LEGALUPDATES.COM

• Consensual Encounters
• Detentions
• Observations Made During an Illegal Detention

Observations made by a law enforcement officer, indicating that a person may be armed, when those observations occur during an illegal detention, are illegal in themselves.  A firearm found as a result of an illegal observation is to be suppressed as a product of that illegal observation.

In early June, 2020, Los Angeles and other surrounding cities had been experiencing wide-spread looting and rioting following a “Black Lives Matter” protest.  As noted in the dissenting opinion, “there was great unrest throughout (Los Angeles) county. . . . National Guard troops and police officers guarded the barricaded steps of Los Angeles City Hall and tried to restore order in Santa Monica and Long Beach. For two days, looters spent hours vandalizing and breaking into stores, stealing items and setting fires in Los Angeles, Santa Monica, and Long Beach. Hundreds were arrested on suspicion of burglary, looting, vandalism, failure to disperse, and firearms and curfew violations. Five Los Angeles Police Department officers were injured, with two of them hospitalized.”  As a result, a 6 p.m. to 6 a.m. curfew had been imposed. At 2:15 a.m. on June 3, Los Angeles Sheriff’s Deputy Xavier Zeas and his partner—while patrolling the City of Commerce area in a marked patrol car—observed defendant Oscar Cuadra standing next to a parked car in a motel parking lot.  The parking lot was no more than a narrow strip of asphalt, with five parking stalls, sandwiched in between the motel and a fence fronting on Triggs Ave.  Acknowledging in later testimony that the curfew did not apply to private property, Deputy Zeas drove up to defendant anyway and, while still sitting in his patrol car, asked him if he was aware of the curfew.  Defendant responded that he was not.  Deputy Zeas then asked defendant if he was on parole or probation.  Defendant told the deputy that he was in fact on probation.  Deciding (subjectively) at this point to detain defendant, Deputy Zeas and his partner exited their patrol car and asked defendant to walk over to the hood of their car.  Defendant reacted to this request by stepping backwards while raising both hands and asking the officers why they were “attempting to detain” him when he had done nothing wrong.  As defendant raised his hands, Deputy Zeas saw a “bulge” in defendant’s right front pants pocket. The deputy described the bulge as “pretty big” and consistent with the shape of a firearm. Before Deputy Zeas could react to what he had just observed, defendant “spontaneously” told the deputies that he had a gun.  Defendant was ordered to the ground.  A patdown search resulted in the recovery of a loaded .38 caliber revolver from defendant’s front pants pocket.  Defendant was charged in state court with the illegal possession of a firearm by a felon (per P.C. § 29800(a)(1)).  His subsequent motion to suppress the firearm as the product of an illegal detention was denied.  After pleading “no contest,” defendant appealed.

The Second District Court of Appeal (Div. 8), in a split (2-to-1) decision, reversed.  On appeal, the sole issue was the legality of the observation of the bulge in defendant’s clothing and the subsequent recovery of the firearm.  The answer to this question depends upon when defendant, in the sequence of events, had been detained, and the legality of that detention.  The initial contact with defendant, with the officers not even getting out of their patrol car, was obviously lawful. “(B)rief encounters between police and citizens . . . require no objective justification.”  Such a contact is commonly referred to as a “consensual encounter.”  At some point, however, defendant had been “detained,” as this term is defined by the case law.  A detention—often referred to as an “investigatory stop”—requires, to be lawful, that there be “an objective manifestation of a reasonable articulable suspicion that criminal activity is afoot and that (the person detained) was a person engaged in, or about to engage in, criminal activity (Terry v. Ohio (1968) 392 U.S. 1; People v. Souza (1994) 9 Cal.4th 224, 230.)  A simple consensual encounter can easily morph into a detention where officers, in contacting a suspect, exhibit a “show of authority” over the suspect that, under the circumstances, would cause a reasonable person to no longer feel free to leave. As noted by the Court: “A consensual encounter may ripen into a seizure for Fourth Amendment purposes ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’” (People v. Brown (2015) 61 Cal.4th 968, 974, quoting Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16.)  The test is an “objective” one (i.e., what would a reasonable person believe under the circumstances?), with neither the officer’s nor the suspect’s subjective beliefs being relevant.  The majority of the Court here held that upon telling defendant to move to the hood of the patrol car, what was initially no more than a consensual encounter was quickly elevated into a detention for which there was no articulable evidence in support.  Whether Deputy Zeas was asking or commanding defendant to move to the hood of the patrol car is irrelevant.  Either way, the Court held that “no person would feel free to leave” under such a circumstance.  In so holding, the Court further rejected the People’s argument that there was no detention at this point because defendant had not actually submitted to the officers’ show of authority.  (See California v. Hodari D. (1991) 499 U.S. 621.) To the contrary, the Court found it significant that in response to Deputy Zeas’ request (or command) about moving towards the patrol car, defendant instead stepped back while raising his arms, referring to such an action as a “universally acknowledged submission to authority.”  Per the Court, “people do not put up both hands and step back while still facing the police if they believe they can just walk away.” Doing so—instead of turning and walking or running away—evidenced defendant’s submission to the officer’s authority.  Defendant, therefore, was detained at this point despite the lack of any articulable reasonable suspicion justifying such a detention.  It wasn’t until this point that Deputy Zeas observed the budge in defendant’s pants pocket.  As the product of an unlawful detention, this observation, and the subsequent recovery of defendant’s firearm, was illegal.  There being no reasonable suspicion at that point to believe defendant was engaged in anything illegal, defendant’s detention was unlawful.  The firearm should have been suppressed.

