CASE UPDATES

By: Martin J. Mayer

Crime Control Only Checkpoints Violate Fourth Amendment

City of Indianapolis, et al. v. Edmond, et al. 531 U.S. 32 (2000)

The City of Indianapolis operated vehicle checkpoints in an effort to interdict unlawful drugs. At each checkpoint location, the police stop a predetermined number of vehicles. Pursuant to written directives issued by the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration. The officer also looks for signs of impairment and conducts an open-view examination of the vehicle from the outside. A narcotics-detection dog walks around the outside of each stopped vehicle. The directives instructed the officers that they may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the same manner until particularized suspicion develops, and the officers have no discretion to stop any vehicle out of sequence.

Edmond and others, who were each stopped at a checkpoint, filed suit claiming that the roadblocks violated the Fourth Amendment of the United States Constitution. The District Court denied Edmond a preliminary injunction, however the Seventh Circuit Court of Appeals reversed, holding that the checkpoints contravened the Fourth Amendment.

The United States Supreme Court held that because the checkpoint program's primary purpose was indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.

The Supreme Court pointed out that the rule that a search or seizure was unreasonable under the Fourth Amendment, absent individualized suspicion of wrongdoing, had limited exceptions. As an example, the court pointed out that it has upheld brief, suspicionless seizures at a fixed checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U.S. 543, at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, and that a similar roadblock to verify drivers' licenses and registrations would be permissible to serve a highway safety interest, Delaware v. Prouse, 440 U.S. 648, 663. However, the Court pointed out that it had never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.

This latter purpose, the Court noted, was what principally distinguished the checkpoints at issue from those it previously approved, which were designed to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.

The Court opined that the checkpoints' purpose could not be rationalized in terms of a highway safety concern similar to that in Sitz, or likened to the anti-smuggling purpose in Martinez-Fuerte. The Court noted that if the program could be justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations, authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license of sobriety check.

The Court concluded that it's holding in this case does not alter the constitutional status of the checkpoints approved in Sitz and Martinez-Fuerte, or the type of checkpoint suggested in Prouse. Nor does it affect the validity of border searches or searches in airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. It does not impair police officers' ability to act appropriately upon information that they properly learn during a checkpoint stop, justified by a lawful primary purpose. Finally, the purpose inquiry is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.

/ How does this impact your agency?

The U.S. supreme court has clearly spelled out the parameters that law enforcement agencies must utilize in conducting vehicle checkpoints, as well as airport and governmental building searches. Agencies that operate outside of these parameters do so at their peril.

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Employer's Hidden Camera Without Sound Was Not Recording of "Confidential Communication" In Violation of PC § 632

People v. Drennan 84 Cal.App. 4th 1349 (2000)

Craig Boyd Drennan was the Superintendent of the Modoc Unified School district and Dewey Pasquini was the principal at Modoc High School during the 1998-1999 school year. Drennan asked the school district's attorney if it would be lawful to install a hidden camera in Pasquini's office to determine if someone was breaking into Pasquini's office and taking or reading confidential documents. The attorney informed Drennan he lawfully could install the camera as long as it had no sound recording capabilities. Although Drennan contacted the school board president and notified him of the camera, he did not inform Pasquini.

The camera, hidden in a fake smoke detector, was installed and adjusted to show only the desk, file cabinets, bookcase and credenza, not the entire office. The camera had no audio capabilities and took pictures at the rate of one frame every three seconds. The tapes did not uncover any evidence of a break-in of the office and Drennan had the taping stopped and the tapes destroyed.

A jury found Drennan guilty of violating section 632, subdivision (a) of the California Penal Code and the court sentenced Drennan to three years felony probation on condition he serve 10 days in the county jail and pay fines and restitution in the sum of $7,010.

The California Court of Appeal Third Appellate District (Modoc) reversed the conviction, holding that the photographing of the principal's office for a purpose and in a manner which did not reveal the content of any conversation, was not an intentional act of recording a "confidential communication" as those terms are used in Penal Code section 632.

The issue the Court addressed was whether the prohibition on eavesdropping upon a confidential communication, contained in section 632(a), extends to the taking of timed, still photographs, without accompanying sound; the Court concluded it does not. Nor does section 632 protect a general right of privacy from unconsented videotaping. Such a right, enforced by penal sanctions, is found in section 647, subdivision (k).

The Court noted that no evidence was presented that the videotaped photographs captured an image of persons communicating to anyone by means of actions or signs the content of which could be deciphered. The Court disagreed with the People's contention that section 632 prohibits the mere taking of the pictures of persons engaged in a confidential communication, and that the term "recording" need not include the content of the communication.

Analyzing the legislative intent the Court opined that the Legislature primarily equated "communication" with conversation, and that section 632 was meant to address sound-based communications. The Legislature intended to prohibit the recording of oral or telegraphic communications between two or more persons, not photographing of two or more people carrying on a conversation.

