PDF copy: ALJDEC decisions subject to certification as final

14A-192-POST · Peace Officers Standards and Training · 2017-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matters of the Hearing Regarding Nos. 14A-158-AZPOST and 14A-192-AZPOST the Peace Officer Certification of: (Consolidated) Danny P. Olmos

and ADMINISTRATIVE LAW JUDGE the Peace Officer Certification of: DECISION Joseph Vizzini

HEARING: April 26, 2016, April 27, 2016, April 28, 2016, and May 3, 2016. APPEARANCES: The Arizona Peace Officer Standards and Training Board (“AzPOST”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General; Danny P. Olmos (“Officer Olmos”) was represented by Michael Napier, Esq. and Cassidy L. Bacon, Esq., Napier, Coury & Baillie, PC; Joseph Vizzini (“Officer Vizzini”) was represented by Steven J. Serbalik, Esq., Steven J. Serbalik, PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and made argument about whether Officer Olmos and/or Officer Vizzini had violated Arizona Administrative Code (“A.A.C.”) R13- 4-109(A)(8) or (9), thereby furnishing cause for AzPOST to penalize their Peace Officer Certifications. 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 1. On October 9, 2006, Officer Vizzini was hired by the Phoenix Police Department (“PPD”) as a patrol officer. Between October 30, 2006, and March 9, 2007,

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 Officer Vizzini underwent basic training at the Arizona Law Enforcement Academy (“ALEA”). Officer Vizzini received peace officer certification from AzPOST. 2. On November 20, 2006, Officer Olmos was hired by PPD as a patrol officer.

Between December 4, 2006, and April 17, 2007, Officer Olmos underwent basic

training at ALEA. Officer Olmos received peace officer certification from AzPOST.

3. On or about October 10, 2014, AzPOST received a Peace Officer

Termination Report from PPD, informing it that Officer Olmos’ employment had been

terminated on October 4, 2014, and that Officer Olmos’ actions leading to the

termination may have violated AzPOST’s administrative regulations.

4. Officer Olmos’ termination from PPD was assigned to AzPOST Compliance

Specialist Steven Jacobs for investigation. Mr. Jacobs obtained documents from PPD’s

Professional Standards Bureau’s (“PSB’s”) investigation into the alleged incidents that

led to Officer Olmos’ termination.

5. During Mr. Jacobs’ investigation in the alleged reasons for Officer Olmos’

termination from PPD, Mr. Jacobs became aware of conduct by Officer Vizzini that may

have violated AzPOST’s administrative regulations, which had resulted in a 24-hour

suspension. AzPOST opened an investigation into Officer Vizzini’s actions that led to his suspension. 6. Mr. Jacobs presented memoranda that summarized the results of his investigations into Officer Olmos’ termination from PPD and Officer Vizzini’s 24-hour suspension. After Officer Olmos’ and Officer Vizzini’s cases were presented to AzPOST, it determined that cause existed to penalize their certifications. Officer Olmos and Officer Vizzini subsequently requested administrative hearings. 7. The two matters were consolidated and referred to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. On January 6, 2016, AzPOST issued a Notice of Hearing on the consolidated complaint. 8. The Notice of Hearing charged in Case No. 14A-158-POST, that Officer Olmos had violated A.A.C. R13-4-109(A)(8) and (9), which rules were quoted in their entirety, by committing the following specific alleged misconduct:

On April 16, 2014, Officer Danny P. Olmos abused his authority when he arrested Mr. FA1 for failure to provide identification when he had direct knowledge that, a few minutes prior to the arrest, a fellow officer had taken possession of Mr. FA’s identification.

9. The Notice of Hearing charged in Case No. 14A-192-POST, that Officer

Vizzini had violated A.A.C. R13-4-109(A)(8) and (9), which rules were quoted in their

entirety, by committing the following specific alleged misconduct:

On April 16, 2014, Officer Joseph Vizzini failed to act when a fellow officer arrested Mr. FA for failure to provide identification when he had direct knowledge that, a few minutes prior to the arrest, he (Officer Vizzini) had taken possession of Mr. FA’s identification.

8. The Administrative Law Judge assigned to the case denied Officer Olmos’

and Officer Vizzini’s motion to sever the cases. On April 26 – 28, 2016, and May 3,

2016, a consolidated hearing was held, at which AzPOST, Officer Olmos, and Officer

Vizzini all appeared through their attorneys.

