ALJDEC decisions subject to certification as final

06A-021-POST · Peace Officers Standards and Training · 2007-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2007 at 9:00 a.m. APPEARANCES: The Arizona Peace Officer Standards and Training Board (“AzPOST”) appeared through Nancy J. Beck, Esq., Assistant Attorney General; Respondent Certificated Peace Officer Luis T. Garcia appeared through Edmundo P. Robaina, Esq., Robaina & Palumbo, PC. ADMINISTRATIVE LAW JUDGES: Michael K. Carroll conducted the hearing; after Judge Carroll left the Office of Administrative Hearings, Diane Mihalsky listened to the audio record, reviewed the exhibits, and drafted the Recommended Findings of Facts and Conclusions of Law to AzPOST. _____________________________________________________________________

The parties presented evidence and made argument about whether Mr. Garcia had violated Arizona Administrative Code (“A.A.C.”) R13-4- 109)(A)(7), (8), or (9), thereby furnishing cause for AzPOST to penalize his Peace Officer Certification. Pursuant to A.R.S. §§ 41-1092.01 and 41-1822(B)(1) and A.A.C. R13-4- 118, the Administrative Law Judge makes the following Findings of Fact and Conclusions of Law to AzPOST. FINDINGS OF FACT Background and Procedure On July 1, 2002, Mr. Garcia was hired by the City of Glendale Police Department (“GPD”) as a patrol officer. On November 15, 2002, Off. Garcia completed basic training and received peace officer certification from AzPOST. On February 6, 2006, AzPOST received a Peace Officer Termination Report from GPD, as required by A.R.S. § 41-1828.01, informing AzPOST that Off. Garcia’s[1] employment had been terminated on January 24, 2006 and that Officer Garcia’s actions that led to the termination may have violated AzPOST’s administrative regulations. Off. Garcia appealed the termination by GPD to City of Glendale Personnel Board. After a day-long hearing on June 21, 2006, the 5-member panel voted 3-2 that Off. Garcia had not borne his burden to prove that GPD did not act properly and correctly and, therefore, upheld the termination.[2] The matter was assigned to AzPOST Compliance Specialist Gary Maschner for investigation. Mr. Maschner obtained documents generated in GPD’s internal affairs investigation into the alleged incidents that led to Off. Garcia’s termination and relating to his appeal to the City of Glendale Personnel Board and, on April 18, 2007, presented a case overview to AzPOST. After Off. Garcia’s case was presented to AzPOST, it determined that cause existed to penalize his certification. AzPOST subsequently received Off. Garcia’s request for an administrative hearing. AzPOST referred the matter to the Office of Administrative Hearings and, on May 23, 2007, sent a Notice of Hearing scheduled for September 24, 2007 at 9:00 a.m. to Off. Garcia’s attorney. The notice charged that Off. Garcia had violated A.A.C. R13-4-109(A)(7) (specifically A.R.S. § 13-1802(A)), (8), and (9), which rules were quoted in their entirety, by committing the following specific alleged misconduct: On or about August 14, 2005, Officer Luis T. Garcia either improperly handled property or converted it to his own use.

