Police Officer Subject to Interrogation in Investigation is Entitled to Investigator's Notes and Reports Prior to Further Interrogation

Category: Briefing Room
Date: Aug 31, 2017 03:59 PM

Government Code section 3303(g) of the Public Safety Officers Procedural Bill of Rights Act (“POBR”) provides that if the interrogation of a public safety officer is recorded, the officer “shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.”  It also entitles the officer to a “transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.” 

In a recent case, a California Court of Appeal held that under POBR section 3303(g), an investigator’s reports or complaints, like the recording of an interrogation, must be produced to the officer prior to a subsequent interrogation.

The case involved a personnel investigation of two City of Santa Ana (“City”) police officers.  The officers had executed a search warrant at a marijuana dispensary.  After escorting all civilians present off the premises, the officers disabled all known video cameras.  Believing they were no longer being recorded, the officers discussed confidential work-related matters and personal family issues, among other things.  Unbeknownst to the officers, the dispensary owners had installed hidden video cameras, which captured these discussions.  Portions of the video recordings were later released to the media, prompting the personnel investigation.

After an initial interrogation of the officers, the City obtained additional footage from the recordings made at the dispensary.  Based on this footage, the City notified the officers that they would be subject to additional interrogations.  Counsel for the officers requested that the City turn over materials pursuant to section 3303(g) of the POBR, but it was not provided.      

The officers filed a complaint, seeking injunctive relief to restrain the City, the Police Department, and the Chief of Police from “releasing information obtained from the illegal recordings or the fruits of said recordings in any [internal affairs] proceeding.”  The officers alleged violations of the California Invasion of Privacy Act – specifically Penal Code section 632 – and POBR section 3303(g).  The trial court sustained, without leave to amend, Defendants' demurrer to the Complaint, and the officers appealed.

In support of their privacy claim, the officers argued that Defendants impermissibly used evidence obtained as a result of illegal eavesdropping during the officers’ execution of the search warrant at the dispensary.  The Court of Appeal rejected this claim on the basis that Penal Code section 632 only applies to confidential communications.  The Court concluded that the officers’ discussions at the dispensary were not confidential because, although the officers had removed all known cameras, it was objectively unreasonable for them to believe there were no unknown cameras or other recording devices in the dispensary.        

However, the Court of Appeal held that it was improper for the trial court to sustain the City’s demurrer as to the POBR cause of action because the Complaint, as pled, stated a claim.  That is, the Court of Appeal found that Defendants were required to provide the officers any recordings of the first round of interrogations before any subsequent interrogations could take place.  The Court explained that “section 3303(g) plainly states ‘the public safety officer shall have access to the tape ... prior to any further interrogation at a subsequent time.’”

The officers also argued that before the second round of interrogations, Defendants were further required to produce “any reports or complaints made by investigators or other persons.”  Defendants countered that they did not need to do so until charges were filed against the officers, i.e., after all interrogations were completed and the investigation closed.  The Court of Appeal held that the officers stated a claim – at the pleading stage – that they were entitled to the reports and complaints, as well as recording of the first round of interviews.      

Santa Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th 317.


This case appears to be somewhat of a departure from earlier cases.  Given the procedural context the case was decided under, i.e., whether the officers’ complaint should be dismissed at the pleading stage by demurrer, agencies should review this case carefully before relying on it one way or the other.  We recommend that agencies consult with counsel if there is any uncertainty regarding what materials must be produced to the officer before or after an interrogation, especially if contemplating further interrogation of the officer.    

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