9. AzPOST submitted 27 exhibits and presented the testimony of eight

witnesses: (1) Officer Olmos on cross-examination; (2) Officer Vizzini on cross-

examination; (3) PPD Sergeant Julie Miller (now retired), Officer Olmos’ and Officer

Vizzini’s supervisor on April 16, 2014; (4) PPD Sergeant Jeff Webbe, the PSB

investigator assigned to the cases; (5) PPD Assistant Chief of Patrol Harry Markley; (6)

Mr. Jacobs; (7) AzPOST’s Executive Director, Jack Lane; and (8) Donald Yennie, the Training Manager at AzPOST. The Administrative Law Judge sustained Officer Olmos’ and Officer Vizzini’s objections to Assistant Chief Markley’s and Mr. Yennie’s testimony under A.R.S. § 41-1092.07(D) to the extent that the testimony was cumulative to Sergeant Webbe’s testimony. 10. Officer Olmos submitted 41 exhibits and presented the testimony of five witnesses: (1) Himself on direct testimony; (2) Robert J. Kavanagh, a criminal defense attorney who had worked 25 years as a police officer before he went to law school, who The subject’s name on the PPD documents and other exhibits was Robert Leo Andrade. The record does not reveal why the Notice of Hearing referred to him as “Mr. FA.” Nonetheless, for consistency, the testified on the legal requirements of probable cause; (3) PPD Officer Joe Clure, the former president of Phoenix Law Enforcement Association (“PLEA”), the union representing PPD officers; (4) PPD Officer Jacob Callison, who has worked with Officer

Olmos in the Maryvale Precinct; and (5) PPD Sergeant Michael Penn, who currently

supervises Officer Olmos in the Cactus Precinct.

11. Officer Vizzini submitted two exhibits and presented the testimony of three

witnesses: (1) Himself on direct testimony; (2) Sergeant Jacquelyn Wagaman, Officer

Vizzini’s former supervisor in the Estrella Mountain Precinct (now the Estrella Mountain/

Maryvale precinct); and (3) PPD Lieutenant Tom Van Dorn, who reviewed the PSB

findings regarding Officer Vizzini.

HEARING EVIDENCE

Evidence on the Events Leading to the AzPOST Complaint

Service of the Order of Protection on Mr. FA 12. On April 16, 2014, Officer Vizzini was assigned to serve an order of protection on Mr. FA. Officer Olmos was the backup officer. 13. Officer Vizzini and Officer Olmos met the complainant for the order of protection, Mr. FA’s former girlfriend, Gabriela M. (“Ms. GM”), and her young son, at a nearby Mexican restaurant. Ms. GM told Officer Vizzini that Mr. FA would tear up the order of protection and come after her and her son. Nonetheless, Ms. GM wanted police to serve the order of protection on Mr. FA. 14. Officer Vizzini testified that he has served hundreds of orders of protection and that he could see that Ms. GM and her child were very fearful of Mr. FA. Although Officer Olmos did not speak to Ms. GM, he could see that she was scared. 15. Officer Vizzini pulled up Mr. FA’s criminal history, which included at least four violent felonies, and showed it to Officer Olmos. The two officers then drove their separate vehicles to serve the order of protection on Mr. FA at 1329 East Taylor Street, Phoenix, Arizona. While Officer Vizzini went on the porch to serve the order, Officer Olmos initially parked on the street west of the house in case Mr. FA became violent.

subject will be referred to as “Mr. FA” in the remainder of this recommended decision. 16. Officer Vizzini knocked on the door and Mr. FA’s roommate answered the door. Mr. FA then came to the door. Officer Vizzini asked for Mr. FA’s identification and Mr. FA provided his driver’s license. Officer Vizzini used the driver’s license

number to complete the declaration of service for the order of protection on Mr. FA.

17. While Officer Vizzini was filling out the paperwork for the order of

protection, Officer Olmos went on the porch to explain the requirements of the order of

protection to Mr. FA. According to Officer Vizzini and Officer Olmos, Mr. FA became

agitated and started cursing at the officers, repeatedly saying “fuck you.” Eventually,

Mr. FA went back into the house and slammed the screen door behind him.

18. Officer Vizzini later said in the May 1, 2014 PSB interview that Mr. FA had

become “pissy” and that Mr. FA and Officer Olmos had become “lippy.” Officer Vizzini

testified that he heard Officer Olmos say one curse word during the incident.

19. Officer Vizzini completed the paperwork for the order of protection and stuck

the order in the screen door. Officer Vizzini repeatedly called to Mr. FA to come get his

driver’s license and several times, Mr. FA responded, “Fuck you, keep it.”

