Metropolitan News-Enterprise

 

Thursday, April 19, 2018

 

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Court of Appeal:

Wiretap Evidence Can’t Be Used to Justify Firing Deputy

Justice Johnson Says Judge’s Order Allowing Release of Evidence to Sheriff’s Department  Doesn’t Authorize Use at an Administrative Hearing on an Appeal of a Discharge

 

By a MetNews Staff Writer

 

The Los Angeles County Sheriff’s Department was thwarted by the Court of Appeal for this district yesterday in its effort to discharge a deputy who was found, through lawfully intercepted telephone calls, to have associated with narcotics dealers and leaked confidential information to them.

Div. One held, in an opinion by Justice Jeffrey Johnson, that Los Angeles Superior Court Judge Mary H. Strobel properly denied a writ sought by the Sheriff’s Department challenging a decision of the Los Angeles County Civil Service Commission limiting discipline to a five-day suspension.

The department had fired Deputy Sheriff Carlos Arellano on Aug. 29, 2011, but he appealed that decision to the commission, which adopted a decision of a hearing officer which followed her exclusion of recordings of the intercepted phone calls. She found that the 2009 order authorizing release of the recordings by the Los Angeles County District Attorney’s Office to the Sheriff’s Department for use in an “internal investigation” does not mean they can be used in an “administrative proceeding.”

Fidler Clarifies Order

After the hearing officer in 2012 excluded the evidence, a clarification was sought from the judge who made the order, Los Angeles Superior Court Judge Larry Fidler. He said that he intended to authorize that the wiretap evidence “be used not just in a trial, not just before a grand jury, but if they chose to proceed against the officer, or do anything, they could use the materials.”

The order presented to Fidler in 2009 was prepared by the District Attorney’s Office. “Unfortunately,” Fidler said, “the district attorney referred to a section”—Penal Code §629.78, which authorizes use of an intercepted “wire or electronic communication” at a grand jury hearing or a trial.

But, he declared, if the order is “read in its entirety,” it is clear it that the intent was not to limit use of the evidence to particular proceedings.

The judge said if he had intended that some use of the evidence be excluded, he “would have stated it” or inserted it in the order “by hand.” He added:

“So I intended—my order intended that this material be used against [Arellano] in his administrative hearing. I can’t state it any clearer than that.”

Fidler declined to modify the order, however, saying he did not believe it would be permissible to do so.

Exclusion Reaffirmed

The hearing officer, presented with Fidler’s statement, stuck with her decision to exclude the recordings. She explained:

“I want the record to be clear. At no time did I think I needed a clarification of the intent of the court. I always believed and still believe that it was the court’s intent to issue an order that would permit the use of the wiretap evidence in an administrative proceeding.”

But absent a modification of the order, she said, there was no judicial authorization for admission of the evidence at the administrative hearing.

Johnson’s Opinion

In his opinion affirming the denial of a writ, Johnson said:

“We must resolve two issues in this appeal—Did Judge Fidler’s December 1, 2009 order authorize the disclosure and use of the wiretap evidence at Arellano’s administrative hearing before the civil service commission? If not, could the wiretap evidence be disclosed and used at the administrative hearing without a court order? As discussed below, we answer both questions in the negative.”

He said Fidler’s order authorized use of the evidence in an “internal investigation” and, by virtue of reference to §629.78, in connection with testimony before a grand jury or at trial.

“Thus, nothing in Judge Fidler’s order expressly authorized disclosure or use of the wiretap evidence in an administrative hearing against Arellano,” he declared.

The jurist continued:

“The County argues that the Sheriff’s Department’s application made it clear that the release of the wiretap evidence was for use in an administrative proceeding such as a hearing before the civil service commission. However, the first page of the application requested release of the evidence ‘for use in an internal investigation’—not an administrative proceeding.”

Johnson went on to say:

“Although Judge Fidler subsequently stated he intended to allow the evidence to be used in an administrative proceeding as well, the County cites no authority that would allow us to consider anything other than the four corners of the order.”

County’s Alternative Argument

The county argued that even without a court order, Penal Code §629.82(b) authorizes use of intercepted communications in order to prevent public offenses. Johnson responded:

“This was a historical case, in which the intercepted calls revealed Arellano’s past misconduct. By September 2012, fresh evidence was needed to show that disclosure or use of the calls would prevent a crime from occurring. The County highlights the absence of evidence to make its point, arguing there was no evidence that Arellano no longer associated with ‘known narcotic felons’ when the administrative hearing took place. Leaping from this slim reed into thin air, the County then argues that disclosure or use of the intercepted calls thus would have prevented ongoing violations of obstructing a peace officer, being an accessory after the fact to a crime (the cultivation of marijuana) and conspiring to commit a crime. We are not persuaded. Without evidence of a continued association, the County could not, and, indeed did not, demonstrate that any ongoing offenses could be prevented. Thus, section 629.82, subdivision (b), cannot be construed to justify disclosure or use of the intercepted calls at the administrative hearing.”

The case is County of Los Angeles v. Los Angeles County Civil Service, B278519.

Avi Burkwitz, Craig Marinho and Jessica Y. Lee of Peterson•Bradford•Burkwitz represented the county and Elizabeth J. Gibbons acted for Arellano.

 

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