CITY COUNCIL
Darrell Steinberg, Mayor
Lisa Kaplan, District 1
Sean Loloee, District 2
Karina Talamantes, District 3
Katie Valenzuela, District 4
Caity Maple, District 5
Eric Guerra, Vice Mayor, District 6
Rick Jennings, II, District 7
Mai Vang, Mayor Pro Tem, District 8
CHARTER OFFICERS
Mindy Cuppy, City Clerk
Susana Alcala Wood, City Attorney
Jorge Oseguera, City Auditor
Howard Chan, City Manager
John Colville, City Treasurer
City Council
Financing Authority
Housing Authority
Public Financing Authority
Redevelopment Agency
Successor Agency
915 I Street, 1st Floor, Sacramento
Published by the Office of the City Clerk
(916) 808-7200
SUPPLEMENTAL MATERIAL
D
escription: Attached is supplemental material received after publishing the agenda the addition of attachment 4 and attachment 5 for Discussion Item 22. The attached staff report and attachments replace the original staff report in its entirety.
For the Meeting of: Tuesday, June 20, 2023 , at 5:00 p.m.
Agenda Item: Discussion Item 22
22. Office of Public Safety Accountability’s Audit of the Sacramento Police Department (SPD): Misconduct Complaint Cases - Improper Search and Seizure File ID: 2023-00833
Location: Citywide
Recommendation: Receive and file.
Contact: Dr. LaTesha Watson, Director, (916) 808-7525, [email protected], Office of Public Safety Accountability
1 June 15, 2023
Ref: COP 6-8
City Manager Howard Chan
915 I Street
Sacramento, CA 95814
Dear City Manager Howard Chan,
SPD Response to the Office of Public Safety Accountability’s External Audit Report The purpose of this memorandum is to provide the Sacramento Police Department’s written response to the Draft Office of Public Safety Accountability (OPSA): External Audit Report. The report is dated March 15, 2023, as “An Audit of the Sacramento Police Department (SPD): Misconduct Complaint Cases- Improper Search and Seizure.”
Executive Summary
The Sacramento Police Department is a leader in transparent and progressive policing. We continually find ways to advance our profession and we demand high standards of those entrusted with providing service to our community.
Many of the policy recommendations made by OPSA in their External Audit Report have value. Some of the recommendations made are already in place and have been SPD practice. The Sacramento Police Department is reviewing and is considering the additional recommendations.
We acknowledge the critical role of oversight in public safety, which builds and maintains public trust by ensuring that SPD adheres to high standards. We also know the importance of public trust in our department and our responsibility to provide timely, factual, and accurate information. During our review, SPD identified pertinent facts and information that were missing or inaccurate, thus this report could be misleading. It should be noted that SPD and OPSA met only one time briefly and the details of this audit were not discussed in depth.
It may be possible to better understand the conclusions in the audit as well as the basis of findings with further discussion.
5770 Freeport Blvd., Suite 100
Sacramento, CA 95822-3516
(916) 808-0800
Fax: (916) 808-0818
www.sacpd.org
KATHERINE LESTER
Chief of Police
2 For perspective, during the audit period, SPD responded to 772,863 service calls to the public and made 2,128 arrests. During that same time, SPD received 594 complaints and in more than 99% of all cases reviewed, OPSA concurred with SPD findings.
For this audit, OPSA reviewed 109 cases between June 1, 2020, and June 30, 2022, that included an allegation of "illegal search and seizure." Of those, OPSA reported that SPD should have determined misconduct occurred in 38 of these cases. SPD found misconduct in only 17 cases: leaving 21 cases in question.
Of the 17 cases that SPD sustained, OPSA reviewed and agreed with the findings. OPSA and SPD continue to agree on the disposition of these cases. To summarize these cases:
• 16 cases had a sustained finding of search and seizure • One case had a sustained finding of insubordination
• Nine involved traffic stops
• OPSA reviewed 14 of the 17 cases prior to the audit. Three additional cases were reviewed for this audit.
After an extensive review of the 21 cases in question, SPD found the following:
• Nine cases were previously reviewed by OPSA for a violation of search and seizure and OPSA had originally concurred with SPD’s findings. No violations of search and seizure were identified in those nine cases.
• Five cases have been settled in court; three of these cases were reviewed by a judge in a motion to suppress evidence hearing (1538.5 PC) and the searches were upheld in a court of law. Two additional cases involved a plea and sentencing of the defendant.
• In two of the cases, SPD was unable to conclusively determine if there was a violation of search and seizure. In those two cases, additional interviews should have been conducted. • In the remainder of the cases, SPD was able to provide the appropriate case law to show that no misconduct had occurred.
SPD is committed to constitutional policing. We will continue to work with our community, collaborate with OPSA, and proactively identify ways to move our department forward.
Background
In the External Audit Report background, it states that, “In May of 2022, concerns emerged during the review of misconduct complaint cases. OPSA practitioners discovered an initial pattern of Fourth Amendment violations of Sacramento community members, specifically Black and Hispanic community members, during police- citizen interactions.”