On September 24, 2007, a hearing was held in the Office of Administrative Hearings before Administrative Law Judge (“ALJ”) Michael K. Carroll. AzPOST had admitted into evidence 31 exhibits, cross-examined Off. Garcia as part of its case-in-chief, and presented the testimony of Mr. Maschner, as well as A.H., the owner of the weapon that Off. Garcia allegedly improperly handled or converted to his own use, GPD Sgt. Joe Jezulin, Off. Garcia’s immediate supervisor, GPD Lt. Kathy Copeland, who conducted the internal affairs investigation, and Paul Reger, a polygrapher for the City of Glendale. Off. Garcia testified on his own behalf and presented the testimony of his former colleagues GPD, Off. Justin Collum, GPD Off. Bob Bumlao, and GPD Off. Robert Smith. After ALJ Carroll left his employment at the Office of Administrative Hearings, ALJ Diane Mihalsky listened to the audio record of the hearing, reviewed the exhibits, and drafted these recommended Findings of Facts and Conclusions of Law. Off. Garcia’s Background and Reputation at GPD Before Off. Garcia joined GPD, he had spent 13 years in the United States Marine Corps. Before this incident, he had never been accused of any dishonorable or dishonest acts. During the 3½ years that Off. Garcia worked at GPD, he was on the graveyard shift, from 10:00 p.m. to 7:00 a.m. He was considered to be an “active officer” in that he took a lot of calls and performed a lot of self- initiated stops. Sgt. Jezulin testified that he had worked with Off. Garcia about six months. Off. Garcia had a good reputation with the other GPD officers. Sgt. Jezulin considered Off. Garcia to be a good officer who turned his reports in on time. In Sgt. Jezulin’s experience, nothing Off. Garcia ever did had deviated from what he should have been doing. Off. Collum testified that GPD hired him at the same time it hired Off. Garcia. In Off. Collum’s opinion, Off. Garcia was a very good officer who was very honest. Off. Collum never saw Off. Garcia do anything unprofessional. Off. Smith testified that GPD hired him in July 2003 and that he has worked with Off. Garcia. Off. Smith considers Off. Garcia to be a fine officer. Off. Smith has seen Off. Garcia interact with citizens and has never seen any unprofessional actions. Off. Smith is surprised that anyone would question Off. Garcia’s integrity. Off. Bumlao testified that he had worked with Off. Garcia at GPD for two years and has gone on calls with him. Off. Bumlao described Off. Garcia as a “straightforward officer. Off. Bumlao has never seen anything to suggest that Off. Garcia would ever be abusive or dishonest with a member of the public. Off. Bumlao would be surprised if Off. Garcia’s integrity was ever questioned. The August 14, 2005 Stop August 14, 2005 was a Sunday. At approximately 4:46 a.m., three young Hispanic men, A.H., E.M., and C.U., were going home after having attended a party at a friend’s house at 75th Ave. and Peoria Ave., traveling eastbound on Peoria Ave. in a green 1995 Chevrolet Tahoe SUV. Although A.H. owned the Tahoe, because he had been drinking, he was not driving but, instead, sat in the front passenger seat. E.M. was driving the Tahoe. C.U. was sitting in the back seat. C.U. was E.M.’s girlfriend’s cousin. Although A.H. and E.M. had known C.U. for years, he was only riding in the Tahoe because he had needed a ride home from the party. At the time, C.U. was on probation for the felony of disorderly conduct, based on a violation of A.R.S. § 13-3107, unlawful discharge of a firearm.[3] The Tahoe was traveling next to a white truck driven by a friend or acquaintance of A.H. A.H. testified that both vehicles were speeding. At about this time, Off. Garcia received a “hot call” about a drive-by shooting involving a white Ford Expedition SUV. Off. Garcia initially thought that the green Tahoe might have been the SUV involved in the drive-by shooting. While the Tahoe was stopped for a red traffic light, Off. Garcia drove up behind it and turned on his spotlight. E.M. pulled the Tahoe into the Circle K parking lot at the corner of 51st Ave. and Peoria Ave. Off. Garcia followed. Although the parties disputed exactly what happened next, they agreed to the following: (a) At Off. Garcia’s request, A.H., E.M., and C.U. got out of the Tahoe; (b) After they got out of the Tahoe, A.H., E.M., and C.U. sat on a curb in the parking lot; (c) Off. Garcia discovered a 9 mm Smith & Wesson handgun in the vehicle and, at one point, put it in his waistband or in his utility belt; and (d) At some point, Off. Garcia asked A.H., E.M., and C.U. to dispose of a large quantity of beer in the Tahoe and they complied by pouring out the contents of individual beer cans into a dumpster at the Circle K. Off. Garcia did not cite anyone for have an open container of alcohol in the Tahoe. A.H., E.M., and C.U. are all over 21 years old, the legal drinking age. Off. Garcia did not cite anyone in the Tahoe for any vehicular code, weapon, or criminal violation, including DUI. At some point during the stop, Off. Garcia was dispatched to act as backup for Off. Collum on a non-emergency call at 5619 W. Wagoner Rd. involving a taxicab that was parked at a residence, alleging awaiting payment. On Monday, August 15, 2005, A.H. made a telephone call to GPD to claim and to retrieve his 9 mm Smith & Wesson handgun. A.H. told Off. Glen Vance that a GPD officer had stopped him and his friends at 67th Ave. and Peoria and had taken his handgun. Off. Vance told A.H. that no one had turned a handgun into the GPD property room and that he should search his car for his handgun. A.H. called GPD again. Off. Vance could find no record of the stop that A.H. described. The City of Phoenix Police Department was contracted to see if one of its officers had made the stop. GPD computer and other records did not show any stops like the one A.H. described. Sgt. Jezulin and the other graveyard supervisors asked officers assigned to the graveyard shift whether they had made a stop at 67th Ave. and Peoria Ave. on August 13 or 14, 2005, Saturday night or early Sunday morning. Off. Garcia was on his day off the first time the question was asked. But, on August 20 or 21, 2005, when Sgt. Jezulin asked Off. Garcia if he had stopped a green Tahoe and confiscated a gun at 67th Ave. and Peoria Ave., he could not remember having made any such stop. Off. Vance or GPD Sgt. Dave Madeya drove A.H. along Peoria Ave. and A.H. determined that the stop had been made at the 51st Ave. and Peoria Ave. Circle K. On August 25, 2005, the Circle K clerk confirmed that a GPD officer had stopped a Tahoe. Because the clerk knew many GPD officers who stopped by during their shifts, he was not certain of the identity of the particular officer who had made the stop. The security camera at the Circle K did not record the stop, which had occurred at a different section of the parking lot than the area that the camera had been focused on. Because A.H. was concerned that the gun he had purchased could be used in a crime, on August 29, 2005 he reported the 9 mm Smith & Wesson handgun as stolen. Sgt. Medaya ran a search of the Motor Data Computer system (“MDC”) for other police agencies to see of any GPD officers had run the Tahoe’s license plate on August 13 or 14, 2005. On September 3, 2005, they learned that, on August 14, 2005, Off. Garcia had run the Tahoe’s plate at 0453 hours and had run E.M.’s, A.H.’s, and C.U.’s names at 0619 hours.[4] GPD opened an IA investigation into the matter. Lt. Copeland, a 19-year veteran, was assigned to be the investigative supervisor. At some point, the City of Glendale reimbursed A.H. for the alleged loss of his handgun and ammunition. The IA Investigation A.H., E.M., and C.U. were interviewed several times by the GPD. Transcripts of these interviews were not offered into evidence. The interviews were described in the GPD Employee Complaint Form as follows: All three occupants of the vehicle were questioned on several occasions and continued to give consistent stories. [A.H.], the owner of the gun, related that after being stopped and taken out of the car the officer asked them if there were any weapons in the car. [A.H.] told him that he had a gun inside the center console of the vehicle. [A.H.] said the officer went in to the vehicle and took the gun, which was in a black nylon holster. [A.H.] said the officer tucked the holstered gun in his front waist area. The officer asked them who the gun was registered to. [A.H.] said that he told the officer that he did not know the gun had to be registered but he did have paperwork indicating ownership at home. [A.H.] said the officer then asked him if he had shot it that night and also asked if they tested his hands would they find he had fired the gun. [A.H.] said he answered no to both questions.

[A.H.] said the officer patted all the occupants down and took a knife from [E.M.] and an extra magazine for the gun from him. [A.H.] also observed the officer tuck these items in his waistband. [A.H.] said the officer then told them that they could leave but indicated that he was keeping the gun. [A.H.] said that the officer had said, “it’s mine now.” [A.H.] said that he did not question the officer as to why he was keeping the gun simply because he was a police officer. [A.H.] assumed that he would just go to the police department with his receipt showing ownership of the gun and he would get it back. [A.H.] stated the last place he had seen his weapon was tucked in the front waistband area of the officer.

