Court Mandates that Officers Be Provided Reasonable Advance Notice of the Nature of the Investigation Before Submitting to Interrogation

BWLG2One of the key protections afforded to law enforcement officers by the Public Safety Officers’ Procedural Bill of Rights Act (POBR) is contained in Government Code section 3303(c), which states:

The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.

That simple sentence has sparked many a debate over how long before the investigatory interview, and with how much detail, a public safety employer must provide the required information. Surprisingly, in the nearly 40 years since the POBR was enacted, no published decision has issued to help answer those questions. Until now. With Friday’s publication of Ellins v. City of Sierra Madre (January 28, 2016), we finally have some guidance: Notice must be provided “reasonably prior” to the interrogation so that the officer has “sufficient time to meaningfully consult with his or her representative before the commencement of the interview.


In the summer of 2010, the Sierra Madre Police Department received a letter from the ex-girlfriend of Officer John Ellins complaining that he had tracked her down in New York using information from the California Law Enforcement Telecommunications (CLETS) database.   The Department initiated an investigation, and in September 2010 Officer Ellins was given an investigation notice that simply stated:

An administrative investigation is currently being conducting regarding an alleged abuse of your peace officer powers and duties.

No further details on the nature of that alleged abuse was provided.

Just minutes before the interrogation was scheduled to begin on October 13, 2010, the investigator notified Ellins – orally and in writing – that he was alleged “in May 2010 [to have] inappropriately accessed the [CLETS database] and made numerous inquiries regarding [his] former girlfriend … and her relatives.” Ellins and his representative then requested that the investigator give them an hour to discuss the charges in private before the interview. The investigator agreed.

After 25 minutes, Ellins told the investigator that he refused to participate in the interview on the advice of his representative. Ellins’ commanding officer was then summoned and directly ordered him to sit for the interview. Ellins still refused.

Ellins was thereafter terminated for both the unlawful CLETS inquiries as well as insubordination. After an unsuccessful administrative appeal, Ellins filed suit alleging that the Department violated Government Code section 3303(c).   The sole question presented was whether his termination for insubordination was invalid because the Department violated POBR by not properly advising him of the nature of the investigation prior to the interrogation.

The Ruling

The court rejected the contentions of both parties concerning how much notice was required. The City argued that as long as notice temporally precedes the interrogation, even if by mere minutes, it is “prior to” the interrogation and hence sufficient. Ellins suggested that at least one day’s and up to five days’ advance notice was required. Instead, the court injected a “reasonableness” component into the mandate, stating:

[W]e hold that section 3303, subdivision (c), requires an officer to be informed of the nature of the investigation “reasonably prior to” the interrogation — that is, with enough time for the officer to meaningfully consult with any representative he elects to have present.

The court also rejected the City’s contention that advanced disclosure of the nature of the investigation would “frustrate the effectiveness of an investigation,” holding, rather, that reasonable advance notice would aid the investigation by allowing the officer and his or her representative to be ‘”well-positioned’ to aid in a full and cogent presentation of the [officer’s] view of the matter, bringing to light justifications, explanations, extenuating circumstances, and other mitigating factors’ and removes the incentive for ‘uninformed representatives … to obstruct the investigation ‘as a precautionary means of protecting employees from unknown possibilities.'”

Nonetheless, the court also recognized that the amount of notice may need to vary with the circumstances of the particular case, and held that where early disclosure of an investigation’s subject matter could lead “to possible danger to individuals who are victims or otherwise implicated in the investigation and/or lead to the possible destruction of evidence within the officer’s control,” delayed disclosure is permissible.

Applying those principles to the issue at hand in the case before it, the court found the notice provided to Ellins complied with the POBR, noting that the Department had a legitimate concern for the safety of Ellins’ former girlfriend, who Ellins had tracked to New York using the CLETS information. The court also noted that the allegation was straightforward legally and factually — that is, whether Ellins had any official reason to run the CLETS searches — and that the investigator had given Ellins and his counsel the amount of time they requested to confer prior to the interview.   Under those circumstances, the court concluded that Ellins was informed reasonably prior to his interrogation.


While this decision assists in clarifying how much notice is required prior to an interrogation, it does not set any hard and fast rules, instead requiring that there be a balancing of interests and a consideration of reasonableness. Thus, the level of detail and timing will likely still vary depending on the specific facts and circumstances presented.

From my perspective, this case does not break new ground, even though it gives us the first published case to cite when disputes over the adequacy of the notice arise.  The reason:  most agencies I work with already utilize a reasonableness standard and provide a sufficient amount of detail long enough in advance for the officer to understand what the charges specifically are, and to prepare to respond with the aide of a representative.

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Posted in POBR.