Dennis Brazier, 

Plaintiff and Appellant,


City of Rialto et al.,

Defendants and Respondents.




2004 Cal. App. Unpub. Lexis 11403


December 16, 2004, Filed


Notice: Not to be published in Official Reports. California Rules of Court, Rule 977(a), prohibit courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by Rule 977(B). This opinion has not been certified for publication or ordered published for the purposes of Rule 977.


Gaut, J.; Hollenhorst, Acting P. J., McKinster, J. concurred.


1. Introduction


   Plaintiff Dennis Brazier appeals the trial court’s judgment denying his petition for writ of administrative mandate challenging the final decision of the City of Rialto (City) concerning the termination of his employment as a police officer. Based on information given to him, the chief of police sent two officers to plaintiff’s apartment, where they found plaintiff in an emotionally distraught state and later observed him placing a gun to his head. During a subsequent sweep for weapons, another officer found and seized a possible suicide note. Based on the contents of the note, the chief of police terminated plaintiff’s employment, despite psychological evidence to suggest that plaintiff was not a threat to himself or others. Although the arbitrator recommended plaintiff’s reinstatement, the city administrator reversed the arbitrator’s order. In finding substantial evidence to support the city administrator’s decision, the trial court denied plaintiff’s petition for writ of administrative mandate.


   On appeal, plaintiff claims the trial court erred in ruling that the plaintiff’s note was admissible during the administrative proceedings. Plaintiff also claims the trial court erred in finding that substantial evidence supported the allegations for his termination: that plaintiff made false statements during his internal affairs interview; that plaintiff was insubordinate; that plaintiff made false statements about Sergeant Randy DeAnda’s orders; and that the note contained threats to other persons. Plaintiff also claims that the allegations were made in bad faith as a pretext for terminating him based on the contents of the note.


   We conclude that, because the exclusionary rule did not apply to plaintiff’s disciplinary proceedings, the trial court correctly ruled that plaintiff’s note was admissible. As to the factual findings, we conclude that most of the department’s allegations were not supported by the evidence. Only a few survive scrutiny. The case, therefore, must be remanded to the city administrator to reevaluate plaintiff’s grievance and impose a penalty, if one is warranted, commensurate with the gravity of the findings supported by the evidence.


   We reverse and remand.


2. Factual and Procedural History


   In the early 1990’s, plaintiff and his girlfriend, Julie Frazier, lived together and had a son, Darrian. After graduating first in his class at the police academy, plaintiff began his career as police officer with the City on January 6, 1995. Frazier did not support plaintiff’s decision to become a police officer or work with the City. Plaintiff and Frazier eventually ended their relationship, but the discord between them continued as they fought over custody issues. Frazier made excessive calls to the Rialto Police Department (department) and made unsubstantiated allegations of physical abuse. Plaintiff applied for a restraining order to prevent her from harassing him at work. Frazier filed a case in family court to limit plaintiff’s visitation and increase his child support obligation. Commissioner Bobby Vincent granted Frazier’s request for additional child support and made the order retroactive. Commissioner Vincent also ordered plaintiff to pay attorney fees for Frazier’s attorney, Faulkenthal.


   In October 1999 plaintiff discovered that, based on another one of Frazier’s allegations of abuse, he was being investigated by internal affairs. About the same time, plaintiff was injured in a traffic accident while on duty. Plaintiff also received his paycheck and noticed that his child support obligation had been garnished from his wages, as previously ordered by Commissioner Vincent. Plaintiff felt he could not live and take care of his son with what little remained.


   On October 15, 1999, as he was emotionally distraught and crying, plaintiff began to write his thoughts down on paper. In the note, plaintiff expressed his belief that Frazier, Faulkenthal, and Commissioner Vincent had ruined his life. He believed that, in order to prevent himself from “committing the ultimate crime ([Penal Code section] 187 x 3)”, he had to end his life. Plaintiff did not intend the writing to be a suicide note and he had no intention of showing the note to anyone else. After reading what he wrote, plaintiff realized his need for counseling and called Attorney William Hadden’s office and asked for help. He later folded his note twice and covered it with a large picture frame.


   Hadden contacted Chief of Police Michael Meyers and informed him of his concern for plaintiff’s welfare and suggested that someone go to plaintiff’s residence and check on him. Chief Meyers contacted Lieutenant Steven Frazier and directed him to send a couple of officers to plaintiff’s residence. Lieutenant Frazier then contacted plaintiff’s supervisor, Sergeant DeAnda, who was off duty at home. Lieutenant Frazier informed Sergeant DeAnda that plaintiff was despondent and asked him to go to plaintiff’s apartment and check on him. Earlier that month, both Sergeant DeAnda and plaintiff were injured in the same work-related automobile accident and, as a result, were both on injured-on-duty status.


   Sergeant DeAnda selected Officer Dean Hardin, who was one of plaintiff’s best friends, to accompany him to plaintiff’s apartment. Officer Hardin was unarmed, but Sergeant DeAnda had a handgun in his fanny pack. The officers, who were in plain clothes, drove to plaintiff’s apartment in an unmarked vehicle.


   At plaintiff’s apartment, Sergeant DeAnda and Officer Hardin repeatedly knocked on the front door and the living room window. They identified themselves and said that they wanted to talk to plaintiff. When no one responded, they summoned the apartment manager to open the door. After entering the apartment, Sergeant DeAnda observed plaintiff, who appeared disheveled and intoxicated. Officer Hardin recalled entering the apartment and engaging in a friendly chat with plaintiff. During their conversation, Sergeant DeAnda told plaintiff that they were there to check on him and asked him if he wanted to go with them and get counseling. When Sergeant DeAnda told plaintiff, who had his gun on his lap, to put his gun away or that he would take the gun for safekeeping, plaintiff became angry and refused to relinquish his weapon. As Sergeant DeAnda reached for the weapon, plaintiff knocked his hands away. Plaintiff then held the gun to his head and repeatedly demanded, “get the fuck out of my house.” Sergeant DeAnda ordered plaintiff to put down the weapon and plaintiff again refused. Sergeant DeAnda and Officer Hardin eventually left the apartment.