The dissenting opinion written by Justice Elizabeth Grimes disagreed with the majority decision on several points.  Specifically, given the fact that Los Angeles and its surrounding cities (including, apparently, the City of Commerce) were experiencing some significant rioting and looting at the time, contacting and detaining defendant in order to investigate his possible connection to such rioting, was, in Justice Grimes’ opinion, reasonable.  I find it hard to argue with this conclusion.  In fact, it could just as reasonably be argued that Deputy Zeas and his partner would have been derelict in their duty had they not done so.  Coming across a person at 2:15 in the morning, who admits to having a criminal history, standing next to an apparently unoccupied vehicle, during a time and in a place where a curfew—triggered by widespread rioting and looting—is in effect, certainly demands an investigation into that person’s reasons for being at that location at that time.  Justice Grimes also agreed with the People’s argument that up until that point in time when defendant was ordered to the ground, it was only an attempted detention.  In Hodari D, the U.S. Supreme Court tells us that merely threatening an unlawful detention is not unlawful in itself.  By the time defendant had been ordered to the ground, Deputy Zeas had already observed the bulge in defendant’s pocket and defendant had spontaneously confessed to possessing a firearm.  I find this argument to also be reasonable.  But, in the world of appellate review, the majority rules.  So unless and until taken up to the California Supreme Court, we’re stuck with this questionable decision.

• Miranda v. Arizona
• Edwards v. Arizona
• An In-Custody Suspect’s Reinitiation of an Interrogation

An in-custody suspect’s repeated invocations of his right to silence and his right to the assistance of counsel do not necessarily prevent him from later changing him mind and agreeing to talk. The reinitiation of law enforcement’s ability to question the suspect is a matter of the suspect’s choice.  But the suspect’s waiver of his rights may be inferred under the circumstances.