20. Officer Vizzini testified that he and Officer Olmos acted cautiously because

they could not see Mr. FA through the screen door, Mr. FA was becoming increasingly agitated, and they knew about his prior violent felony offenses. 21. Officer Vizzini testified that he and Officer Olmos began backing up. Officer Vizzini testified that he did not realize that he still had Mr. FA’s driver’s license in his hand. Officer Vizzini testified that he did not think to leave the driver’s license in the screen door with the order of protection. Officer Vizzini testified that when he reached his car, he was thinking of his and Officer Olmos’ safety, not the driver’s license that he still held in his hand. 22. Officer Olmos testified that he may have said the word, “fuck,” as he was walking away, but it was not directed at Mr. FA. Officer Olmos and Officer Vizzini both stated in their PSB interviews and testified at hearing that Officer Olmos did not curse at or have a heated argument with Mr. FA during the service of the order of protection. Officer Vizzini stated during his PSB interview that Officer Olmos behaved professionally. 23. Officer Vizzini testified that after he reached his car, he realized that he still had Mr. FA’s driver’s license and that rather than going back up on the porch, he decided to impound the license when he returned to the police station. Officer Vizzini

did not go back to the police station until the end of his shift. He acknowledged that he

never properly impounded Mr. FA’s driver’s license.

24. Officer Vizzini returned in to service. He acknowledged that he did not

immediately go see Ms. GM to return the paperwork for the order of protection.

The Traffic Stop and Arrest of Mr. FA

25. After Officer Vizzini served the order of protection on Mr. FA, Officer Olmos

drive a couple blocks down South 14th Street and stopped to answer a personal phone

call. While Officer Olmos was stopped, he saw Mr. FA get into his car and drive past

Officer Olmos’ marked police car. After Mr. FA passed Officer Olmos’ car, Mr. FA

abruptly stopped his car approximately 30 feet away, with the back of his car sticking

out into the street. 26. Officer Olmos testified that Mr. FA did not wave, flash his lights, or otherwise attempt to get Officer Olmos’ attention when he passed by. Mr. FA did not stop and ask for his driver’s license. 27. Because Mr. FA’s car was obstructing traffic, Officer Olmos drove up to Mr. FA’s car to initiate a stop. Officer Olmos asked Mr. FA for his driver’s license or identification, proof of registration, and proof of insurance. 28. Mr. FA became agitated and started cursing, saying “You have it” and “Fuck you” to Officer Olmos. Officer Olmos testified that he expected Mr. FA to produce some form of identification. Officer Olmos testified after Mr. FA became verbally aggressive, he called for the assistance of another officer. 29. Officer Olmos testified that since Mr. FA had driven past the patrol car, Officer Olmos believed that Mr. FA was leaving the house to find Ms. GM to violate the order of protection. Officer Olmos stated that a reasonable person would call PPD to make a complaint against officers who had taken the person’s identification before choosing to drive without identification.

30. Officer Olmos directed Mr. FA to exit his car, searched him, cuffed him, and took him into custody, placing him in the back of the patrol car. Officer Olmos testified that Mr. FA was getting increasingly agitated.

31. Officer Olmos called for backup. Office Vizzini was approximately eight

blocks away and responded to the call. Officer Vizzini testified that when he received

the call for backup, he heard someone yelling in the background and could tell it was a

tense situation. Officer Vizzini testified that at that time, he still had Mr. FA’s driver’s

license sticking in the light of his patrol car.

32. When Officer Vizzini arrived on scene, he saw a black car parked in front of

Officer Olmos’ car. Office Olmos had Mr. FA in custody, in the back of his patrol car.

Officer Olmos said that he would book Mr. FA for failure to provide an identification.

33. Officer Olmos testified that when he stopped Mr. FA, he knew that Officer

Vizzini had secured some kind of identification from Mr. FA.

34. Officer Vizzini testified that he did not discuss Mr. FA’s identification or

driver’s license with Officer Olmos. Instead, because they had just contacted Mr. FA,

Officer Vizzini suggested that Officer Olmos call their supervisor, Sergeant Miller about

the arrest. 35. Officer Olmos testified that he told Sergeant Miller all the facts of the arrest. Officer Olmos testified that Sergeant Miller told him that he had discretion whether to book or to cite Mr. FA in lieu of detention. 36. Officer Vizzini heard Officer Olmos talking to Sergeant Miller. He was not a party to the conversation and did not speak to Sergeant Miller. At the end of the conversation, Officer Olmos told Officer Vizzini, “We’re good.” 37. Officer Olmos testified that he exercised his discretion to arrest MR. FA because he was concerned about Ms. GM’s welfare and that it was in Ms. GM’s and Mr. FA’s best interests at the time to keep Mr. FA from doing something more serious. Officer Olmos testified that potential harm to a third party was a valid reason for the exercise of discretion to arrest a subject. In addition, he testified that Mr. FA had a history of failing to appear.

