COURT
OF APPEAL REINSTATES ONTARIO OFFICER
By
Dieter Dammeier
Lackie & Dammeier
David
Mullican, a 20-year veteran of the Ontario Police Department, was
terminated by the city for allegedly making false statements to a
supervisor. The Superior
Court, and now the Court of Appeal sided with Mullican in finding that
the evidence used against him in his termination proceedings was
obtained unlawfully by the department and therefore could not be used.
In reaching this conclusion, the Court of Appeal addressed two
areas of the Public Safety Officers Procedural Bill of Rights Act (POBR),
which had never before been clarified by a state Appellate Court.
As a result of the court’s ruling, Mullican was ordered
reinstated with full back pay. Mullican
was represented throughout his process by Michael Lackie, Tony
Snodgrass, and Michael Morguess, all with the Lackie & Dammeier law
firm.
In
the summer of 2000, Detective Mullican’s supervisor, Sergeant Mendez,
began making inquiry as to Mullican’s investigation of an embezzlement
case he thought was assigned to Mullican.
Mendez conducted a written interrogation of Mullican by giving
him a memorandum with numerous questions about the investigation.
Mullican requested that he be allowed to consult with a
representative prior to responding to the questions, however, Mendez did
not allow such representation and ordered a response by 5 p.m. the next
day. Mullican wrote in his
response that a review of his files had no indication that he worked on
the arrest in the case. While he wrote this from memory, in reality, Mullican did in
fact work on the case along with the hundreds of other cases he handled
in the Detective Bureau.
On
August 23, 2000, an hour before Mullican was due to arrive at work,
Mendez searched through Mullican’s desk.
In one of the drawers he found a case logs prepared by Mullican
for 1999 cases. On one of
the pages, Mendez found an entry indicating that Mullican had been
assigned the embezzlement in September 1999.
Mendez photocopied this page and returned it to Mullican’s desk
drawer without his knowledge. Rather
than pointing out to Mullican that he had found documentation to
indicate that Mullican had been assigned the case and attempt to refresh
Mullican’s memory, the sergeant designed a trap to lure Mullican into
what the department claimed was untruthfulness.
Mendez, again in writing and again without allowing
representation, asked Mullican about his 1999 case log, which Mullican
indicated he no longer had. Mullican
was thereafter placed on administrative leave pending an internal
investigation alleging untruthfulness to a supervisor and was ultimately
terminated for this allegation.
Search
of the Desk
The
Court of Appeal, for the first time, addressed whether the POBR,
specifically Government Code §3309, applied to a desk.
While most officers understand that there are certain procedural
safeguards in place when searching a “locker” §3309 also includes
“other space for storage” assigned to an officer.
Lackie & Dammeier argued, and the Court of Appeal agreed,
that a desk assigned to a detective certainly falls within “other
space for storage” assigned to an officer. Accordingly, the court held that Mullican’s desk could not
have been searched validly without his consent, a valid search warrant,
or in his presence. In
reaching this conclusion, the court was shown legislative history
illustrating that lockers were not the only area protected by the
provision.
Written
Interrogation
Another
issue addressed for the first time by a State Appellate Court was the
applicability of interrogation rights to questions put in writing.
The court first reviewed §3303, which provides that any
“interrogation . . . that could lead to punitive action,” must
comply with the procedural safeguards of the Act.
These procedural safeguards include being informed of the nature
of the investigation prior to any interrogation and being allowed a
representative of your choice to represent you during such
interrogation. The court
found that when Mendez was asking Mullican about the case log, already
knowing what it said, (since he had already taken it from the desk),
Mendez was obviously focusing on Mullican for potential punitive action. The court went out of its way to explain that even though the
interrogation was in writing, that in no way should an officer’s
rights be diminished. To do
so, would allow a department to circumvent the procedural safeguards of
the act simply by conducting interrogations in writing.
After
concluding that the department violated Mullican’s rights as described
above, the court next decided the appropriate remedy.
Given that all of the evidence against Mullican was obtained by
Mendez’ violations of the act, the court concluded that it could not
be used against Mullican. Accordingly,
there would be no evidence to uphold Mullican’s termination.
As such, the city was ordered to reinstate Mullican with full
back pay. Mullican was very grateful to his attorneys at Lackie &
Dammeier as well as PORAC’s Legal Defense Fund, who supported Mullican
throughout his ordeal.
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