UPLAND POA et al. v. CITY OF UPLAND et al., (2003) 111 Cal. App. 4th 1294

Officer Nikola Kac, president of the Upland POA, was given a written notice of an internal affairs interrogation for his allegedly conducting Association business while on duty. Officer Kac contacted his chosen representative, Mr. Lackie, who immediately called IA Sgt. Adams and asked that the interrogation be rescheduled, and agreed to February 27, at 3:00p.m.

On February 27, at 1:00 p.m., Mr. Lackie called Officer Kac and told him that he was still in Burbank and would be unable to make the scheduled 3:00 interrogation. Mr. Lackie's secretary called Sgt. Adams at 2:00 p.m. and notified him of Mr. Lackie's unavailability. Sgt. Adams refused to reschedule the interrogation for a second time and told Officer Kac he would be proceeding at 3:00 p.m. and that he had the right to have another person represent him in the interrogation.

Mr. Lackie's law partner, Dieter Dammeier, called Sgt. Adams and Captain Cannon and asked that the interrogation be rescheduled. Dammeier insisted that Officer Kac had a right to have Mr. Lackie present as his chosen representative and immediately faxed a letter memorializing the telephone conversation. At 3:00 p.m. Sgt. Adams began the interrogation of Officer Kac.

The Association and Officer Kac subsequently filed for injunctive relief under § 3309.5. The trial court held that the officer had a right to have his chosen representative present and granted a preliminary injunction, which stated that the Upland Police Department was prohibited "from proceeding with an interrogation of an officer if the representative of his or her choice is unavailable."

The California Court of Appeal, Fourth Appellate District, Division Two, reversed, holding that although the Legislature clearly intended to give police officers procedural rights in interrogations, it clearly did not intend to allow the officers to dictate, by their choice of representative, whether an interrogation would occur at all.

The Appellate Court stated "... we fully support the officer's right to be represented by a person of his or her choice during an interrogation. We only hold that such a right is not unlimited. The officer must choose a representative who is reasonably available to represent the officer at the reasonably scheduled interrogation. But it is the officer's responsibility to secure the attendance of his or her chosen representative at the interrogation. If he or she is unable to do so, the officer should select another representative so that the interrogation may proceed 'at a reasonable hour.' (§ 3303,subd. (a).)"

The Appellate Court concluded that neither the Department nor the officer should be expected to change their schedules simply to accommodate a busy attorney, particularly since other members of the firm could have represented the officer at the scheduled questioning.

How does this affect your agency? This case makes clear that while agencies should accommodate the subject officer and his/her representative in scheduling IA interviews, the right to a representative of choice is not absolute, and the interrogation may proceed, especially where a rescheduling has been agreed upon and, at the last minute, the representative is unavailable.

In Re WILLIAM V., (2003) 111 Cal. App. 4th 1464; 4 Cal. Rptr. 3d 695

Officer David Johannes of the Hayward Police Department was assigned to Hayward High School as a School Resource Officer; had an office at the school and was on campus for eight hours a day. As Officer Johannes was walking towards the administration building, he observed William standing alone in the hallway and noticed William had a neatly folded red bandanna hanging from the back pocket of his pants in violation of school rules. When Officer Johannes made eye contact with William, William's behavior changed, he became nervous and started pacing.

Officer Johannes removed the bandanna from William's pocket and decided to take William to the principal's office for discipline. Before doing so, Officer Johannes conducted a pat-search and detected bulk around William's waistband. Officer Johannes could not determine what was causing the bulk because William was wearing baggy clothes, and a windbreaker jacket covered his waistband. Officer Johannes lifted William's jacket and observed a handle protruding from William's front pocket, which was found to be a steak knife with a five-inch serrated metal blade.