38. PPD Operations Order 67.2(3) provides that a citation in lieu of detention should not be used for a traffic violation when there is an immediate danger to the public or other violations may occur or when a suspect has had a prior warrant for

failure to appear.2

39. Officer Olmos arrested Mr. FA for a violation of A.R.S. § 28-1595(B). After

the arrest, Officer Olmos filed the following probable cause statement:

On 041614 at approximately 1920 hours, the Defendant was served with an order of protection. While the defendant was being served, he walked away and said “keep my ID, you can have it” and walked inside his home in an attempt to refuse the service of the listed court paperwork. The Defendant was told to return and get his identification and replied, “Keep it, I don’t have time for this shit.” The Defendant’s served copy was placed in his door. The identification card had been provided to Officer Vizzini. Minutes after, the Defendant was observed driving his 2005, Kia, Amanti near the location of 1400 East Taylor Street, without being stopped, he pulled over to the south curb and was more than 18 inches within the curb. He was stopped and was asked for identification. He continued to disregard my commands for an ID and said “You guys fuckin have it.” The Defendant refused to provide identification even when told to provide another.3

Officer Olmos did not check that Mr. FA had previous failures to appear on the probable cause statement. 40. Officer Vizzini testified that he does not know whether he would have arrested Mr. FA. He is not that familiar with Title 28 and has cited but never booked anyone for lack of identification. 41. After Mr. FA’s arrest, PPD towed his car. Mr. FA had asked Officer Olmos that Mr. FA’s roommate be allowed to move the car, but Officer Olmos testified that he denied the request because the roommate was not the registered owner. ////

2 See Officer Olmos’ Exhibit 29 a 7. The PSB Investigation

42. Mr. FA was released approximately 17 hours after he was booked into jail

pursuant to his arrest by Officer Olmos on April 16, 2014. Immediately after his

release, Mr. FA went to see Ms. MG, in violation of the order of protection that Officer

Vizzini had served on him and threatened her.4

43. Two other PPD officers arrested Mr. FA after he violated the order of

protection. After Mr. FA was again released from jail, he made a complaint against

Officer Olmos, Officer Vizzini, and the two officers who had arrested him after he

violated the order of protection.

44. Sergeant Webbe interviewed Mr. FA on April 21, 2014. Mr. FA said that

although he was cooperative, after Officer Olmos became verbally abusive, cursed him,

and challenged him to a fight, Mr. FA went back into his house. Mr. FA told Sergeant

Webbe that he did not “like cussing” and initially denied that he had cursed at or

challenged the officers. Mr. FA later acknowledged cursing at the officers.5 45. Mr. FA said that the officers drove off with his driver’s license and that he got into his car to go after them and retrieve his license. He drove to the corner where they were parked. Mr. FA later said that it was just Officer Olmos and that Officer Vizzini later pulled up. 46. Mr. FA told Sergeant Webbe that when Officer Olmos asked for his driver’s license, Mr. FA repeatedly told him “you have it,” but that Officer Olmos still arrested him and impounded his car.6 47. Mr. FA did not testify at the hearing. 48. Sergeant Webbe interviewed Officer Olmos and Officer Vizzini on May 1, 2014. Their answers in the PSB interviews were generally consistent with their hearing

AzPOST Exhibit 22. On or about August 27, 2014, Mr. FA was arrested and eventually sent to prison. According to the presentence investigation, Mr. FA violated the order twelve or thirteen times, including on Ms. GM’s daughter’s fifteenth birthday, when he sent Ms. GM to the hospital. Ms. GM said that she had to quit her job because Mr. FA came to her work and her employer was afraid of him. See Officer Olmos’ Exhibit 25. AzPOST Exhibit 9 at 7, l. 18, 10, l. 8-13. 6 See Exhibit 2 at 12-13, ll. 8-27. testimony. Their respective answers were not identical but were also generally consistent with each other’s account. 49. During Sergeant Webbe’s PSB interview of Officer Vizzini, he stated that

although he had not read Title 28 in a long time, he understood that a driver was