The Court concluded that "[a] better candidate to control the sort of picture taking which occurred here would be section 647, subdivision (k), which provides every person 'who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, or camcorder, the interior f of a bathroom, changing room, fitting room, dressing room, or tanning both, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or person inside" is guilty of a misdemeanor.

/ How does this impact your agency?

This case does not affect Sacramento Co. DSA v. Sacramento Co. 51 Cal.App.4th 1468 (1997), holding that the surreptitious video surveillance of jail employees was not unconstitutional due to diminished expectation of privacy by employees working in an institution. It does however reinforce the restriction placed by Penal Code section 647(k) on viewing " ... the interior of any other area in which the occupant has a reasonable expectation of privacy." Legal advisors should be consulted whenever any type of recording is going to be utilized to gather evidence of wrong doing on the part of employee or citizen.

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"Firefighter's Rule" Bars Claim By Officer Bitten During Arrest By Another Agency Canine

Farnam v. State of California (CHP) 84 Cal.App. 4th 1448 (2000)

After participating with other law enforcement agencies in the vehicle pursuit of a suspected felon, Joseph Morrison, a California Highway Patrol officer, learned by radio the suspect had been stopped. Officer Morrison, accompanied by his canine, Barry, went to the scene of the attempted arrest. Upon arrival Officer Morrison stepped out of his vehicle holding Barry by a choke collar and discovered Ronald Farnam, a Los Alamitos police officer, standing by the suspect's car with a gun pointed at the suspect. Barry mistook Officer Farnam for the villain, broke free from Officer Morrison and bit Farnam.

Officer Farnam filed suit against Morrison and the Highway Patrol. The trial court granted defendants' summary judgment motion, concluding that public safety officers were shielded from liability under Government code section 821.6 which creates an immunity caused by "instituting or prosecuting any judicial or administrative proceeding."

The California Court of Appeal Fourth Appellate District affirmed the summary judgment in favor of CHP Officer Morrison and the State of California because primary assumption of the risk (the "firefighter's rule") barred the claim.

The Court opined that the duty of care the officers owed to the public precluded their owing a duty of care to each other. The hazard posed by the police dog was inherent in the activity the public hired Officer Farnam to perform, thus primary assumption of risk bars the claim. The Court also relied on the California Supreme Court's holding in Calatayud v. State of California, 18 Cal.4th 1057 (1998), where a highway patrol officer was attempting to subdue a suspect and accidentally shot a city police officer who came to his assistance. There the Supreme Court held that public safety employees are employed to handle the very hazard that causes the injury, and they receive special public compensation for being exposed to the dangers caused by the defendants' negligence.

/ How this affects your agency:

This case does not affect the agency, only the right of an officer to bring an action against another agency and/or employee for an injury, caused by another officer, received during the course and scope of his or her employment.

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Deceptive Tactics Prior to Miranda Warning Requires Suppression of Statements

United States v. Orso 234 F.3d 436 (2000)

A Unites States postal letter carrier was approached by Jody Myesha Orso who demanded the keys used to open U.S. Postal Service collection boxes and group mailboxes at apartment buildings. After receiving the keys and taking the mail satchel Orso fled on foot.

After U.S. Postal Inspectors Galetti and Tiller obtained information which made Orso a suspect, they left their cards at her residence, requesting that she call them. Orso contacted Tiller and spoke with him by telephone. Shortly thereafter a federal arrest warrant was issued for Orso for robbery of a U.S. postal letter carrier. Orso was arrested by Redondo Beach police officers on an unrelated charge more than two months later and taken to the Redondo Beach Police Department. The officers then notified Galetti that they were holding Orso.

Tiller and Galetti took Orso into custody and transported her to the Postal Inspection Service Office to conduct a formal interview. Orso was handcuffed behind her back and placed in the rear seat of the vehicle for the 25-35 minute drive. Orso was not informed of her Miranda rights at any time before or during the car ride. Testimony by Galetti was that neither he nor Tiller gave Orso a Miranda warning prior to discussing the crime with her because, "[w]e wanted to eventually speak with us."

The first 15 minutes of the drive was conversation unrelated to the actual robbery but, about halfway through the ride, Galetti began to discuss the robbery with Orso. According to Galetti, he told Orso not to say anything as he only wanted to inform her of the facts and evidence implicating her in the robbery. Galetti admitted that he lied to Orso telling her that a witness to the robbery thought that she might have seen a gun used, even though Galetti was fully aware that no such evidence existed. Knowing that Orso would not be charged with armed robbery, Galetti nonetheless informed her that the maximum statutory penalty for armed robbery of a letter carrier was 25 years incarceration. Galetti then told her that he did not believe a gun was used, and that the statutory maximum penalty for unarmed robbery was ten years, but that a more realistic sentence would be five years. Orso responded, saying, "Oh, I can do five years."

Galetti then informed Orso that the letter carrier had identified her, to which Orso responded that she "had never stood in a lineup before." Galetti explained that it was actually a picture of her that the letter carrier picked out and then told Orso that others involved in the robbery had essentially identified her. At that point, Orso stated that if the letter carrier said it was her, then it must be her.

