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Court of Appeal, Second District, Division 5, California.

David J. SATTLER, Petitioner and Appellant, v. CITY OF LOS ANGELES, et al., Respondents.

Civ. 60965.

Decided: July 13, 1981

Law Offices of Loew & Marr and Cecil W. Marr, Los Angeles, for petitioner and appellant. Burt Pines and Ira Reiner, City Attys., Los Angeles, Frederick N. Merkin, Senior Asst. City Atty. and Leslie E. Brown, Deputy City Atty., for respondents.

This matter arises from the denial of a petition on a writ of mandate pursuant to Code of Civil Procedure section 1094.5 directed to City of Los Angeles, Los Angeles Police Commission and Daryl F. Gates, as Chief of Police.   The petition requests that the appellant be reinstated to his position as a Los Angeles police officer.   Judgment was entered for the defendants and resulted in this appeal.   The Los Angeles City Chief of Police had discharged the appellant after a decision by a Los Angeles Police Department “Board of Rights” administrative hearing panel.


Appellant had been employed by the Los Angeles Police Department as an officer for a period of approximately eight years prior to October 25, 1979, on which date he was relieved from duty pending a “Board of Rights” to be held pursuant to section 202 of the Charter of the City of Los Angeles.

On August 3, 1979, about noon, appellant's residence in Anaheim was entered without permission by two neighborhood juveniles.   One of the juveniles was apprehended in the house by appellant.   The other one ran outside.   Appellant called the Anaheim Police Department to report the burglary, and, in response, Officer McManus and Officer Rousch arrived at plaintiff's house.   The juvenile remaining in appellant's house was taken into custody, at which time the juvenile advised the officers that he had seen marijuana in the house.   When asked by Officer McManus if this was true, appellant responded “that burglars will say anything to get out of what they do.”   The second juvenile was picked up at his house and both juveniles were then returned to appellant's house to be identified.   When asked again if he possessed marijuana, appellant stated he did not, and gave reluctant consent to search the house.   Appellant refused consent, however, to look into the closet of the master bedroom.   Despite this refusal, the officers opened the door and observed a number of marijuana plants growing inside a wooden container.   Officers had observed, prior to the opening of the closet door, lights and a disturbed carpet in another closet indicative of an item having been removed from that closet.

Upon finding the plants, appellant requested that the officers forget what they had seen and let him destroy the marijuana.   Alongside the wooden container was a cardboard box with various items in it.

Appellant was taken to the Anaheim police station along with the marijuana plants.   He was retained there on a pretext of the burglary investigation until the arrival of investigators from the Los Angeles Police Department's Internal Affairs Division.

Prior to the arrival of the investigators, appellant telephoned his wife, informed her that the police had found the marijuana, and instructed her to “get rid of the stuff.”   When first requested by the investigators for consent to search his house, plaintiff refused.   Later, he did consent, but when the search was conducted, the paper box was missing.

The Anaheim police turned over possession of the marijuana to the Los Angeles Police Department.   Subsequently, Anaheim police sought a complaint from the district attorney's office, but it was turned down on the grounds of an illegal search.

During the original interview on August 3, 1979, by the investigators, appellant stated that the marijuana had been brought in by the juveniles and that he would so swear in court.   In fact, the marijuana was being grown by appellant's wife.   Appellant had discovered, on a prior occasion, marijuana plants growing and had destroyed them.   An angry confrontation with his wife resulted.   Appellant discovered a second time that plants were growing (the ones that are the subject of this proceeding) but did not destroy them because of a fear that if he did so it would terminate his marriage.

The Los Angeles Police Department “Board of Rights” administrative panel found the plaintiff guilty of each of the following charges:

“Count 1: During the year last past, at 3284 Radcliffe Avenue, Anaheim, you knowingly allowed marijuana to be cultivated in your home.

“Count 2: During the year last past, at 3284 Radcliffe Avenue, Anaheim, you knowingly and illegally were in possession of marijuana.

“Count 3: On August 3, 1979, at approximately 1630 hours, while at Anaheim Police Station, you knowingly, with the intention of obstructing an official personnel investigation, directed your wife, Chuong Sattler, to destroy narcotic paraphernalia which was located in your residence.

“Count 4: On August 3, 1979, at 1945 hours, while at Anaheim Police Station, you gave false and misleading statements to Sergeants K. Colby and R. Risen who were conducting an official personnel investigation.”