required to have some kind of identification that contained a name, address,

photograph and description of the driver while operating a motor vehicle, regardless of

whether the officer knew the driver or not. Officer Webbe responded, “Joe, Joe, you’re

correct.”7

50. Sergeant Webbe interviewed Sergeant Miller on May 7, 2014. Initially,

Sergeant Miller said that Officer Olmos had asked her advice on arresting Mr. FA and

that he had told her that Officer Vizzini had kept Mr. FA’s identification after Mr. FA had

refused to take it back.8 Sergeant Miller stated that when Officer Olmos called her she

could hear Mr. FA yelling in the background and that she approved the arrest.9

51. At that point, PPD served Sergeant Miller with a Notice of Investigation for

failing to supervise. Thereafter, Sergeant Miller testified that she had learned

additional information after her telephone conversation with Officer Olmos on April 16,

2014, and that earlier in the interview, she had been confused about the information that she learned later. After being served with the Notice of Investigation, Sergeant Miller said that Officer Olmos had not told her that Officer Vizzini had Mr. FA’s driver’s license and that if he had, she would not have approved the arrest.10 52. Sergeant Miller testified that she did not change her story between the two parts of the PSB interview. She only differentiated between what she was told on the night of April 16, 2014, and what she was told later. Sergeant Miller acknowledged in the second part of the interview that she “panicked” about having approved the arrest after she learned the whole story.11

Officer Olmos Exhibit 19 at 41, ll. 6. See AzPOST Exhibit 14 at 4-5. 9 See id. at 9. See id. at 14. 11 Id. at 17. 53. Sergeant Miller acknowledged that in hindsight, she should have asked Officer Olmos more questions when he called her the night of April 16, 2014. Sergeant Miller testified that because Officer Vizzini was the backup to Officer Olmos’ arrest of

Mr. FA, Officer Vizzini did not need to call her after she approved the arrest to Officer

Olmos.

54. On June 3, 2014, Sergeant Webbe interviewed Diana Hinze, the Assistant

Bureau Chief of the City of Phoenix Prosecutor’s Office. The prosecutor had filed a

motion to dismiss the charges against Mr. FA based on concerns about probable cause

for the arrest on April 16, 2014. The transcript of Ms. Hinze’s interview was not clear

regarding whether she believed that the same officer who arrested Mr. FA also had his

identification.12

55. After Sergeant Webbe completed the PSB investigation, PPD sustained

three allegations against Officer Olmos, as follows:

Officer Olmos intentionally abused his authority by arresting Mr. FA for failure to provide ID, knowing the police had possession of his ID. Officer Olmos displayed unprofessional conduct during his interaction with Mr. FA. Officer Olmos provided untruthful statements to PSB investigators regarding his interaction with Mr. FA. As a result, PPD terminated Officer Olmos’ employment. 56. After Sergeant Webbe completed the PSB investigation, PPD sustained two allegations against Officer Vizzini, as follows: Officer Vizzini failed to control and/or impound Mr. FA’s driver’s license. Officer Vizzini inappropriately used his police powers and authority to maintain possession of Mr. FA’s driver’s license while assisting Officer Olmos with Mr. FA’s arrest for driving without identification.

As a result, PPD suspended Officer Vizzini for 24 hours.

Officer Olmos’ and Officer Vizzini’s Appeals to Civil Service Board

57. A disciplinary notice is not final until the officer has exhausted his appeal

with the Civil Service Board.13 Officer Olmos and Officer Vizzini both appealed PPD’s

sustained allegations to the Civil Service Board of the City of Phoenix.

58. Officer Olmos challenged his termination.

59. Officer Vizzini did not challenge the allegation that he had failed to impound

Mr. FA’s driver’s license or the 24-hour suspension, but challenged the allegation that

he had inappropriately used his police powers and authority.

60. On April 9, 2015, after a hearing before a hearing officer, the Civil Service

Board determined that Officer Olmos had failed to obey a lawful regulation and that he

had been guilty of other misconduct. The Civil Service Board also determined that

there was insufficient evidence to find that he had been abusive or threatening to Mr.

FA, that he was guilty of negligent or willful misconduct, or that he had provided false

information in an administrative investigation. The Civil Service Board found that termination was excessive discipline for the misconduct that had been established and modified Officer Olmos’ termination to an 80-hour suspension.14 61. On January 14, 2016, after a hearing before a hearing officer, the Civil Service Board determined that Officer Vizzini had violated applicable PPD policy by failing to properly impound MR. FA’s driver’s license, but found that there was insufficient evidence to find that he had inappropriately used his police powers and authority by allowing Officer Olmos to arrest Mr. FA while Officer Vizzini possessed Mr. FA’s driver’s license.15 Other Evidence 62. Sergeant Wagaman testified that in her experience of working with Officer Vizzini at the Estrella Mountain precinct, he displayed maturity, had a clear-cut understanding of right and wrong, and did not hesitate to make the right decision.