In July 2022, OPSA advised that they would be conducting an audit of SPD Search and Seizure complaints as they believed there were multiple instances of improper search and seizure incidents. When asked for additional information, OPSA stated that they had not reviewed enough cases to determine if there was any pattern and could not provide further.
SPD Received the draft report on April 20, 2023, with a request for a written response regarding the Findings and Recommendations to be provided by May 2, 2023. SPD immediately reviewed the draft report.
OPSA reported that their office reviewed 109 cases with an allegation of illegal search and seizure between June 1, 2020, and June 30, 2022. Of those 109 cases, OPSA asserted that 38 cases should have a disposition of 3 sustained findings for illegal search and seizure. (A finding of “sustained” means that there was sufficient evidence to support the allegation against the employee.)
Due to the limited information provided in the audit, SPD requested additional information from OPSA on April 25, 2023, and requested 30 days to thoroughly review each of the cases.
The request for additional time to review and respond to the audit was denied by OPSA.
On April 25, 2023, at the request of SPD, OPSA provided a spreadsheet of the cases which they had audited.
That spreadsheet identified the cases in question; however, it did not provide any explanation or basis for the OPSA finding in instances where it was different from a finding by SPD. On April 28, 2023, at an in-person meeting not related to the audit, SPD requested that OPSA share their basis for the different findings. SPD received an expanded spreadsheet on May 3, 2023, with some additional notes.
Calls for service and complaint ratio
In summary, during the audit period, SPD is reporting the following:
• Officers responded to 772,863 calls for service
• This number included:
o Almost 60,000 traffic stops (59,552)
o Over 17,000 citations (17,176)
o Over 2,100 Arrests (2,128)
o 445 citations for illegal window tint
• SPD received 594 total complaints which included 119 complaints regarding search and seizure • That equates to one complaint of search and seizure for approximately 6,500 calls for service • During the Audit period, OPSA reviewed 310 of the 594 complaints o OPSA completed a review of 294 of 310 cases
o OPSA agreed with SPD on 99% (292 of 294) of those complaints
SPD Findings1
SPD reviewed each case in detail and found the following:
17 sustained cases
Of the 17 cases that SPD sustained, SPD continues to support those findings as does OPSA. In 16 cases, allegations of search and seizure were sustained. One case was sustained for insubordination but not improper search and seizure. OPSA reviewed 14 of the 17 cases prior to the audit and concurred with SPD findings. The
1 For Reference, cases have one of several dispositions. Each allegation of misconduct shall receive one of the following dispositions:
Exonerated: The investigation clearly established that the alleged act occurred and was justified.
Not Sustained: Sufficient evidence does not exist to clearly prove or disprove the allegation.
Sustained: Sufficient evidence supports the allegation against the employee(s).
Unfounded: The investigation clearly established that the alleged act did not occur, or the identified employee was not involved. This also includes frivolous complaints, which are found to be totally and completely without merit, or those for the sole purpose of harassing an employee.
4 remaining three were subsequently reviewed by OPSA as part of their audit and they agreed with the SPD findings.
Of the 17 cases that SPD sustained, SPD agrees that misconduct did occur. To summarize:
• 16 cases had a sustained finding of search and seizure • One case had a sustained finding of insubordination
• Nine involved traffic stops
• OPSA reviewed 14 of the 17 cases.
• Three additional cases were reviewed for this audit.
While appropriate action was taken in these cases, any finding of misconduct should and does lead to concern- including the outcomes of these 17 complaints where we found that officers had not upheld or met the high standard that SPD and our community expects. We are constantly working towards showing respect to our community by our actions- not just words. We know that in order to achieve true legitimacy, we must acknowledge when mistakes have happened and take appropriate action.
When a mistake or misconduct occurs, it is incumbent on the Department to objectively review the case and determine the causal factors. Often, policy and training are examined to identify any areas for improvements or clarification could result in better outcomes. The Department is committed to equitable police practices and providing excellent service to our community. The Department is also committed to ensuring that members have the appropriate support and tools to ensure the proper application of law, policy and training. The Department regularly examines outside policies and best practices for consideration in the field of law enforcement, which is framed by legislative updates, new case law, and innovations in training and equipment that are constantly changing.
21 additional cases
Of the remaining 21 cases SPD found that in nine of those cases, OPSA had previously agreed with SPD, but had now changed their finding. When asked why OPSA was now reversing their decision and finding, OPSA advised that originally, they had not reviewed cases for Fourth Amendment violations. However, SPD found that in every case an allegation of illegal search and seizure was originally included and, in every case, OPSA had previously agreed that there was not a violation of law or policy.
Five cases have been adjudicated in a court of law; three had motions to evaluate the legal basis for search and seizure (Motion to Suppress) and in each of those cases, the court upheld the basis for the search and/or seizure.
Two cases were resolved by the involved parties by pleading to charges and being sentenced.
