Oakland Police Conducted An Illegal Search And Then Lied About It. But They May Be Spared From Discipline.

A California Superior Court ruling gives officers accused of misconduct access to investigator notes and files while cases are in progress.

On Dec. 12, 2017, two Oakland, California, police officers were dispatched to an apartment building to conduct a welfare check on a man who was acting erratically. They encountered him in the hallway and because he smelled of alcohol, the officers handcuffed him and requested an ambulance to take him to a hospital.

The officers also sought to search the man’s apartment for weapons. But instead of going before a judge to obtain a warrant, one of the officers entered the home and conducted a warrantless search. A weapon was discovered and seized. Five hours later, the officers obtained a warrant—for the search that had already been carried out.

The man, whose identity hasn’t been disclosed in public records, filed a complaint against the officers after he was released from the hospital. Internal affairs investigators with the Oakland Police Department interviewed the officers, reviewed their body camera videos and other records, and cleared them of wrongdoing.

After the police department closed its internal affairs case, Oakland’s Community Police Review Agency (CPRA) opened a separate inquiry. It determined that the two officers conducted an illegal search, wrote a false and inaccurate report, and, with another officer who later arrived at the scene, lied to internal affairs. The agency recommended discipline for the three officers.

The two inquiries, which have been shrouded in secrecy, raise questions about the police department’s ability to investigate misconduct.

The controversy also has implications for law enforcement far beyond Oakland. In January, the city police officers union filed a lawsuit to have the CPRA investigation invalidated on procedural grounds. Last month, a California Superior Court judge sided with the police union in a decision that blocks the city from disciplining the three officers and hamstrings police misconduct investigators statewide. The judge ruled that CPRA and internal affairs investigators must hand over their confidential files and notes to the same officers they are investigating—while investigations are in progress—if they want to conduct more than one interview with officers who are suspected of wrongdoing.

In 2017, the CPRA was established after a scandal involving 17 Oakland officers who were investigated for trafficking a teenage girl known by the pseudonym Celeste Guap. The internal affairs unit was criticized for mishandling the inquiry by mistreating the victim and prematurely closing the case despite evidence of crimes by multiple officers. In the years before the Celeste Guap scandal surfaced, internal affairs conducted faulty investigations and discipline was unevenly handed out, resulting in officers escaping punishment for obvious violations. City Council members Dan Kalb and Noel Gallo sponsored the legislation that created the CPRA, and it was envisioned as an independent authority that would ensure that internal affairs wasn’t the only check on police misconduct.

The CPRA’s investigation of the December 2017 illegal search began in September 2018, two months after internal affairs closed its case. After reviewing the officers’ police reports and body camera videos from the incident, investigators requested interviews with four officers present at the scene, including the officer who conducted the warrantless search.

But CPRA investigators ran into resistance from the Oakland Police Officers Association’s attorney who requested that the officers be provided with all of the city’s investigative materials, including CPRA and internal affairs notes, before they would agree to an interview.

The CPRA’s director at the time, Anthony Finnell, refused the police union lawyer’s requests and warned the officers they could face termination if they declined to be interviewed. In November, the four officers spoke with the agency’s investigators.

According to a summary of CPRA findings written by Oakland’s city attorney, the agency determined that the officers contradicted their previous statements to internal affairs about the timeline of the search and when they obtained the warrant. The officers’ body camera videos proved the search was conducted without a warrant. The CPRA also found that the officers included false and inaccurate information in their police report. And the officer who carried out the search admitted to CPRA investigators that he lied to internal affairs about when he obtained the warrant.

On Jan. 11 this year, the Oakland police union filed a lawsuit in state court to block the city from using the CPRA’s report to discipline the officers.

Union attorneys argued that the agency violated the state Public Safety Officers Procedural Bill of Rights Act by refusing to provide the officers all of the investigative materials in the case before they were subjected to the second interview. The state police officers bill of rights requires cities to hand over recordings of interviews with an officer before any subsequent interview, and to also make available to officers “any reports or complaints made by investigators or other persons.”

In a court briefing, Oakland’s city attorney countered that the proper interpretation of this requirement is that investigators must share recorded interviews with an officer, but files and notes need not be handed over until the case is completed.

The city attorney wrote that sharing these materials with officers while they are being investigated would “undermine” police accountability. This would be especially true in Oakland because the city has two agencies that investigate police misconduct. If officers have the right to review an investigator’s files before they are interviewed a second time, then the CPRA, which typically interviews officers after internal affairs, would almost always be obligated to reveal its case to those officers.

But on June 21, Superior Court Judge Frank Roesch of Alameda County ruled that the CPRA violated the police officers bill of rights. His decision effectively voided the agency’s investigation and blocked discipline against the officers.

Oakland City Attorney Barbara Parker told The Appeal that Roesch was constrained by legal precedent, specifically a state appellate court decision from 2017. The case involved three Santa Ana police officers who were caught on hidden surveillance cameras vandalizing and stealing from a marijuana dispensary they raided. Two of the officers were fired over the incident, but the Santa Ana police officers union successfully argued in a lawsuit that the officers weren’t given access to internal affairs investigators’ notes before they were interviewed for a second time.

Parker believes the ruling is an obstacle to accountability.

“If every officer facing a serious allegation received critical and confidential evidence after sitting for just one interview, it would be a major step backward for civilian oversight and for police accountability,” Parker wrote in an email to The Appeal.

Henry Gage, a member of the Oakland-based watchdog group Coalition for Police Accountability said Roesch’s ruling bolsters ill-conceived protections for California police officers.

“It is impossible to hold officers accountable if oversight agencies are forced to turn over their evidence before their investigation has concluded,” Gage said.

Attorneys for the Oakland Police Officers Association did not respond to emails from The Appeal seeking comment.

Parker plans to appeal Roesch’s decision in an effort to overturn the appellate court’s decision in the Santa Ana case.

“The bottom line is we are fighting to ensure real accountability for police as intended by the California legislature, the California Supreme Court, and the people of Oakland. We will continue our fight in the First District Court of Appeal,” Parker said in her email.

The appellate court ruling isn’t the only problem presented by the case against the Oakland police officers. Since 2003, the police department has been under federal court oversight as a result of misconduct by a squad of West Oakland cops known as “The Riders” who beat suspects and planted drugs on people. Under the terms of a settlement agreement, the city agreed to reform its police department; one key metric is ensuring that internal affairs investigations are rigorous and that discipline is handed out impartially.

According to court records, the department’s internal affairs investigators had clear evidence that the officers who conducted the 2017 warrantless search broke the law and were dishonest in their interviews. Citing the internal investigation, the city attorney wrote in a court filing that “the officers should have awaited search warrant authorization before entering the residence. Despite this significant, illegal entry, Internal Affairs did not recommend discipline for any of the Officers.” Instead, internal affairs recommended only training for the officers.

The Oakland police did not respond to questions about the case and whether it could pose a setback in its efforts to comply with the terms of the 2003 settlement agreement.