See POST Exhibit 16 at 5, ll. 1-9. 13 See PPD Operations Order 3.18, 13(A)(2) (Officer Vizzini’s Exhibit B at 17). See Officer Olmos’ Exhibit 41. 15 See Officer Vizzini’s Exhibit A. Officer Vizzini was good about getting his supervisors’ feedback on his use of discretion in arresting subjects. 63. Sergeant Wagaman testified that exercise of an officer’s discretion in

making an arrest depended on the totality of the circumstances. A sergeant had a duty

to ask questions if she had any doubt. Use of discretion is making an arrest could be

justified by the protection of an officer or a citizen.

64. Sergeant Wagaman testified that a person who chooses to drive without a

driver’s license or other identification technically violates the law, even if someone else

returns to the scene with the person’s driver’s license.

65. Mr. Kavanagh testified that after working 25 years as an officer for PPD, he

went to ASU Law School, graduating in 1990. In 1991, he joined PPD’s Legal

Department and has given training at the police academy on the law of search and

seizure and of what constitutes probable cause for an arrest. Mr. Kavanagh has

testified as an expert in various proceedings.

66. Mr. Kavanagh testified that he reviewed the approximately 300 pages of

Sergeant Webbe’s PSB investigation, including the transcripts of witness interviews,

charging documents, and relevant statutes and cases, as well as PPD operations orders. 67. Mr. Kavanagh testified that Officer Olmos made a valid stop of Mr. FA after he parked illegally. Mr. Kavanagh testified that because Mr. FA chose to drive, even though he did not have his driver’s license or other identification in his possession, he violated A.R.S. § 28-1595(B). Mr. Kavanagh testified that because probable cause existed that Mr. FA had committed the offense, the arrest was lawful based on objective facts. Although Officer Vizzini’s arrival on the scene with the driver’s license may be a mitigating factor, it did not destroy the probable cause for the arrest. 68. Mr. Kavanagh testified that both Officer Olmos’ suspicion that Mr. FA was on his way to violate the protective order and Officer Olmos’ exercise of discretion to arrest Mr. FA to prevent a greater harm were reasonable. 69. Officer Callison testified that an officer must decide whether to arrest a subject or issue a citation in lieu of detention on a case-by-case basis. Officer Callison noted that under PPD policy, an officer must arrest subjects who are involved in domestic violence or those that commit graffiti vandalism. For other subjects, the officer may consider the subject’s past criminal history or failures to appear. If the

officer is uncertain, he should call his supervisor.

70. Officer Callison testified that he worked with Officer Olmos in the Maryvale

Precinct, which has a high call volume and a high percentage of residents who have

been to prison, in a two-person squad car. Officer Callison testified that Officer Olmos

was a fantastic officer who could find common ground with confrontational suspects,

diffuse the situation, and lessen the suspects’ aggression.

71. Sergeant Penn testified that if a supervising sergeant is asked to review an

officer’s probable cause determination for an arrest, she should make sure that the

elements of the offense are present, as well as considering other factors, such as

whether officers are available to take the suspect to jail. If the officer is vague, the

sergeant should ask questions to clarify.

72. Sergeant Penn testified that if the primary officer assigned to a call contacts

his supervisor, the backup officer may rely on the primary officer’s statement that the

supervisor approved the arrest. 73. Officer Vizzini acknowledged that he told Officer Olmos that he should call Sergeant Miller because he felt that there was something off or weird about Officer Olmos’ arrest of Mr. FA. Officer Vizzini testified that if an officer questions his supervisor’s approval or a fellow officer’s statements about the supervisor’s approval, he may find himself on calls by himself. Sergeant Miller and Officer Olmos have never given him cause to question their judgment. 74. Officer Clure testified that PLEA had issues with the quality of PPD’s PSB investigations. The City’s manager and auditor agreed that at least some of the issues that PLEA raised were valid, including some aspects of PPD’s investigation of Officer Olmos. The Administrative Law Judge did not rely on this evidence in determining whether or not AzPOST established that Officer Olmos or Officer Vizzini had violated the charged regulations.