In the remaining cases, there was evidence and pertinent case law to support SPD findings.
SPD found that in two of the 21 cases, a more extensive investigation to determine if there was a Fourth Amendment violation should have been conducted.
Additionally, OPSA and SPD had previously discussed two of the 21 cases. OPSA advised that the cases should be sustained. SPD provided a legal basis for their finding. SPD and OPSA continue to disagree on the outcome of those two cases.
5 In sum, of the 38 cases in question, SPD found the following:
• 17 cases – OPSA and SPD found policy violation
• 9 cases – OPSA previously concurred with SPD findings of no policy violation • 5 cases – Upheld by a court supporting SPD findings of no policy violation • 2 cases – Warranted further investigation to determine if policy violation occurred • Remaining cases - OPSA and SPD do not agree on policy violation
OPSA inaccurately noted in their report that SPD did not have information on three cases. OPSA was provided the full investigation for each of the requested cases for this audit. Of the three cases that OPSA claimed are missing, OPSA had reviewed and concurred with two of those cases prior to the audit.
Audit Findings and Recommendations
The audit findings are separate from the recommendations and while SPD does not agree with the case findings in the audit, SPD Professional Standards Unit is currently reviewing all the materials and recommendations for possible adoption or incorporation into existing policies. The following points are relevant to the recommendations:
• The SPD Search and Seizure manual is in the final review stages. It has been reviewed and approved by the City Attorney and Labor and is moving towards finalization. • SPD does provide extensive training to recruits and police officers on investigatory stops, pat-down searches, reasonable suspicion, and Fourth Amendment fundamentals. • Police officers and SPD leadership do take cultural sensitivity training, fair and impartial policing training, implicit bias training, and constitutional policing training. • SPD currently has continuous education and training for legal updates, probation search waivers, implicit bias, and community-oriented policing.
OPSA Finding 1:
SPD does not have a current, stand-alone policy regarding the Fourth Amendment and includes search and seizure.
OPSA Recommendations
• SPD should update its search and seizure manual from 2007. • SPD should draft a clear and detailed stand-alone Fourth Amendment policy that includes such things as cell phone searches, probations searches, investigatory stops, and consent searches. • A sample policy from the San Francisco Police Department can be found in Appendix A.
SPD Response
The updated Search and Seizure Manual was in progress prior to the audit and is now in its final approval stages. The Professional Standards Unit is reviewing all policies that were provided and will research implementation of the proposed policy changes.
6 OPSA Finding 2:
Automatic pat downs of citizens are in direct conflict with the 1968 United States Supreme Court Decision, Terry v. Ohio
OPSA Recommendations
• SPD should require officers to articulate in their reports why they stopped a citizen and/or why they felt the need to pat down the person.
• SPD should establish a clear detailed policy on pat downs, investigatory stops, and investigative detentions. A sample policy from the San Francisco Police Department can be found in Appendix B. • SPD should provide training to new recruits and police officers on investigatory stops, pat downs, reasonable suspicion, and Fourth Amendment fundamentals, in accordance with the newly issued policy.
OPSA Example One was a case used to illustrate the assertion that Terry searches are conducted automatically outside of the law:
OPSA Example One
SPD Gang Enforcement officers pulled over a citizen for going 47-mph in a 40-mph zone. In viewing the body worn camera footage, the citizen was not an apparent threat to the officers. The citizen was apologetic for speeding, non-aggressive, calm, and respectful in his interaction with police officers.
Although the driver was compliant, the officer decided to order the citizen out of the vehicle, conduct a pat down search of his body, and ordered him to sit on the hood of their car. There was no report and no articulation of what made the officer believe the driver was currently armed and dangerous.
SPD Response
Pertinent information was omitted from this example. The driver was not cooperative, had a history of felony assault with a firearm, had a firearm registered to him, and the driver and passenger rolled windows up and down during the stop. This is a complaint that OPSA had previously agreed with SPD findings that no misconduct took place.
SPD officers, like all police officers in the state of California, may not arbitrarily conduct pat down searches.
SPD officers are required to provide information to support their actions, however, SPD is open to examining our policies and updating them to support this recommendation as well as reviewing the SFPD policy provided.
The recommended training for new recruits and police officers is currently part of the training curriculum and is also legally required by the California Peace Officers Standards and Training Commission (POST). All training is available for OPSA to audit in person and is available in detail on our transparency page. When policies are updated, all officers are required to review and acknowledge any new policy.
OPSA Finding 3:
SPD officers improperly searched or seized citizens cell phones in direct violation of State and Federal laws.
SPD was unable to determine the case associated with Example Two and further detail was not provided by OPSA:
7 OPSA Example Two
In one case, police officers towed a citizen's vehicle for his failure to consent to a cell phone search.
Regarding Example Three, SPD found that the officers made a mistake by seizing a cell phone as evidence:
OPSA Example Three
In one case, an elderly woman was outside recording several officers while they arrested her son.