Defendant Michael Raymond Johnson married G.A. in 1985, but maintained very little contact with her over the ensuing years.  In 1996, however, they renewed their relationship and began living together in Ojai, California.  Living with them was G.A.’s 15-year-old daughter, D.G., the product of another relationship, and her boyfriend; Francisco.  Defendant was jealous over G.A.’s relationship with D.G.’s real father, and also suspected that she was messing with Francisco.  So defendant moved out of the house.  But then two days later, on July 17, 1996, defendant showed up at the residence where G.A. worked as a housekeeper.  Armed with two pistols, defendant professed his undying love for G.A., telling her that he had to stay with her “every minute of every day.”  G.A. couldn’t reason with him (as he ranted on about robbing a bank and taking her to Wisconsin) or get him to relinquish his firearms. So, after defendant told her he was prepared to take her by force, she eventually got her employer’s permission to leave.  After going to G.A.’s house first, they eventually headed up to a mountain spot where they’d made love before; G.A’s compliance with his demands the product of defendant’s erratic mental state.  After an unsuccessful attempt to have intercourse, they went back to G.A.’s house where they showered together, defendant keeping his guns within reach the whole time.  G.A. later testified that at no point that day did she feel she could get away from him.  Meanwhile, someone (probably D.G. or Francisco) called the police to report a “domestic disturbance.”  Deputy Sheriffs Peter Aguirre and Steven Sagely responded to the call, with Deputies James Fryhoff and David Sparks responding as backup.  Deputies Aguirre and Sagely approached the front door of the house and knocked.  A visibly upset G.A. (in her bath towel) opened the door and told the officers that defendant was inside, warning them that he had guns.  Deputy Aguirre made an immediate entry as everyone else held back, taking cover when they suddenly heard shots being fired.  Defendant came out of the front door, shooting at Deputy Fryhoff.  Deputy Fryhoff shot back, wounding defendant in the chest. Deputy Aguirre—found in the house with gunshot wounds to the forehead and struggling to breathe—died from his injuries.  His fully loaded sidearm was still in its holster.  A later autopsy revealed that Deputy Aguirre had been shot three times; once in the left arm and twice in the forehead.  Stippling showed that the two head shots were with the muzzle of defendant’s gun only 12 to 18 inches from Deputy Aguirre’s head.  Investigators repeatedly attempted to interview defendant when he was first taken to the emergency room of a nearby hospital as he was being treated for his chest wound and over the span of the next three hours, defendant invoking his right to silence and/or to the assistance of counsel four times in that time span.  On one of those attempts, defendant said that he was a “little bit in shock right now . . . (but that he) may want to talk to you later.”  Shortly thereafter, while asking defendant for permission to search his house, defendant was asked if he’d be willing to talk to a psychiatrist.  Defendant said that he would.  Other questions were asked about his mental history which, due to the lack of a Miranda waiver, were subsequently suppressed.  Ventura County Sheriff's Detective Robert Young returned shortly thereafter and asked defendant if he was ready to discuss the shooting, reminding him that he had said earlier that he might be willing to talk later.  Defendant told the detective in a fifth invocation that “no,” he’d rather talk to a lawyer first.  Detective Young left, but returned shortly thereafter and angrily chastised defendant, telling him that it was not just a “uniform” he had shot, but rather a “living, productive human being, unlike” defendant, and that he wanted him to know the name of the deputy he had murdered, that he was 26 years old, had a wife and a child, and that defendant needed to remember Deputy Aguirre and his family “every minute of every day for the rest of his life.”  After defendant was transferred to another hospital that same evening, psychiatrist Donald Patterson contacted defendant.  Hired by the District Attorney’s Office, Dr. Patterson’s services were employed to evaluate defendant’s mental state as a homicide suspect (a common prosecutorial practice), and not necessarily to obtain incriminating statements.  Unaware that defendant had invoked his right to counsel, being told only that defendant had invoked his right to silence, Deputy District Attorney Richard Holmes told Patterson to readvise defendant of his Miranda rights and see if he was ready to talk.  DDA Holmes later acknowledged that had he known that defendant had invoked his right to counsel, he would have told Dr. Patterson not to question defendant at all, but merely watch and observe.  After observing defendant for about an hour as a surgical resident treated him, Dr. Patterson finally introduced himself to defendant, telling him that the DA’s Office had asked him to come and talk with him. Defendant responded: “Great.”  After providing defendant with a very abbreviated version of a Miranda admonishment (despite being supplied with an admonishment card), defendant told Patterson “I don't think so,” and that he’d rather talk to an attorney first.  Acknowledging that that was his right, Patterson told him said that he’d just hang around for a while should defendant change his mind.  About 20 minutes later (during which time defendant had x-rays of his chest taken), after noticing that Patterson was still in his room, defendant said: “Still here, huh?”  Defendant then asked Dr. Patterson; “You wanna talk about it?”  When Dr. Patterson responded; “Sure,” defendant dictated the terms of their discussion, telling Dr. Patterson:  “I’ll talk, and you can listen,” and; “Cause you, you don’t mind, and we could just talk about what has happened or something.”  So defendant began talking about the shooting and the kidnapping although Patterson helped him along with a few questions. During the ensuing discussion, defendant made a number of incriminating comments to the effect that he had in fact kidnapped A.G. and intentionally shot Deputy Aguirre.  At no time during this discussion was he readvised of his Miranda rights nor was an express waiver ever obtained.  On trial in state court for murder (with special circumstances) and kidnapping, defendant’s incriminating statements were used against him over his objection.  Convicted and sentenced to death, defendant’s appeal to the California Supreme Court was automatic.