75. AzPOST offered evidence of the timeline based on the Mobile Data Terminal (“MDT”) printout from Officer Olmos’ unit. Because PPD does not rely on MDT data in the PSB investigations and the evidence that was submitted conflicted on

whether the times shown in the MDT were accurate or reliable, depending on whether a

time lag existed or whether the entry was made by the officer or a dispatcher, the

Administrative Law Judge did not consider this evidence to controvert the witnesses’

testimony about their first-hand knowledge of the sequence of events.

CONCLUSIONS OF LAW

1. This matter lies within AzPOST’s jurisdiction.16

2. AzPOST bears the burden of proof to establish cause to discipline Officer

Olmos’ and Officer Vizzini’s peace officer’s certifications by a preponderance of the

evidence.17 Officer Olmos and Officer Vizzini bear the burden to establish affirmative

defenses by the same evidentiary standard.18

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”19 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.”20 4. AzPOST may “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with duly promulgated rules prescribing reasonable minimum qualifications for officers.21 AzPOST may discipline an officer’s certification under A.A.C. R13-4-109(A)(8) or (9) if it determines that he has committed acts that constitute any of the following:

See A.R.S. § 41-1821 et seq. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2). 19 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). 21 See A.R.S. § 41-1822(C)(1). 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.

5. Malfeasance is “[a] wrongful or unlawful act; esp. wrongdoing or misconduct

by a public official.”22 Misfeasance is “[a] lawful act performed in a wrongful manner. . .

More broadly, a transgression or trespass.”23 Nonfeasance is “[t]he failure to act when

a duty to act existed.”24 Actionable malfeasance, misfeasance, or nonfeasance do not

result from a mere error in judgment; generally, there must be an intentional positive act

or a deliberate decision not to act for a violation of A.A.C. R13-4-109(A)(8).25

6. The public does not expect peace officers to be perfect or to never make a

mistake. Not all errors of judgment constitute a “conduct or pattern of conduct that

tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement

profession.” Generally, gross incompetence or deliberate disregard of standards is

required for a violation of A.A.C. R13-4-109(A)(9).

7. AzPOST’s determination that cause exists to suspend or revoke an officer’s

peace officer certification does not depend upon an employing agency’s decision to

continue employing the officer or to suspend or to terminate the officer’s employment.26

The outcome of an employing agency’s PSB investigation or the officer’s appeal of the agency’s employment action is not binding on AzPOST when it decides whether to take action against an officer’s certification.27 BLACK’S LAW DICTIONARY, supra, at 976. 23 Id. at 1021. Id. at 1080. 25 See Smith v. Pinner, 68 Ariz. 115, 122, 201 P.2d 741 (1948). See A.A.C. R13-4-109(D), which provides in relevant part as follows: Upon receipt of information that cause exists to deny certification, or to cancel, suspend, or revoke the certified status of a peace officer, the Board shall determine whether action is to be initiated regarding the retention of certified status. The Board may conduct additional inquiries or investigations to obtain sufficient information to make a fair determination. . . . See A.A.C. R13-4-109(F), which provides in relevant part as follows: Action by an agency or a decision resulting from an appeal of that action does not preclude action by the Board to deny, cancel, suspend, or revoke the certified status of a peace officer. 8. A.R.S. § 28-1595(B) defines the crime of failure to provide driver license or evidence of identity and provides in relevant part as follows: B. After stopping as required by subsection A of this section, the operator of a motor vehicle who fails or refuses to exhibit the operator's driver license as required by section 28-3169 or a driver who is not licensed and who fails or refuses to provide evidence of the driver's identity on request is guilty of a class 2 misdemeanor. The evidence of identity that is presented shall contain all of the following information:

1. The driver's full name. 2. The driver's date of birth.

3. The driver's residence address.

4. A brief physical description of the driver, including the driver's sex, weight, height and eye and hair color.

5. The driver's signature. ....

E. A person shall not be convicted of a violation of subsection B of this section if the person provided evidence of identity required by subsection B, paragraphs 1 through 5 of this section and produces to the court a legible driver license or an authorized duplicate of the license that is issued to the person and that was valid at the time the violation of subsection B of this section occurred. A.R.S. § 28-3169 requires that a person who operates a motor vehicle have in his possession and display upon request a valid driver’s license, as follows: A. A licensee shall have a legible driver license in the licensee's immediate possession at all times when operating a motor vehicle. On demand of a justice of the peace, a police officer or a field deputy or inspector of the department, a licensee shall display the license. B. A person who is served a complaint for violating this section is not responsible if the person produces in court or the office of the police officer or field deputy or inspector of the department a legible driver license or an authorized