Her demeanor was calm, and she was on the sidewalk away from the officers who were on the street. Without speaking to her or obtaining her consent, one officer grabbed her while another officer twisted her arm until she lost control of her phone. The officers then seized the cell phone.
SPD Response
However, there were some additional details involving this incident that were omitted. This case involved a medical aid call that resulted in a cover call (an emergency request for additional assistance from the officers on scene); ultimately, five officers were injured – an officer was tased; the DA filed charges against the suspect for felony assault with a stun gun, resisting arrest, felony assault on an officer, and battery on an officer. The suspect’s mother recorded the incident and officers seized the phone as evidence after the incident. The officers’ actions of seizing the cell phone in this case were not supported by case law.
OPSA Recommendation
• SPD should develop a clearly defined policy outlining procedures for the search and seizure of cell phones. A sample policy from the San Francisco Police Department and Baltimore Police Department can be found in Appendix E.
SPD Response
SPD agrees that the handling of cell phones is a complicated and ever-changing area of the law. SPD will continue to find ways to ensure that relevant training, policies, and practices are in place, including reviewing the SFPD and Baltimore policy and other similar policies.
OPSA Finding 4:
Rights of non-probation citizens were violated during probation waiver searches.
Example Four refers to one of two cases during the audit period which asserts officers conducted a search on a car that belonged to a citizen that was not on probation and that the probationer was not seen in the vehicle and was not seen driving the vehicle.
OPSA Example Four
In one case, officers conducted a probation search on a car belonging to a citizen that was not on probation. The probationer was not in the vehicle and was not seen driving the vehicle.
SPD Response
OPSA did not provide which case was associated with this example. From SPDs review, two cases during the audit period could possibly be used as example nine. Originally, OPSA concurred that the officers should have 8 been exonerated from any wrongdoing in the first case, and in the second case concurred with SPD that the allegation was unfounded.
The first possible case involved a probationer who had been seen driving the vehicle but was not present at the time of the search. Officers responded to the complainant’s house and conducted a search of her vehicle since a known probationer had been driving it. Officers conducted the search consistent with relevant case law. By law, as a probationer, you are subject to search and seizure at any time with or without warrant and the probationer does not need to be present at the time of the search. In fact, the probationer can even be in custody.
The second possible case involved a probationer that was seen opening and closing a passenger’s side door and officers ultimately conducted a limited search of the passenger area. Case law allows for officers to search areas in the passenger compartment of a vehicle that a probationer could access. Officers saw a male and female walk to a parked car. The male opened the passenger door, saw officers, then closed the door and walked away. The officers saw the female drive away and stopped her one block later for a vehicle code violation. During the stop, the male walked through the parking lot where the stop was taking place and walked around buildings, observing the stop. During the stop the officers found that the female was protected from that same male by a court issued protective order. They identified and arrested the male for a violation of that order. They then conducted a limited probation search of only the passenger side area that he had access to when he opened the door. Additionally, the suspect admitted on body worn camera that he was getting a ride from the female.
OPSA Example Five is a case that OPSA and SPD disagree on. It is the same incident as used in OPSA Example Twelve.
OPSA Example Five
In one case, officers searched and detained everyone at a local business establishment.
The officers detained the employees and customers for over an hour and further detained them even after it was clear that the customers and employees were not a part of any wrongdoing.
SPD Response
SPD asserts that it has provided sufficient legal information for this case. Additionally, OPSA Example Five omits the fact that all parties chose to voluntarily stay after being given the option to leave.
OPSA Recommendations
• SPD should develop a clear policy defining the rules and procedures for conducting probation searches.
See Appendix A.
• SPD should implement continuous education and training for legal updates, probation search waivers, implicit bias, and community-oriented policing.
• SPD should train officers to obtain search warrants whenever feasible and not rely so heavily on search waivers.
SPD response
SPD doesn’t agree with this finding. In neither of the two possible cases did the non-probation citizen have their rights violated.
SPD will review the policies that were provided regarding rules and procedures for conducting probation searches. SPD has continuous education and training for legal updates surrounding search and seizure, a search 9 warrant class for officers, and ongoing bias and community-oriented policing training, all of which is available for review on the SPD Transparency site. Finally, search warrants are regularly obtained, officers are provided training for writing search warrants and there are a number of required instances where search warrants are necessary and appropriate. A search warrant may not be reasonable or appropriate when other established lawful justifications for conducting a search exist.
OPSA Finding 5:
Inconsistent vehicle tow procedures.
OPSA Recommendation
• SPD should establish a clear policy outlining towing procedures as well as procedures for releasing personal property from their respective vehicles and releasing citizens from police custody when their vehicles are being towed.
SPD Response
SPD currently has a General Order (G.O. 536.02) for Recovered, Stored, Impounded and Asset Seized Motor Vehicles. Additionally, officers have received updates in the form of a training update known as a Roll Call Training Bulletin. The detention of community members is addressed in other areas of law and policy; however, SPD will look at providing clarification to this policy.