The California Supreme Court, in a split (5-to-2) decision, affirmed.  Among the issues on appeal was the admission into evidence of defendant’s incriminating statements made to the psychiatrist; Donald Patterson.  In discussing this issue, the Court considered three questions: (1) Whether law enforcement’s earlier contacts with defendant violated his Miranda rights; (2) whether defendant (as opposed to Patterson) initiated the conversation that resulted in his confession; and (3) whether he did so following a knowing and voluntary waiver of  his previously invoked Miranda rights.  Defendant’s argument on appeal was that law enforcement (Patterson being an “agent of law enforcement”) violated his Miranda rights ((1966) 384 U.S. 436) by allowing Dr. Patterson to question him after he had invoked his right to silence.  He also complained that his right to an attorney, as protected under Edwards v. Arizona (1981) 451 U.S. 477, had been violated.  A Miranda violation, of course, makes inadmissible in court any statements obtained by law enforcment from an in-custody suspect absent a prior advisal of rights and a knowing and intelligent waiver of those rights.  It is permissible, however, for law enforcement to later return as ask that suspect if he’d changed him mind about invoking his right to silence.  In Edwards, the U.S. Supreme Court took it a step further, establishing the stricter “bright-line” rule to the effect that once an in-custody suspect invokes his right to the assistance to counsel (as opposed to merely remaining silent), law enforcement personnel may not resume an interrogation on their own initiative until counsel is provided, the defendant is released from custody, or the suspect himself reinitiates the questioning.  The People in this case argued that it was defendant himself who reinitiated the questioning which, if so, allows law enforcement to begin questioning anew.  While finding it a “close case,” a majority of the Supreme Court upheld the trial court’s finding that defendant had freely and voluntarily reinitiated the questioning himself.  But this was made a “close case” because of a number of important factors.  First, psychiatrist Patterson (again, as a police agent) never readvised defendant of his Miranda rights after their initial contact when defendant had invoked.  Secondly, defendant never specifically told Dr. Patterson that he had changed his mind. Third, helping to make this an even closer case was the fact that defendant had invoked his right to silence and/or the assistance of counsel no less than five times in the span of three to three and a half hours before and during his conversation with Dr. Patterson.  The Court mentioned several times that it found the practice of ignoring a defendant’s repeated invocations “trouble(ing).” (“(W)e are troubled by the earlier law enforcement conduct.”)  And lastly, also complicating the issue somewhat, was Detective Young (understandably) losing his professional bearing at one point, angrily chastising defendant for having murdered Deputy Aguirre.  Despite all this, however, the Court determined that it was defendant himself who had reinitiated the conversation with Dr. Patterson, while impliedly waving his rights, thus making his subsequent incriminating statements admissible against him at trial. In reaching this conclusion, the Court noted a number of significant factors.  First, the district attorney had a legitimate purpose in enlisting Dr. Patterson’s aid; i.e., to observe defendant and gather information relevant to his mental state even if defendant did not wish to volunteer any statements.  Defendant admittedly had some mental issues, having been in and out of metal hospitals over the years and having been diagnosed at least once before as schizophrenic. Simply observing defendant, without questioning him, violates neither Miranda nor Edwards. In connecting Dr. Patterson up with defendant, it was also noted that the district attorney set this up not knowing that defendant had invoked his right to counsel. But even if defendant’s prior invocation to the assistance of counsel had been known, there was no violation in connecting Dr. Patterson up with defendant simply for the purpose of observing him.  Then, when defendant told Dr. Patterson that he did not wish to speak with him, Dr. Patterson immediately complied, telling defendant he was just going to hang around in case he later changed his mind.  When, some 20 minutes later, defendant saw Dr. Patterson doing just that, it was defendant—not Dr. Patterson—who reinitiated the conversation: “Still here, huh?”  And then, after some pauses, defendant reconfirmed his desire to talk about the shooting, asking Dr. Patterson; “You wanna talk about it?”  Dr. Patterson did nothing other than hang around to provoke this mind-set on the part of defendant.  From the point that defendant verbally reinitiated the conversation, the Court noted that he “controlled the conversation, directed the conversation and took it to the places he wished to go.”  The Court further found that the initial taint of previous Miranda violations did not necessarily require a finding that defendant was legally incapable of reinitiating the questioning, but rather that an evaluation of this issue depends upon a consideration of all the surrounding circumstances.  While it is a rule that a defendant’s decision to talk with police is ineffective if it is found to be the product of “badgering,” or “overreaching,” on the part of the police, the Court found no such undue pressure in this case.  Neither the mere fact of Dr. Patterson hanging around, nor even Detective Young’s act of dressing down defendant over killing a law enforcement officer, were sufficieint to cause an otherwise unwilling defendant to reinitiate the questioning.  To the contrary, “(T)he record, particularly the audio recording of defendant’s conversation with Patterson, reflects defendant’s ‘clear willingness and intention to talk’ to Patterson.”  In making this finding, the Court found it significant that the tape-recorded discussion was a “low-key, very, very calm, rational—perhaps unnervingly so—discussion of what transpired.”  Further, Dr. Patterson mostly listened, asking only occasional questions as defendant himself directed the conversation and what topics were to be discussed.  Lastly, defendant himself was fully aware he was providing information that might be used against him, yet he viewed the tradeoff a worthwhile one, mentioning several times that his yet-to-be-appointed attorney was going to be pissed.  Defendant’s statements taken as a whole showed he was making a deliberate decision to speak with Dr. Patterson because he determined on his own that it was “best to be honest.”  So where is the waiver, one might ask?  Noting that it is always best in such a case—where a defendant is alleged to have reinitiated a wavier after invoking his rights—to have in evidence a new admonition of rights and an express waiver of those rights, neither is absolutely required where the record clearly establishes that the defendant was fully aware of those rights and, while understanding those rights, it can be said that he intended to waive those rights, at least by implication.  “[A]n express waiver is not required where a defendant’s actions make clear that a waiver is intended.”  The Court found this to be one of those “unique” cases.  As already noted above, the record established that defendant made a conscious choice to talk to Dr. Patterson while knowing that he was entitled to the assistance of counsel, and while also knowing that he was acting against his own legal interest when he did so.  Thanks to the recording of the interview, the Court was able to conclude that defendant was calm and in control throughout his discussions with Dr. Patterson, during which the incriminating statements at issue here were uttered. The record also made it clear that defendant fully intended to waive his rights despite the lack of any express waiver stating so.  As such, the Court upheld the trial court’s rulings to the effect that defendant’s incriminating statements, made after he himself reinitiated his own interrogation with a full understanding of the rights he was giving up by talking with Dr. Patterson, were admissible in evidence. 