(1) Did the trial court, in the exercise of its independent judgment, properly find that the weight of the evidence supported the findings of guilt by the Board of Rights?

(2) Did the trial court properly uphold the penalty imposed by the Los Angeles Police Department?


Did the Trial Court Properly Find the Weight of Evidence Supported the Findings of Guilt?

The questions to be determined in deciding whether or not the weight of the evidence supported the Board's finding are twofold:  (1) Was the seizure of the marijuana plants and the officers' testimony regarding them the result of an unlawful search and seizure?  (2) If so, could they still be admitted properly in the administrative hearing?

 (1) There was an unlawful search and seizure.   According to the officers, they were conducting a criminal investigation at the time of the search of appellant's house.   The search of the closet was without consent and without a search warrant and is per se unreasonable, unless it falls within an exception.   It is obvious that the search was not for the purpose of investigating the burglary charge, so it could only have been for the purpose of investigating the possession of marijuana.   The search was not incidental to a lawful arrest, nor were there exigent circumstances, nor was there an emergency situation.

The Anaheim officers were not acting as agents for the Los Angeles Police Department in their investigation.   The Los Angeles Police Department was totally unaware of the search until it was completed.   Nevertheless, the fortuitous obtaining of the evidence by one police department directly from another does not attenuate the effect of the illegality so as to render it legal.   Thus, we are faced with the direct question as to whether this illegally obtained evidence may be used by the Los Angeles Police Department in its internal administrative hearing.

(2) The introduction of the plants and the officers' testimony regarding them was properly admitted in the administrative hearing.

Emslie v. State Bar (1974) 11 Cal.3d 210, 229, 113 Cal.Rptr. 175, 520 P.2d 991, held that in regard to administrative proceedings (in that case the Disciplinary Board of the State Bar of California) “a balancing test must be applied in such proceedings and consideration must be given to the social consequences of applying the exclusionary rules and to the effect thereof on the integrity of the judicial process.”

In holding that the exclusionary rule did not apply, the court commented:  “The exclusionary rules of the criminal law are based upon the principle that the state should not profit by its own wrong in using in criminal proceedings evidence obtained by unconstitutional methods;  and upon the premise that by denying any profit to law enforcement officers who may be tempted to use illegal methods to obtain incriminating evidence (i.e., by not allowing the use of such evidence at the trial), the rules will have a deterrent effect.  (See People v. Moore (1968) 69 Cal.2d 674, 682 [72 Cal.Rptr. 800, 446 P.2d 800];  People v. Bilderbach (1965) 62 Cal.2d 757, 763–764 [44 Cal.Rptr. 313, 401 P.2d 921].)”  (Id., at 226–227, 113 Cal.Rptr. 175, 520 P.2d 991.)

Emslie at page 227, 113 Cal.Rptr. 175, 520 P.2d 991, commented on People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706, and In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, as follows:  The exclusionary rule was sanctioned in the civil proceeding for forfeiture of a car used for unlawful transportation of marijuana because the purpose of the forfeiture is deterrent in nature and “that there is a close identity to the aims and objectives of criminal law enforcement.”   In Martinez, which involved a parole revocation by the adult authority, the court weighed the nature of the proceeding with the high social cost that might result from an extension of the exclusionary rules, and held that the Fourth Amendment and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, exclusionary rules did not apply.

Governing Board of the Mountain View School District of Los Angeles County v. Metcalf (1974) 36 Cal.App.3d 546, 111 Cal.Rptr. 724, involved the dismissal of a teacher by the Governing Board of the Mountain View School District.   The defendant's conviction for a violation of Penal Code section 647, subdivision (b), was reversed on the grounds of an unlawful surveillance by a police officer.   The officer's testimony was permitted at the dismissal proceeding and its use was affirmed on appeal.   The Education Code provides that a teacher must be a personal example for the students, and accordingly, the exclusionary rule was not a part of the process in this proceeding.

In In re Robert P. (1976) 61 Cal.App.3d 310, 132 Cal.Rptr. 5, an order of the juvenile court declared the minor to be a ward of the court pursuant to the provisions of Welfare and Institutions Code section 600.   An officer's testimony and photographs, which were the result of an unlawful search and seizure, were admitted into evidence and this admission was affirmed on appeal.   The court cited both Emslie and Governing Board v. Metcalf and stated:  “The application of the exclusionary rule, primarily in criminal cases, may be necessary to insure that the law enforcement officers observe the proscriptions of the Fourth Amendment.   However, we are mindful that just dispositions are frequently thwarted thereby and we see no necessity to extend the rule to the relatively few violations in child custody actions which are not criminal in nature.   The possibility that such an extension might result in the suffering or deprivation of innocent children is too high a price to pay for any slight additional deterrent effect.”  (61 Cal.App.3d at 321, 132 Cal.Rptr. 5.

Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 145 Cal.Rptr. 396 involved a petition for a writ of mandate by a correctional officer who had been suspended after a formal hearing before the State Personnel Board.   The petitioner contended that he should have been allowed to assert his privilege against self-incrimination.   The appellate court held that in a noncriminal investigation of himself, a peace officer may be compelled to testify against himself.   Further, possession of marijuana and bringing marijuana onto the prison grounds are job related.   The court noted:  “In considering the issue raised by appellant this court is mindful of the peculiar and delicate position police officers hold in society.”  (Id., at 914, 145 Cal. Rptr. 396.)

 After a review of the facts of the instant case and the authorities cited above, it is clear that the deterrent effect upon police officers contemplated by the exclusionary rule is outweighed by the benefit to society in maintaining the integrity of the police force.   Police officers have an obligation to uphold the laws of the State of California and arrest those that violate them, and, further, they must conduct their personal lives in a manner that is above reproach.   Here, petitioner's misconduct in possessing marijuana was directly related to his job duties of enforcing the laws relating to marijuana.   Accordingly, the evidence of the marijuana plants and the officer's testimony was properly admitted by the Board.

The trial court's conclusion of law to the effect that, “There is no occasion for penalizing the Los Angeles Police Department” was a finding that after balancing all of the consequences, the weight fell in favor of the admissibility of the evidence and against unwarranted exclusion.   Accordingly, the trial court correctly found that the weight of the evidence supported the finding of guilt by the Board of Right.


Did the Trial Court Properly Uphold the Penalty Imposed by the Los Angeles Police Department?

The criteria established in order to overturn a penalty imposed in an administrative hearing is set out in Harris v. Alcoholic Bev. etc. Appeals Bd. (1965) 62 Cal.2d 589, 43 Cal.Rptr. 633, 400 P.2d 745.  (See also Shakin v. Board of Medical Examiners (1967) 254 Cal.App.2d 102, 62 Cal.Rptr. 274.)   “․ the propriety of the penalty is a matter vested in the discretion of the Department, and its determination may not be disturbed unless there is clear abuse of discretion.  (Martin v. Alcoholic Beverage etc. Appeals Board, 52 Cal.2d 287, 291, 293 [341 P.2d 296];  cf. Magit v. Board of Medical Examiners, 57 Cal.2d 74, 87 [17 Cal.Rptr. 488, 366 P.2d 816].)  If reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion that the Department acted within the area of its discretion․

Although the Department's discretion with respect to the penalty is broad, it does not have absolute and unlimited power.   It is bound to exercise legal discretion which is, in the circumstances, judicial discretion.”  (Harris v. Alcoholic Bev. etc. Appeals Bd., supra, 62 Cal.2d at 594, 43 Cal.Rptr. 633, 400 P.2d 745.)   In this case the appellate court agreed with the Appeals Board that the Department of Alcoholic Beverage Control had abused its discretion.   The abuses were isolated and minor in nature.

Harris was cited in Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966, 103 Cal.Rptr. 455, in holding that “the propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion.”   This case made the distinction between the matter of penalty and the determination as to whether the administrative findings in the exercise of the court's independent judgment, are supported by the weight of the evidence.   The discretion of the trial court in fixing the penalty was not changed by Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29.  (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 120 Cal.Rptr. 452.)

In Cadilla, the petitioner was a doctor specializing in pediatrics, accused of lewd conduct committed on an 11-year-old patient.   The hearing officer of the State Office of Administrative Procedure recommended revocation of the doctor's license.   The appellate court agreed with this recommendation, concluding that “Even reviewing the mitigating evidence in the light most favorable to respondent, the most that can be said on respondent's favor is that reasonable minds might differ as to the propriety of the penalty of revocation.”

 In the instant case the Board had before it the appellant's personnel package with “outstanding” evaluations.   In view of all the other evidence presented, there was no abuse of discretion by the trial court in upholding the penalty imposed by the Los Angeles Police Department.

The judgment is affirmed.



SHELDON, Associate Justice.* FN* Assigned by the Chief Justice of California.

STEPHENS, Acting P. J., and HASTINGS, J., concur.