   Outside, one of the officers called plaintiff and persuaded him to come out. Other officers, including the SWAT team and a helicopter unit, arrived to provide assistance. Eventually plaintiff voluntarily relinquished his weapon and exited his apartment. Although Sergeant DeAnda had planned to take him for counseling, he was instructed by Chief Meyers to take him into custody under Welfare and Institutions Code section 5150. n1 Based on the chief’s orders, Sergeant DeAnda transported plaintiff to the San Bernardino County Hospital for a 72-hour hold and psychological evaluation.


   Afterwards, Lieutenant Carl Little ordered the officers, including Officer John Van Holt, to conduct a search for weapons as authorized under sections 5150 and 8102. The officers found several weapons, as would be expected during a search of a police officer’s residence. Toward the end of the search, Officer Van Holt noticed a large picture frame, which he thought was a wall clock, on an ottoman in the living room. He looked under the picture frame and found an eight-page writing entitled “Last Will.” He thought the writing was a suicide note. He read the note and handed it over to his superior.


   The letter was passed on to the attending psychologist, who examined plaintiff at the county hospital. After his examination, the psychologist concluded that plaintiff did not meet the criteria for detention, i.e., he was not a danger to himself or others. Over Chief Meyers’s instructions to hold plaintiff for the entire 72-hour period, the psychologist released him after about four hours.


   Chief Meyers directed others to contact the persons named in plaintiff’s note. Based on the statements made in the note, Chief Meyers also directed Lieutenant Little to apply for an emergency protective order for Frazier, Faulkenthal, and Commissioner Vincent. In addition to the persons named in the note, other law enforcement agencies were notified that plaintiff may be armed and dangerous.


   Chief Meyers later ordered plaintiff to attend a Fitness for Duty Examination with Dr. J. Cohen on October 26, 1999. Dr. Cohen found that plaintiff was fit for duty. Chief Meyers, however, contacted Dr. Cohen and convinced him to change his opinion. While on administrative leave, plaintiff also received counseling with a member of the department’s counseling team, Mare Cobb. Cobb found plaintiff fit for duty. In addition to his counseling sessions with Cobb, plaintiff sought another official evaluation. A psychiatrist at Kaiser Permanente, Dr. Sidney Gold, evaluated him and also concluded that he was fit for duty. Every psychological evaluation resulted in a fit-for-duty finding, with the exception of Dr. Cohen’s revised opinion. Plaintiff scheduled another meeting to be reevaluated by Dr. Cohen, but the department canceled the appointment.


   Meanwhile Chief Meyers authorized Lieutenant Frazier to conduct an internal investigation. Lieutenant Frazier scheduled an interview with plaintiff to discuss the October 15, 1999 incident. After the interview, Lieutenant Frazier found that plaintiff: knowingly made false statements during an official departmental investigation (General Order No. 1-222.20 J); disobeyed orders or was insubordinate toward a supervisor (General Order Nos. 0-030.35 (7), 1-222.20 (5)E); used profanity to a superior (General Order No. 0-030.35 (11)); failed to treat all persons, including other officers, courteously or respectfully (General Order No. 0-030.35 (12)); and behaved in a manner that damaged his working relationship and the department’s working relationship with the San Bernardino Superior Court (General Order No. 0-030.35 (24)). Based on the results of the investigation, Chief Meyers terminated plaintiff’s employment.


   Plaintiff filed a grievance and the matter was brought before an arbitrator, Michael Rappaport. The arbitration hearing began in March 2001.


   During the arbitration hearings, plaintiff hired a psychological expert. On August 8, 2001, psychologist Dennis Greenberger examined plaintiff concerning the incident. After his examination, Dr. Greenberger concluded that plaintiff did not suffer from any psychological problem that would interfere with the performance of his duties as a police officer. Specifically, Dr. Greenberger found that plaintiff did not pose a risk to himself or others. Dr. Greenberger also found that the writing was not a suicide note but a healthy exercise in coping with intense emotions and thoughts.


   The arbitrator issued its decision on May 28, 2002. After considering all the evidence, including Dr. Greenberger’s report, the arbitrator concluded that the department did not have cause to terminate plaintiff’s employment. Before addressing the department’s specific allegations, the arbitrator made findings in regards to the issues underlying the entire case. The arbitrator found that the department failed to establish that plaintiff’s note was a suicide note or that plaintiff was ever a threat to himself or others. The arbitrator noted that, while plaintiff had no intent to show his note to anyone else, Chief Meyers released the contents of the note not only to the persons named in the note, but other members of law enforcement and the justice system.


   In regards to the department’s allegations, the arbitrator generally found that the department could not have expected, based on the department’s conclusion that plaintiff was so psychologically impaired during the incident so as to require detention and psychological evaluation, that plaintiff was capable of following orders, responding politely, or remembering accurately the details of the day. While off duty and in his own home, plaintiff was trying to cope with his problems by calling for counseling and help. Despite his bizarre behavior, plaintiff had every right to refuse to open the door for his friends and later demand that they leave his private residence. The arbitrator also found the record unclear as to whether Sergeant DeAnda gave plaintiff any specific orders. The arbitrator concluded that none of the alleged violations were sufficient to warrant plaintiff’s discharge. The arbitrator recommended that, subject to an independent fitness- for-duty evaluation, plaintiff should be reinstated as a police officer with partial back pay.