In juvenile court, William argued that Officer Johannes was not a school official and thus was required to have probable cause, rather than merely a reasonable suspicion, to conduct the search. The juvenile court denied William's motion to suppress the knife finding that, when conducting a search of a student on a school campus, School Resource Officers had the same authority as a school official, and that Officer Johannes' belief that gang activity was about to occur was reasonable and justified both the detention and the search.

The California Court of Appeal, First Appellate District, sustained the juvenile courts denial of William's motion to suppress, holding that a police officer, who was assigned as a resource officer at William's school, was a school official for purposes of the Fourth Amendment, and his search was justified by the reasonable suspicion that William was engaging in conduct that violated school rules.

The Appellate Court pointed out that in New Jersey v. T.L.O. (1985) 469 U.S. 325, the Supreme Court, in balancing the competing interests of a school's need to maintain a proper educational environment and the student's legitimate expectations of privacy, held that teachers and school officials need not obtain a warrant or have probable cause to search a student. "Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search."

How does this affect your agency? This case clarifies the status of law enforcement personnel assigned, as School Resource Officers and who have responsibility and offices at specific educational locations.

ABATTI v. SUPERIOR COURT OF IMPERIAL COUNTY, (2003) 112 Cal. App. 4th 39

The people filed an information charging David Abatti with assault with a deadly weapon on Danny Saiz. Abatti filed a "Pitchess" motion under Evidence Code §1043, seeking the inspection and disclosure of certain peace officer personnel records of former Calexico City Police Officer Jesse Torres, who had been identified by the People as a person who would be called as a witness against Abatti. The motion was made on grounds the personnel records of Torres contained evidence that was relevant to the issue of whether Torres "misstated or fabricated facts or made material misstatements in his report of the alleged contact with [Abatti]at the Imperial Valley Cycle Center. ... in December 2002."

The City responded in opposition arguing Torres had worked as a police officer until January 1, 1991, which made his last date of employment more than 12 years prior, and that none of Torres's records were discoverable as they were not within the five-year limitation of Evidence Code section 1045, subdivision (b).

At the March 2003 hearing on the motion, defense counsel clarified that this was not the typical "Pitchess" request seeking police officer personnel records regarding a police officer's activities with a defendant in a case. Counsel represented that his investigator had discovered Torres "may have had some problems while he was a police officer ... ." Because such information could impeach Torres at trial, counsel argued the information fell under Brady v. Maryland and was not barred by the five-year limitation. The Court denied the motion.

On April 1, 2003, Abatti filed another motion for pretrial discovery under "Pitchess," but tailored it under Brady. He asked for an in camera review for exculpatory evidence contained in "counseling memos" in Torres's personnel records with the Calexico PD which had been testified about at the first "Pitchess" hearing. The trial court again denied Abatti's motion.

The California Court of Appeal, Fourth Appellate District, concluded that the trial court had abused its discretion in failing to find materiality and good cause for the information sought under the hybrid "Brady/Pitchess" motion. The Court granted Abatti's petition, ordering the trial court to set aside its order, and to conduct an in camera review of the counseling memos to ascertain whether they contain information required to be disclosed under Brady.

The Appellate Court pointed out that the constitutional duty under Brady, requiring the disclosure of exculpatory evidence to a criminal defendant, was independent from the statutory duty under Evidence Code § 1054.1, subdivision (e), and applied even without a request from the accused. The Court pointed out that the five-year statutory time limitation of Evidence Code § 1045 subdivision (b)(1) was not an absolute bar to disclosure, quoting City of Los Angeles v. Superior Court, (2002) 29 Cal.4th 1. The court concluded that Abatti had established sufficient materiality under Brady, or good cause under "Pitchess," for the information requested to trigger an in camera review, holding the trial court failed to apply the proper standards when it refused to conduct such an inspection.

How does this affect your agency? As more "Brady" arguments are attaching themselves to "Pitchess" requests it is necessary for those who serve as the custodian of officer personnel records to coordinate with the agency legal advisor. If disciplinary matters may become future "Brady" material, departments may want to rethink their record destruction policy.