CPOA Case Summaries – November 2016

CONSTITUTIONAL LAW

  1. Suppression of evidence obtained during inventory search of vehicle not required where the inventory search was conducted pursuant to established police policy, and where the search was also justified as incident to defendant’s arrest for driving under the influence of a controlled substance.

People v. Quick, 2016 Cal. App. LEXIS 1011 (Cal. App. 2d Dist. Nov. 22, 2016)

FactsOn the same day Atascadero Police Officer Matthew Chesson was advised that Daniel Grant Quick, a convicted felon, was involved in narcotics activity and had multiple firearms, Chesson received a call from a narcotics detective informing him that Quick had just left his residence in a black Mercury. Chesson followed Quick, saw him commit three Vehicle Code violations, and stopped him. While speaking to Quick, Chesson noticed that Quick was exhibiting symptoms of a person under the influence of a controlled substance. Quick admitted that he had used Percocet and marijuana earlier that day. Chesson asked Quick to step out of the car for a field sobriety test. Although Quick initially refused to step out of his vehicle, he eventually got out of the car. As he did so, he removed his jacket and threw it on the driver’s seat, then closed the car window, threw his keys inside the car, and locked and shut the car door.

Chesson conducted field sobriety tests and determined that Quick was under the influence of a controlled substance, and arrested Quick for driving under the influence. Another officer that had arrived as back up, Sergeant Jason Carr, assisted in Quick’s arrest. Carr ordered that Quick’s vehicle be impounded because it was blocking a driveway and was parked 24 inches into the roadway, creating a traffic hazard. Pursuant to Vehicle Code sections 22651(b) and 22651(h) and established departmental policy, officers conducted an inventory search of the vehicle, where they found nearly 26 grams of methamphetamine in the jacket pocket, methamphetamine pipes, and a Taser.

At trial, Quick moved to suppress the evidence obtained during the inventory search. The trial court denied the motion, finding that Chesson had a rational suspicion to effectuate the traffic stop and probable cause to arrest Quick for driving under the influence of a controlled substance. The court found Chesson had legal authority to search the interior of Quick’s vehicle since he was arresting him for being under the influence of a controlled substance or driving under the influence. In the alternative, the court concluded the inventory search was conducted pursuant to standard vehicle impound procedures and not for investigatory purposes.

After the trial court denied his motion to suppress, Quick pled guilty to possession for sale of a controlled substance. Quick appealed. On appeal, Quick argued that (1) the inventory search was an unlawful ploy to facilitate a narcotics investigation and (2) the search incident to arrest was unreasonable because the officers had no reason to believe evidence relevant to the arrest for driving under the influence of a controlled substance would be found in the vehicle.

Held: The search of Quick’s vehicle was lawful as either an inventory search or a search incident to a lawful arrest. As to the inventory search, the Second District explained that, pursuant to the community caretaking doctrine, police may, without a warrant, impound and search a vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose. Noting Sergeant Carr’s testimony that the car was blocking a driveway and parked two feet into a narrow road, that the vehicle was impounded pursuant to Vehicle Code sections 22651(b) and 22651(h), and Carr’s testimony that the inventory search was required to document what was in the vehicle and to protect both the tow company and the police department, the Court found that the trial court reasonably concluded that the inventory search was a lawful inventory search aimed at securing the vehicle and its contents.

Next, citing Arizona v. Gant and People v. Nottoli, the Court concluded that the trial court did not err in finding that the search was reasonable incident to arrest for driving under the influence of a controlled substance. In reaching its conclusion, the Court noted that Quick admitted to using Percocet and marijuana earlier in the day and was under the influence of a controlled substance when driving. It also noted that he threw his jacket and keys into the car, rolled up the window, and locked and closed the door, which Chesson thought was odd but consistent with the behavior of someone driving under the influence who was trying to hide drugs. Since it is generally reasonable for an officer to believe that items related to drug or alcohol consumption might be readily contained in an intoxicated person’s car, the Court found the search as valid incident to lawful arrest of Quick for driving under the influence. The Court noted that a person arrested for driving under the influence cannot defeat a search incident to arrest by locking incriminating evidence inside his vehicle, and that it is a crime to do so.

 

  1. Vehicle Code section 31, which prohibits lying to a peace officer engaged in the performance of his or her duties under the Vehicle Code, does not violate the First Amendment, but must be construed to include an element of materiality in order to avoid running afoul of the Fourteenth Amendment.

