JUDGE DISMISSES DISHONESTY CHARGE AND SUPPRESSES ILLEGAL INTERVIEW AFTER FINDING DEPARTMENT VIOLATED OFFICER'S POBR RIGHTS

By David E. Mastagni

A Sacramento County Superior Court judge has issued a writ of mandate dismissing a dishonesty charge alleged against Sacramento Police Officer Timothy Cooke and suppressing the illegal interrogation that led to the charge. Judge Gail Ohanesian issued the order after finding a lieutenant who questioned Cooke in an investigation that could lead to discipline had violated his rights under the Public Safety Officers Procedural Bill of Rights Act (POBR).

The allegations against Officer Cooke were made by a citizen who complained on July 15, 2004, that the officer had been rude to her at the scene of a traffic accident on July 8, 2004, and had not completed his collision report about the accident. Officer Cooke had found the citizen to be at fault in the accident.

Lieutenant Conducts Illegal Interrogation

Cooke's watch commander, Lieutenant Cara Westin, questioned him immediately after roll call about the report, his understanding of the Department's report-writing policy, and whether he had obtained a supervisor's approval to hold the report over his days off. Westin even identified the policy she was accusing Cooke of violating. Westin and Cooke disputed whether Cooke claimed a supervisor had given him approval to hold the report over.

The Internal Affairs Bureau re-interrogated Cooke using the statements Westin had obtained in her investigative interview. The department later proposed to fire Cooke for dishonesty based on Westin's allegation, which he denies, that he responded to her that he had obtained a supervisor's permission to hold the report. The termination was predicated upon the dishonesty charge, although other lesser charges were also included, such as violation of report writing policy and discourtesy towards the complainants. At the Skelly hearing the Department was advised Officer Cooke would seek a court order if the Department persisted in charging him with dishonesty based upon the illegal interrogation. Nevertheless, Chief Albert Najera terminated Cooke based upon his alleged responses to Westin.

Writ Petition Alleges POBR Violations

I filed a petition for a writ of mandate on behalf of Officer Cooke seeking to have the dishonesty charges dismissed and Westin's interrogation suppressed in any subsequent disciplinary hearing on the grounds her interrogation violated several provisions of the POBR. Government Code section 3303, subdivisions (b), (c), (g), and (i), require that when a police officer is "subjected to interrogation ... that could lead to punitive action," the officer, at a minimum, must be (1) informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation; (2) informed of the nature of the charges against him; (3) afforded the right to record any aspect of the interrogation; and (4) afforded the opportunity to be represented by a representative of his or her choice. Subdivision (f) bars the admission at any subsequent proceeding of any statement derived through duress, coercion, or threat.

To support the petition, I deposed Westin and the internal affairs sergeant. In her deposition, Westin admitted she grew angry with Cooke during her questioning and decided to request a formal disciplinary case be opened. Westin acknowledged she knew Cooke's responses could lead to discipline if a policy violation was established.

At the court hearing, the City argued Westin was "solely" locating a report when she questioned Cooke. The City also claimed the lieutenant's questioning was exempt from the POBR because it occurred "in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor." (Gov. Code § 3303(i).) The deposition testimony, however, had established sergeants usually locate missing reports, and lieutenants conduct watch level investigations.

The City argued Cooke was not under suspicion when Westin interviewed him and that Westin believed Cooke's alleged claim about having permission until his supervisor contradicted him via an email later in the shift. However, the sergeant's email indicated he could not recall if he granted Cooke permission. She also acknowledged sending a memorandum to her captain immediately after questioning Cooke, in which she stated, "based on the complaint by a citizen and prior discipline with Officer Cooke, I recommend this be made a case." The memorandum contained no reference to the alleged contradiction between Cooke and the sergeant, and the sergeant's shift started two (2) hours later.

Judge Ohanesian sided with Cooke, finding that because Westin was aware of the citizen complaint when she interrogated Cooke, the officer's POBR rights attached. Accordingly, the judge ordered Westin's interrogation and the charge of dishonesty suppressed. The Court allowed the termination proceeding against Cooke to go forward, but limited the City's case to the lesser charges.