POBR DOES NOT APPLY TO CRIMINAL INVESTIGATIONS
Last year, a superior court judge ruled that if an employing agency was conducting a criminal investigation of an officer, it must afford the officer all rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA), as it would during an internal, administrative, investigation. On December 26, 2007, the California Court of Appeal, Second District, ruled in the case of Van Winkle v. County of Ventura, et al that the (POBRA) “…protections do notapply to officers subject to criminal investigations conducted by their employers.” (Emphasis added.)
Jones & Mayer, as counsel for the California State Sheriffs Association (CSSA) and the California Police Chiefs Association (CPCA), prepared and submitted an amicus brief supporting the Ventura County Sheriff’s Office in its appeal. The Court of Appeal referred specifically to part of that brief in its published decision.
In the Van Winkle case, a Ventura County deputy sheriff was suspected of embezzling property (guns) from the sheriff’s department and, as a result, was the subject of a sting operation conducted by the Sheriffs Major Crimes Bureau (MCB). Following a pretext call to him, and his agreement to sell the weapons, Van Winkle was arrested and subsequently interviewed by a MCB detective. He waived his Miranda rights and admitted to the theft. The Ventura Sheriff fired Van Winkle and used his incriminating statements to MCB to support the termination action.
Van Winkle alleged that the Sheriff violated his POBRA rights by (1) interviewing him during the criminal investigation without first giving him the admonishments required by POBRA; and (2) by using his voluntary statements to MCB in the disciplinary case. The trial court agreed with Van Winkle that, based on dicta contained in California Correctional Peace Officers Association v. State of California, (2000) 82 Cal.App.4th 294, the interview by the MCB detective required POBR admonishments. In CCPOA, the court stated in a footnote that “…criminal investigations of law enforcement officers by their employers fall within POBRA.”
The Van Winkle court found that “CCPOA is distinguishable,” noting that, in CCPOA, “it was an investigation of prison guards concerning a prior incident involving…” their alleged instigation of an attack on an inmate. The Van Winkle court points out that in CCPOA, “their employer, the Department of Corrections, threatened the guards with criminal and disciplinary action for not cooperating with the (criminal) investigation.” The court of appeal had ruled that, under the unique and egregious circumstances of CCPOA, the protections of POBRA applied. However, the circumstances in that case were very different than those inVan Winkle.
Criminal Investigations and POBRA
The language in POBRA (Gov’t Code sections 3300 – 3312) specifically states that it does not cover “an investigation concerned solely and directly with alleged criminal activities.” [In fact, those protections are unnecessary since the accused is protected by the Fifth Amendment of the U.S. Constitution.] The California Supreme Court, in Pasadena POA v. City of Pasadena (1990) 51 Cal.3d 564, held that the protections of POBRA “apply when a peace officer is interrogated in the course of an administrative investigation that might subject the officer to punitive action….” (Emphasis added.)
The Van Winkle court noted that the Ventura County Sheriff takes significant steps to separate a criminal from administrative investigation. “The sheriff’s department disciplinary investigators and its IAU do not investigate crimes and did not participate in the MCB criminal investigation.” {Obviously, internal affairs investigates acts which could also be violations of criminal laws but they are looking at whether the conduct violates departmentpolicy .]
The Court states that “the Legislature unambiguously delineated the investigations they (law enforcement employers) could institute. It defined the ones subject to POBRA, such as disciplinary actions, from those which were not (eg. routine investigations and criminal investigations). In CCPOA, the court concluded that section 3303, subdivision (i), covers only non-employer law enforcement agencies. But there is no language in the Act which supports this interpretation.”
The court then states that the Legislature “…did not intend POBRA to limit or interfere with legitimate criminal investigations, or to impede an agency’s efforts to police itself.” Taking further exception with the prior decision, the Van Winkle court stated that, “the court inCCPOA … believed law enforcement employers will routinely violate POBRA. But the court had no evidence to support its speculation that they would be scofflaws. Nor did it have the authority to alter the legislative definition of the exempt investigations without legislative guidance.”
Furthermore, the court ruled that Van Winkle was advised he was the subject of a criminal investigation, not an administrative one; that he was aware of that fact since he had been arrested and was in custody; that he waived his Miranda rights; and he was advised that, because it was a criminal investigation, the MCB detective could not order him to talk. “There is no evidence in this record to show that he was confused about the nature of this investigation or his rights.”
HOW THIS EFFECTS YOUR AGENCY
The issue of a law enforcement employer conducting both a criminal investigation regarding alleged officer misconduct (eg. off duty DUI or domestic violence), and an internal disciplinary investigation, is now being raised as a result of the superior court’s ruling in Van Winkle, citing to the CCPOA decision. Hopefully, the Court of Appeal ruling will put that matter to rest, however, agencies should be aware of the potential problems raised by conducting both investigations. There appears to be no doubt that agencies can conduct both investigations but they, like the Ventura Sheriff, must be able to demonstrate that the two are totally separate, one from the other.
Running “parallel track” investigations means ensuring that those involved in the criminal investigation have no access to compelled statements (nor the “fruit of the poisonous tree”) obtained from the subject employee. From a totally practical perspective, the problem is, virtually, eliminated if the employing agency refers the criminal investigation to another, appropriate, law enforcement agency and remains uninvolved in that investigation. For example, police departments could ask the county sheriff to conduct the criminal investigation of one of its officers; the sheriff could ask the office of the district attorney or the attorney general to investigate if a deputy sheriff is the target; and so on. This approach is something to consider, although not a requirement.
As always, it is imperative to seek the advice and guidance of your individual legal counsel when confronted with legal issues. However, if you wish to discuss the case set forth above, in greater detail, feel free to contact me at (714) 446 – 1400 or by e-mail at mjm@jones-mayer.com.