CASE UPDATES

By: Martin J. Mayer

INTERVIEW NOTES MAY BE DESTROYED

ATTORNEY GENERAL OPINION: 98-204

The honorable Michael D. Bradbury, District Attorney, County of Ventura, requested an opinion on the following question:

Prior to the filing of a criminal complaint, may law enforcement agencies destroy interview notes containing witness statements that have been transferred to a formal report?

CONCLUSION
Prior to the filing of a criminal complaint, law enforcement agencies may destroy interview notes containing witness statements that have been transferred to a formal report.

/ What does this mean to your agency?

This opinion addressed the concerns recent changes in California's criminal discovery statutes, Penal Code §§ 1054-1054.7, and case law holding that interview notes of witness statements are subject to discovery. The key here is that language in Penal Code § 1054.1 does not change the longstanding duty of law enforcement agencies regarding the preservation of notes of witness statements prior to the filing of a criminal complaint. If disclosable evidence is in existence, law enforcement agencies have a general duty to undertake reasonable efforts in good faith to locate it for purposes of discovery. Nothing in case law imposes any duty with regard to evidence not in existence at the time of the filing of the criminal complaint. Therefore it is incumbent upon the agency to insure that the contents of any notes to be destroyed must be included in the officer's report.

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NOTICE OF HOW TO RETRIEVE SEIZED PROPERTY NOT REQUIRED

CITY OF WEST COVINA v. PERKINS 99 Daily Appellate Report 421

Pursuant to a valid search warrant, West Covina police officers lawfully seized personal property at the Perkins' home and left a notice form specifying the fact of the search, its date, the searching agency, the warrant's date, the issuing judge and court, and the persons to be contacted for information, as well as an itemized list of the property seized. The officers did not leave the search warrant number, but the warrant's issuance was recorded by Perkins''s address and warrant number in a public index.

The Perkins filed suit after their attempts to obtain return of the seized property failed. The Ninth Circuit held that the Due Process Clause required that Perkins be provided, in addition to the information set forth in the city's form, detailed notice of the state procedures for return of seized property and the information necessary to invoke those procedures, including the search warrant number or a method for obtaining it.

The United States Supreme Court reversed and remanded, holding that when police seize property for a criminal investigation, the Due Process Clause does not require them to provide the owner with notice of state-law remedies for the property's return. The Supreme Court pointed out that individualized notice that officer have taken property is necessary in a case such as this one, because the owner has no other reasonable means of ascertaining who is responsible for his loss. However, no similar rationale justifies requiring notice of state law remedies which, like those at issue, are established by published, generally available state statutes and case law.

/ What does this mean to your agency?

The United States Supreme Court has upheld the California law enforcement agencies notification procedures when they seize property pursuant to a valid search warrant. If an agency revised it's forms to include information the Ninth Circuit required and desire to continue providing the additional information there is no reason to change. Those agencies that do not provide the additional information need not change their forms, providing they are complying fully with Penal Code requirements.

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MOU NEED NOT BE VIOLATED TO PROVIDE REASONABLE ACCOMMODATION

WILLIS, et. al. v. INTERNATIONAL LONGSHOREMEN'S UNION 162 F.3d 561 (9thCir.1998)

David Willis and Paul Gomez, members of the International Longshore and Warehouse Union, worked on the docks in the San Francisco Bay Area. The union had a collective bargaining agreement with the Pacific Maritime Association, an association of the areas main employers of dockworkers.

Because work was sporadic, the Maritime Association and Union established a system through collective bargaining by which the union members report each day for a work assignment to a hiring hall were work was assigned by a seniority system. The most senior dock workers were classified as Class A. Class A workers who were over 55 years of age or disabled, were allowed to request placement on the Dock Preference Board, which also had a seniority assignment system, a long waiting list and was covered by the collective bargaining agreement. Those on the Preference Board were given priority for light duty assignments.