People v. Morera-Munoz, 5 Cal. App. 5th 838 (1st Dist. 2016)

Facts: In September 2014, when a San Francisco police officer was dispatched to investigate a report of a person asleep behind the wheel of a vehicle parked in a lane of travel, the officer came upon Defendant Wilson Morera-Munoz, asleep in the vehicle with his seat belt fastened. The keys were in the ignition, but the car was not running. When the officer reached in to retrieve the keys, he smelled an odor of alcohol, so he ordered Defendant to exit the vehicle and stand on the sidewalk. Defendant denied having had anything to drink and told the officer he had been on his way home from work. The officer conducted a breath test, which showed that Defendant had blood alcohol levels of 0.260 percent and 0.266 percent. Defendant was arrested on suspicion of driving under the influence.

The People filed a criminal complaint charging Defendant with several crimes, including violation of Vehicle Code section 31 (“Section 31”), which provides, “No person shall give, either orally or in writing, information to a peace officer while in the performance of his duties under the provisions of this code when such person knows that the information is false.”

At trial, Defendant testified that on the night of his arrest he was returning from an after-work party where he had consumed a few beers. He testified that he left the party with a friend, who drove Defendant’s vehicle and then left him inside with the keys in the ignition. Defendant then moved into the driver’s seat, where he fastened his seat belt and then fell asleep. The jury found Defendant guilty of violating Section 31.

Defendant appealed his conviction to the appellate division of the superior court, arguing that Section 31 is facially invalid under the First Amendment because it criminalizes the giving of any false information to a peace officer without regard to the materiality of the information. The appellate division reversed Defendant’s conviction, concluding that Section 31 must be construed to require the false statement at issue to have materially affected the performance of the officer’s duties. Since it found the statute would not survive intermediate scrutiny without the modification and because the jury had not been instructed on the element of materiality, the appellate division concluded retrial was necessary. In a modified final judgment, the appellate division declared Section 31 unconstitutional and ordered judgment in favor of Defendant. The First District ordered the case transferred on its own motion.

Held: On its face, Vehicle Code Section 31 does not address speech protected by the First Amendment. However, to avoid violating the Fourteenth Amendment, the statute should be construed to include an element of materiality.

On the First Amendment challenge, the First District first concluded that the appellate division erred in relying on United States v. Alvarez because, unlike the statute at issue in Alvarez, which prohibited falsely asserting that one had received certain military awards, Section 31 does not target protected speech. The Court explained that Section 31 legitimately criminalizes false statements that interfere with proper enforcement of the Vehicle Code, and that such statements do not implicate protected activity. As such, the Court concluded that the statute does not address speech protected by the First Amendment. It noted that, even if it assumed the statute addressed protected speech, it would nonetheless conclude that Section 31 is constitutional.

Next, the Court concluded that Section 31 is a content-neutral restriction because it is directed at false representations to the extent they have the potential to obstruct an official investigation, not at prohibiting a certain message. The Court held that Section 31 survived intermediate scrutiny, because the statute furthers a substantial government interest, is unrelated to the suppression of free speech, and does not target more speech than necessary.

Although it held Section 31 did not violate the First Amendment, the Court found that, to comply with the due process requirements of the Fourteenth Amendment, the statute must be construed to include the element of materiality. The Court explained that penal statutes must define a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement. The Court explained that the test of materiality is objective, with the question being whether a reasonable peace officer would find the information relevant and material to his or her investigation.

 

POBRA

Removal of an officer from SWAT team and honor guard assignments, which were collateral assignments, was not a “punitive action” under the Public Safety Officers Procedural Bill of Rights.

Perez v. City of Westminster, 5 Cal. App. 5th 358 (4th Dist. 2016)

FactsIn November 2007, Westminster Police Department (WPD) officers responded to a disorderly conduct call. Officer Brian Perez was among the officers that responded to the call. The suspect later complained that an officer (not Perez) struck him in the face. One week following the incident, Cliff Williams and Mark Groh of WPD interviewed Perez as part of the investigation of the excessive force complaint. Perez told Williams and Groh that he had not observed anyone striking the suspect or using excessive force. Williams and Groh advised Perez that there was a videotape of the incident, showing the suspect being struck by an officer and showing Perez close by, as well as witness statements that were inconsistent with Perez’s account.

WPD interviewed Perez again approximately two weeks later. In response to questions about the incident, Perez again indicated that he had not seen any excessive force used on the suspect. In January 2008, WPD gave Perez notice of intent to terminate his employment. The notice indicated that, although he was not the subject officer in the investigation, his complete and honest cooperation was required, and his version of the arrest was inconsistent with other officers that were present and video recordings of the incident, and it was apparent that he was in a position to witness the incident.