   On behalf of the City, City Administrator Henry Garcia reviewed the record of the arbitration hearing and rejected the arbitrator’s conclusions. The city administrator found the allegations true and upheld plaintiff’s termination. The city administrator found that plaintiff initiated the crisis situation on October 15, 1999, by failing to follow his superior’s orders and placing a gun to his head. He found that plaintiff compromised his ability to perform his job by authoring a note that entertained thoughts of doing harm to other persons. He also found that, by his bizarre and unprofessional conduct, plaintiff caused a chain of events resulting in the widespread dissemination of the information contained in his note, thereby damaging the working relationship between the department and the San Bernardino Superior Court.


   On October 27, 2002, plaintiff filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5. Plaintiff asked the trial court to set aside the city administrator’s decision.


   During the hearing, the trial court tentatively found that substantial evidence supported the city administrator’s findings. On October 8, 2003, the trial court denied plaintiff’s petition for writ of administrative mandate.


3. Standard of Review


   The trial court and appellate court apply different standards of review to an administrative agency’s factual findings. The trial court exercises independent judgment when, as here, the adverse employment action affects an employee’s fundamental vested right. (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1173.) The trial court reviews the entire record and reweighs the credibility of the witnesses to determine whether the factual findings are supported by a preponderance of the evidence. (Id. at p. 1174.) The appellate court then reviews the trial court’s decision for an abuse of discretion. (Ibid.) In applying the abuse of discretion standard, the appellate court must view the evidence in the light most favorable to the trial court’s judgment and determine whether substantial evidence supports the court’s findings. (Ibid.)


   Both the trial court and the appellate court apply the same standard to pure questions of law. The appellate court performs the same function as the trial court and reviews the record de novo. (See Jenron Corp. v. Department of Social Services (1997) 54 Cal.App.4th 1429, 1434.)


4. Admissibility of the Writing


   Plaintiff claims the trial court erred in ruling that his writing was admissible in the administrative proceeding.


   During the arbitration, plaintiff filed a motion to suppress evidence on the ground that the department seized the writing in violation of the Fourth and Fourteenth Amendments. The City argued that the writing was admissible based on the lawful search conducted under section 8102. The arbitrator ruled that the evidence was admissible because the exclusionary rule did not apply to an administrative proceeding and because the officers did not enter plaintiff’s apartment and conduct the search with the intent of finding evidence of a crime.


   The trial court agreed with the arbitrator’s ruling. The court found that Officer Van Holt did not exceed the scope of the search when he discovered plaintiff’s note. The court also found the writing admissible in the context of an administrative hearing.


   The court’s application of the exclusionary rule and the search and seizure protections of the Fourth and Fourteenth Amendments presents a pure question of law that is subject to de novo review. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; People v. Ayala (2000) 24 Cal.4th 243, 279.)


A. Unlawful Search and Seizure


   As observed by the California Supreme Court, “whether the exclusionary rule bars the admission of evidence in a civil proceeding depends, first, on the existence of a search or seizure that violates the protections of the Fourth Amendment of the federal Constitution.” (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1012 (Susan T.).) We begin, therefore, with the question of whether there was an unlawful search and seizure.


   Before addressing the parties’ arguments, we note that the department’s intrusion into plaintiff’s home constituted a search for Fourth Amendment purposes. The Fourth Amendment would not apply if, as suggested by the arbitrator, the officers entered plaintiff’s home as private citizens. (See People v. Otto (1992) 2 Cal.4th 1088, 1112.) However, even if Sergeant DeAnda and Officer Hardin entered plaintiff’s residence as private citizens or concerned friends, there is no evidence to support that the other officers who conducted the search were acting in some unofficial capacity. The record shows that the department surrounded plaintiff’s residence and later ordered a search of plaintiff’s apartment for weapons. The officers, therefore, were acting in their official capacity.


   The City argues that the officers conducted a lawful search under sections 5150 and 8102. The Lanterman-Petris-Short Act (section 5150 et seq.) was enacted to provide immediate and intensive treatment for individuals who are gravely disabled or dangerous to themselves or others. (Ford v. Norton (2001) 89 Cal.App.4th 974, 977.) Section 5150 authorizes the detention and treatment of such individuals for a 72-hour period. (Ford, supra, at p. 977.)


   Under section 8102, law enforcement officers may confiscate any weapons owned or possessed by an individual detained for examination of his mental condition, including individuals detained under section 5150. (§§ 8100, subd. (a) & 8102, subd. (a); see also City of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933, 940.) The statute allows the officers to seize not only the weapons in the detained person’s immediate physical proximity, but all the weapons owned by the person. (See Rupf v. Yan (2000) 85 Cal.App.4th 411, 424-425.)


   While section 8102 authorized the search of plaintiff’s residence for weapons, the question is whether the officers had any authority to seize plaintiff’s handwritten note. Although the Susan T. case involved a different statute, the court’s analysis sheds light on the situation presented here.


   In Susan T., while the plaintiff was detained at a psychiatric facility under section 5150, a mental health employee went to the plaintiff’s apartment and took pictures. The pictures showed that plaintiff, who had a history of hospitalization for schizophrenia, lived in a filthy apartment filled with trash and bags of human and animal waste. The mental health department argued that their employee conducted a lawful search of the plaintiff’s residence under section 5156, which allowed the department to safeguard and secure the plaintiff’s property.


   Contrary to the department’s argument, the California Supreme Court observed that the evidence failed to indicate the employee took any measures to perform a proper inventory search. (Susan T., supra, 8 Cal.4th at pp. 1013-1014.) Although the court found it unnecessary to draw the ultimate conclusion that the search was unlawful, the court nevertheless noted that the search was not authorized by section 5156: “We are left with a record establishing that a government official entered a private home with neither statutory authorization nor a warrant, and in the absence of any demonstrable exigent circumstances, for the sole purpose of photographing the interior of the home to obtain evidence of the householder’s mental disability.” (Susan T., supra, at p. 1014.)