duplicate of the license issued to the person that was valid at the time of the alleged violation of this section. 9. “‘Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require

any knowledge of the unlawfulness of the act or omission.”28 “‘Notice of facts and

circumstances which would put a man of ordinary prudence and intelligence on inquiry

is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would

disclose.’”29

10. Mr. FA chose to get into his car and drive past Officer Olmos’ patrol vehicle,

knowing that he did not have his driver’s license or other identification in his

possession. Officer Olmos consistently and credibly testified that Mr. FA did not

initially approach him and request the return of his driver’s license. Officer Olmos

consistently and credibly testified that he believed that at the time Mr. FA was on his

way to Ms. GM to violate the order of protection, which belief was not unreasonable,

either at the time or in light of later events. Officer Olmos also consistently and credibly

testified that he did not know for sure whether Officer Vizzini had kept Mr. FA’s driver’s

license or some other form of identification.

11. The evidence establishes that Mr. FA technically violated A.R.S. § 28- 1595(B) when he chose to drive past Officer Olmos’ patrol car without his driver’s license or another form of identification. 12. “Probable cause” means “reasonable cause; having more evidence for than against. A reasonable ground for belief in certain alleged facts.”30 “In Arizona, probable cause has been defined as ‘such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of guilt.’”31 “In dealing with probable cause . . . we deal with probabilities.

A.R.S. § 1-215. Maricopa Utilities Co. v. Cline, 60 Ariz. 209, 214, 134 P.2d 156 (1943) (quoting Schneider v. Henley, 61 Cal. App. 758, 215 P. 1036, 1038). 30 BLACK’S LAW DICTIONARY at page 1201 (6th ed. 1990). State v. Emery, 131 Ariz. 493, 505-06, 642 P.2d 838, 850-51 (1982) (emphasis in original; quoting In re Dodd v. Boies, 88 Ariz. 401, 404, 357 P.2d 144, 146 (1960)). These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act.”32 13. Because Mr. FA’s driver’s license or other identification was in Officer

Vizzini’s possession at the time, under A.R.S. § 28-1595(E), Mr. FA could not be

convicted of the violation. However, the impossibility of conviction, without more, does

not establish that Officer Olmos acted maliciously or abused his authority when he

arrested Mr. FA on April 16, 2014. Officer Olmos’ probable cause statement included

all salient details, including that he was aware that Officer Vizzini had Mr. FA’s

identification. He called Sergeant Miller for her approval before he arrested Mr. FA and

no evidence indicates he withheld any information on the call. Under the totality of the

circumstances, AzPOST did not establish that Officer Olmos intentionally abused his

authority when he arrested Mr. FA on April 16, 2014. Although the evidence showed

under the circumstances, especially in retrospect, Officer Olmos should not have

arrested Mr. FA, no evidence showed that his mistake was intentional or motivated by

malice toward Mr. FA. AzPOST did not establish cause to discipline Officer Olmos’

peace officer certification under A.A.C. R13-4-109(A)(8) or (9).

14. Officer Vizzini did not dispute that he failed to properly impound Mr. FA’s driver’s license.33 Officer Vizzini acknowledged that he was not familiar with the requirements of A.R.S. § 28-1595(B). Officer Vizzini knew he had Mr. FA’s driver’s license and knew that Officer Olmos knew that Officer Vizzini had at least one of Mr. FA’s identifications. Officer Vizzini advised Officer Olmos to call Sergeant Miller before he arrested Mr. FA, after which Officer Olmos told Officer Vizzini that Sergeant Miller had approved the arrest. Under the totality of the circumstances, AzPOST did not establish that Officer Vizzini failed to act on April 16, 2014, when he did not directly intercede in Officer Olmos’ arrest of Mr. FA. Although Officer Vizzini acknowledged that he failed to properly impound Mr. FA’s driver’s license, AzPOST did not establish

Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949). AzPOST’s Notice of Hearing did not allege that Officer Vizzini’s failure to properly impound Mr. FA’s license constituted a violation of any AzPOST regulation. Officer Vizzini’s failure to impound the license was not intentional and did not contribute to PPD’s discipline at the conclusion of the PSB investigation or the Civil Service Board’s decision following his appeal. cause to discipline Officer Vizzini’s peace officer certification under A.A.C. R13-4- 109(A)(8) or (9). Done this day, May 20, 2016.

/s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to:

Jack G. Lane, Executive Director Peace Officer Standards and Training Board