OPSA Finding 6:
SPD does not have a policy regarding handcuffing minor children.
OPSA Example Six does not provide all the details. The juvenile was not simply handcuffed because she turned off the lights in her home and failed to open the door fast enough for the officer:
OPSA Example Six
The incident involves a ten-year-old African American female child who was scared and crying in her pajamas after being handcuffed and reprimanded by an SPD officer. The female child turned off the lights inside her home and failed to open the door fast enough for the officer. The female child was clearly not a threat to officers but was still handcuffed immediately upon opening the door of her home.
Although the child in this case was not handcuffed for a long period of time, this incident was obviously traumatic to the child and will certainly shape her view of police officers in the future. A policy outlining procedures in dealing with minor children would be beneficial to officers and lead to less traumatized children in the future.
SPD Response
Additional information relevant to this case should be considered. Officers went to a residence to conduct a probation search related to a stolen car and subsequent firearms investigation. The investigation involved a known gang member who was on probation and posted both pictures and videos with firearms.
Upon announcing themselves, they saw people inside, but no one would answer the door. Officers saw a person running through the house turning off the lights. That person came to the door and was immediately detained.
The officer asked how old they were, realized the person was only 10 and immediately unhandcuffed them.
The duration was appx 30 seconds. The officer had reasonable and articulable concerns for his safety which justified the lawful detention. His actions were documented on body worn camera and in the report. He also spoke to the juvenile and her mother.
10 OPSA Recommendations
• SPD should develop policy specifying handcuffing procedures for minors. A sample policy from the San Jose Police Department [and] Baltimore Police Department can be found in Appendix F. • SPD should receive continuous education and training on implicit bias.
SPD Response
No matter how legitimate the circumstances, and no matter the legal justification, SPD understands the sensitive nature of inadvertently creating harm. SPD values and strives to protect the physical and emotional safety of our community and children. SPD will review the SJPD sample policy. And as previously mentioned, SPD has continuous education and training on implicit bias.
OPSA Finding 7:
Warrantless entry into citizens’ homes and conducting searches without sufficient legal authority.
OPSA Recommendation
• SPD should develop a policy for conducting welfare checks that encompasses warrantless entry into citizen’s homes. A sample policy from the Baltimore Police Department can be found in Appendix B.
SPD Response
SPD does not agree with this finding. Warrantless entry is an extensive topic covered by multiple laws not easily aggregated into a policy. However, SPD will review this item for policy or training improvements.
OPSA Finding 8:
SPD does not have a policy regarding officers interacting with citizens holding a concealed carry weapon (CCW) license.
OPSA Example Seven
During a routine traffic stop for a tinted windows violation, the driver notified the officer that he had a CCW license and that he was carrying his weapon on his side. The officer immediately took out her weapon, held the driver at gunpoint in the low ready position, and called for backup. Several officers responded to the scene and tactically ordered the driver out of his vehicle. The officers took his firearm, handcuffed him, and sat him on the ground. Throughout the interaction the driver was calm and cooperative. Several officers remained on scene while the driver’s information was checked and CCW permit verified. The officers released the driver once they were finished with the records check.
Although this is not a blatant Fourth Amendment violation, a clearly defined policy and effective tactics training for these interactions would be beneficial to the department.
SPD Response
During this traffic stop, the driver advised the officer that they were armed. The officer requested additional units and told the driver to interlace his hands behind his head. The driver was detained, and a supervisor responded at the driver’s request. Officers verified the driver’s CCW and he was sent on his way. The officer provided her name, badge number, and documented the stop in a report. OPSA agreed with SPD’s findings of unfounded.
11 OPSA Recommendation
• SPD should develop a policy for police interactions with citizens who have a CCW license and carrying their weapon at the time of the interaction.
SPD Response
Per OPSA’s findings, the example used was not a Fourth Amendment violation and they agreed with SPD findings of unfounded.
SPD can expand on the two existing CCW policies however, the circumstances should dictate how an officer is best able to safely respond to a person who is armed.
OPSA Finding 9:
Stops based on minor traffic infractions such as improper window tint with no apparent intention to enforce the vehicle code or ticket the driver amount to pretextual stops.
OPSA Example Eight
A driver was pulled over for illegal window tint and was observed to be in his employment uniform. The driver was ordered out of his vehicle, placed in handcuffs, patted down and detained for 15 minutes.
During this traffic stop, the officer conducted an investigation on a completely unrelated criminal matter. The officer suspected the driver was involved in an unrelated criminal offense in the same area, but the officer had no physical description of the suspect. The officer did not have any information or evidence that would lead a reasonable officer to believe that the driver was involved in the criminal activity. The officer made the driver call his supervisor for an alibi. Even though the supervisor confirmed the driver’s whereabouts, the officer continued to detain the driver. The officer did not release the driver until he consented to have his vehicle searched. The search did not yield any contraband and the driver was not cited for any violations.