   In the same way, while the search for weapons was authorized under section 8102, the statute provided no authority for the seizure of plaintiff’s private, handwritten note. (See U.S. v. Wright (9th Cir. 1982) 667 F.2d 793, 797-799.) During the search for weapons, Officer Van Holt noticed a picture frame large enough to hide a small firearm. Under the picture frame he found the multiple-page, handwritten note. Officer Van Holt admitted that no one had authorized a search of plaintiff’s papers. Officer Van Holt acted beyond the authority afforded under section 8102 when he perused the pages of the note, took it, and passed it on to his superiors. As section 5156 is limited to an inventory search, section 8102, by its plain language, is limited to a search for weapons.


   At the time of the search, no criminal activity was afoot and no exigency existed to justify the seizure. Even if Officer Van Holt interpreted the words “Last Will” to indicate that the writing was a suicide note, plaintiff was not detained for committing a crime. And no criminal activity was readily apparent from the first page of the note. (See People v. Kraft (2000) 23 Cal.4th 978, 1041.)


   The City fails to provide any other authority for seizing plaintiff’s note. While an officer may seize evidence of a crime, when no crime has been committed the officer is without authority to seize any evidence, let alone an individual’s private papers. (See People v. Thayer (1965) 63 Cal.2d 635, 638, 47 Cal. Rptr. 780.) One court held that the government had no right to seize the plaintiff’s private papers without a warrant and then use them to make allegations in a subsequent discharge proceeding. (See Powell v. Zuckert (1966) 125 U.S. App. D.C. 55, 366 F.2d 634.) In a case quoted by the Powell court, the United States Supreme Court had this to say about the unauthorized search and seizure of an individual’s private papers: “Anyone who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire [citation], and to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime.” (Federal Trade Commission v. American Tobacco Co. (1924) 264 U.S. 298, 305-306, 68 L. Ed. 696.)


   We conclude that, while the officers, acting in their official capacity, initiated a lawful search under section 8102, Officer Van Holt acted beyond the scope of that provision when he seized an item that was not a weapon. As in Susan T., we are left with a record establishing that an officer seized plaintiff’s property with neither statutory authorization nor a warrant, and in the absence of any demonstrable exigent circumstances, for the sole purpose of acquiring evidence of plaintiff’s mental instability.


B. Exclusionary Rule


   All unlawful seizures, however, do not result in the exclusion of evidence under the Fourth Amendment. We must determine, therefore, whether the exclusionary rule applied in the context of plaintiff’s administrative hearing.


   It is well settled that the Fourth Amendment, which is made applicable to the states by the Fourteenth Amendment, protects individuals against unreasonable search and seizures. (See People v. Camacho (2000) 23 Cal.4th 824, 829-830.) The exclusionary rule is a judicially-created remedy designed to deter unlawful searches and seizures, thereby safeguarding an individual’s Fourth Amendment rights. (People v. Tillery (1989) 211 Cal. App. 3d 1569, 1580, 260 Cal. Rptr. 320.) Generally, the rule applies in criminal proceedings, but not in civil proceedings. (Ibid.; see also Gikas v. Zolin (1993) 6 Cal.4th 841, 859.) Courts, however, have extended its application to civil proceedings that are quasi-criminal in nature, including cases involving forfeitures or penalties. (Tillery, supra, at p. 1580; compare People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96-97, 41 Cal. Rptr. 290 [forfeiture proceedings] and People v. Moore (1968) 69 Cal.2d 674, 682, 72 Cal. Rptr. 800 [narcotics commitment proceedings], overruled on other grounds in People v. Thomas (1977) 19 Cal.3d 630, 641, fn. 8, 139 Cal. Rptr. 594 with Susan T., supra, 8 Cal.4th at p. 1020 [conservatorship proceedings].) The cases appear to focus on the nature of the proceeding and the purpose of the search, i.e., whether the purpose suggests that application of the exclusionary rule would serve to deter future violations.


   Specifically, in the context of disciplinary proceedings, most courts have refused to apply the exclusionary rule. (See, e.g., Finkelstein v. State Personnel Bd. (1990) 218 Cal. App. 3d 264, 271, 267 Cal. Rptr. 133 [government employee]; Emslie v. State Bar (1974) 11 Cal.3d 210, 229, 113 Cal. Rptr. 175 (Emslie) [attorney]; Governing Board v. Metcalf (1974) 36 Cal. App. 3d 546, 551, 111 Cal. Rptr. 724 [teacher].) Other courts, however, have sanctioned its application. (See, e.g., Elder v. Bd. of Medical Examiners (1966) 241 Cal. App. 2d 246, 260, 50 Cal. Rptr. 304 (Elder); Dyson v. State Personnel Bd. (1989) 213 Cal. App. 3d 711, 722, 262 Cal. Rptr. 112 (Dyson).)


   The Elder case involved a medical license revocation proceeding for a doctor who allegedly prescribed a dangerous drug in violation of the Business and Professions Code. The Board of Medical Examiners seized the plaintiff’s medical records when it arrested plaintiff’s nurse for practicing medicine without a license. During the administrative hearing, the board admitted the evidence on the ground that it had the right to inspect and investigate the plaintiff’s business. The trial court, however, reversed the hearing officer’s decision after excluding the evidence obtained in violation of the plaintiff’s right against unreasonable search and seizure.


   On appeal, the court reviewed the forfeiture cases to conclude that “the exclusionary rule will apply to an administrative hearing where the proceeding contemplates the deprivation of a license which is recognized as a property right, as is the right to practice medicine. [Citation.]” (Elder, supra, 241 Cal. App. 2d at p. 260.) Although the court concluded that the exclusionary rule applied, it found that the evidence failed to show an unreasonable search or seizure. Based on the nurse’s arrest, the search of the plaintiff’s records was a reasonable search incident to a lawful arrest. (Id. at p. 263.)


