• Evidentiary Value in Disciplinary Proceedings of a Patrol Unit’s Digital In-Car Video System (“DICVS”)
• LAPD’s Special Order No. 45 and Notice 13.5
• Pen. Code § 632; Illegal Eavesdropping
• Public Safety Officers Procedural Bill of Rights Act (“POBRA”) (Gov’t. Code §§ 3300 et seq.)

LAPD’s Special Order No. 45 and Notice 13.5 do not prevent the use of an unintentionally recorded conversation between patrol officers in their patrol vehicle in later disciplinary proceedings, obtained through the vehicle’s “digital in-car video system” (or “DICVS”), where the recording reflects evidence of criminal or egregious misconduct.  Penal Code § 632—the eavesdropping statute—and subdivision (d) do not prevent the use of recorded confidential communications in later disciplinary proceedings where the recording are not intentional.  The Public Safety Officers Procedural Bill of Rights Act, or “POBRA” (Gov’t. Code §§ 3300 et seq.) is not violated by a police supervisor when he meets with his unrepresented, unadvised, subordinates in the normal course of the supervising officer’s duty to provide counseling and instruction which was routine and expected of a supervisor.

Louis Lozano and Eric Mitchell were LAPD patrol officers in 2017, assigned together as partners to a foot beat patrol, Southwest Division.  Their primary responsibilities included providing community services and addressing “quality of life” issues in what’s known as the Crenshaw Corridor and Leimert Park area.  Sergeant Jose Gomez was their patrol supervisor at the time.  Captain Darnell Davenport was the patrol commanding officer for the Southwest Division.  On April 15, 2017, a “211 (robbery) in progress” call came out, involving multiple suspects, at the Macy’s in the Crenshaw Mall.  Cpt. Davenport, who at that moment was on his way to a homicide scene, responded to the 211 call in that he was close (within sight of the Macy’s) and no other patrol units were responding.  As he got close to Macy’s, the Captain saw a patrol car tucked back into an alley, just feet away from the store.  As Cpt. Davenport watched, the patrol car backed up, moving down the alley in the opposite direction, and negotiated a left-hand turn to leave the area.  That patrol car, as it was later discovered, was occupied by Officers Lozano and Mitchell. 

Sgt. Gomez was in the watch commander’s office when the robbery-in-progress call came out.  Looking at the watch commander’s board, he saw that Lozano and Mitchell were located (or “Code 6”) in the Crenshaw Corridor.  The Sergeant radioed the officers, requesting that they respond to the 211.  He got no response.  This necessitated another unit breaking away from the homicide scene and proceeding Code 3 (lights and siren) to cover Cpt. Davenport at the robbery scene as Lozano and Mitchell continued to fail to respond.  Once all the excitement died down, Sgt. Gomez requested a meet with Lozano and Mitchell.  When asked about whether they’d heard the 211 call, Mitchell said he had not while Lozano said he heard Captain Davenport was Code 6 at the Crenshaw Mall but he did not hear a request for backup.  The officers complained that noise in the area made it difficult to hear their radio.  Told merely to pay better attention to the radio calls, the counseling session was ended. 

Sgt. Gomez, however, was still a bit uneasy about Lozano and Mitchell’s failure to respond to the robbery call.  So he decided to check their patrol unit’s “DICVS” (digital in-car video system) recording to “find out what they do on their average day.”  Checking the DICVS the following day, Sgt. Gomez listened to and observed Lozano and Mitchell discuss the robbery call as it came out, and debate whether they should respond.  Sgt. Gomez thus discovered that not only did Lozano and Mitchell hear the call to back up Cpt. Davenport at the Macy’s robbery, but that they consciously chose to ignore it, commenting, after some laughter regarding Captain Davenport; “I don't want to be his help.” The two officers therefore decided to “screw it,” rather than respond.  Perhaps even more amazing was the discovery that at the time, Lozano and Mitchell were actively involved in playing a game called “the Pokémon Go video game.”  (If you’ve never heard of it, “Pokémon Go” is an “augmented reality” mobile phone game that “uses a mobile device’s GPS to locate, capture, battle, and train virtual creatures, called Pokémon, which appear as if they are in the player’s real-world location.” See footnote #2 in the decision for a full description of this game.) 

A formal complaint was eventually filed by Sgt. Gomez and the officers’ alleged misconduct was investigated.  Per the complaint, Lozano and Mitchell: [1] Failed to respond to a robbery-in-progress call; [2] made misleading statements to Sergeant Gomez when asked why they did not hear the radio; [3] failed to respond over the radio when their unit was called; [4] failed to handle an assigned radio call; [5] Played Pokémon Go while on patrol in their police vehicle; and [6] made false statements to the Internal Affairs detective during the subsequent complaint investigation.  Both officers either pled guilty or were found guilty by a “Board of Rights” of all allegations except # [4] (failing to handle an assigned radio call).  The Board unanimously recommended that both Lozano and Mitchell be fired; a recommendation adopted the Chief of Police.  Lozano and Mitchell filed in court a petition for administrative mandamus in an attempt to get their jobs back.  The trial court denied their petition and they appealed.

The Second District Court of Appeal (Div. 3) affirmed.  On appeal, Petitioners (no longer “officers”) Lozano and Mitchell did not deny committing the acts as alleged in the complaint filed by Sgt. Gomez, but rather argued that the use of the DICVS recording was illegal or improper in a number of respects.  Specifically, the petitioners argued that the use of the DICVS to listen to their “private conversations” violated (1) “Special Order No. 45,” (2) “Notice 13.5,” and (3) Penal Code § 632. They also complained that their interview with Sgt. Gomez in the field was (4) in violation of the Peace Officers Bill of Rights (POBRA).

