Metropolitan News-Enterprise


Wednesday, October 21, 2009


Page 3


Court Upholds Use of Suppressed Evidence to Fire Caltrans Worker




Evidence that was suppressed in a criminal case may be used to terminate a Caltrans employee found in possession of a gun and illegal drugs on department property, the Court of Appeal for this district ruled yesterday.

Div. Two said the State Personnel Board erred in applying the exclusionary rule to the department’s firing of Lee B. Kendrick III. Presiding Justice Roger Boren said the case did not fall within the limited circumstances in which California will apply the rule to an administrative proceeding.

The case resulted from a 2004 incident in which a California Highway Patrol officer was summoned to a Caltrans facility in Ventura and told that Kendrick had threatened a supervisor who had asked Kendrick to remove his tools from a department vehicle.

The supervisor told the CHP officer that he feared Kendrick because the employee had once been arrested on weapons charges, had previously threatened to “get” another supervisor if he lost his job; and had used threatening language on other occasions.

When Kendrick returned from the field and went to his personal vehicle, the CHP officer later testified, the officer arrested him for making criminal threats, fighting and using offensive words. The officer then looked inside the car and found a handgun and ammunition, and a search of Kendrick’s person produced a glass vial containing what turned out to be methamphetamine.

A further search of the car produced marijuana and a $20 bill rolled into a straw. When he asked Kendrick if he used this object to ingest methamphetamine, the officer testified, he was told “Only when I’m not smoking it.”

Caltrans terminated Kendrick for threatening his supervisor and bringing weapons and drugs to work. He was also charged in a criminal case with drug possession and having a concealed firearm in a vehicle, but the case was dismissed after the evidence seized from his person and vehicle was suppressed as the product of a warrantless search unsupported by probable cause.

In his personnel appeal, which followed the dismissal of the criminal case, Kendrick asserted that the suppression of the evidence was binding in the personnel matter under res judicata principles. Caltrans argued, however, that it was not a party to the criminal case and not bound by the suppression order, and that no purpose would be served by applying the exclusionary rule to an agency that did not initiate or conduct the search.

An administrative law judge, ruling only on the suppression issue, sided with Caltrans, but the State Personnel Board reasoned that the CHP officer “could reasonably anticipate that both criminal proceedings, and administrative disciplinary proceedings, might very well be based on his investigative findings,” so the officer’s violation of the Fourth Amendment should be applied to the administrative process as well.

Los Angeles Superior Court Judge James Chalfant disagreed with the board and granted a writ of mandate directing that the disciplinary proceedings be reinstated.

Boren agreed with Chalfant, pointing out in a footnote that the court was only ordering reinstatement of the proceedings and was not expressing an opinion on whether termination was an excessive penalty.

Under California law, the presiding justice explained, a balancing test is applied to determine whether to apply the exclusionary rule to an administrative proceeding. The factors to be balanced, he explained, include how egregious the officer’s conduct was, whether the search was conducted by the employing agency or independently, and the seriousness of the illegal conduct.

Thus, Boren noted, courts have declined to apply the rule in the cases of a lawyer facing disbarment for burglarizing hotel rooms, a doctor facing discipline for falsifying records, a teacher looking at termination for engaging in prostitution, a driver challenging a license suspension, or a high school student facing suspension after a vice-principal caught him with drugs.

In Kendrick’s case, the presiding justice wrote, the balancing test favors Caltrans. Possessing guns and illicit drugs on agency premises is a serious violation, Boren said, and the board engaged in “pure speculation” as to whether the officer thought that Caltrans was looking to him to conduct an investigation that would result in disciplinary proceedings.

“There is no evidence in this case that the CHP was conducting an administrative investigation on behalf of Caltrans,” Boren wrote. “Indeed, we are unaware of any statute allowing the CHP to investigate workplace policy violations occurring at another state agency.”

The case is Department of Transportation v. State Personnel Board (Kendrick), 09 S.O.S. 6040.


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