By Justin Buffington, 07/11/13
An Oakland Police Officer recently had a suspension overturned with all back pay restored. The officer had been suspended without pay after he and other officers detained two narcotics suspects, one of whom was on parole for forcible rape. The Department alleged that the detention was actually a de facto arrest. The Department also alleged that the officer directed profanity towards one of the detained narcotics suspects. According to the allegations, at a later date, the officer illegally detained and pat searched the same parolee based on the suspicion that the suspect was involved in narcotics trafficking and possessed an open container of beer.
November 2008 Arrest
The story begins back in November 2008, when Officer Phong Tran of the Oakland Police Department was working as a “problem solving officer,” patrolling his beat with a partner in the City of Oakland. Problem solving officers are unique and distinct from patrol officers in the City of Oakland. While patrol officers are dispatched from service call to service call, which doesn’t leave them time to specifically address systemic problems in their geographical beat, problem solving officers are designated to work with and through the community to identify and eradicate crime and blight in the policing beat they are assigned to. Officer Tran’s geographical beat was one of the worst in Oakland. It was known for violence, prostitution, robberies and was largely controlled by the “Quince” gang, a particularly violent subset of the Norteño criminal street gang.
One of Tran’s beat projects was to clean up a squalid, violent, drug-infested apartment complex known as the “Black Gates,” near the intersection of 23rd Avenue and East 15th Street. That particular intersection is a hotbed for narcotics activity, gang-related shootings, stabbings, robberies and the home of some of the worst urban blight in the State of California.
On November 19, 2008, Officer Tran and his partner were driving by the Black Gates when they observed a known narcotics probationer, Rodriguez, who was subject to a four-way search and seizure clause as a term of his probation. Upon observing Rodriguez with another unknown individual, loitering with no apparent purpose in front of The Black Gates, Tran and his partner elected to detain Rodriguez and his companion to investigate whether the pair was loitering for the purposes of narcotics activity and to evaluate whether Rodriguez was compliant with his probation terms.
Once detained, Tran identified the unknown man as a Mr. Minnifield, who was on parole for rape by force or fear. After searching and clearing Rodriguez, Tran determined that a nearby Buick belonged to Minnifield. A search of the car, pursuant to Minnifield’s parole conditions, revealed two DVDs containing pornography, a violation of Minnifield’s terms of release. Minnifield was taken into custody and subsequently turned over to his parole officer.
February 19, 2010
On February 19, 2010, Officer Tran and his partner, while on loan to the gang intelligence unit, were assisting other officers who were conducting surveillance of a house known for narcotics sales. Tran and his partner were working as a “stop-car[1]” and providing security to the surveillance officer, who was hiding in the backyard of a home across the street from the target residence.
As Tran and his partner drove near the target residence, they saw Mr. Minnifield along with two unknown subjects walking down the street. After observing Minnifield and his cohorts, Tran and his partner positioned themselves out of view of the target residence.
Sometime thereafter, the undercover advised Tran via radio that three unknown individuals had entered the target residence. Approximately 30 minutes later, the undercover advised that two people had exited the target residence.
Tran and his partner, having been supplied with descriptions of the suspects and direction of travel, quickly found the two suspects walking near the target home. Tran immediately recognized Mr. Minnifield as being one of the individuals who was reported to have just left a drug house. Upon being detained, Minnifield admitted to being on active parole. Minnifield’s associate verbally identified himself as Cammacho, though he lacked any identification and was in possession of a small amount of marijuana, without a doctor’s recommendation.
Both Minnifield and Cammacho were interviewed separately, then handcuffed and and placed in the rear of the patrol car. Officer Tran’s partner then attempted to run the suspects on the car’s mobile data terminal (MDT) to positively identify Cammacho and Minnifield’s probation/parole status. Unfortunately, due to poor satellite signal, it was impossible to receive information via the MDT. Tran and his partner, knowing that it can take upwards of 45 minutes to get information from the radio service channel and needing photographs to positively identify Cammacho, elected to move the handcuffed suspects to obtain computer connectivity. After informing both suspects that they were not under arrest and that they were being moved for the sole purpose of reestablishing computer connectivity, Tran and his partner drove three blocks to an area that allowed for computer signal.
After reconnecting their MDT, Cammacho was positively identified via available photos and both Cammacho and Minnifield were determined to be clear of wants and warrants and, therefore, immediately released.
May 5, 2010
On May 5, 2010, Tran was working an Adam unit as a problem-solving officer, patrolling his usual crime-ridden beat. As Tran drove by the infamous Black Gates apartment complex, he noticed Mr. Minnifield standing behind the giant black wrought iron gates that give the housing complex its namesake. Tran’s partner slowed the patrol car and, as they did, Tran saw Minnifield run away towards the back of the apartment complex and the officers then continued on.