(1) and (2): Special Order No. 45 and Notice 13.5: Under the authority of the City Charter (Charter section 574(c)), the Police Chief issued “Special Order No. 45.”  Among the provisions contained in this order were the procedures for using the DICVS as part of a pilot program (as approved by the Board of Police Commissioners).  Special Order No. 45 specifically says:  “The Digital In-Car Video System is being deployed in order to provide Department employees with a tool for crime documentation and prosecution, and not to monitor private conversations between Department employees.” (Italics added)  Six years after Special Order No. 45 was approved by the Board of Police Commissioners, the so-called “Notice 13.5” was published, providing commanding officers with “guidelines” for “determining appropriate and reasonable responses to possible misconduct and other deviations from established procedures discovered during the review of DICVS recordings.” Notice 13 reaffirms—consistent with Special Order No. 45—that “the DICVS system was not intended to be used ‘to monitor private conversations between Department employees.’”  However, Notice 13.5 also provides an exception; i.e., if “a sensitive personal communication between employees is recorded, the personal communication will not be used to initiate a personnel complaint investigation or used against an employee in the adjudication of a personnel complaint, or during any subsequent hearings, unless there is evidence of criminal or egregious misconduct.” (Italics added.)  The Court ruled—agreeing with the trial court—that Special Order No. 45 does not prevent the department from using in disciplinary proceedings an “unintentional” recording of the private communications of officers while sitting in their car.  Just as (or maybe more) important, Notice 13.5 specifically provides an exception to the restrictions on the use of DICVS recorded conversations in the vehicle when those conversations show “evidence of criminal or egregious misconduct.”  As noted by the Court, “it would be preposterous to require commanding officers and internal affairs investigators to ignore evidence of ‘criminal or egregious misconduct’ simply because it was unintentionally captured on a DICVS recording.”  Finding the petitioners’ actions to be “egregious,” the Court upheld the trial court’s determination that the petitioners’ in-car conversation was properly used against them. In so ruling, the Court also held that there is no requirement that there be some independent evidence of egregious misconduct, apart from the recording itself, for this exception in Notice 13.5 to apply.

(3) Penal Code § 632:  Penal Code § 632 “prohibits the intentional eavesdropping to a confidential communication by means of any electronic amplifying or recording device, without the consent of all parties.” Under subdivision (d) of section 632; “evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding,” except “as proof in an action or prosecution for violation of this section.”  Petitioners argued that these provisions preclude the use of the DICVS recording in the Board of Rights hearing.  The Court disagreed.  Before the evidence exclusion provision of subdivision (d) kicks in, it must be established that the contested eavesdropping was done intentionally.  As section 632 has been interpreted, “the recording of a confidential conversation is intentional if the person using the recording equipment does so with the purpose or desire of recording a confidential conversation, or with the knowledge to a substantial certainty that his use of the equipment will result in the recordation of a confidential conversation.”  (People v. Superior Court (Smith) 1969 Cal.2nd 123, 134; Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 421.) Petitioners argued that merely being “aware that equipping police cars with recording devices could (or was capable of) record(ing) ‘sensitive personal communications between employees’” was enough to show “intent.”  The Court disagreed.  In defining the term “intentional,” the Court noted that “‘intentionally’ in the [invasion of privacy] statute required an intent to bring about the proscribed result rather than an intent merely to do an act which unintentionally brought about that result.”  The Court therefore ruled that “(b)ecause there was no evidence that a person intentionally recorded a confidential communication in violation of the statute, petitioners cannot show the trial court prejudicially erred by rejecting their Penal Code section 632 argument.”

(4) Public Safety Officers Procedural Bill of Rights Act, or “POBRA” (Gov’t. Code §§ 3300 et seq.,): POBRA “provides a catalog of basic rights and protections that must be afforded all peace officers by the public entities which employ them.” (California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 304.)  POBRA is intended to provide for “‘the Legislature’s balancing of two competing interests: “the public interest in maintaining the efficiency and integrity of its police force, which, in enforcing the law, is entrusted with the protection of the community it serves’; and the peace officer’s ‘personal interest in receiving fair treatment’ during an investigation that may subject the officer to punitive action.”  (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3rd 564, 569; see also Gov’t. Code § 3303(i))  Subdivision (i) of Gov’t. Code § 3303 specifically provides that an officer has the right to have a representative of his or her choosing present “whenever an interrogation focuses on matters that are likely to result in punitive action against” the officer.  “Punitive action” is defined in § 3303 as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”  Petitioners here argued that Sgt. Gomez’s counseling session with them in the field about having failed to answer the “robbery in progress” radio call violated POBRA in that they were neither advised of their rights nor accorded the opportunity to have a representative of their choice present.  Disagreeing with the petitioners’ argument, the trial court held that the circumstances of Sgt. Gomez’s meeting with the officers in the field did not trigger POBRA’s protections.  The Appellate Court agreed.  Specifically, the “meeting did not violate POBRA” because that meeting “‘was in the normal course of Sergeant Gomez’[s] duty [to provide] counseling [and] instruction and was routine and expected of a supervisor.’”  At the time Sgt. Gomez asked to meet with petitioners, he did not know why they had failed to respond to the robbery call, leaving room in his mind for some sort of logical explanation.  Petitioner Mitchell even acknowledged that “the meeting constituted ‘a normal exchange between supervisor and subordinate’ and it was ‘the same type of discussion or … supervisory oversight that’s provided daily to the patrol units.’”  It wasn’t until later that Sgt. Gomez determined that the petitioners’ explanations (i.e., too much noise in the area prevented them from hearing their radio) didn’t seem to fit the facts and decided to check the DICVS recording.  As such, at the time Sgt. Gomez met with petitioners, POBRA and Gov’t. Code § 3303 were inapplicable to the situation