The driver of the vehicle, [E.M.], was also interviewed. [E.M.] said that he was racing another vehicle on the roadway and when they got to a red light they noticed a police car behind them. The officer spotlighted the vehicles but did not turn on this [sic] overhead lights. [E.M.] said that he thought the car was trying to stop him so he pulled over into the Circle K Lot. [E.M.] said the officer verbally ordered each of them out of the vehicle and had them all sit down together. [E.M.] said that he then asked for their identification and began writing down the information. [E.M.] believes it was not until after he asked them if they had any weapons, and [A.H.] told them there was a gun in the car, that they were each searched.

[E.M.] said that the officer patted him down and found a small pocketknife in his pocket. [E.M.] said he observed the officer place the knife in his front waistband area and it was still in that location when the officer told them to leave. When asked why he did not ask for the knife back [E.M.] said that it was a cheap knife and he did not care enough about it to question the officer.

[E.M.] said that the officer searched [A.H.] and found the magazine to his weapon in his pocket. [E.M.] said that he observed the officer put the clip in the same area of his waistband as he had placed the knife. [E.M.] said that the officer started asking [A.H.] when the last time he had fired the weapon was and if he had fired it that evening. [A.H.] denied that he had shot it. He said the officer went into the vehicle and retrieved the gun from the center console where [A.H.] told him that it would be. He said the officer came out of the vehicle and had the holstered gun in his hand. He asked [A.H.] if the gun was registered. [E.M.] said [A.H.] told the officer that he did not know it needed to be registered but that he had paperwork at home showing when he had purchased it. [E.M.] said that the officer told him, “It’s mine now.” He said the officer told them he was keeping the gun but that they could take off.

[E.M.] said that as they were leaving he observed the officer with the magazine and the knife still in his waist area. He said he believes the gun was in his hand at that time. During his pre-polygraph interview he said that he had not seen the weapon after the officer walked back to his patrol vehicle.

[C.U.] was a back seat passenger in this vehicle at the time of the stop. [C.U.] said that he thought the officer had put on his overhead lights to pull them over because he remembered a light shining on them. [C.U.] said that the officer verbally ordered them out of the vehicle and had them all sit on the curb. [C.U.] said that the officer then searched each of them, one by one, first asking for their identification and then “patting them down.”

[C.U.] said the officer had taken a little pocketknife from the driver of the vehicle. [C.U.] said that the officer also found an extra “clip” in [A.H.’s] pocket. [C.U.] said that he remembered the officer asking [A.H.] where the other gun was. [C.U.] said that the officer must have searched the car before he searched them because he remembered [A.H.] saying that this was just an extra magazine for his gun. [C.U.] observed the officer put the “clip” and the knife in his front belt area.

Although [C.U.] wavered on the order of events he remembers the officer asking if they had any weapons and [A.H.] volunteering that he had a gun in the console between the seats. He recalls the officer entering the car and retrieving the weapon, which he recalled being holstered. [C.U.] also recalled the officer initially placing the gun in the front of his belt. He said that he recalls a discussion between [A.H.] and the officer about picking the weapon up at the police department the next day.

[C.U.] said that at some point during the stop the officer noticed beer in the vehicle and had them dump it out. [C.U.] said that this was prior to the conclusion of the stop. He said when the officers told them to take off they were all sitting outside of their vehicle. He said the officer said nothing to them about not driving because they had been drinking. [C.U.] believes that the gun was still in the officer’s belt when he told them to take off.

[A.H.] provided a receipt for a Smith and Wesson Sigma 9 mm handgun purchased on 4-15-2005 from The Jewel Box, 602 N. Central Av, Phoenix. Customer information identifies [A.H.] as the purchaser of this weapon for which he paid $433.00.

The MDC that GPD obtained that showed that Off. Garcia ran the Tahoe’s plate at 4:53 a.m. on August 14, 2005, which allowed GPD to identify him as the officer who had made the stop, showed that he checked the result of his request at 6:54 a.m. on August 14, 2005. The MDC also showed that, on August 14, 2005, Off. Garcia had sent an inquiry on A.H.’s name at 4:53 a.m. and at 6:54 p.m. had read the result, which showed that A.H. owned the Tahoe. On August 14, 2005, Off. Garcia had also sent an inquiry on E.M.’s name at 6:24 a.m. and, also at 6:24 a.m., read the result. On August 14, 2005, Off. Garcia had also sent an inquiry on C.U. at 6:25 a.m. and, also at 6:25 a.m. A Computer Aided Data (“CAD”) form for the early morning hours of August 14, 2005 was also admitted into evidence.[5] Various witnesses testified at the hearing that the CAD is generated from communications to and from officers, both on the radio and the computer, showing when they have been dispatched to a location (“D”), when they have reported their arrival at a location, whether or not they had been dispatched to that location (“A”), and whether they had cleared a location (“C”). The CAD is automatically updated every 5 minutes and show each officer’s most recent reported location. The CAD includes the following relevant entries: Name Time Location Entry Date/Time: August 14, 2005 at 4:29:27 Garcia Jr., Luis T. A 04:22 05643 W. Sunnyside Dr. Collum, Justin D 04:29 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 4:34:27 Garcia Jr., Luis T. A 04:22 05643 W. Sunnyside Dr. Collum, Justin D 04:29 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 4:39:28 Garcia Jr., Luis T. A 04:22 05643 W. Sunnyside Dr. Collum, Justin D 04:38 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 4:44:28 Garcia Jr., Luis T. C 04:39 05643 W. Sunnyside Dr. Collum, Justin A 04:41 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 4:49:28 Garcia Jr., Luis T. D 04:47 05619 W. Wagoner Rd. Collum, Justin A 04:47 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 4:54:28 Garcia Jr., Luis T. D 04:47 05619 W. Wagoner Rd. Collum, Justin A 04:47 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 4:59:28 Garcia Jr., Luis T. D 04:47 05619 W. Wagoner Rd. Collum, Justin A 04:47 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 5:4:28 Garcia Jr., Luis T. D 04:47 05619 W. Wagoner Rd. Collum, Justin A 04:47 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 5:9:28 Garcia Jr., Luis T. D 04:47 05619 W. Wagoner Rd. Collum, Justin A 04:47 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 5:14:28 Garcia Jr., Luis T. D 04:47 05619 W. Wagoner Rd. Collum, Justin A 04:47 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 5:19:28 Garcia Jr., Luis T. A 05:19 05619 W. Wagoner Rd. Collum, Justin A 05:19 05619 W. Wagoner Rd. Entry Date/Time: August 14, 2005 at 5:24:28 Garcia Jr., Luis T. A 05:23 05619 W. Wagoner Rd. Collum, Justin A 05:19 05619 W. Wagoner Rd.

