Superior Court Orders
Termination Set Aside; Rules Department Violated Officer’s Fourth
Amendment Rights.
By
Michael A. Morguess
Lackie & Dammeier LLP
El
Centro Police Officer Arnulfo Diaz was terminated from his employment
with the El Centro Police Department for failing to book found property.
The found property was in a box in Officer Diaz’ home, an accumulation
of items forgotten over an eight-year career with the police department.
Those items were seized by the El Centro Police Department. Frequently
officers come across items in the street that do not belong to any
particular case and whose ownership is unknown. This is known as found
property. Generally these items, even small ones, should be kept secure
until they can be booked into the department. They can be kept secure in
the patrol vehicle, an officer’s gear bag, or even his shirt pocket.
At one time, it was even the department’s practice to destroy found
property, including drugs.
When
confronted with the found property and photographs of it at his
administratively compelled interrogation, Diaz admitted that he kept
found property secure in his gear bag and forgot about it. When he
failed to book it into evidence, he would sometimes leave found property
at home. When he bought a new gear bag, he emptied out his old one, put
his gear into the new gear bag, and stored the found property in two
small boxes for booking later. The found property left at home
accumulated. The boxes were in the home owned by Diaz, in the south
bedroom, inside a closet, on the top shelf of that closet, in another
box that contained work gear. Diaz conceded during his administrative
interrogation that property is normally supposed to be booked into
evidence as soon as possible. Sometimes, while found property was in his
gear bag, he would show trainees how to identify certain types of
contraband, such as marijuana pipes. Once he removed the items and put
them into the containers, they remained there. The found property at
Diaz’ home included less than a gram of marijuana.
It was acknowledged by the department that he came into such
property legitimately. Moreover, the city of El Centro was not concerned
by any suspicion that Diaz used marijuana. This case simply turned on
whether Diaz should be terminated for having found property that he
neglected to turn in. Included among the found property, and in addition
to the small amount of marijuana (less than one gram) and marijuana
paraphernalia, were a knife, part of a license plate registration tab,
and an empty casing shall.
At
his administrative hearing, Chief of Police Raymond Loera testified that
Diaz had no prior discipline and that he is “one of the best officers
to have with you in a high-stress situation,” that he “goes out of
his way to solve citizens’ problems,” and that he is an “excellent
officer.” A “solid worker,” “he exceeds in all categories,” he
is “always either number one or number two producer on the team,”
and he is “serious about his work, and therefore, he is very good at
it.” Several officers testified that the amount of marijuana found
(one gram) was not even a bookable offense, but warranted only a
citation. Still, the Personnel Commission sustained the termination.
But
that is not how this case starts and ends. The reader must have asked
himself or herself by now how the items traveled from Officer Diaz’
home to the El Centro Police Department.
How
these items wound up in the hands of El Centro Police Department is less
than clear. The facts and circumstances giving rise to and surrounding
the search and seizure of Diaz’ private effects are not quite clear.
Prior to hearing the entire case, the El Centro Personnel Commission
conducted a Motion to Suppress Hearing.
One
page of a seven-page report, showed evidence was taken from Diaz’s
home address. No warrant
accompanied the search or seizure of the evidence, and no warrant was
attempted. No report
explains how alleged drugs were discovered; how police came to have
knowledge of facts justifying a warrantless search of the contents
inside a cardboard box; what knowledge, if any, they had to give
probable cause to seek a warrant, if any circumstances excused seeking a
warrant, included any exigencies or a search conducted incidental to an
arrest. In short, this is a
mystery.
All
that is known is what was gleaned from testimony at the hearing on the
Motion to Suppress. Interestingly, although the city was given an
opportunity to produce for testimony the only two witnesses to the
initial contact with police (the first officer on the scene and Diaz’
now ex-girlfriend), the city chose not to produce them, although the
city acknowledged that they would be the only persons with direct
evidence on the consent issue.
What
happened was that on an evening in January 2001, police were called by
Diaz’ live-in girlfriend, making a number of outrageous claims against
Diaz (these claims were investigated and unfounded). While Sergeant
Jerrold Novak was interviewing Diaz at his parents’ house, he received
a call from Officer Veronica Amparano to respond to Diaz’ home (where
the live-in girlfriend was). Novak testified that he arrived at Diaz’
house to respond to Amparano’s call and that apparently Amparano may
have looked in a box that the girlfriend alerted her to, but Novak did
not know exactly. Additionally, Novak testified that he did not know
what transpired between the girlfriend and Amparano.
He had just come from Diaz’ parents’ house, where he was
interviewing Diaz in connection with the original claims against Diaz by
his girlfriend, and where Diaz may have told him that he (Diaz) asked
his girlfriend to move out. Novak testified that when he arrived at
Diaz’ home, the girlfriend stated she found a box in Diaz’ closet;
the box had Diaz’ name on it; the girlfriend told Novak that the box
belonged to Diaz and that she claimed no interest in the box or its
contents. The box was closed and the girlfriend said there may be drugs
in the box, but Novak did not ask her whether they were illegal drugs,
and does not know if and how she (or Officer Amparano) knew about any
drugs. Novak opened the box
and searched its contents, then seized the box and its contents. Novak
also testified that he had no idea whether the first officer had opened
the box, personally knew that Diaz was the sole owner of the home, and
also testified that he (Novak) already doubted the ex-girlfriend’s
credibility. This was
because he had just been there a month prior when she threatened to take
her own life and blame Diaz for it.Sergeant Mike Crankshaw testified
that several days later he met with the girlfriend at the Diaz residence
to further investigate the allegations against Diaz and that she gave
him a closed box belonging to Diaz.
