everything was exaggerated not ALL 44 teens were drunk like it said on the cover of the Daily Post. Also the majority of our parents knew where we were that night. Mr. Burnett and his wife took away the keys of all the kids who drove there. Yes we are all under the age of 21 but we were drinking responsibly and the majority of us are seniors who are going to college next year so we were experiencing what will obviously be done in college in a safe way."
"teen" should be able to help you.
Can Mr. Boyce cover the Stanford end of this story? In other words how does Stanford feel about one of it's Professor having 44 teens over and taking away their keys? I wonder how Stanford feels if the Burnett's used the Stanford job title to get out of jail.