Court of Appeal: Officers Aren’t Bound by Criminal Court’s Conclusions

LINA BALCIUNAS COCKRELL
Senior Counsel
Messing Adam & Jasmine LLP

Peace officers testify in court every day about their actions and decisions in criminal investigations, with criminal defense attorneys looking to undermine and invalidate those actions. When the court finds in favor of the defense, it can have negative consequences for the officer’s employment. The officer is totally at the mercy of the district attorney’s preparation, agenda and presentation at a criminal hearing where the officer is testifying as a witness. How much weight does the court’s findings carry in subsequent disciplinary actions?

In a recently published opinion, Cruz v. City of Merced (2023) WL 5949217, the Fifth District Court of Appeal held that a court’s findings and conclusions, in a matter where the officer testifies as a witness against a suspect being criminally charged, are not binding on subsequent disciplinary appeal proceedings. The Court concluded that the peace officer and district attorney do not have privity, that is, a community of interest such that the officer received due process to preclude relitigation of the issues from the criminal hearing.

In the Cruz case, a police officer testified in court at a hearing pursuant to Penal Code § 1538.5 on a motion to suppress an illegal firearm he had seized following a search of a female’s purse in a motel bathroom. The district attorney had not filed a written opposition to the motion, nor did he watch the body-worn camera footage prior to the hearing.

During the “suppression hearing,” the defense counsel asked the officer whether he opened and searched the purse prior to obtaining the owner’s consent. The officer testified that he did not recall but suggested that the parties look at his body-worn camera video. Unfortunately, however, the video only served to further complicate the matter.  

As the Court of Appeal noted, the officer’s camera was “not oriented for an optimal view.” The Court found the video shows that the officer grabs the backpack-style purse in the bathroom he was searching and “holds it with his left hand for approximately two seconds before his right hand begins to move in the direction of the bag. The bag then moves completely out of view just before a zipping sound occurs as [the officer’s] right hand moves from right to left. For the next four or five seconds, the bag remains out of view, a sound consistent with items being moved around can be heard, and a reflection of [the officer’s] head seen in the mirror shows he is looking downward. Then, another zipper sound is heard, and the bag returns to view being held in [the officer’s] left hand. [The officer] then sets the bag on the ground. The total time between the apparent ‘opening’ zipper sound and the apparent ‘closing’ zipper sound is about five seconds.”  

Following further search of the bathroom, the officer asked the individuals in the motel room whose purse it was and for the owner’s consent to search. The owner nodded her consent, and the officer took several bulky items out before locating what turned out to be an illegal firearm at the bottom of the purse.

At the suppression hearing, when pressed about the initial opening and the video on cross-examination, the officer testified that the initial opening was inadvertent based on the way he gripped the purse and grabbed its straps. The district attorney did not redirect the examination of the officer to try to clarify his testimony and his recollection.

The situation was compounded further when the suppression hearing judge confused the evidence, concluding that the motel room renter initially granted consent to search the bathroom but then withdrew it. Video admitted at the suppression hearing clearly showed the renter initially telling the officer to get a warrant, then later stepping outside with the officer and telling him he could search the bathroom because that was the only place the gun would likely be. The district attorney did not correct the record, nor did he make any arguments for the legality of the search based on the probation status of the gun owner.

The judge ultimately granted the motion to suppress evidence of the firearm, expressly stating that she did not find the officer’s explanation of his initial handling of the purse to be “at all credible.” As a result, the district attorney wound up dismissing the charges.

Following an administrative investigation, the officer’s agency terminated his employment, alleging the officer conducted an illegal search, submitted a false police report by omitting the initial opening of the purse, committed perjury during the suppression hearing and was dishonest to the investigators about how the purse came open.

The officer appealed. After a multiple-day evidentiary hearing, with several witnesses and the introduction of all the officer’s body-worn camera video, the personnel board rejected the city’s contention that the Court’s rulings from the suppression hearing could not be relitigated. The personnel board found the officer’s search to be legal and that the officer did not misrepresent or omit any material facts in his police report. However, the personnel board concluded the officer intentionally opened the purse initially, and his explanation that it was accidental was untruthful. Still, the personnel board recommended modification of the discipline to reinstatement of employment with a demotion and no back pay.

The city manager rejected the personnel board’s recommendation and upheld the officer’s termination. On judicial review, the superior court affirmed, concluding that the legal doctrine of “collateral estoppel” applied to prevent relitigation of the criminal court’s findings and conclusions at the suppression hearing. This was very concerning because of the difference between the two procedures. An officer who is the subject of an administrative investigation and appeal is allowed representation and control of his or her own defense (i.e., the arguments and evidence to present on his or her behalf). As shown in the Cruz matter, the district attorney is not necessarily motivated by or acting in the officer’s best interests. An administrative proceeding can take multiple days, whereas a criminal suppression hearing is usually very short — perhaps just an hour or two.

The Court of Appeal agreed. The Court found that collateral estoppel did not apply because the officer was not in privity with the district attorney in the criminal proceedings. The Court found that the officer’s interests were not at stake in the suppression hearing and that he could not control the evidence and legal arguments made. The Court further found that, as a matter of law, the officer’s search of the purse was legal, based on consent given by the room renter. The Court found that, as a matter of law, the officer did not make any material misrepresentations in his police report describing the incident.

Unfortunately, the Court did find that substantial evidence supported the trial court’s finding that the officer was dishonest regarding the initial opening of the purse. The Court noted that the evidence and arguments in the record that the officer was not dishonest were reasonable, particularly based on the renter’s consent to search the bathroom and the gun owner’s searchable probation status, the officer had no reason to lie about the initial opening of the purse. This was not enough legally to overcome the very deferential substantial evidence standard of review.

The Court ordered that the trial court’s decision denying the officer’s petition for administrative mandamus be vacated and that the matter be remanded for the trial court to determine whether, based on the Court’s conclusions, termination was still the appropriate remedy. The Court noted in a footnote that it believed the personnel board’s recommendation of a demotion was reasonable. The Court’s opinion is important to peace officers statewide by providing clear authority that officers (and agencies) are not bound in administrative proceedings by findings and conclusions in criminal proceedings. Officers should be mindful to be as fully prepared as possible before testifying in any forum and not to rely on the district attorney to act in the officer’s interest. The officer should then work with his or her union to present a complete defense in any subsequent administrative investigation and appeal.

Gary M. Messing and Lina Balciunas Cockrell of Messing Adam & Jasmine LLP represented the peace officer from the inception of the administrative investigation through the Court of Appeal. PORAC Legal Defense Fund referred the case to Messing Adam & Jasmine. Gary and Lina, as well as the Merced Police Officers’ Association, are thankful for the fund’s support throughout the litigation.

About the Author

Lina Balciunas Cockrell is senior counsel at Messing Adam & Jasmine LLP. She represents peace officers in disciplinary investigations, appeals, criminal matters, retirement, disability retirement and firearms issues.