She claimed no interest in the box or its contents.
Crankshaw opened the box and searched its contents, and its
contents were not evidence of a crime. To both Novak and Crankshaw, the
girlfriend turned over a closed container, not its contents in plain
view.
The
Personnel Commission, in a 3-2 decision, denied the Motion to Suppress.
The majority found that since the boxes were turned over, even though
the boxes were closed, a search of the boxes was not conducted. Further,
the majority found that since the two cohabitated, the girlfriend had
authority to consent. Finally, the majority found that notwithstanding
the above, since the police were told that the boxes contained
contraband, it was appropriate to take the boxes into custody, and then,
since the boxes were in custody, it was appropriate for the police to
open the boxes “to insure their safety.”
After
the motion was denied, the hearing went forward, and the Personnel
Commission terminated Diaz for possessing the small amount of marijuana
and not following the found property policy over a period of years,
despite no prior discipline.
Lackie
& Dammeier, LLP, filed a Petition for Writ of Administrative Mandate
on behalf of Diaz. Diaz argued that the city failed to meet its burden
of justifying the warrantless search and that the city’s failure to
put on the two witnesses who were present during the girlfriend’s
initial contact with police, was fatal to justifying the search. We also
argued that the girlfriend had no authority to consent to the search,
and that it was unreasonable for Sergeants Novak and Crankshaw to
believe that the girlfriend had authority to consent, because she even
told them that the boxes were not hers, were found among Diaz’ things,
that she had no interest in the items.
Therefore, the city failed to show that the girlfriend shared
mutual use of the property or otherwise had any sufficient relationship
to the items to exercise authority to consent, United States v.
Matlock, 415 U.S. 164 (1974).In this case, given all the
information known to Novak, he was basically on notice to dig further on
the issue of the girlfriend’s authority to consent, United
States v. Reid, 226 F. 3d 1020 (9th Cir. 2000). The
current relationship was also relevant. Novak had just come from Diaz’
parents’ house and knew that the relationship between Diaz and his
girlfriend was tumultuous, if not over, People v. Carter
(1957) 48 Cal.2d 737. The same arguments applied to the second box
confiscated.
Even
if Diaz could get the Superior Court to agree that there was a Fourth
Amendment violation, the next big hurdle was getting the court to apply
the exclusionary rule to an administrative hearing to suppress the
illegal evidence and its fruits . In this regard, Diaz relied on Dyson
v State Personnel Board (1989) 213 Cal. App. 3d 711, where a
California Court of Appeal determined that under the right circumstances
the exclusionary rule is applicable to administrative proceedings.
Here,
the El Centro Police Department, Diaz’ employer, conducted a search
and seized evidence. This
same agency, the El Centro Police Department, as well as the city of El
Centro, now wished to use against Diaz the same evidence that it
searched and seized. As in the cited case, there “could not be a
closer nexus” between the offending party and the party trying to use
the evidence, and therefore the exclusionary rule would serve a
deterrent effect in this case.
After
taking the matter under submission, the Superior Court granted the
Petition for Writ of Administrative Mandate, finding that the El Centro
Police Department violated Diaz’ Fourth and 14th Amendments
rights, ordered the evidence and its fruits suppressed, and the
termination set aside. The court noted Diaz had a reasonable expectation
of privacy in the contents of the boxes, and it was the city’s duty to
justify the warrantless search. Having
the girlfriend turn over Diaz’ things was quite clearly vindictive,
and as one of the department’s officers testified, such behavior is
common. Given the knowledge of the situation at the time of searching
the items, and the doubt Novak had for the girlfriend’s credibility,
this put Novak on notice. Moreover, the court ruled, the city, though
given time to produce two key witnesses, failed to do so. Since the
girlfriend stated that items were not hers, and were among Diaz’
things, the court ruled that it was unreasonable for Novak to believe
the girlfriend had authority to consent to a search of the boxes.
Furthermore, the court ruled that since the searching agency was the
same one using the evidence in the termination hearing, the exclusionary
rule applied. The court ultimately determined that the foregoing
violations rendered the administrative hearing unfair, and finally,
that, at any rate, termination was an abuse of discretion.
The
author wishes to thank LDF and Larry Friedman for having faith in the
principles of this case and for giving Officer Diaz an opportunity to
right a wrong.
About
the author: Michael
A. Morguess is an attorney with Lackie & Dammeier, LLP. He practices
in the area of the Public Safety Officers Procedural Bill of Rights Act,
disciplinary and administrative mandate cases, and other employment
relations statutes.
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