   After Elder, the California Supreme Court decided the case of Emslie, supra, 11 Cal.3d 210. In Emslie, based on information that the plaintiff was stealing jewelry and other items from hotel rooms in Las Vegas, police officers searched his hotel room and car, where they discovered incriminating evidence. In the State Bar disciplinary proceedings, the plaintiff filed a motion to suppress the evidence found in his room and car. The Committee of Bar Examiners of the State Bar denied plaintiff’s motion and recommended his disbarment.


   In agreeing with the Committee of Bar Examiners’ conclusions, the California Supreme Court held that the exclusionary rule did not apply to a disciplinary proceeding before the State Bar. (Emslie, supra, 11 Cal.3d at pp. 229-230.) The court acknowledged its earlier application of the exclusionary rule in the context of a forfeiture proceeding, which served both the purpose of deterrence and the aims and objectives of criminal law enforcement. (Id. at p. 227, citing People v. One 1960 Cadillac Coupe, supra, 62 Cal.2d at pp. 96-97.) The court explained, however, that these policy considerations must be weighed against the social costs of extending the exclusionary rule to other civil proceedings. (Emslie, supra, at pp. 227-228.)


   In Emslie, while the court did not reject the holding in Elder, it admonished against its broad assertion that the exclusionary rule applied to any administrative hearing involving the deprivation of an individual’s property rights. The California Supreme Court noted, “while we denied hearing in that case such denial is not to be regarded as expressing approval of a categorical rule that the exclusionary rules of the criminal law apply in license revocation proceedings merely because a penalty is involved. [Citation.]” (Emslie, supra, 11 Cal.3d at p. 229.)


   Rather than a test based solely on the nature of the proceeding, the California Supreme Court suggested a case-by-case balancing approach that takes into account the social consequences of extending the application of the exclusionary rule. (Emslie, supra, 11 Cal.3d at pp. 229-230.) The court observed that, on the one hand, application of the rule would have practically no deterrent effect in the context of attorney disciplinary proceedings where the search did not involve an officer’s use of unlawful methods to find incriminating evidence. (Ibid.) On the other hand, the consequences to society and judicial integrity would be high because the rule would impede the State Bar’s effort to protect the public and the courts from attorneys who are unfit to practice law. (Id. at pp. 225, 230.) Although the court concluded that the exclusionary rule did not apply to State Bar disciplinary proceedings, the court stated that circumstances could be presented “under which the constitutional demands of due process could not countenance use of evidence obtained by unlawful means in a proceeding conducted by such governmental agency or administrative arm of this court.” (Id. at pp. 229-230.)


   One California court decided such was the case in an administrative disciplinary proceeding involving a youth counselor with the Department of Youth Authority. (Dyson, supra, 213 Cal. App. 3d 711.) In Dyson, the plaintiff was dismissed for stealing school property. After receiving information from the plaintiff’s estranged wife, the school security officer, with the assistance of police officers, conducted a search of the plaintiff’s house, where they discovered the stolen items.


   In Dyson, the court found that, unlike in Emslie and other disciplinary proceedings, the security officer, as an employee of the agency, conducted the search to find evidence of criminal misconduct. The court observed, “the unconstitutional search could not have a tighter nexus with the agency that seeks to profit from it.” (Dyson, supra, 213 Cal.App.3d at p. 721.) Because the agency directed the search and profited from the evidence seized, the exclusionary rule would have a direct impact on the agency responsible for the unlawful search. (Id. at p. 719.) Citing an opinion from another state, the court also indicated that application of the exclusionary rule would serve the purpose of judicial integrity by not allowing the agency to profit from its own lawbreaking. (Id. at pp. 720-721, citing Bd. of Selectmen, etc. v. Mun. Ct., etc. (1977) 373 Mass. 783, 787-788.)


   From the above cases, we can discern a general reluctance toward applying the exclusionary rule unless the plaintiff can demonstrate that the rule would have some actual deterrent effect. (See Finkelstein v. State Personnel Bd., supra, 218 Cal.App.3d at p. 270.) We also can discern that there is a greater deterrent effect where the agency against whom the exclusionary rule is applied conducted the search with the purpose of discovering evidence of misconduct to be used in a subsequent proceeding. There is less deterrent effect where the agency was not responsible for any Fourth Amendment violation, either by conducting a lawful search or by having no connection with the law enforcement officer conducting the unlawful search. (See Susan T., supra, 8 Cal.4th at p. 1018.)


   In this case, it also may be said that “the unconstitutional search could not have a tighter nexus with the agency that seeks to profit from it.” (Dyson, supra, 213 Cal. App. 3d at p. 721.) The department both conducted the search and then used the evidence seized in a disciplinary proceeding to terminate plaintiff’s employment.


   However, unlike in Dyson, it cannot be said that the agency conducted the search with the purpose of discovering evidence of misconduct. When Lieutenant Little ordered the officers to conduct a search for weapons, the officers were not looking for incriminating evidence. The purpose of a search under section 8102 is to allow law enforcement officers to confiscate any firearms owned or possessed by the detained person to guard against any present or future risk of danger to himself or others. (See Rupf v. Yan, supra, 85 Cal.App.4th at pp. 423-424.)


   Even when Officer Van Holt seized plaintiff’s note, his actions were not aimed at discovering incriminating evidence to be used against plaintiff in a subsequent proceeding. Officer Van Holt explained: “I was worried about [plaintiff] and I hoped that maybe it contained some information that we could use to help him . . . . It definitely -- it was definitely pertinent to what was going on. I mean, I wasn’t doing a criminal investigation. He was one of the partners in my unit.” Plaintiff’s note was delivered to the psychologist to assist in his examination. Society is best served when those responsible for evaluating and treating individuals who are potentially dangerous or gravely disabled have access to all the relevant evidence, even if such evidence is obtained unlawfully. Without all the relevant evidence, the psychologist may provide inadequate treatment or release the individual to the public, thereby placing him and others at risk of danger. (See Susan T., supra, 8 Cal.4th at p. 1020.)