Perez appealed the decision to terminate his employment. In March 2008, WPD Chief Hall sent a letter to Perez’s attorney advising him that, after consideration of the information provided, the investigation report, and video images, he concluded that there was insufficient evidence to sustain findings that Perez violated WPD policy and procedure by knowingly making false or misleading statements during an internal affairs investigation and failing to report improper activities by other police personnel. As such, Chief Hall indicated that the disposition of the matter was “Not Sustained.” The letter noted that the determination should not be misunderstood as exoneration or innocence, and that his conclusion was strictly that the department had not met the evidentiary burden necessary to sustain a finding of severe misconduct.

Perez returned to his employment, but was removed from his SWAT team and honor guard assignments and was never assigned to duty as a field training officer. Perez filed a written claim with the City of Westminster pursuant to Government Code section 945.4. The City did not respond, and Perez filed a complaint in April 2009.

At trial, Chief Hall testified that he removed Perez from SWAT and honor guard because he had lost his confidence in him following the incident and investigation. He testified that Perez was not removed as punishment. Chief Hall also testified that Perez’s removal from these assignments and as a field training officer was not because he had exercised his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA).

The SWAT and honor guard assignments are considered collateral assignments, not formal, full-time assignments, and removal from the collateral assignments is not considered discipline but rather part of the Chief’s normal management of the department. Pursuant to the memorandum of understanding (MOU) between the City and the police bargaining unit, nonassignment of a field training officer is not disciplinary or punitive action. Perez could have filed a grievance regarding his removal from the assignments pursuant to the MOU, but did not do so.

The trial court found that the decision to remove Perez from his SWAT and honor guard assignments and to not assign him any trainees did not violate POBRA. Perez appealed. On appeal, Perez argued that his rights under POBRA were violated in the process of his termination, reinstatement, and removal of his collateral duties, and that he was disciplined in violation of Government Code sections 3304(a) and 3304(b).

Held:   Substantial evidence supported the trial court’s determination that Perez was not subject to any punitive action, as the term is defined by statute. In reaching its decision, the Fourth District, quoting Government Code section 3303, explained that punitive action is “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” Applying this definition to Perez’s removal from SWAT and honor guard as well as the nonassignment of trainees, the Court noted that removal of Perez’s collateral duties did not result in a reduction in his salary, which is ordinarily required to establish a punitive action. It also noted that, per the MOU, nonassignment of trainees was not disciplinary action. Citing precedent, the Court explained that the loss of prestige or the loss of the ability to earn overtime pay is not sufficient to show punitive action. The Court also noted that two months following the decision not to terminate Perez’s employment, Perez received a scheduled pay raise and cited Chief Hall’s testimony relating to his reasons for removing Perez from SWAT and the honor guard. Thus, the Court concluded that the evidence supporting the trial court’s determination was more than substantial.

 

EMPLOYEE DISCIPLINE

Dismissed employee’s failure to appear at evidentiary hearing before administrative law judge constituted a failure to proceed, and dismissal of the appeal was warranted.

Thaxton v. State Personnel Board, 5 Cal. App. 5th 681 (4th Dist. 2016)

Facts: Kevyn Thaxton and three other California Department of Corrections and Rehabilitation (CDCR) correctional officers were dismissed from their employment for dishonesty and misconduct relating to a use-of-force incident. Thaxton and the other officers appealed their dismissals to the State Personnel Board (SPB), and their appeals were consolidated. On appeal, the other officers were represented by the same attorney, while Thaxton had his own attorney. In prehearing/settlement conference statements, both Thaxton and CDCR listed Thaxton as a witness.

The evidentiary hearing began on April 22, 2013. Thaxton was not present on the first day of the hearing, but his attorney was present. Thaxton was also not present for the second day of the hearing, so counsel for CDCR moved to dismiss Thaxton’s appeal on the ground that he had failed to appear at the hearing. CDCR’s attorney represented to the administrative law judge (ALJ) that she tried to subpoena Thaxton, but that he had avoided service and had conveyed to the process server that he was purposely avoiding service. When asked, Thaxton’s attorney indicated that he was present as Thaxton’s representative, but that he did not have the authority to accept the subpoena on Thaxton’s behalf. The ALJ determined that Thaxton’s presence was required by section 58.3 of Title 2 of the California Code of Regulations (“Rule 58.3”) and ordered that Thaxton appear by 1:00 p.m. that day, after lunch. The ALJ warned Thaxton’s attorney that Thaxton’s appeal could be dismissed if he failed to appear.

