Newsletters & Seminars

JUDGE SAYS DEPARTMENT VIOLATED
POBR; REINSTATES DETECTIVE

by Anthony M. Snodgrass
Lackie & Dammeier LLP

David Mullican was an Ontario Police Officer for more than twenty years and held the rank of Detective for about thirteen years. In September 1999, Mullican was assigned to follow up a reported embezzlement (Gardner case). Mullican began actual investigation of the case in May 2000 after Sergeant Mendez, his immediate supervisor, asked Mullican for his assigned open cases based on a Department computerized case tracking printout, and after receiving a call from a representative of the business. Mullican at that time realized he had inadvertently overlooked the case. About a year after the Gardner case had occurred, on August 3, 2000, Sergeant Mendez by memo ordered Mullican to write a memo by 5 p.m. the next day and answer five questions concerning the case. This constituted a written interrogation. Mullican had closed the case by that time and had sent it to the District Attorney for prosecution of the suspect.

Mullican attempted to invoke his right under POBR to a representative of his choice before writing this memo and answering the questions, which had the potential of leading to punitive action, but was denied such by Mendez. Mullican then responded by memo under threat of being punished for insubordination, without benefit of conferring with the representative of his choice, in violation of POBR.

On September 11, 2000, Mendez ordered Mullican to produce his personal 1999 case log, stating Mendez had asked for the 1999 case log on August 23, 2000, and listing five questions to be answered by memo regarding the case log. The case log is a record voluntarily created and kept by most detectives, in order to track their own cases, and it is not required to be kept by any Department rule, regulation, policy or procedure. The case log is not a City document or an official police report or record. Cases assigned to detectives are separately recorded on an official Department computerized log.

As ordered, Mullican submitted a memo the next day. Mendez wrote a second memo about the 1999 case log on September 12, 2000, ordering Mullican to reply by memo by 5:00 p.m. the same day and answer three follow up questions, which constituted a second interrogation. Mullican again responded by memo, stating he did not have the 1999 case log because he put it in a pile of documents to be shredded in late March or early April 2000, as was his yearly practice in destroying such documents.

What followed was a memorandum dated October 3, 2000 from Mendez to the Internal Affairs supervisor requesting an internal affairs investigation alleging untruthfulness by Mullican for his statements, verbal and written, involving the 1999 case log. Mendez claimed he opened a drawer of Mullican’s desk on August 23, 2000, without notification, consent, or presence of Mullican, and without a search warrant, found the 1999 case log book, and made a copy of one page that listed the Gardner case. This constituted a search of a “locker or other storage space” under POBR. All of the questioning of Mullican about the 1999 log was thus conducted, if Mendez’ memo to Internal Affairs is true, after Mendez knew the 1999 log existed, constituting an interrogation of Mullican which could lead to punitive action. Mullican never knew of this surreptitious activity until questioned about the log by Internal Affairs because he was never told by Mendez that Mendez already had a copy of the case log.

Mullican, a long-term employee with no prior discipline, was terminated for untruthfulness and insubordination based on the internal affairs investigation, and he appealed. After a hearing in November 2001, the City upheld the termination.

A Petition for a Writ of Mandate appealing the City’s decision was filed in the Superior Court of San Bernardino County alleging several POBR violations. Mullican was represented in the action by Michael Lackie and this author, of Lackie & Dammeier LLP, who argued that (1) the August 3, 2000 memo was an interrogation under POBR, and Mullican should have been allowed to consult with the representative of his choice; (2) the search of Mullican’s desk by Mendez violated POBR and the case log should have been suppressed as evidence; (3) all questioning of Mullican after Mendez surreptitiously obtained a copy of the case log were interrogations under POBR, and any written or verbal statements should have been suppressed as evidence; (4) the evidence did not support the City’s finding that Mullican lied about the 1999 case log.; and (5) the City’s claim that Brady v. Maryland applied to this case was wrong.

On April 30, 2003, the hearing on the Petition for Writ of Mandate was held, and the Honorable Ben T. Kayashima, in a lengthy, detailed, and well-reasoned presentation, ruled in favor of Detective Mullican and against the City of Ontario. The Judge found (1) Mendez’ search of Mullican’s desk violated POBR because the desk, although unlocked and in an open office with other desks, was “other storage” under POBR, and Mendez did not comply with any of the provisions of Government Code §3309 because he did not have a search warrant, obtain consent, give notification, or open the desk in Mullican’s presence; and (2) the written and verbal responses ordered by the Department from Mullican after Mendez had copied the 1999 case log, without Mendez telling Mullican he had in fact copied the case log, constituted interrogations under POBR. Therefore, since all the evidence stemmed from the illegal search of Mullican’s desk, and because Mullican’s written and verbal responses during the internal affairs investigation violated POBR, all evidence should be suppressed, thus leaving virtually no evidence whatsoever against Mullican.

The judge granted the Petition in its entirety, including setting aside the City’s decision, reinstating Mullican with all back pay with interest, seniority, rights and benefits, removing all references to the termination, including the investigation report, from Mullican’s personnel file, and recovery of costs and attorneys’ fees.