After arrival at the Postal Inspection Service Office, a little more than ten minutes after Orso made the incriminating statements, Galetti and Teller advised her of her Miranda rights, which she immediately waived by signing a standard form. Orso was interviewed for approximately one and some half hours, during which time she fully confessed to her involvement in the robbery. Orso moved to suppress both the statements she made in the car prior to receiving the Miranda warning and the post-warning statements she made. The district court denied the motion. Orso subsequently changed her plea to a conditional guilty plea and was sentenced to 37 months in prison.

The United States Court of Appeal Ninth Circuit vacated and remanded, concluding that before Orso was advised of her Miranda rights the government deliberately employed improper tactics in order to secure incriminating statements and the taint of those tactics infected her subsequent confession. The Court held that her statements, before and after she was advised of her Miranda rights, must be suppressed.

The government conceded that the inspectors committed a Miranda violation by their conduct in the car. The Court noted that a Miranda violation occurs when a suspect is interrogated while in custody without first being advised of his or her rights, therefore, because Orso's Miranda rights were violated in the car, her statements to the inspectors while she was being transported had to be suppressed.

The Court addressing the use of improper tactics noted that Galetti's interrogation tactic was deliberate; that he admitted that he employed it in order to get Orso to speak notwithstanding the Miranda warning that would follow. The court also noted that the taint of the prior interrogation had not dissipated by the time Orso confessed at the station. The confession occurred approximately ten minutes after the colloquy in the car ended and did not involve a change in the identity of the interrogators. The deliberate use of improper tactics and the deliberate failure to give Orso a Miranda warning prior to the initial interrogation had their intended effect. There was no break in the chain of events.

/ How this affects your agency:

Personnel must follow proper interview techniques and not engage in deliberate and improper tactics when dealing with suspects. There are no cuts, and failure to advise an individual of his/her rights may not only end in the reversal of a conviction but also subject the officer and agency to unnecessary liability.

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Officer Cannot Be Retired Without Consent Solely Due to Condition Being Permanent And Stationary

City of Martinez, et al. v. W.C.A.B. (Bonito) 85 Cal.App. 4th 601 (2000)

Rhonda Bonito was employed as a full-time police officer by the City of Martinez and sustained industrial injuries to her right knee. Originally, by stipulated Board award, the parties agreed to a permanent partial disability rating of 15½ percent and a precautionary need for future medical treatment. Following two surgeries and light duty assignments the condition of Officer Bonito's knee eventually declined to the point where she could no longer perform the full-time patrol duties required of a police officer. Her temporary light duty position ended on her last date of employment.

The City commenced vocational rehabilitation services, but refused to pay her the balance of her section 4850 benefits. Instead, the City advanced PERS disability pension payments under section 4850.3 and sought to retire Officer Bonito on a PERS industrial disability pension. Officer Bonito disputed the separation date, claiming entitlement to the balance of her section 4850 benefits while she was participating in vocational rehabilitation.

The Workers' Compensation Appeals ordered the City to pay Officer Bonito the balance of her one-year section 4850 benefits, in lieu of maintenance allowance payments under section 139.5(c).

On appeal to the California Court of Appeal First Appellate District, the City maintained that Officer Bonito was not entitled to section 4850 benefits because the parties had stipulated Officer Benito's condition was permanent and stationary according to medical evidence. The City argued that the stipulation gave it the unqualified right to retire Officer Bonito consistent with Government Code section 21164 and, therefore, terminate entitlement to section 4850 benefits, notwithstanding Officer Bonito's participation in vocational rehabilitation.

The Workers' Compensation Appeals Board ordered the City to Pay Officer bonito the balance of her one-year section 4850 benefits, in lieu of maintenance allowance payments under section 139.5(c).

On appeal to the California Court of Appeal First Appellate District, the City maintained that Officer Bonito was not entitled to section 4850 benefits because the parties had stipulated Officer Bonito's condition was permanent and stationary according to medical evidence. The City argued that the stipulation gave it the unqualified right to retire Officer Bonito consistent with Government Code section 21164 and, therefore, terminate entitlement to section 4850 benefits, notwithstanding Officer Bonito's participation in vocational rehabilitation.

The Appellate Court disagreed with the City's contentions and held that a municipality could not invoke Government Code section 21164 to retire a police officer without her consent on an industrial disability pension under the Public Employees' Retirement System solely because her work-related condition was "permanent and stationary," when the officer was engaged in vocational rehabilitation pursuant to the express provisions of section 4850.

/ How this affects your agency:

This case changes the manner in which an employing entity may involuntarily medically retire a peace officer. Department administrative staff, including the Chief and Sheriff, must become familiar with any new procedures required, as well as fiscal considerations that must be considered for budgetary purposes.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. If you have any questions or wish to discuss these cases in more detail, please do not hesitate to call us at (714) 446-1400.

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