SPD Response
This is one of the two cases the OPSA and PD continue to disagree on. In this example, the driver was not merely stopped for window tint. OPSA asserted that the officer had no information to believe that the driver was involved in criminal activity. This stop involved a vehicle leaving the area of a burglary alarm at a marijuana dispensary. The officer had the following info and the actions taken were supported by existing law:
• A rash of burglaries at marijuana dispensaries had been occurring in the middle of the night • The vehicle was seen leaving the parking lot at a high rate of speed • The officer could not see the driver or occupants due to the tinted windows • Burglaries of this type had regularly involved armed suspects • Once the officer detained the driver and began the investigation, the reason for stop was explained to the driver
OPSA Example Nine was a complaint that was identified by SPD through an internal audit and it was sustained for improper search:
12 OPSA Example Nine
A Latino female was pulled over by SPD patrol officers for an improper window tint violation. The officer asked for her driver's license and the driver told the officer that her license was in her purse located in the back seat of her car. Without the driver's consent, the officer reached into the backseat, pulled out her purse, and then handed it to her through the driver's side window. The officer then quickly snatched the purse from the driver. The driver, still holding on to her purse, struggled to retrieve her purse from the officer. After a short struggle over the purse, the officer ultimately arrested the driver for resisting arrest. The officer then searched her purse and her car and found nothing. The woman had never been arrested before and did not have a criminal record. The officer had no legal authority to reach into the driver’s car or search the driver’s purse.
SPD Response
The reason for the stop was legal. SPD determined the search was out of policy.
OPSA Recommendations
• SPD should eliminate the practice of pretextual stops or set clear restrictions on conducting pretextual stops. San Francisco Police Department has a policy curtailing the use of pretextual stops. See Appendix C.
• SPD should develop a policy for traffic stops. A sample policy from the Tampa Bay Police Department can be found in Appendix D.
SPD Response
SPD is currently examining our enforcement protocols including pre-text stops and a department wide effort is underway to support intelligence-based policing. SPD is also closely tracking proposed legislation in this area and has been in the process of examining outside agency policies. SPD will review the SFPD policy and the Tampa Bay PD policy, as well as conduct additional outreach to other agencies as needed.
OPSA Finding 10:
Internal reviews by supervisors do not consistently identify Fourth Amendment violations.
OPSA Examples Ten, Eleven and Twelve were used to illustrate this finding. Example Ten is also one of the two cases SPD identified in this audit that additional investigation should have taken place:
OPSA Example Ten
A citizen was alleged to have been in possession of a handgun. However, the officer can be heard on the body worn camera footage saying, "It was somebody in white, I can’t tell you who it was though - probably this guy [points to a guy in a white shirt sitting near him]". The officer then arrested this individual for being in possession of a handgun without knowing whether he had the firearm or not. A misconduct complaint was filed alleging the arrest was made without probable cause in violation of the Fourth Amendment. This complaint was reviewed by the area captain, and it was deemed unfounded.
The OPSA Director and the IG met with the reviewing captain who admitted to not fully reviewing the entire case. The arrested citizen sued the city, and the matter was settled out of court. It is OPSA’s 13 opinion that this matter might have been avoided had the officer been better trained on fundamental Fourth Amendment laws and had the SPD supervisors fully reviewed the unlawful arrest during the initial review of the citizen’s complaint.
SPD Response
This incident occurred five years ago, outside the audit period. Because interviews of the involved officers were not done, it could not be determined if there was a Fourth Amendment violation.
For OPSA Example Eleven, OPSA is correct; the case was brought forward to the Chief of Police for discussion, as is the process. The original complaint was one of harassment which was unfounded, however SPD agreed that the case warranted further review:
OPSA Example Eleven
Gang Enforcement Team officers detained and conducted a search of a citizen without apparent reasonable suspicion of criminal wrongdoing other than the fact that he was wearing a satchel. The reviewing lieutenant believed the interaction was consensual and submitted another case to the IG for review between the same officers and the same citizen that occurred two weeks prior. The second case was more egregious. Three Gang Enforcement Team officers tactically surrounded the citizen as soon as he parked his car in a parking lot. The officers observed no vehicle code or any other violations before detaining him. After a short exchange where the officers questioned him about the clothes he was wearing, the citizen asked, "Can I go finish out my day?" The officer responded in the negative. Since the officer denied his request to leave the interaction, this was a detainment or seizure that the Fourth Amendment requires the officers to have a reasonable suspicion of criminal activity. However, when the citizen filed a complaint alleging the Fourth Amendment violation, it was reviewed internally by a captain and deputy chief who found there was no wrongdoing by officers because it deemed a consensual encounter outside of the reach of the Fourth Amendment, not a detainment. The case progressed through every rank up to the Chief of Police before it was finally sent back for further review. In both interactions, the police officers clearly did not have reasonable suspicion of criminal activity to justify the detainment of the citizen. Routine training on investigatory stops, shows of force, and consensual encounters would have likely prevented this citizen from having his Fourth Amendment rights violated.
OPSA Example Twelve, OPSA and SPD disagree on.