Off. Garcia’s hand-written log for the shift that began August 13, 2005 and continued through the early morning hours of August 14, 2005 shows that, between 0415 and 1445 hours, he was on a call at 4643 W. Sunnyside Dr. and that, between 0447 and 0532 hours, he was on a call at 5619 Wagoner. The printed log for Off. Garcia for the shift that began August 13, 2005 and continued through the early morning hours of August 14, 2005 shows that, between 04:21:03 and 04:39:37, he was at 05643 W. Sunnyside Dr., investigating a report of found property. Between 04:45:01 and 04:47:30, he was at a business at 57 Sunnyside. Between 04:47:30 and 05:32:07, he was at 05619 W. Wagoner Rd. Interviews of Off. Garcia The September 10, 2005 Interview On September 10, 2005 at 9:19 p.m., Off. Garcia was given a GPD Notice of Investigation, which contained a so-called Garrity warning,[6] and described the alleged violation being investigated as follows: A citizen complainant advised that you conducted a traffic stop involving his vehicle on 8-14-05, at approximately 0446 hours, in the area of 5100 W Peoria Av. The complainant alleged that you seized a handgun and additional property during this traffic stop. None of these items appear to have been logged into property. Additionally, your CAD status and your Department log do not reflect this stop.

After Off. Garcia signed the Notice of Investigation, Lt. Copeland conducted the interview on September 10, 2005. After the initial comments, Lt. Copeland asked Off. Garcia whether he remembered a stop that he made en route to the call to back up Off. Collum.[7] Off. Garcia did not remember making such a stop. Lt. Copeland showed him the MDC report, which showed he had run the Tahoe’s plates and the three young men in the Tahoe. Off. Garcia still did not remember the call.[8] Lt. Copeland reminded Off. Garcia of a stop he had made of a black male on a bicycle and property that some people had found on their lawn.[9] Off. Garcia remembered that he was talking to the subject when he received Off. Collum’s call for backup. Off. Garcia said that his normal practice, if he made a stop while en route to a call for back up, was to declare that he was going to “go code-six with a vehicle prior to backup.”[10] But Off. Garcia still did not remember the stop. Lt. Copeland told him that, in addition to failing to follow procedure by declaring the stop, he had also run the individuals’ names later, which indicated that he had written them down. The individuals had later claimed that Off. Garcia that taken a gun and other property from them. A Circle K clerk also had witnessed the stop and had given a description of the officer that matched Off. Garcia.[11] Off. Garcia then remembered the stop. He remembered receiving a call involving drive-by shooting and an SUV, but he did not remember whether the SUV was dark or light-colored. All of the individuals in the green Tahoe had been intoxicated. After they had exited the vehicle, Off. Garcia had made them throw out a “twenty-pack or two packs of beer that were in the back seat.”[12] Off. Garcia said that he saw the gun on the floorboard when the passenger in the front seat got out. Nobody had claimed the weapon. While the occupants of the Tahoe were dumping out the beer, Off. Garcia took out rounds that were in the gun and put them in the glove box, put the magazines in the back compartment of the SUV, and put the gun underneath the back seat of the SUV.[13] Off. Garcia did not remember putting the stop out of the air or not putting it out on the air. He admitted that he did not put the stop out on the air because it did not show up on CAD. He did not remember taking down the names of the occupants of the Tahoe. He remembered calling Off. Collum on Channel 4 to say he was en route to the call for backup but did not tell Off. Collum that he had been delayed by his stop of a vehicle.[14] Off. Garcia remembered smelling the gun to see if it had recently been fired. He remembered that he had not put the rounds in the glove box, but had put them next to the console, in between the passenger and driver seat. He did not remember why he had not kept the gun, since no one had claimed it.[15] He hid the car keys under the driver’s side and told the men, “[C]all a friend, have someone come pick you up.”[16] Off. Garcia admitted that his normal practice if he found a gun that no one claimed would be to “get the gun and log it into Property as found.”[17] He did not remember any knife.[18] Lt. Copeland told Off. Garcia that GPD was getting a very different story from the three occupants of the vehicle. She summarized her statement of her concerns in her report as follows: • The individuals in the vehicle gave consistent stories. They appear to have no motivation for making false allegations.

• Less than a week after the traffic stop Sgt. Jezulin asked if you recalled a traffic stop on 8-15-05, at approximately 0446 hours, and even after referring to your logs you do not recall this traffic stop.

• While still trying to determine the officer that had made the traffic stop, we reviewed CAD lineups and checked radio traffic and no traffic stop was found.

• Later we determine that you had run the vehicle and the individuals that evening. We check your log and find that not only is the traffic stop not reflected, but you also show that you are doing something else during the time period in question.

• When we started the interview you did not recall the incident at all until told that we can show that you ran both the vehicle and the individuals. Then you are able to give specific details.

