A Los Angeles Police Department Captain was en route to a homicide scene when he received a radio call for a robbery in progress. The Captain noticed a patrol car parked in the alley near the robbery location which was not responding to the call; the Captain assumed it was a traffic car on a different radio frequency, and decided to respond to the call himself. As he was arriving, he saw the patrol car back up and leave the area.

The officers in the patrol car—Petitioners—later denied hearing the radio call for backup, claiming the interference of loud music in the neighborhood. However, a Sergeant reviewed the in-car recorder and realized that the Petitioners had, in fact, heard the 211 radio call; discussed whether they should assist the Captain who responded; and then decided to conceal their failure to respond. Sergeant reported his findings and a formal investigation was opened.

Thorough review of the in-car footage showed that the officers were playing a "Pokemon Go" video game on their cell phones. For 20 minutes the in-car recorder showed the officers driving to various locations where virtual creatures from the Pokemon-Go would appear on their mobile phones. After capturing a Togetic Pokemon,¹ the Petitioners drove to meet with their Sergeant and end their watch.

The Petitioners were subsequently investigated and interviewed about their whereabouts during the robbery call and about whether they were playing video games while on duty. As a result of the investigation, they were terminated behind sustained allegations of misconduct, including for failing to respond to the robbery call and providing misleading statements during the investigation.

The Petitioners appealed their termination and argued: (1) the City could not use the in-car video because it was an unlawful recording of a private conversation; and (2) they were not afforded representation under Peace Officers' Bill of Rights Act (Gov. Code §3300 et seq.) ("POBRA") when their Sergeant asked about the radio call (before the Commanding Officer knew about the existence of the video, suspected misconduct, or conducted a preliminary investigation). Thereafter, the Board of Rights recommended termination; the Chief adopted the recommendation; and both the trial court and the Appellate Court affirmed the decision.

In relevant part, the Appellate Court ruled:

1. The Board of Rights properly admitted the in-car video because the recording was created through unintentional conduct. Moreover, the unintentional nature of the recording also did not constitute a violation of Penal Code §632 which prohibits intentional eavesdropping.
2. A Officer's POBRA right to representation during an investigation does not apply to "normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with a supervisor or any other public safety officer." (Gov. Code §3303(i).) Routine communications, or innocent preliminary or casual questions do not elevate a communication to an "investigation" requiring representation during an interrogation. The Sergeant merely wanted to know why the Petitioners did not hear the robbery call and counseled them to be positioned (away from noise) where they can hear the radio at all times. The Court distinguished the facts here from the "Donut Shop" or "Labio" case (City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506) in finding that the Sergeant who met with the Petitioners at the 7-11 following the robbery call did not have evidence that the Petitioners had committed a crime or engaged in egregious misconduct when he met with them. Because of this the Court concluded that the Petitioner's rights under POBRA were not violated through the Sergeant's routine contact with them.

Practical Guidance and Takeaway:

In POBRA cases, a Court will look to a supervisor's conduct to determine whether they are acting in good faith during routine or unplanned contacts with subordinate officers or whether they have sufficient information to transform the contact into an investigatory interrogation under POBRA (Gov. Code §3300, et seq.).

¹ A Togetic is a dual-type Fairy/Flying Pokemon.