OPSA Example Twelve
SPD officers arrived at a local barbershop due to suspicion that one of the barbers who worked in the shop was in violation of his probation terms. The officers stopped the suspected barber outside of the business. Then ten SPD officers ascended into the barbershop to conduct a probation search, stopped the normal business, and detained all the customers and employees. The officers then searched everyone in the shop, searched the entire shop, and refused to allow anyone to enter or leave the establishment.
This detainment lasted over an hour without any reasonable suspicion that the customers and employees were involved in any criminal activity. This matter went through multiple review channels, including the Chief of Police each finding that the customers and employees consented to the encounter. No one in SPD management identified any issues with the search or detainment of these citizens even though there was a United States Supreme Court decision that clearly prohibited these types of detainments and searches against citizens. Moreover, no one in SPD leadership had any issues with how the employees, 14 or customers were treated throughout the interaction when the discourtesy behaviors were pointed out by OPSA oversight practitioners.
SPD Response
SPD presented this case to OPSA, the Inspector General, the City Attorney, the Assistant City Manager and SPD command staff. SPD provided the relevant case law and analysis which showed the actions of the officers were within the law. Not all pertinent information was provided in this example.
In this case, Gang officers monitored social media. They observed posts about subjects in possession of narcotics at a local business. One of the subjects was a convicted felon, on probation, and seen with a firearm.
The officers conducted surveillance and saw the subject leave the business in question. He was stopped in a vehicle and narcotics were found.
Officers responded back to the business to conduct a probation search of the subject’s work area. They contacted six subjects inside and conducted pat down searches. Two firearms were located with additional narcotics. Officers quickly established who in the business wanted to stay or leave once records checks were completed. The records checks were delayed because there were multiple subjects, but all parties chose to stay.
OPSA Recommendations
• SPD misconduct complaint cases investigated by the Internal Affairs Division as well as misconduct complaint cases investigated by supervising personnel within an employee’s assigned division must be investigated impartially and thoroughly to ensure the most accurate findings. • SPD leadership team received supplemental search and seizure training on January 24, 2023, from the Sacramento Assistant District Attorney Office. Sacramento Assistant District Attorney advised that supplemental training would be developed specifically for officers. All SPD officers should be mandated to attend this supplemental training.
• Police officers as well as SPD leadership should take cultural sensitivity training, fair and impartial policing training, implicit bias training, and constitutional policing training. A sample policy pertaining to these trainings from the Baltimore Police Department can be found in Appendix D.
SPD Response
SPD currently requires cases to be investigated thoroughly and impartially. SPD has added additional staff to Internal Affairs to ensure consistency and thoroughness with all complaints, including those that had previously been investigated at the command level.
Regarding the proposed training, SPD conducts this training already and can provide an extensive list. SPD invites OPSA to review and attend our current training.
Regarding the training provided by the District Attorney, there were two additional classes after January 24, 2023. These additional classes were provided for the Gang Enforcement Teams and the Problem Oriented Policing Teams. These classes were opened for additional officers and we have a recording of the instruction.
This recorded instruction can be provided in a virtual format for officers.
SPD recommends that in instances such as these, where the legal analysis by SPD and OPSA do not align, a jointly agreed upon mechanism be established for a legal review. 15 Also, SPD does not agree that internal reviews by supervisors do not consistently identify Fourth Amendment violations. This is evidenced by the large number of cases that are reviewed by OPSA and the overwhelming percentage (more than 99%) that OPSA agrees the SPD came to the correct conclusion.
SPD Concerns
SPD notes the following as a result of this audit:
• OPSA states that oversight is undermined by law enforcement personnel and that there is resistance to oversight2. SPD strongly disagrees with this statement. SPD supports oversight as it ensures a layer of external accountability and therefore credibility for the public. SPD does expect that oversight will be objective, accurate, transparent, and consistent with the law and policy. • The data set used by OPSA is limited.
• The examples provided by OPSA are missing unique facts and circumstances of each incident. Every incident is unique and must include the specific facts and the totality of the circumstances which led to an officer’s decision making and actions. The examples do not recognize if SPD did, in fact, sustain a policy violation.
• This report contains multiple vague references to specific issues which are difficult to examine without more detail3.
• OPSA states that "statistical evidence is not required" to establish a pattern and practice; SPD fundamentally disagrees.
• The recommendations indicate that a full review of our policy, education and training materials was not done, or not done in a detailed manner.
• There are material errors in the report. For example, OPSA stated that SPD did not have the necessary information on three cases4. That is incorrect. OPSA had previously reviewed two of the cases and had concurred with findings. All cases were provided for this audit. • The draft audit provided to SPD differed from the final audit that was made public. The final audit included an additional recommendation that SPD had not received. It also included additional policies from the Baltimore Police Department that had not been provided to SPD.
