AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
Back to list of subjects Back to Legal Publications Menu
Investigative Detention of Employees
A. Criminal Interviews
B. Non-Testimonial Evidence
Monthly Law Journal Article: Investigative
Detention of Employees Part One: Criminal Interviews, 2008 (4) AELE Mo.
L. J. 201.
Monthly Law Journal Article: Investigative Detention of Employees Part Two: Non-testimonial Evidence, 2008 (5) AELE Mo. L. J. 201.
After a citizen claimed he was struck on the head with a flashlight by a deputy sheriff, five officers were required to go to a captain's office. They were allegedly ordered not to leave the station and to wait in an office until they gave a statement to investigators, but were later allowed to leave when they declined to respond to questions. The officers were not "seized" for purposes of the Fourth Amendment, when they were paid overtime, allowed to contact counsel, and "were not treated like criminal suspects." The supervisors also did not violate the deputies Fifth Amendment rights when they were not compelled to answer questions or to waive their immunity from self-incrimination. Aguilera v. Baca, #05-56617, 510 F.3d 1161, 2007 U.S. App. Lexis 29804 (9th Cir.).
“It is unconstitutional to seize a police officer, as part of a criminal investigation, on anything less than a determination of probable cause.” The court concluded that the trial judge erroneously granted summary judgment on the merits of the claim of officer “S," since the investigating officers allegedly lacked probable cause, or even arguable probable cause, for his seizure and detention for misconduct. Driebel v. City of Milwaukee, #01-1689, 298 F.3d 622 (7th Cir. 2002).
Federal appeals court panel held that the law in 1995 was clearly established that seizure of a police officer in the context of a criminal investigation required probable cause on the part of the seizing officers, but added that the officers might be entitled to qualified immunity if they had arguable probable cause for the seizure, thus rendering their conduct objectively reasonable. In this case, the court found that the defendant officers were not entitled to qualified immunity from a federal civil rights lawsuit. The case involved the detention of a state trooper stopped and seized, and then taken to a hotel room where he was read Miranda rights, and informed that he was the target of a criminal investigation relating to a cover-up of a hit-and-run accident. He was questioned for approximately six hours, before being told that he could leave after he agreed to take a polygraph examination, which he took the next day. No charges were brought. Cerrone v. Brown, #00-7177, 246 F.3d 194 (2nd Cir. 2001).
Two police officers, not married to each other, were found in bed with each other by the female officer's husband, who called a police dispatcher and reported that an officer needed assistance. Both of the off-duty officers were taken to a police station and were interviewed about possible adulterous behavior, with the entire detention process lasing 14 hours. A prosecutor declined to prosecute the adulty charge, but both officers were fired. The Wisconsin Supreme Court ruled that both terminations had to be set aside, because the statements were coerced and involuntary as a matter of law. Police officers may not be subjected to “inquisitorial tactics” that bypass the elementary constitutional rights that are afforded to other citizens. During the detentions, the female officer was allegedly ill, vomited blood, and was denied the opportunity to obtain medical assistance. The male officer claimed that he was not offered any food during the thirteen hours he was detained, and that he was denied the right to make any phone calls, and had asked for counsel before he made statements. Oddsen v. Bd. of Fire & Police Cmsnrs. for Milwaukee; Quade v. Bd. of Fire & Police Cmsnrs. for Milwaukee, #81-684 & #80-1726, 108 Wis.2d 143, 321 N.W.2d 161 (1982).
An off-duty police officer involved in a barroom brawl who identified himself as a police officer was ordered to submit to a breath test, pursuant to a policy requiring off-duty officers "to be subject to all of the policies and procedures of the police department, one of which is not being intoxicated." The Breathalyzer test did not constitute an unconstitutional seizure, and, because the officer submitted to the test, there was no need to decide whether he could have been lawfully discharged if he had failed to comply. Pennington v. Metro. Nashville, 205 #07-5180, 511 F.3d 647 (6th Cir. 2008).
A police officer is not seized when he or she is ordered to come to a police station for the purpose of submitting to a breath test, if the compulsion is a threat of job loss only. Driebel v. City of Milwaukee, #01-1689, 298 F.3d 622 (7th Cir. 2002).
The Milwaukee Police Dept. had a rule prohibiting officers from being intoxicated while off-duty. The court held that two off-duty police officers suspected of intoxication while off-duty in public places might have had to perform police duties, and were therefore seized under circumstances where, if intoxicated, they would have presented a danger to the public. Additionally, while in public places they had diminished expectations of privacy. Two other off-duty officers suspected of intoxication, however, were at their homes at the time, and presented no immediate danger to public safety, so that their siezures could not be justified by a concern for public safety, and the entry into one officer's home was improper. Grow v. City of Milwaukee, #97-C-0572, 84 F.Supp.2d 990 (E.D. Wis. 2000).
A Police Commissioner received complaints that some of the 25 officers who entered a residential building to apprehend a gunman had burst unannounced into occupied apartments in the building and beat inhabitants without justification. He ordered a lineup of officers on duty in the vicinity that night, with the officers advised of their right of representation by counsel and/or a union officials. The lineup was not an unreasonable seizure, according to the appeals court, because of the "substantial public interest in ensuring the appearance and actuality of police integrity." The lineup, the court ruled, was ordered by a police department official "charged with running an efficient and law-abiding organization," and was "clearly and highly relevant to the legitimate end of assuring his employees' trustworthy performance of their assigned tasks." Additionally, the lineup was to be conducted at a time and place that were well within the usual demands of a policeman's job. Biehunik v. Felicetta, #35543, 441 F.2d 228 (2nd Cir. 1971); cert. den. 403 U.S. 932. 202
Back to list of subjects Back to Legal Publications Menu