   Under these circumstances, the deterrent effect of applying the exclusionary rule would not outweigh the social costs. If the record suggested that the department deliberately seized plaintiff’s note for the purpose of using it during his disciplinary proceedings, this case would be indistinguishable from the Dyson case. However, because the officer’s first concern was for the welfare of plaintiff who, moments earlier, had put a gun to his own head, the exclusionary rule would have little deterrent effect. (See Susan T., supra, 8 Cal.4th at p. 1019.) Nothing in the record suggests that the officer anticipated that the note would be used during the disciplinary proceedings.


   Based on the unusual circumstances presented in this case, we conclude that the arbitrator and the trial court correctly ruled that the exclusionary rule did not apply to plaintiff’s disciplinary proceedings.


5. Factual Findings


   In challenging the City’s factual findings, plaintiff claims the trial court erred in concluding that the evidence supported the department’s allegations. Instead of presenting legal authority and argument discussing each allegation, the City responds with a conclusion and a question: “Given the facts, it was not an abuse of discretion to terminate [plaintiff]. Put another way, would you want [plaintiff] to be a police officer in your City? We think not.” Unfortunately, nothing is that simple.


   In fact, after the arbitration hearing, the arbitrator concluded that the evidence failed to support the department’s allegations. But the city administrator rejected the arbitrator’s conclusions and terminated plaintiff’s employment. The trial court affirmed the City’s decision. Our role is to determine whether substantial evidence supported the court’s findings. (See Duncan v. Department of Personnel Administration, supra, 77 Cal.App.4th at p. 1174.) Based on our review of the record, we conclude that many of the court’s findings find no support in the record. Only a few survive scrutiny.


A. False Statements


   The City alleged that plaintiff knowingly made false, incorrect, or deceptive answers during the course of an official investigation in violation of General Order No. 1-222.20 J. This charge was based on the following specific allegations: plaintiff’s description of the “suicide note” as a “free association [of] writings and notes” when the note was entitled “Last Will” and appeared to have been written meticulously and in great detail; plaintiff’s portrayal of the events of October 15, 1999, as a situation caused by the department’s overreaction rather than his “suicide attempt”; plaintiff’s denial that he held a gun when Sergeant DeAnda and Officer Hardin entered his apartment; plaintiff’s statement concerning his position and reaction when Sergeant DeAnda reached for his weapon; plaintiff’s denial that he was given a direct order by Sergeant DeAnda to surrender his weapon; and his denial that Sergeant DeAnda called him from outside of his apartment.


   To establish that plaintiff provided false and deceiving statements, the agency may show that the statements were physically impossible or otherwise demonstrably false. (See People v. Hagen (1998) 19 Cal.4th 652, 668; People v. Morales (2003) 112 Cal.App.4th 1176, 1196.) One witness’s testimony is not rendered false simply because it contradicts the testimony of another witness, even if it appears to be more reliable. While one witness’s testimony may be adequate to support the existence of a fact, more is required to establish actual falsity. (See id. at p. 1195.) When there is other corroborating evidence, the factfinder may draw the conclusion that the statement was false. (See, e.g., Ziegler v. City of South Pasadena (1999) 73 Cal.App.4th 391, 396.) Such determinations, which are often based on the credibility of the witnesses, are best left to the factfinder. (See Flowers v. State Personnel Bd. (1985) 174 Cal. App. 3d 753, 759, 220 Cal. Rptr. 139.) The evidence in this case failed to establish that most of plaintiff’s statements were false and deceiving.


   As for the department’s characterization of plaintiff’s writing as a suicide note and plaintiff’s conduct as a suicide attempt, there was no competent evidence to support the City’s findings. The arbitrator noted that every medical professional who examined plaintiff found that he was not suicidal and that his writing was not a suicide note. The psychologist who initially examined plaintiff refused to detain him for the full 72 hours after finding that plaintiff was not a threat to himself or others. Before Chief Meyers intervened, Dr. Cohen declared plaintiff fit for duty. Mare Cobb, a member of the department’s counseling team, found nothing to prevent plaintiff’s return to duty. Dr. Gold again found plaintiff fit for duty. Dr. Greenberger, who was the only expert who testified during the hearing, concluded that plaintiff never posed a risk of danger to himself or others. Dr. Greenberger testified that writing the note was a healthy way for plaintiff to respond to his stressful circumstances. He explained that he often recommends that his patients write down their thoughts to distance themselves and gain some objectivity concerning their problems. Based on this record, plaintiff cannot be said to have provided false statements when there was no evidence to contradict him.


   The record also fails to support most of the allegations that plaintiff made false statements concerning the October 15, 1999 incident. He simply recalled the October 15, 1999 incident differently. As noted by the arbitrator, the department considered plaintiff so mentally compromised that it authorized a 72-hour hold and examination, and yet in full control of his faculties to be able to remember precisely and accurately the details of the day. Even the other witnesses, however, provided different accounts of the tense encounter. For example, while Sergeant DeAnda claimed that he telephoned plaintiff outside of his residence, Officer Hardin said that he was the one who actually made the calls. If the department applied the same standard to these officers, one of these officers should be fired immediately.


   The record shows that Sergeant DeAnda and Officer Hardin testified consistently concerning only one of the above allegations, namely, the one concerning plaintiff’s reaction to Sergeant DeAnda’s sudden effort to take his weapon. Despite plaintiff’s denial, both Sergeant DeAnda and Officer Hardin testified that, when Sergeant DeAnda grabbed for plaintiff’s weapon, plaintiff turned and knocked Sergeant DeAnda’s hand away. Although this could have been an instance of plaintiff’s faulty memory, rather than blatant dishonesty, the factfinder was entitled to make that determination. (See Flowers v. State Personnel Bd., supra, 174 Cal. App. 3d at p. 759.) Sergeant DeAnda’s and Officer Hardin’s testimony provided substantial evidence to support the City’s finding that plaintiff provided a false statement concerning this detail of the October 15, 1999 incident.