Due to multiple injuries, Willis requested and was placed on the Preference Board, and despite additional requests, remained on the waiting list until retirement. Willis sued the Maritime Association and the union claiming disability discrimination. The trial court granted the Maritime Association's request for summary judgment. The Ninth Circuit Court of Appeals affirmed, joining with the Third, Fifth, Seventh, Eighth and Tenth Circuits, in holding that accommodation requests that violate a collective bargaining agreement were unreasonable per se. Since there were more senior workers on the Preference Board waiting list, the court stated that it would have been unreasonable for the Maritime Association to reassign Willis. Willis, the court stated, failed to show that a specific accommodation was available, thereby failing to make a prima facie case under the ADA.

/ What does this mean to your agency?

This case reaffirms that in the name of reasonable accommodation an agency does not have to violate terms and conditions of an MOU.

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FAILING TO PREVENT INDIVIDUAL FROM COMMITTING SUICIDE DOES NOT CREATE LIABILITY

ADAMS et al. v. CITY OF FREMONT, et al. 68 Cal.App.4th 243 (1998)

Patrick Adams, who owned a shotgun and handgun, periodically went through periods of depression in which he would withdraw and isolate himself, and had informed his wife, Johnette, that he had been suicidal.

Patrick and Johnette argued over his drinking and he acted out of control, broke dishes and pushed Johnette, causing her to fall to the floor. Johnette left the residence and contacted the police. When the officers arrived, Sergeant Steven Osawa requested additional units and assistance of a trained negotiator. Adams did not respond to Sergeant Osawa, who identified himself and requested Adams surrender. Adams also failed to respond to the warning that a dog would be sent in if he did not come out.

When officer approached, they observed Adams sitting on the ground and pointing a gun at his chest. Adams emphatically advised officers to get the dog away and negotiations failed, leaving Adams' level of agitation increased. Adams told the officers that he could make them leave, and gunfire originated from his location. Eight officers fired at Adams, who was later pronounced dead.

The family sued the City of Fremont for wrongful death and a jury found that the officers negligently handled an emergency situation, awarding the family $4 million.

The California First District Court of Appeal reversed, finding that police officers responding to a crisis involving a person threatening suicide with a loaded firearm, have no legal duty that would expose them to liability if their conduct failed to prevent the threatened suicide from being carried out. The court found that although the officers could have responded to the situation in a less confrontational manner, there was no evidence that they intended or planned to precipitate Adams' suicide, had actual or constructive knowledge that their behavior would cause his suicide, or acted with bad faith or reckless indifference to the consequences of their actions.

/ What does this mean to your agency?

Where officers act reasonably and in good faith no liability will attach for actions taken situations where an individual carries out his/her suicidal plan. Agencies should, however, guard against, as the court observed here, responding in a confrontational manner. Department's should also give serious consideration to developing methods which would minimize becoming involved in an officer assisted suicide.

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WHERE CURFEW VIOLATION IS ONLY OFFENSE FOURTH AMENDMENT VIOLATED TRANSPORTING TO STATION AND INTERROGATING MINOR

IN RE JUSTIN MICHAEL B (People v. Justin Michael B.) 99 Daily Appellate Report 1127

Manhattan Beach Police Officer Cochran observed a pickup truck, which had a broken taillight and large crack across the entire length of the windshield, traveling about 60 MPH in a 40 MPH zone, at 3:56 a.m. After stopping the vehicle Officer Cochran approached and asked Joseph C., a minor, for his license, vehicle registration, and proof of insurance, which Joseph C. provided, showing the truck as registered to his father.

While standing at the driver's window, Officer Cochran, who had a flashlight, observed three "cell phones" with cigarette lighter adapters next to a "very large speaker box" on the back floor bed of the extended cab on the drivers side. He also noticed an owner's manual from a Ford Explorer and another manual cover from a Lincoln next to it.

When asked who owned the phones, Joseph C. responded that they belonged to his father who was "a cable guy." When asked where he was coming from and where he was headed, Joseph C. replied "they had been working on his vehicle at his house earlier in the evening and went to Jack-in-the-Box to get something to eat." Officer Cochran considered the reply suspicious because the vehicle was not being driven in a manner consistent with the statement that "they were heading home" in view of the address on the driver's license and the his personal knowledge of the location of the two Jack-in-the-Box restaurants he was aware of in the surrounding area.