• You make the occupants, that are all over the age of 21, throw away beer but you let them keep a gun which none of them has even claimed.

• You find a gun in the vehicle but you do not pat any of the occupants of the vehicle down for further weapons.

• You advise an officer that you are still enroute to back him up but do not explain to him that you are delayed by a traffic stop.

• The poor officer safety practices and policy violations observed in conjunction with this stop are not what we have come to expect from an officer of your caliber.[19]

Off. Garcia explained that Sgt. Jezulin had asked about a stop at 67th Ave. and Peoria, but had not told him that the stop involved a green Tahoe or three Hispanic males.[20] He had not kept the gun and turned it into Property because he had determined it had not been used in the drive-by shooting. He made the three young men throw the beer away because they were intoxicated and he wanted to make sure that they did not continue drinking. Off. Garcia was “positive” that he never took a weapon from the stop.[21] Off. Garcia admitted that, if he had run A.H.’s, E.M.’s, and C.U.’s names, he must have written their names down on a card at the stop. Off. Garcia thought that, perhaps, he had not called the stop in because “they were holding traffic.” He stated that, if he took people out of a car and found a gun, he “would go on air unless there was traffic being held.”[22] Lt. Copeland told Off. Garcia that, initially, the occupants of the Tahoe had not said anything about beer. After GPD asked if there was any beer, one of the occupants had admitted that there was beer and that the officer had told them to throw it away. But the occupant was adamant that Off. Garcia could not have hidden the gun, rounds, and magazine in the Tahoe because “[h]e did not feel there was enough time that they were away from the car.” Lt. Copeland admitted that the occupant might have left out the beer on purpose, but told Off. Garcia that the occupant still had not changed his basic story.[23] Off. Garcia told Lt. Copeland that he was 100% certain that he had not taken the gun and forgotten to log it into Property. He was willing to take a polygraph.[24] The September 10, 2005 interview concluded as follows: KC: And you are, you work the next couple of nights. Okay well I’m gonna go ahead and conclude this at Eleven-O-four p.m. and I’m just gonna [inaudible] the memo now and I’m going to, Lieutenant Madeya will meet you up at Foothills, actually we’ll go out to your car with you, look through what you have here. See if you have the card and then he’ll met you up at Foothills and.

LG: The card will be at.

KC: Foothills.

LG: Foothills.

KC: Okay. Just go ahead and check, you know have him check the car, so there’s, have them check your pursuit bag and stuff, the stuff that you have with you. You know…

LG: I just came straight over here.

KC: Oh you don’t have any of that with you? Then perfect. I was gonna say we’ll do it discreetly. We’re not gonna go out there and, and, but it’s even better if it’s all up at Foothills.

DM: If you just want to write that up.[25]

Lt. Copeland testified at the hearing that the September 10, 2005 interview was conducted at GPD headquarters. Off. Garcia worked out of the Foothills substation. She did not want to embarrass Off. Garcia in front of other officers. She therefore told him to write a memorandum on the computer and then go with Sgt. Medaya to the Foothills substation to retrieve his gear bag. Lt. Copeland testified that, 45 minutes later, Off. Garcia said he had trouble logging onto the computer. A call came in for a Spanish-speaking officer, and she said that Off. Garcia could not respond because he did not have his gear. Off. Garcia said that, after he could not log onto the computer, he had driven to the Foothills substation and retrieved his gear. Lt. Copeland testified that she was concerned that Off. Garcia had had an opportunity to dispose of any evidence that had been in his gear. The September 13, 2005 Interview On September 13, 2005 at 10:55 p.m., Off. Garcia was given a second GPD Notice of Investigation, which described the alleged violation being investigated as follows: On 9-10-05, at the conclusion of an interview regarding a traffic stop you were asked to go with Lt Madeya to your vehicle to search your duty bag(s). At that time you stated you did not have your gear with you. Less than 45 minutes later you contacted me. At that time you advised that you had your duty gear with you as you had left and gone to Foothills.[26]

After Off. Garcia signed the Notice of Investigation, Lt. Copeland conducted the interview on September 13, 2005. Lt. Copeland told Off. Garcia that the three men in the Tahoe had no motivation to lie. They were all telling the same story. Surveillance tapes backed up the three men’s description of the area, if not the stop. Off. Garcia repeated that he had not kept a gun he had taken from anyone. Lt. Copeland told him that “it doesn’t look very good.”[27] Off. Garcia said that he thought he remembered seeing open beers in the back of the Tahoe after he stopped it. The gun may have been on the floorboard or in plain view in the center console, which was open.[28] Off. Garcia again said that he put the gun under the backseat and the magazine in the console, which he could open from the backseat of the Tahoe. Off. Garcia was “starting to doubt what [he] did.”[29] He was starting to wonder whether he had kept the gun or left it in the car and afraid that “this is gonna turn out to be bad if anything else goes wrong or I start thinking about actually doing something I didn’t do.”[30] He was not one hundred percent certain what he did with the gun but was certain he did not have it. He did not know where the gun was at. Lt. Copeland asked him whether he was “one hundred percent positive” about what had happened.[31] After Off. Garcia said that he thought that he had put the keys where the occupants of the Tahoe would have trouble looking, Off. Copeland asked him what would happen if the video surveillance tapes from the Circle K and the property across the street showed that the Tahoe left within a minute after Off. Garcia left, which would mean either the occupants had found the keys quickly or had another set. Lt. Copeland told Off. Garcia that “we have video surveillance from both sides of the road.”[32] Off. Garcia explained that he had tried to log into several computers after the first interview. Although Off. Garcia understood that “I definitely needed to have a supervisor with me while I had all my gear or get all my gear,” after he could not log onto the computer, I figured O.K. well, I don’t have all my bags why don’t I go up to foothills that way I’m gonna have to come do the report here anyway to turn it into you. I went up, drove up and came back and that’s when I tried to sign on a couple more computers and I wasn’t able to get into them and that’s when I ran into you and told you what was going on. That’s when we led up to Lieutenant Madeya on the specifics of [inaudible]. That’s when I said well now I’ve got my gear if you want to go through it or have it. I’m not sure what he said of the Spanish detail that we wanted to go to, that if you go, that’s when I said well I’ve got all my gear now if you want to go through it. That’s when I said I, I picked it up from Foothills. . . . .

