13 Cal. App. 5th 317
Cal. Ct. App. 5th2017Background
- Two Santa Ana police officers (pseudonymous Doe Officer 1 and Doe Officer 2) participated in a May 26, 2015 search warrant at a private marijuana dispensary; undercover officers used masks and the premises had blacked-out windows.
- Officers disabled known surveillance equipment and believed all recording devices had been rendered inoperable before they relaxed and spoke privately; dispensary owners had hidden cameras and recorded officers without consent.
- Dispensary owners released edited footage to media; the Santa Ana Police Department reviewed the footage and initiated internal affairs investigations of participating officers.
- Officers were interrogated once (June 18 and June 21, 2015), then later notified of further interrogation after additional footage was obtained; counsel requested materials described in Gov. Code §3303(g) before the second interrogations, which defendants denied.
- Plaintiffs (SAPOA and the two officers) sued seeking injunctive relief alleging (1) violation of the California Invasion of Privacy Act (Pen. Code §632 et seq.) because the recordings were made without consent and (2) violation of the Public Safety Officers Bill of Rights (Gov. Code §3300 et seq.) for failure to produce tapes, stenographer transcripts, and reports prior to repeat interrogation.
- Trial court sustained a demurrer without leave to amend; on appeal the court affirmed dismissal of the privacy claim but reversed as to the §3303(g) claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recordings of officers at the dispensary are "confidential communications" under Pen. Code §632 (CIPA) | Recordings were made without consent in a private area after officers disabled known devices; officers reasonably expected privacy, so use of recordings violates CIPA | Officers had no objectively reasonable expectation of privacy during a search of a secretive drug operation; it was unreasonable to assume no hidden cameras | Court: No CIPA violation as a matter of law — officers objectively could not expect their conversations were not being overheard/recorded during the raid |
| Whether Gov. Code §3303(g) required production of prior-interrogation tape recordings, stenographer transcripts, and reports/complaints before subsequent interrogations | §3303(g) requires that if a tape exists the officer shall have access to it "prior to any further interrogation" and entitles officers to transcribed notes and reports; thus materials must be produced before second interrogation | Defendants contended production was not required until after second interrogation or until charges were filed | Court: §3303(g) entitles officer to the tape and (by parity with City of Pasadena) transcribed notes and reports prior to any further interrogation; complaint stated a §3303(g) claim |
Key Cases Cited
- Flanagan v. Flanagan, 27 Cal.4th 766 (California Supreme Court) (defines "confidential communication" under §632 by the objectively reasonable expectation test)
- City of Pasadena v. Pasadena Police Officers Assn., 51 Cal.3d 564 (California Supreme Court) (construed timing of disclosure rights under former subdivision now codified in §3303(g))
- Hataishi v. First American Home Buyers Protection Corp., 223 Cal.App.4th 1454 (California Court of Appeal) (reasonable expectation of privacy is generally a question of fact)
- Kight v. CashCall, Inc., 200 Cal.App.4th 1377 (California Court of Appeal) (party asserting no reasonable expectation of privacy bears burden to show so as a matter of law)
- Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (California Supreme Court) (distinguishes mixed questions of law and fact for privacy claims)
- McCall v. PacifiCare of Cal., Inc., 25 Cal.4th 412 (California Supreme Court) (standard of review on demurrer — de novo)