Based on his suspicion that Joseph C. and his passenger, Justin Michael B., were involved in auto burglaries, Officer Cochran removed the minors from the pickup, placed both under arrest, handcuffed and placed them in the back of his unit. Officer Cochran retrieved the cell phones and conducted a search, finding in front of the bench-type seat a black canvas bag containing "screwdrivers, pliers, and channel locks," which he opined were "the type that are commonly used to help commit burglaries." Officer Cochran was aware, at the time of the traffic stop, that both occupants were minors and in violation of the Manhattan Beach curfew, which was in effect from 10 p.m. until 5 a.m., and believed a curfew violation was an "arrestable offense."

Officer Cochran impounded the vehicle and transported the minors to the station where he was unable to verify the cell phones were stolen. Officer Cochran interviewed Justin Michael B. in the station briefing room and he agreed to speak after having been advised of an waiving his rights. Justin Michael B. then made incriminating statements.

The juvenile court denied the suppression motion, finding that the items found in the truck were properly seized pursuant to a search incident to an arrest for probable cause; that the minors were in violation of curfew, which the court believed was an arrestable offense; and the officer was justified in conducting an inventory search because the pickup was impounded.

The Second District Court of Appeal reversed, holding that the mere presence of a passenger in a vehicle lawfully stopped for a traffic violation and which contained in plain view behind the driver's seat personal property which possibly could have been stolen from unknown vehicles at some specified time does not constitute probable cause to arrest the passenger for vehicle burglary or receiving stolen property. The court further held that where the minor's only offense is a curfew violation, a peace officer abridges a minor's right to be free from unreasonable searches and seizures (U.S. Constitution, 4th Amendment) when that officer transports the minor to the police station and subjects the minor to questioning designed to elicit incriminating responses.

/ What does this mean to your agency?

Officer's may be subjecting themselves and their department to unnecessary liability exposure where they act in a similar manner as stated herein. Departments should review their juvenile custody policies and procedures with the agency's legal advisor to ensure the policy/procedure comports with case law in these situations.

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TRAFFIC CITATION DOES NOT GIVE POLICE RIGHT TO SEARCH VEHICLE WITHOUT A WARRANT

KNOWLES v. IOWA 98 Daily Appellate Report 12417

Patrick Knowles was stopped for driving 43 mph in a 25 mph zone. Although arrest was an option, the officer chose to issue a citation instead. The officer conducted a full search of the car, and under the driver's seat found a bag of marijuana and a "pot pipe." Knowles was then arrested and charged with violation of state laws dealing with controlled substances.

Knowles moved to suppress the evidence, and at the hearing the officer conceded that he had neither Knowles' consent nor probable cause to conduct the search. He relied on Iowa law dealing with such searches. The Iowa Supreme Court had interpreted the provisions of Iowa law as providing authority to officers to conduct a full-blown search of an automobile and driver in those cases where police elect not to make a custodial arrest and instead issue a citation - that is, a search incident to citation. Based on this the trial court denied the motion to suppress and found Knowles guilty. The Iowa Supreme Court affirmed.

The United States Supreme Court reversed and remanded, holding that even though the search was authorized by state law, Knowles's Fourth Amendment right against unlawful search and seizure was violated. The court pointed out that the few minutes it takes an officer to issue a citation for speeding was more like a Terry stop, where an officer is permitted to pat down a person for weapons. Since the duration of the contact involved during a traffic stop is generally shorter than that required of an arrest, the threat to officer safety is not as great.

While a brief search for weapons, by asking the driver to step out of the car, may be justified in order to protect officer safety, a complete search of a vehicle was not called for in this case.

/ What does this mean to your agency?

Department's should review not only their policy and procedure for vehicle searches when the officer issues a citation in lieu of arrest, but also insure that field practice conforms to the policy. Not only will the criminal case be put in jeopardy but there also exists the probability that liability will ensue. (In re Lance W. 37 Cal.3d 873 (1985))

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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. As always, if you have any questions, please do not hesitate to call Martin J. Mayer at (562) 590-8280.

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