Well that’s, that, that was specific to me as that I understood that as far as once he said okay let’s not worry. What I remember is okay let’s not worry about that. Let’s just go ahead and do the memo since you don’t have your bags. Go ahead and do your memo, but it’s gonna be done and I think I even asked, I think that’s when I asked well do you want it, can I do it up at Foothills ‘cause I knew I had my gear there. I didn’t have any of my gear. That’s when you said no I want it, we’re gonna be here. Go ahead and do it here on the computer, so that’s when Lieutenant Madeya starts talking about going onto the computer here and turning in the stuff here. Once that didn’t happen and I couldn’t get in, I figure I’d go get my gear and come back.[33]

Off. Garcia continued to insist that he had not taken the gun. But had some doubts about what he had done with it. The Polygraphs A.H. On September 19, 2005, City of Glendale Polygrapher Paul Reger conducted a pre-polygraph interview and polygraph of A.H. In the pre-polygraph interview, which was recorded and transcribed, A.H. said that he had checked in the console for the gun after E.M. drove away from the Circle K and the next morning, because “that’s the only place I ever kept it.”[34] Mr. Reger did not discuss with A.H. whether anyone else may have taken the gun. The relevant questions and A.H.’s responses follow: R1 Did the officer take a magazine from your rear pants pocket? Yes.

R2 Did you see anyone else with your gun other than the officer at the Circle K? No.

R3 Did you see your gun after you left the Circle K lot where you were stopped? No.

R4 Have you told the entire truth about what happened to your gun? Yes.

Mr. Reger concluded that, “[a]fter numerically scoring the three charts it is this examiners opinion that the result of this examination are: no deception indicated.”[35] E.M. On September 19, 2005, Mr. Reger also conducted a pre-polygraph interview of E.M., which was recorded and transcribed. During the interview, the following exchange occurred: PR: You didn’t see the gun after the police officer took it from the vehicle while in the holster.

EM: No.

PR: And [C.U.] didn’t take the gun [inaudible]. You’ve been truthful about what transpired once you were stopped at that Circle K?

EM: Yes.

PR: Anything that I’m missing that sticks out in your mind?

EM: We asked [C.U.], well [A.H.] asked [C.U.] if he took the gun, but he said no.

PR: Did you see [A.H.] look through his vehicle for anything on Sunday or Monday or any day?

EM: I think he was looking around.

PR: Did you see him or you just think he was looking?

EM: I seen him looking but I don’t know what exactly he was looking for. He was looking in the back seat looking in the truck.

PR: But you never saw any bullets?

EM: No.

PR: Magazines, nothing like that? When did you see [C.U.] looking in his truck, I mean [A.H.] looking in the truck?

EM: When we were taking the ice chest out of the back.[36]

The relevant questions and E.M.’s responses follow: R1 Did the officer take a knife from you when you were searched? Yes.

R2 Did you take Andrew’s gun from his vehicle? No.

R3 Did you see Andrew’s gun any time after the officer took it from the Tahoe? No.

R4 Other than being drunk, have you deliberately lied to the police department reference this investigation? No.

Mr. Reger concluded that, “[a]fter numerically scoring the charges, it is this examiner’s opinion that the results of this examination are: no deception indicated.”[37] C.U. On September 28, 2005, Mr. Reger conducted a pre-polygraph interview of C.U.[38] Although C.U. was not especially articulate, he did not state any difficulty understanding any of Mr. Reger’s questions. On September 28, 2005, Mr. Reger conducted a polygraph of C.U. The relevant questions and answers follow: R1 Did you see the officer take a knife from [E.M.]? Yes.

R2 Did you take the gun from the Tahoe? No.

R3 Did you see the gun after you were stopped at the Circle K? No.

R4 Did you lie about who took the gun from the Tahoe? No.

Mr. Reger concluded that he had “no opinion due to [in]sufficient scores obtained during the test” but that C.U. “said he [was] willing to come in again and take another examination because he wants to clear his name in this matter.”[39] Mr. Reger testified at the hearing that he believed that C.U.’s difficulty understanding English prevented Mr. Reger from obtaining sufficient scores. Off. Garcia (September 29, 2005) On September 29, 2005, Off. Garcia was ordered to submit to a polygraph. On October 5, 2005, GPD Det. Kirk Snell with Mr. Reger conducted a pre- polygraph interview of Off. Garcia.[40] The three relevant questions that Mr. Reger asked Off. Garcia on the polygraph and his responses follow: R1 Do you know for sure what happened to the gun you removed from the S.U.V.? No.

R2 Do you know for sure that you placed the weapon in question back into the S.U.V.? Yes.

R3 Did you have in your possession that gun after you completed the traffic stop? No.[41]

Mr. Reger concluded that, “[a]fter numerically scoring the charts, it is this examiner’s opinion that the results of this test are: significant response with attempts to defeat the examination by use of countermeasures.” Mr. Reger testified at the hearing that the purpose of the pre-polygraph interview is to allow the subject to give whatever explanations are necessary about the events that will be the focus of the polygraph inquiry and to formulate questions that can be answered by a “yes” or “no” answer. Both the subject and the polygrapher know what the relevant questions will be and what the responses should be before the actual polygraph. Mr. Reger testified that countermeasures include the subject changing his answers once the questions and answers have been determined. Off. Garcia changed his answers to relevant questions twice. Mr. Reger could not remember what Off. Garcia said when asked why he had changed his answers. Mr. Reger testified that there is information on the internet on how to defeat polygraph. Two such measures are self-hypnosis and deep breathing. Mr. Reger testified that Off. Garcia breathed normally during the time the instruments were attached, breathed in deep, long breaths during the first polygraph test, and breathed more nearly normally during the second polygraph test. Mr. Reger testified that Off. Garcia also stared at acoustic tiles on the wall of the interview room, even after Mr. Reger instructed him to look at the floor. Mr. Reger testified that he believed that Off. Garcia was attempting self-hypnosis. Off. Garcia (October 20, 2005) Off. Garcia was ordered to take a second polygraph test on October 17, 2005. A polygraph was administered on October 20, 2005 by City of Phoenix polygrapher William T. Clifford. Mr. Clifford reported the following relevant questions and answers: R5 Did you have possession of that 9 mm S&W after you left the scene of that traffic stop? No.