2 Page 4: “Oversight practitioners are undermined consistently by law enforcement. Police personnel as well as police unions contend that oversight practitioners are ill-equipped to judge police officers because they lack the expertise and experience of trained law enforcement professionals. OPSA oversight practitioners dispel this notion by encompassing law enforcement professionals with extensive knowledge, expertise, and experience in the profession, but resistance remains.”
3 Page 9: “Pursuant to this audit, OPSA also discovered additional Fourth Amendment violations that were not discovered during the initial review of the completed misconduct complaint cases.” 4 Page 8: “The case list for the audit included one duplicate case as well as three cases that were not able to be reviewed due to the lack of pertinent information missing from the case file. “
16 SPD additionally makes the following recommendations for consideration:
• SPD invites OPSA staff to attend SPD training courses. This includes attending the required officer training, reviewing all existing training and POST mandated training materials. • SPD is willing to provide legal updates and training bulletins to OPSA when distributed to the department.
• SPD and OPSA should reference the Peace Officers Legal Sourcebook and apply pertinent case law when determining a case disposition.
• SPD recommends that in instances such as these, where the legal analysis by SPD and OPSA do not align, a jointly agreed upon mechanism be established for a legal review.
SPD Initiatives
To conclude the SPD response, it should be noted that a number of changes have been made to the complaint investigative and review process in the past year. These changes include:
• All investigations will be managed by Internal Affairs. • Cases will include pertinent case law for OPSA to review as part of the investigation. • SPD worked with OPSA and changed the process to allow OPSA to have 30 days to review cases versus the current 14 days.
• SPD will provide an unsigned complaint sheet, indicating that the case is not complete when the complaint is sent to OPSA for review.
In Conclusion
One of the outcomes of the OPSA audit was a determination by OPSA that SPD engages in illegal search and seizures and as a result, a disproportionate number of minority Sacramento residents are negatively affected by improper policing practices. While SPD does not agree with all aspects of this report, SPD recognizes that in 17 cases, we did not meet our own internal or community expectations.
This audit does, however, provide a unique opportunity to identify and discuss key issues surrounding crime, social conditions, and disparities.
There have been extensive studies of the overrepresentation of minority involvement in the criminal justice system and the results are clear; that disproportionality clearly exists. There are generally two primary reasons cited for this. The first is that not all groups commit or are victimized by crime equally, nor is crime occurrence proportional to the population or census data which is typically the standard by which comparisons are made.
Secondly there are differences in police presence, patrolling and identification of criminal activity and how decisions at all levels of the criminal justice system are made in addressing public safety issues.
These reasons largely account for disproportionality in the criminal justice system. However, to what extent each plays a role in outcomes can be hard to measure. Officers are tasked with reducing crime in communities through a combination of prevention, intervention, and enforcement. Community members want their neighborhoods to be safe and want fair and equitable policing. These are not mutually exclusive concepts.
While it is important for officers to be held accountable to law and policy when a mistake is made, or when an overt act equates to misconduct, it is just as important that we, as a community, support the work of those officers who conduct themselves properly. It is also incumbent on all of us, as the Sacramento community, to identify and address disparities and what drives crime, not just respond to it.
17 The Sacramento Police Department is committed to fair and equitable policing, and it is our responsibility to ensure that our practices, procedures, and processes align with best practices; that our training be expansive, relevant, and applied in the field appropriately; and that we have an internal culture of respect for our community. From this audit we are also committed to making any adjustments that can provide for better outcomes.
But the conversation cannot stop there. We must listen to our communities and address the driving factors behind violence and crime. The community voice has been consistent. There is support for innovative programs, data sharing and being able to provide feedback, and support of providing services and resources for those in need. There is agreement that the focus of enforcement should be on offenders and not entire communities. Our community has also been vocal with concerns. Youth interactions need to be positive and that decision makers need to focus not only on the data, but also the root causes.
As leaders in government, we have a responsibility to make decisions that are appropriate and positive for the people we serve. As a community, we need to focus on key issues like, childhood trauma, poverty, neighborhood violence, educational gaps, drug addiction, and untreated mental health, just to name just a few.
It is only by working together that we can reduce inequities and build healthier and safer communities.
As the Police Department, we are committed to data driven, intelligence-based policing, giving our community a voice and identifying basic needs of support and safety in our neighborhoods. We recognize that there are disparities within many of the communities we serve and not everyone has equal access to resources or advantages that others in our community may have. We support our city leaders in addressing neighborhood challenges by standing up youth programming and providing economic investment. We publicly uplift the work of individuals and organizations on the ground, in our neighborhoods. We commit to proactive prevention and intervention efforts, and we fully support the members of the Sacramento Police Department who are dedicated to keeping our community safe. At the same time, we hold ourselves accountable to community expectations, policies, and practices. Finally, we call on our community leaders to partner with us in these collective efforts. Public Safety is a shared responsibility. Not the community, the city, or the Police Department can do it alone.
Sincerely,
Kathy Lester
Chief of Police
KL:th
The Mission of the Sacramento Police Department is to work in partnership with the Community to protect life and property, solve neighborhood problems, and enhance the quality of life in our City.