Note that the Court refers to this case being “unique.” That’s probably an understatement.  At the very least, it should be taken as a gentle hint that should you attempt to walk the same tightrope in some future investigation, don’t expect the same result.  And this case is indeed unique in that generally, whenever a criminal defendant has invoked his rights, but is thinking about changing his mind, it is always best to provide him with a whole new Miranda admonishment and obtain an express waiver of those rights (See In re Z.A. (2012) 207 Cal.App.4th 1401, 1417-1419.)  Also note the Court’s comments about being “troubl(ed” by the officers pestering defendant with repeated attempts to get him to waive his rights.  I know that some Miranda “experts” in this state openly espouse the theory that because a simple Miranda violation does not in fact also violate the Fifth Amendment (See Oregon v. Elstad (1985) 470 U.S. 298, 305.), and that at the very least, any admissions made by the defendant in response to an interrogation conducted in violation of Miranda are likely to provide the prosecution with some very valuable impeachment evidence (Harris v. New York (1971) 401 U.S. 222.), that it’s okay to ignore a defendant’s attempt to invoke and just keep on questioning him.  However, the California Supreme Court has repeatedly condemned such an interrogation technique.  (See People v. Nguyen (2015) 61 Cal.4th 1015, 1075-1077.)  Indeed, repeated Miranda violations can at some point degenerate into a Fifth or Fourteenth Amendment “due process violation.”  (People v. Neal (2003) 31 Cal.4th 63.)  This current case does not even come close to that; the officers here (1) being in the throes of a highly emotional situation having just lost one of their own, (2) checking back with defendant for the sole purpose of seeing if he had changed his mind after he’d indicated that he might, and (3) the DA sending in Dr. Patterson unaware that defendant had invoked his more restrictive right to counsel.  So don’t feel you can use this case as authority for ignoring one’s Miranda rights, nor cajoling him into changing his might about a prior invocation.  The judges in your case may not be nearly so forgiving.

• 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