A California Appellate Court Rules that Digital In-Car Video System Recording Was Properly Allowed as Evidence at Police Officers’ Termination Hearings

01.12.2022

On January 7, 2022, a California appellate court ruled that a digital in-car video system (“DICVS”) recording was properly allowed as evidence at the termination hearing of two police officers. (Lozano v. City of Los Angeles (2022) 2022 WL 71705 (Lozano).) Two Los Angeles Police Department officers had been terminated by the Los Angeles Police Department Board of Rights (“Board”) for hunting virtual Pokémon instead of handling a robbery. The two police officers challenged their termination, contending that the Department had improperly used the DICVS recording in their disciplinary proceedings, and had denied them the protections of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) (“POBRA”).

On April 15, 2017, the two officers were working as partners assigned to a foot patrol. A commanding officer put out a call for backup for a robbery in progress but the officers ignored the call, and instead started playing a Pokémon mobile phone game called, “Pokémon Go”[1], despite being in the vicinity of the robbery. After determining that they were in the vicinity of the robbery call but did not respond, a Sergeant met with the officers with the express purpose “to find out why they had not responded to a ‘high priority call.’” When questioned about their failure to respond to the robbery, the officers were dishonest and attempted to conceal facts about their location and activities. The Board found the officers guilty on multiple counts of misconduct, based in part on a DICVS recording that captured them willfully ignoring the commanding officer’s call for assistance, and instead playing Pokémon Go.

In challenging their terminations, the officers argued that Los Angeles Special Order No. 45 and Penal Code section 632 precluded admission of their “confidential communication[s]” (that the DICVS had recorded) at the Board hearing. Special Order No. 45 contemplates and exclusively concerns the intentional use of the DICVS as a tool for law enforcement activities such as crime documentation and prosecution, and not to monitor private conversations between Department employees. In addressing the officers’ argument regarding Special Order No. 45, the court found that it would be preposterous to require commanding officers and internal affairs investigators to ignore evidence of “criminal or egregious conduct” simply because it was unintentionally captured on a DICVS recording, and thereby rejected the officers’ argument under Special Order No. 45.

Penal Code section 632 “prohibits the intentional eavesdropping to a confidential communication by means of any electronic amplifying or recording device, without the consent of all parties.” (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 421.) In addressing the officers’ argument regarding Penal Code section 632, the court found that the City understood that it was deploying recording devices in patrol vehicles that might happen to record confidential communications of police officers within their patrol vehicles – not that the City intended to record those communications. Additionally, the court also found that the procedures outlined in Special Order No. 45 suggest that only the officers in the vehicle can activate the DICVS, and that the officers presented no evidence to establish who had activated the DICVS. As such, the court dismissed the officers’ argument because it had found that the City did not intentionally eavesdrop on the officers’ communications in violation of Penal Code section 632.

Additionally, the officers argued that their POBRA rights under Government Code section 3303(i) had been violated because their Sergeant had questioned them on matters that led to disciplinary action without affording them the opportunity to have a legal representative present, and relied on the case, City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506 (Labio), in support of their argument. In Labio, the court held that a watch commander’s interrogation of an officer violated Government Code section 3303 because the watch commander, who was aware of misconduct, did not inform the officer that he was under investigation for misconduct or of his rights under POBRA (i.e., affording the officer an opportunity to have a legal representative present). In the instant case, the court found that POBRA rights did not apply to the meeting because the Sergeant had questioned the officers in the “normal course” of his duty as a supervisor to counsel and instruct the officers, which was routine and expected of a supervisor. In support of its finding, the court distinguished Labio and explained that the Sergeant did not have evidence that the officers had committed a crime or egregious misconduct when he met with them to discuss their whereabouts at the time of the radio call for help with the robbery, and the Sergeant did not find out about the DICVS recording until after his meeting with the officers. As such, the court found that POBRA rights did not apply to the Sergeant’s meeting with the officers.

The Lozano ruling demonstrates that a public safety agency may use DICVS or similar devices to support disciplinary charges and is further support of management’s rights under POBRA to ask routine questions without the suppression of those statements. This case has been certified for publication and is citable as controlling authority. If you have any questions regarding this alert, please contact the authors of this article or your current Atkinson, Andelson, Loya, Ruud & Romo counsel.

[1] Pokémon Go is an “augmented reality” mobile phone game that “uses the mobile device GPS to locate, capture, battle, and train virtual creatures, called Pokémon, which appear as if they are in the player’s real-world location.”