The hearing continued until 1:00 p.m., at which point the ALJ indicated that they would break for lunch. She repeated her order that Thaxton appear after lunch and stated that if Thaxton was not present at that time, his appeal would be considered withdrawn. After the lunch break, the ALJ inquired whether Thaxton would be appearing, and Thaxton’s attorney indicated that he was not present. Since he was not present as ordered, the ALJ dismissed his appeal.

In her proposed statement of decision, which was subsequently adopted by the SPB, the ALJ determined that Rule 58.3 requires a party to proceed at a hearing by being personally present and does not permit a party to proceed through a representative alone. She noted that, even if the regulations and statutes allowed Thaxton to appear through his attorney, he had not so authorized his attorney to proceed on his behalf in full since he did not authorize him to accept a subpoena on his behalf. She further stated that Thaxton could not hide behind Government Code section 19579 (“Section 19579”) to avoid personally appearing at the hearing, then also claim that his representative was not authorized or willing to act fully on his behalf at the hearing. Since he failed to appear at the hearing or show good cause for a continuance, the ALJ dismissed the appeal pursuant to Rule 58.3(b).

Thaxton filed a petition for rehearing with the SPB, arguing that, pursuant to Section 19579, he did not have to be personally present at the hearing and his attorney was authorized to proceed on his behalf. SPB denied his petition for rehearing in January 2014. In April 2014, Thaxton filed a petition for writ of mandamus in the superior court, arguing that his appeal had been improperly dismissed because the regulations and statutes permitted him to proceed through his representative attorney. The trial court granted his petition for writ of mandamus. CDCR appealed.

Held:   The ALJ properly dismissed Thaxton’s appeal on the ground that he failed “to proceed” at the hearing as required by Rule 58.3 and Section 19579. After discussing the statutory framework for SPB evidentiary hearings, the Fourth District reviewed Section 19579 and Rule 58.3(b). The Court noted that both provisions permitted the SPB to dismiss an action or appeal on the procedural ground that the appeal or action is deemed withdrawn due to the employee’s conduct at the evidentiary hearing, and require the SPB to deem the “failure to proceed” at a hearing to be a withdrawal of the action or appeal. It explained that the purpose of the SPB evidentiary hearing is to allow the employee to challenge the employment action taken against him or her by permitting both parties to present evidence and, to effectuate this purpose, the employer has a right to examine the employee.

Looking at the facts, the Court noted that both CDCR and Thaxton listed Thaxton as a witness, suggesting that his personal presence and testimony at the hearing would be essential to the resolution of the hearing. However, by his failure to appear and refusing to accept service of CDCR’s subpoena, the Court found that it became clear that he did not intend to make himself available for examination at the hearing. Further, the Court noted, he did not authorize his attorney to accept the subpoena on his behalf, then failed to appear after the ALJ ordered him to do so. Thus, the Court concluded that it was clear that Thaxton was unwilling to make himself available for examination at the hearing, despite CDCR’s statutory entitlement to call him as a witness, and his conduct amounted to a failure to proceed at the hearing.

The Court further noted its agreement with the ALJ’s determination that to permit Thaxton to intentionally avoid service of a subpoena and violate the ALJ’s order that he appear would frustrate the purpose of the SPB adjudicatory hearing scheme, a process that Thaxton himself initiated by filing an appeal. The Court stated, “[a]n employee cannot be allowed to invoke the process and then avoid fully participating in the process by preventing the other party from exercising its right to examine him without consequence.”

Thus, the Court held that dismissal of Thaxton’s appeal was appropriate given the circumstances.

 

QUALIFIED IMMUNITY

Whether officer that shot woman holding a knife was entitled to qualified immunity depended on facts that needed to be determined by a jury.

Hughes v. Kisela, 2016 U.S. App. LEXIS 21186 (9th Cir. Nov. 28, 2016)

Facts: In May 2010, University of Arizona Police Department (UAPD) Corporal Andrew Kisela, UAPD officer-in-training Alex Garcia and UAPD Officer Lindsay Kunz responded to a “check welfare” call regarding a woman reportedly cutting into a tree with a large knife. Soon after the officers arrived, Amy Hughes emerged from her house carrying a large kitchen knife at her side. Sharon Chadwick, Hughes’s roommate, was standing nearby. A chain link fence prevented the officers from getting closer to Hughes and Chadwick. When Hughes began to walk toward Chadwick, the officers drew their guns and ordered Hughes to drop the knife. Hughes did not drop the knife and continued to walk toward Chadwick. When Hughes did not follow the officers’ commands, Kisela fired four non-fatal shots through the fence. Less than one minute elapsed between Hughes emerging from her house and Kisela shooting her.