   Based on this single allegation, we conclude that the City could have found that plaintiff violated General Order No. 1-222.20 J.


B. Insubordination


   The department alleged that plaintiff violated General Order No. 0-030.35 (11) by his insubordinate acts of failing to open the door for the officers and failing to follow Sergeant DeAnda’s direct orders concerning the gun.


   The arbitrator found that the record failed to show that anyone ordered plaintiff to open the door or relinquish his weapon. The arbitrator also found that, even if Sergeant DeAnda did order plaintiff to put down his weapon, plaintiff was in no condition to understand it as a direct order and follow it. The arbitrator concluded that the evidence did not show that plaintiff deliberately disobeyed a direct order.


   The city administrator concluded that plaintiff violated the general order by intentionally refusing Sergeant DeAnda’s order to surrender his weapon. Based on the city administrator’s final decision, we will focus on this specific allegation. The other allegation, in any event, was farfetched considering plaintiff had no duty to invite into his home any individual, private citizen, or police officer having no legal authority to demand entry.


   It is essential that public service employees obey all lawful orders given them in the course of their employment. (Belmont v. State Personnel Bd. (1974) 36 Cal. App. 3d 518, 523, 111 Cal. Rptr. 607.) In this case, however, the question is whether plaintiff, who was off duty, was required to obey the orders of Sergeant DeAnda, who also was supposed to be off duty. Insubordination requires evidence that plaintiff intentionally disobeyed his superior. (See Flowers v. State Personnel Bd., supra, 174 Cal. App. 3d at p. 760.) There must be evidence, therefore, to establish that Sergeant DeAnda was acting in his official capacity as plaintiff’s superior. (See also generally People v. Olsen (1986) 186 Cal. App. 3d 257, 263, 230 Cal. Rptr. 598.) There also must be evidence that plaintiff knew that Sergeant DeAnda was acting in his official capacity and was giving him a direct order. (See Flowers, supra, at p. 760.)


   Although Sergeant DeAnda testified he told plaintiff that he was giving him a direct order, the record fails to show that plaintiff understood Sergeant DeAnda’s command as such. Both were off duty based on injuries received during the same automobile accident. Sergeant DeAnda and plaintiff’s best friend, Officer Hardin, came to plaintiff’s residence in plain clothes and in an unmarked vehicle. Sergeant DeAnda’s only weapon was concealed in his fanny pack. Although Sergeant DeAnda testified that Chief Meyers had placed him on duty for this specific assignment, he did not inform plaintiff that he was present in his official capacity. He simply told plaintiff he was there to check on his welfare. Plaintiff testified he did not perceive Sergeant DeAnda’s command as an official order. Without evidence of intentional disobedience, the City cannot establish insubordination.


   The record shows that Sergeant DeAnda and Officer Hardin intruded into plaintiff’s private residence while he was under great emotional strain over some personal problems stemming from his relationship with his ex-girlfriend. Based on the circumstances surrounding the incident, including their off duty status, the officers’ appearance, their friendship, and the officers’ stated purpose for the visit, plaintiff had no reason to believe that Sergeant DeAnda was acting in his official capacity. Because there was no evidence of intentional disobedience, we conclude the trial court abused its discretion in finding that plaintiff was insubordinate in violation of General Order No. 0-030.35 (11).


C. Profanity and Discourteous Treatment


   The department alleged that plaintiff used profanity to a superior or member of the department in violation of General Order No. 0-030.35 (11). The department also alleged that plaintiff failed to treat Sergeant DeAnda courteously and respectfully in violation of General Order No. 0-030.35 (12). It is undisputed that the evidence supports both allegations.


   Although these violations seem insignificant, the facts and circumstances supporting these violations were by no means trivial. It can be said “that to characterize it as ‘discourteous treatment’ is to put it most charitably.” (Blake v. State Personnel Board (1972) 25 Cal. App. 3d 541, 549, 102 Cal. Rptr. 50.) The facts show that plaintiff pointed a gun to his head, refused to surrender his weapon, and repeatedly yelled, “Get the fuck out of my house.” Plaintiff’s words and actions indicated an instability that may be inappropriate in those charged with the duty of keeping the peace. Police officers should be able to cope with stressful circumstances without having to resort to violent acts (i.e., using or pointing a gun) and hostility (i.e., being uncooperative and using profanity). The City certainly is entitled to maintain high standards of public service and conduct in all of its employees, especially police officers. (See Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404, 134 Cal. Rptr. 206.) A police officer’s actions must be above reproach. (Flowers, supra, 174 Cal. App. 3d at p. 759.)


D. Threats to Others


   In its final allegation, the department claimed that plaintiff, in writing the threatening note, behaved in a manner prohibited under rule XIII of the City Personnel Rules and Regulations. The rule authorizes dismissal when the officer’s “off-duty and/or on-duty behavior that is job related and adversely impacts the individual’s ability to do the job and/or the department/City to perform its mission.” (Italics omitted.) The department alleged that plaintiff’s note somehow irreversibly damaged the relationship between the City and the San Bernardino Superior Court.


   The arbitrator found that, while plaintiff wrote the note, he did not intend to share the note with anyone. The arbitrator also found that it was Chief Meyers, and not plaintiff, who made the note public. None of the psychological professionals interpreted the note as containing actual threats by plaintiff to harm himself or others.


   The city administrator found that plaintiff “authored a note containing language, the reasonable interpretation of which, indicated [plaintiff] entertained thoughts of killing Commissioner Bobby Vincent, Attorney Faulkenthal and Julie Frazier.” The city administrator stated that plaintiff’s bizarre and unprofessional behavior caused the situation which led to the discovery of his note and the dissemination of the information contained therein.