After approximately an hour, Tran and his partner returned to the area where they observed Minnifield standing near the corner of 23rd Avenue and East 15th Street, a location of continual violence, with two other individuals. Tran and his partner saw that at the suspect’s feet, just behind the group, was an open can of beer, a violation of the Oakland Municipal Code. In addition to the beer, Tran noticed Minnifield and his companions were standing in a row with their backs to a chain link fence, looking up and down the street, within ten feet of a hoodie that was draped over the fence. Tran knows from his training and experience that a hoodie hanging over a fence is used by narcotics dealers to alert would-be buyers that narcotics are available for purchase. Tran also identified the formation and mannerisms of the trio as consistent with those of persons engaged in the narcotics trade.
Tran and his partner, interested in investigating who was responsible for the open container and suspecting that all three men were loitering for the purposes of narcotics activity, parked their patrol cars and approached Minnifield and his associates. As Tran and his partner approached, one of the men walked away, while the other two yelled angrily at the officers. Tran, believing that Minnifield was still on parole, called out to Minnifield, “Mr. Minnifield, you’re on parole.” Minnifield became livid, protesting that he was no longer on parole. Given Minnifield’s hostility and because the investigation involved narcotics trafficking which, based on Tran’s training and experience, can often involve weapons, Tran and his partner detained the pair in handcuffs.
After detaining the suspects, Tran’s partner ran them out on their MDT and both suspects came back clear for wants and warrants. It was also learned that Mr. Minnifield was no longer on active parole. The suspects denied possessing the open container and having found no other evidence of criminal activity, they were quickly released.
The Complaint
On February 9, 2010, Mr. Minnifield called into the Oakland Police Department service desk because he had been informed by a cousin that Officer Tran was looking for him. Minnifield was frustrated to learn that Tran wanted to talk to him and Minnifield wanted to know why. Minnifield was transferred around OPD until he ended up in a never ending phone tree, which he soon grew impatient with. Minnifield, not knowing where to direct his inquiry, then called the Internal Affairs Division (IAD) in an effort to find out what Officer Tran wanted with him. During his conversation with the IAD intake officer Minnifield explained that he felt “harassed” because Tran was out looking for him. That resulted in the initiation of a full-blown internal investigation.
The Investigation
The Internal Affairs Division assigned an investigator to review Minnifield’s claims that he was being harassed by Tran. The investigator scrutinized all three contacts that Tran had with Minnifield and, during his investigation, turned up additional allegations from Cammacho that Tran had used profanity during the February 19th detention.
Following a thorough investigation, it was determined that Tran was in fact not harassing Minnifield; however, the investigator, evincing an abject lack of understanding of Fourth Amendment law, determined that Mr. Minnifield and Mr. Cammacho’s February 19th detention had been converted from a detention to an arrest by virtue of the fact that the suspects were transported 3 blocks while handcuffed.
Furthermore, the investigator found that the May 5th detention of Minnifield and his cohort, along with the subsequent pat search, was unlawful.
Moreover, the investigator decided that Tran had directed profanity towards Cammacho, despite having no evidence to corroborate Cammacho’s allegation. Amazingly, the investigator determined that it was more likely than not that Tran directed profanity towards Cammacho, because Tran had three prior unsubstantiated complaints of use of profanity.
As a result of the sustained findings, the Department issued Tran a five-day suspension.
The Hearing and Award
In November 2012, a hearing was held at the Oakland Police Officers’ Association to determine whether the Department had just cause to suspend Tran. The hearing had all the makings of a 1538 suppression motion except this time, it was cops versus cops.
Following submission of briefs, which relied extensively on relevant case law, the arbitrator considered whether the February 19th transportation of Minnifield and Cammacho amounted to an arrest. The arbitrator relied heavily on two cases that this author highlighted in the closing brief, People v. Soun (1995) 34 Cal.App.4th 1499 and In re Carlos M. (1990) 220 Cal.App.3d 372, in determining that, based on the totality of the circumstances, the transport of Minnifield and Cammacho did not constitute an arrest.
Further, the arbitrator determined that the investigator’s reliance on prior unsubstantiated profanity complaints in finding that Tran directed profanity towards Cammacho “was a non-sequitur, and the decision to impose discipline based on profanity was based upon an erroneous premise.”
Moreover, after careful contemplation, and after this author cited a mountain of case law regarding Terry Stops, the arbitrator found that the May 10th detention and pat search of Minnifield and his confederate were both lawful.
The arbitrator ordered the City to make Tran whole by refunding his lost wages, interest on those wages and the restoration of Tran’s seniority and other lost benefits. Officer Tran and his attorney would like to thank the Legal Defense Fund for funding his vigorous defense and providing Officer Tran and his attorney with outstanding investigative work performed by retired OPD officer Bob McFarlane.
[1] As most readers of this article will know, a stop-car’s function, as utilized in the context of a narcotics surveillance operation, is to initiate a stop after a surveillance officer has advised that the subject of the stop is suspected to have engaged in a narcotics transaction.
