Police Have No Privacy Rights At Scene of Raid

Friday, July 7, 2017

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Police Have No Privacy Rights At Scene of Raid—C.A.

By a MetNews Staff Writer

A May 26, 2015 raid by Santa Ana police on the Sky High Medical Dispensary was recorded on the dispensaries video camera.

The Fourth District Court of Appeal, in an opinion certified for publication yesterday, has rebuffed the contention of two Santa Ana police officers that they were improperly subjected to a disciplinary investigation based on a surreptitiously recorded video of them during a raid on a marijuana shop.

Div. Three, in an opinion originally filed June 13 and not certified for publication, did side with the officers, and the union that joined them in their action, in saying that they are entitled, under the Public Safety Officers Bill of Rights Act, to copies of tape recordings of interrogations of them, transcribed stenographer notes, and other such materials.

The opinion, by Justice Richard D. Fybel, affirms the decision of Orange Superior Court Judge Ronald L. Bauer to the extent that it sustains a demurrer, without leave to amend, to the cause of action based on the contention that there was an unlawful recording of the officers during the raid which should not have been considered by the department. It orders reinstatement of a cause of action based on the Public Safety Officers Bill of Rights Act.

Fybel’s opinion refers to the officers as “Doe Officer 1” and “Doe Officer 2.” However, it was widely reported in 2015 that three officers—Brandon Matthew Sontag, Nicole Lynn Quijas, and Jorge Arroyo—were photographed eating cookies and other snacks apparently pilfered from stock on the premises; that all three were charged with misdemeanor theft; and Sontag was charged with vandalizing some of the dispensary’s surveillance cameras.

The Court of Appeal’s docket reflects the filing on March 22 of a request for dismissal of “Doe Officer 3, Jorge Arroyo.”

The videotape captured all three officers ordering customers and employees to the ground, and two of the officers making derisive comments about a female volunteer, an amputee.

Penal Code §632

The plaintiffs relied upon Penal Code §632 in contending the recording of them by Sky High Medical Dispensary was made unlawfully. That section provides, in part:

“A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine...or imprisonment....”

The section goes on to provide that “evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any…administrative… proceeding.”

The California Supreme Court held in 2002 in Flanagan v. Flanagan that “a conversation is confidential under §632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.”

Fybel wrote that whether there is a reasonable expectation of privacy is generally a question of fact and that, to prevail at the pleading stage, the city had the burden of showing that, as a matter of law, the officers could not reasonably have had such an expectation.

“Under the facts alleged,” he declared, “the Doe Officers as a matter of law had no reasonable expectation of privacy when executing the search warrant at the Dispensary.”

Burden Was Met

Fybel continued:

“The Complaint alleged the officers let their guard down once they had removed all known cameras and recording devices. It was, however, objectively unreasonable as a matter of law to believe there were no unknown cameras and recording devices in the Dispensary. The officers were carrying out a raid of a marijuana dispensary—a drug operation—and a secretive one at that. The Complaint alleged the windows were blacked out so that nobody could see into the business. Customers entered through a set of doors into antechamber before going through another set of doors into the ‘showroom’ where product was sold. In this situation, under the facts alleged, when police officers are executing a search warrant on a drug operation, the officers could not have a reasonable expectation that ‘the conversation is not being overheard or recorded.’…”

G. Craig Smith and Anthony M. Snodgrass of Ferguson, Praet & Sherman represented the city.

Smith commented yesterday that the opinion was “well-reasoned, well-written.”

The attorney for Sontag, Quijas, and their union was Corey W. Glave. He said his clients disagree with the portion of the opinion on the camera, but are pleased that rights under the Public Safety Officers Bill of Rights Act have been recognized.

He remarked:

“I wish the department had honored the rights originally.”

The case is Santa Ana Police Officers Association v. City of Santa Ana, G053126.

Sontag, Quijas, and Arroyo had been fired by Police Chief Carlos Rojas. However, the Personnel Board on Nov. 10 heard Sontag’s appeal and voted 5-2 to reinstate him, and an Orange Superior Court judge upheld the decision, following which the department voluntarily rehired Quijas and Arroyo.