In an interview with the police after the shooting, Chadwick told police that Hughes had been diagnosed with bipolar disorder and was taking medication. She indicated that she did not believe Hughes understood what was happening when police ordered her to drop the knife. According to Chadwick’s affidavit, Hughes was composed and content when she exited the house, and Chadwick was never in fear and did not feel Hughes was a threat.

Hughes brought suit under 42 U.S.C. § 1983, alleging excessive use of force in violation of the Fourth Amendment. The district court granted summary judgment in Kisela’s favor, concluding that he acted reasonably and that he was entitled to qualified immunity. Hughes appealed.

Held: The record did not support the district court’s grant of summary judgment in Kisela’s favor on the excessive force claim, and the question of whether Kisela was entitled to qualified immunity depended on facts to be determined by a jury at trial.

The Ninth Circuit explained that summary judgment is only appropriate if there is no genuine issue as to any material fact. For excessive force claims under the Fourth Amendment, courts look at whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, which requires a balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.

The Court explained that the government’s interest is assessed by examining the three non-exclusive factors set forth in Graham v. Connor: (1) severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of officers or others; and (3) whether the suspect is actively resisting or attempting to evade arrest by flight, and examining the totality of the circumstances.

Looking at the first factor, the Court found that the record did not support Kisela’s perception of an immediate threat. Garcia told Tucson police Hughes did not raise the knife and did not make any aggressive or threatening actions toward Chadwick, Kunz also did not see Hughes raise her arm, and Chadwick described Hughes as composed and content prior to the shooting. While acknowledging that Kisela was concerned for Chadwick’s safety based on the “check welfare” call and witnessing Hughes with a knife in her hand walking toward Chadwick, the Court explained that there must be objective factors beyond a statement that the officer feared for his or her safety or the safety of others to justify the officer’s concern. Viewing the objective factors in a light most favorable to Hughes, the Court found a rational jury could find that she did not present an immediate threat to the safety of others and that Kisela’s response was not reasonable.

The Court also found that the severity of the crime weighed in Hughes’s favor, since no crime was reported and the officers were responding to a “check welfare” call. Since the officers arrived not to arrest Hughes but to investigate her behavior, the Court concluded that a rational jury could find that the government’s interest in using force was not substantial.

As to the third factor, whether the suspect was resisting or seeking to evade arrest, the Court found that the factor did not apply because the events occurred too quickly for the officers to attempt to arrest Hughes. However, the Court noted that, at trial, it would be a question for the jury whether Hughes understood the two warnings in quick succession prior to Kisela firing the four shots and whether the police should have perceived that she did not understand what was going on.

While noting that there are not two tracks for excessive force analysis—one for mentally ill and one for serious criminals, the Court noted that the government’s use of deadly force is diminished in situations where officers are confronted with mentally ill individuals. Based on the information available to Kisela at the time of the incident, the Court found that a reasonable jury could conclude that there were sufficient indications of mental illness to diminish the government’s interest is using deadly force.

In addition to the Graham factors, the Court noted that another factor to consider is whether there were less intrusive means that could have been used before the employment of deadly force. The Court cited conflicting expert opinions as to whether Kisela should have used his Taser as reinforcing its conclusion that there were questions for a jury to consider in assessing whether Kisela violated Hughes’s constitutional rights. Thus, due to the various factual issues, the Court held that summary judgment in Kisela’s favor was not proper.

On the issue of qualified immunity, the Court explained that it considers (1) whether there has been a violation of a constitutional right and (2) whether the right was clearly established at the time of the violation. Due to the disputed facts, the Court found that whether Kisela is entitled to qualified immunity would depend on the facts as determined by a jury. The Court explained that, if a jury finds that Hughes had a constitutional right to walk down her driveway carrying a knife without being shot, then pursuant to Glenn v. Washington County and Deorle v. Rutherford, that right was clearly established.

Thus, due to the disputed facts, Kisela was not entitled to qualified immunity. The Court remanded the case for a jury to determine whether Kisela’s use of deadly force was lawful.





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