R7 After you left the scene of that traffic stop, did you have possession of that 9mm S&W? No.

R4 Right now, do you know where that missing 9 mm S&W is? No.

R6 Right now, can you take me to that missing 9 mm S&W? No.

R8 Did you deliberately dispose of that 9mm S&W after the traffic stop? No.[42]

Based on the results of the examination, Mr. Clifford concluded “DECEPTION INDICATED.” Additional Hearing Testimony Off. Garcia testified that, after he turned his spotlight on to initiate the stop because he suspected that the green Tahoe may have been the SUV involved in the drive-by shooting, he rechecked the information and learned that a white SUV was reported as having been involved in the drive-by. He ran the license plate of the Tahoe prior to stopping it. Off. Garcia denied that he had found an extra magazine or pocketknife if the Tahoe. Off. Garcia testified that he knew that GPD wanted to look in his gear bag. But Lt. Copeland had not made known that another officer would accompany him to retrieve his bag from the Foothills substation. Off. Garcia testified that the night of August 13-14, 2005, had been very busy, with many calls in queue. Not all the calls were urgent. Off. Collum and Off. Smith both testified that they had experienced problems with the MDC computer system. Sometimes the system does not record computer entries or radio calls made and traffic stops are not recorded. Off. Smith testified that GPD has since gone back to requiring officers to keep paper logs. Off. Collum testified that Off. Garcia did not take 32 minutes to appear at the call from backup on Wagoner Rd. on August 14, 2005. Off. Collum does not remember exactly how long Off. Garcia took. Lt. Copeland testified that, if an officer suspects a vehicle as having been involved in a drive-by shooting, proper procedure for officer safety is to call for a backup before pulling the vehicle over. In most cases, to protect the public, the entire street will be closed off before a stop is made. Lt. Copeland also testified that, if an officer finds a weapon in a vehicle and no one claims it, proper procedure for officer safety is to take the weapon and turn it into Property. Lt. Copeland testified that, according to the MDC, Off. Garcia took 32 minutes to respond to the call to backup Off. Collum at the call on Wagoner Rd. Lt. Copeland testified that officers are expected to document every stop that they make. There is no indication on Off. Garcia’s handwritten or computer log or anywhere on the GPD system that he ever made the stop at 51st Ave. and Peoria Ave. Lt. Copeland testified that she had checked the radio traffic for August 14, 2005. Although it had been a busy night, radio traffic had never been held. Lt. Copeland testified that E.M., A.H., and C.U. initially had said nothing about being intoxicated or having alcohol in the Tahoe until after Off. Garcia had told her he made them throw out beer. When she asked Off. Garcia why he had asked them to throw out the beer, he had said, “Because they were intoxicated and should not have alcohol.” Lt. Copeland testified that having intoxicated subjects dispose of alcohol is not standard procedure at GPD. The alcohol belongs to the subjects and officers cannot make them dispose of it. CONCLUSIONS OF LAW AzPOST bears the burden of proof and must establish cause to penalize a peace officer’s certification by a preponderance of the evidence.[43] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[44] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[45] Charged Violations The Arizona Legislature has empowered AzPOST to “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with rules prescribing reasonable minimum qualifications for officers.[46] Pursuant to this legislative grant of authority, AzPOST has adopted A.A.C. R13-4-109(A), which includes the following among the grounds for revocation, suspension, or cancellation of a previously granted peace officer certified status: 7. The commission of a felony, an offense that would be a felony if committed in this state, or an offense involving dishonesty, unlawful sexual conduct, pr physical violence.

8. Malfeasance, misfeasance, or nonfeasance in office; or

9. Any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.

A.R.S. § 13-1802(A) provides in relevant part as follows: A person commits theft if, without lawful authority, the person knowingly:

1. Controls property of another with the intent to deprive the other person of such property; or

2. Converts for an unauthorized term or use . . . property of another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use; or

3. Obtains . . . property of another by means of any material misrepresentation with the intent to deprive the other person of such property . . . ; or

4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person’s own or another’s use without reasonable efforts to notify the true owner; or