   The evidence fails to support the city administrator’s findings. As discussed above, the officers had no right to seize plaintiff’s note. Even after the unlawful seizure, every psychological professional who read the note found that it did not contain any threats against plaintiff or others. Moreover, it was the department and not plaintiff who published plaintiff’s private writing by releasing its contents to the persons named in the writing, other law enforcement agencies, and members of the judiciary.


    In a case cited by plaintiff, People v. Felix (2001) 92 Cal.App.4th 905, the defendant was charged with various crimes, including three counts of making a criminal threat in violation of Penal Code section 422. One count was based on statements made to his therapist. He told the therapist that “‘he was thinking about how he was going to kill [his ex-girlfriend] once he was released from jail.’” (Felix, supra, at p. 909.) He also said “‘that if he saw her with somebody else that he would shoot her and then the kids and then himself.’” (Ibid.) The therapist conveyed the information to the ex-girlfriend.


   The court in Felix noted that it was a crime to threaten another with great bodily harm or death. The threat may be conveyed directly to the victim or indirectly through a third party. (People v. Felix, supra, 92 Cal.App.4th at p. 911.) The court found that there was insufficient evidence of communication and intent. Because the trial court excluded the content of the conversation between the therapist and the ex-girlfriend, there was no evidence that the threats were communicated to the victim. (Id. at p. 912.) Also, because there was no evidence that the defendant knew or expected the therapist to disclose his statements to his ex-girlfriend, there was no intent. (Id. at p. 913.) The court explained, “[Penal Code] Section 422 was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. [Citation.] ‘One may, in private, curse one’s enemies, pummel pillows, and shout revenge for real or imagined wrongs-safe from [Penal Code] section 422 sanction.’ [Citation.]” (Ibid.; see also In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) The court later said, “Felix made his remarks while discussing highly personal thoughts about homicide, suicide, and his emotions for [his ex-girlfriend]. He made them in a setting where the patient had an expectation of confidentiality.” (Felix, supra, at p. 914.)


   Although this case did not involve a crime, the same requirements of communication and intent apply when the allegations hinge on the existence of a threat. In this case, there was no evidence that plaintiff knew or expected the department to seize his note and disclose its contents.


   The evidence was undisputed that plaintiff was emotionally distraught on October 15, 1999. In the privacy of his own home, plaintiff wrote a note expressing his thoughts. He folded his note, placed it under a large picture frame, and then called for help. Chief Meyers admitted that plaintiff did not publish his note, leave it out in the open, or communicate its content to anyone. Without evidence of communication, the note was simply plaintiff’s private thoughts in written form.


   Apparently, all the psychological professionals who read plaintiff’s note understood what a threat entailed. Dr. Greenberger explained the difference between having suicidal or homicidal thoughts and presenting an imminent danger to oneself or others. Despite the bizarre and disturbing statements in his note, none of the psychological professionals interpreted the writing as a threatening note.


   Nevertheless, Chief Meyers or other members of the department told the persons named in the note that plaintiff had threatened them. Commissioner Vincent and his colleagues at the San Bernardino Superior Court became aware of the alleged threats. The department also applied for an emergency protective order against plaintiff. The department issued a nationwide bulletin identifying plaintiff as armed and dangerous. Because plaintiff was on his way to his mother’s house in Inglewood, the department specifically notified the Inglewood Police Department. As plaintiff drove to his mother’s house, four Inglewood police vehicles surrounded him and confronted him on the matter. While the dissemination of the so-called “threats” contained in plaintiff’s note may have damaged plaintiff’s ability to work for the department and the City’s credibility or ability to work with the San Bernardino Superior Court, there is no evidence that plaintiff made any threats or had any intention of making his note public.


   Plaintiff should not have been held responsible for violating rule XIII of the City Personnel Rules and Regulations for simply entertaining thoughts of murder. The evidence fails to support a causal connection between plaintiff’s thoughts and the resulting damage. The damage was caused by various intervening factors, including the unlawful seizure and the inappropriate dissemination of private and confidential information, in which plaintiff had no part. As Dr. Greenberger aptly observed, “the situation came unraveled.”


   In sum, we conclude that the evidence in the record only supported the following allegations: that plaintiff made a false statement in describing his reaction to Sergeant DeAnda’s attempt to take his gun in violation of General Order No. 1-222.20 J; that plaintiff used profanity to a superior in violation of General Order No. 0-030.35 (11); and that plaintiff failed to treat Sergeant DeAnda courteously and respectfully in violation of General Order No. 0-030.35 (12).


E. Penalty


   Plaintiff argues that, because the findings are against the weight of the evidence, the City abused its discretion in ordering his termination. He contends the penalty of termination was unwarranted because his bizarre behavior was the result of his mental instability, not any intentional misconduct.


   The appellate court, as the trial court below, is without power to substitute its own decision for that of the administrative agency where reasonable minds may differ on the appropriate disciplinary action. (Ziegler v. City of South Pasadena, supra, 73 Cal.App.4th at p. 397.)  “Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’ [Citation.]” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.)


   Nevertheless, because we have found insufficient evidence to support the other factual findings, there is real doubt as to whether the City would reach the same decision as to the penalty to be imposed. (See Blake v. State Personnel Board, supra, 25 Cal. App. 3d at p. 543.) This case therefore must be remanded to the administrative agency to exercise its discretion to impose a penalty, if one is warranted, commensurate with the gravity of the findings supported by the evidence in the record. (See Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 635, 166 Cal. Rptr. 826; Kirkpatrick v. Civil Service Com. (1981) 116 Cal. App. 3d 930, 932, 172 Cal. Rptr. 405.) As a result, we need not address plaintiff’s argument that the City acted in bad faith in terminating his employment.


6. Disposition


   We reverse the trial court’s judgment and order that the case be remanded to the city administrator. Plaintiff shall recover his costs on appeal.


   Gaut, J.


   We concur:


   Hollenhorst, Acting P. J.

   McKinster,  J.





1. All further statutory references will be to the Welfare and Institutions Code unless otherwise stated.