5. Controls property of another knowing or having reason to know that the property was stolen . . . .

Theft of property having a value of less than one thousand dollars is a Class 1 misdemeanor unless the property is a firearm, in which case it is a Class 6 felony.[47] Malfeasance is “[a] wrongful or unlawful act; esp. wrongdoing or misconduct by a public official.”[48] Misfeasance is “[a] lawful act performed in a wrongful manner.”[49] Nonfeasance is “[t]he failure to act when a duty to act existed.”[50] Polygraph Evidence In Arizona judicial proceedings “[r]esults of polygraph examinations will not be admissible as evidence in this state absent stipulation.”[51] The parties did not make any stipulation in this case with respect to admissibility of the polygraph examinations. But in an administrative hearing regarding an investigation of a police officer’s performance of his official duties, polygraph results may be considered.[52] In addition to Mr. Reger’s and Mr. Clifford’s reports, the record contains other testimonial and documentary evidence. Although the Administrative Law Judge considers Mr. Reger’s and Mr. Clifford’s polygraph reports in her legal conclusions, she gives them less weight than other evidence. Violations Off. Garcia did not dispute that, on August 14, 2005, he removed the handgun from the Tahoe but claims that, when the occupants of the Tahoe were busy pouring out beer, he returned the gun to the Tahoe. A.H. and E.M. both said that, the last time they saw the gun, it was in Off. Garcia’s waistband. They do not say they saw Off. Garcia with the gun when they or he left the site of the stop. If Off. Garcia had hidden the gun beneath the rear seat and put the magazine in the console, C.U. would have had access to both the gun and the magazine. C.U. was on probation for a felony involving a firearm. On this record, it appears that both A.H. and E.M. initially suspected that C.U. may have taken the gun. AzPOST has not established that it is more likely that Off. Garcia rather than C.U. took the gun. AzPOST therefore has not borne its burden to establish that Off. Garcia converted the gun to his own use or violated A.R.S. § 13-1802(A) in taking it. AzPOST therefore has not established cause to penalize Off. Garcia’s peace officer certification under A.A.C. R13-4-109(A)(7). Off. Garcia credibly testified that, by the time he stopped the Tahoe, he did not believe that it had been involved in the drive-by shooting and, when he examined the gun, he found it had not been fired recently. Off. Garcia testified that no one claimed the gun. Lt. Copeland testified that, when no one claims a gun that is found, proper procedure is to impound the gun and turn it into Property. AzPOST therefore has borne its burden to establish that Off. Garcia’s handling of the gun under the circumstances of the stop, according to his own testimony, violated GPD policy and was improper. AzPOST therefore has established that Off. Garcia committed misfeasance in office and has established cause to revoke or suspend his peace officer’s certification under A.A.C. R13-109(A)(8). On this record, it appears that Off. Garcia may have been relying on his instincts rather than GPD policy and procedure in stopping the Tahoe, removing the handgun, and requesting the occupants to pour out their beer. It also appears that, after the stop had been initiated, A.H., E.M., and C.U. all were respectful and complied with Off. Garcia’s requests, even when he lacked authority to enforce compliance. For example, according to A.H., he voluntarily handed his gun to Off. Garcia, even though it does not appear that there was probable cause for a search. Similarly, E.M., A.H., and C.U. voluntarily poured out their beer, even though Off. Garcia could not have forced them to do so. Off. Garcia’s own description of the stop reveals several practices that are unconventional, even if not in actual violation of any formal GPD policy or administrative regulation. The lack of any computer or paper record of the stop also evidences a somewhat cavalier attitude toward procedure and policy. Members of the public have a right to trust that items of property that are confiscated or even temporarily removed from their persons or vehicles will be safeguarded. AzPOST has established that, as a result of the stop, A.H. lost his handgun, either because Off. Garcia took the gun or because his improper handling allowed C.U. to take it. AzPOST therefore has also borne its burden to establish that Off. Garcia’s improper handling of property constitutes conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession and cause to penalize his certification under A.A.C. R13-109(A)(9). Done this day, October 9, 2007.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of October, 2007, to:

Peace Officer Standards and Training Board Tom Hammarstrom, Executive Director 2643 East University Phoenix, AZ 85040

By ___________________________ ----------------------- [1] Mr. Garcia had been terminated before the hearing in this matter and his appeal to the City of Glendale Personnel Board. Because AzPOST has alleged regulatory violations in the events that led to his termination, for consistency he will be referred to by his former professional title throughout the remainder of this recommended decision. [2] In Off. Garcia’s appeal of his termination, he bore the burden of proof to establish impropriety of his former employer’s actions. Here, as noted below, AzPOST bears the burden to establish a violation of the charged regulations. [3] See AzPOST Ex. 10. [4] GPD’s efforts to identify the officer involved in the stop were gleaned from the testimony at hearing and a series of e-mails admitted as AzPOST Ex. 8. [5] See AzPOST Ex. 11. [6] See Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). In that opinion, the United States Supreme Court held that the Constitution requires police agencies to inform officers who were the subject of an internal affairs investigation that statements made in interviews could not be used in subsequent criminal investigations if the agency has required the officer to answer all questions as a condition of keeping his or her employment. [7] AzPOST Ex. 12 at 4 (bottom). [8] Id. at 5-6. [9] Id. at 6-7. [10] Id. at 7 (bottom). [11] Id. at 8 (middle). [12] Id. at 9. [13] Id. at 10. [14] Id. at 10. [15] Id. at 11. [16] Id. at 12-13. [17] Id. at 14. [18] Id. at 16. [19] AzPOST Ex. 4 at 17-18. [20] See AzPOST Ex. 12 at 18. [21] Id. at 21. [22] Id. at 23. [23] Id. at 25. [24] Id. at 28. [25] Id. at 29. [26] AzPOST Ex. 7. [27] AzPOST Ex. 13 at 1-3. [28] Id. at 6-7. [29] Id. at 11. [30] Id. at 13-14. [31] Id. [32] Id. at 18. [33] Id. at 23. [34] AzPOST Ex. 16 at 16-18. [35] AzPOST Ex. 17. [36] AzPOST Ex. 18 at 26. [37] AzPOST Ex. 19. [38] AzPOST Ex. 20. [39] AzPOST Ex. 21 at 2. [40] AzPOST Ex. 14. [41] AzPOST Ex. 15. [42] AzPOST Ex. 23 at 3-4. [43] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [44] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [45] Black’s Law Dictionary at page 1220 (8th ed. 1999). [46] See A.R.S. § 41-1822(C)(1). [47] A.R.S. § 13-1802(E). [48] Black’s Law Dictionary at 976 (8th ed. 1999). [49] Id. at 1020. [50] Id. at 1080. [51] In the Matter of Swartz, 141 Ariz. 266, 276, 686 P.2d 1236, 1246 (1984) (citing State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962)). [52] See Eshelman v. Blubaum, 114 Ariz. 376, 379, 560 P.2d 1283, 1286 (App. 1977).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826