01-1689 Driebel, et al. v. City of Milwaukee

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“[W]e reject the Department’s argument that it may seize an officer without probable cause who refuses to obey a command to remain on duty or report to a particular location in order to answer questions as part of a criminal investigation. Rather, the Department’s options are somewhat limited when dealing with an officer who has disobeyed a lawful order from his superior officers. First, the Department may institute investigative proceedings that may very well result in the dismissal, suspension, or discipline of the officer. Sanitation Men, 392 U.S. at 285. This includes placing him on administrative leave while conducting a further investigation. See id. Second, the Department may briefly stop, frisk, and question the officer consistently with the holding of Terry v. Ohio, 392 U.S. 1 (1968), provided that the Department adheres to the well-settled rule of law that if a Terry stop continues too long or becomes unreasonably intrusive, it ripens into a de facto arrest that must be based on probable cause. United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994). Third, the Department may seize, arrest, and detain the officer for custodial interrogation, provided that the arrest is supported by probable cause. Cerrone v. Brown, 246 F.3d 194, 199-202 (2d Cir. 2001); see also 2 I. SILVER, PUBLIC EMPLOYEE DISCHARGE & DISCIPLINE sec. 14.01[D] at 989 (2001). Cf. United States v. Taketa, 923 F.2d 665, 675 (9th Cir. 1991); LAPPL v. Gates, 907 F.2d 879, 886 (9th Cir. 1990).”

“We emphasize the probable cause requirement because the MPD contends that it may seize and interrogate its officers for any reason upon a showing of less than probable cause merely by showing that the seizure was reasonably justified at its inception, reasonable in scope, and otherwise reasonable under the circumstances. The Department supports this position by citing us to cases involving the Fourth Amendment’s application to internal investigations designed to discover evidence of work-related misconduct, rather than criminal investigations conducted with prosecution in mind. We conclude that the cases cited by the Department, such as O’Connor v. Ortega, 480 U.S. 709 (1987), Shields, 874 F.2d at 1203-07, and Lowe v. City of Macon, 720 F. Supp. 994 (M.D. Ga. 1989), are distinguishable because, as the Department concedes, each of the four policemen in this case were advised at one time or another that they were criminal suspects who were questioned with an eye towards criminal prosecution.

“Instead, the facts of this case are materially similar to Cerrone, wherein the Second Circuit held that an officer cannot be seized without probable cause during a criminal investigation. ‘[A] lesser standard of individualized suspicion is permissible only in internal disciplinary investigations of government employees by their government employers.’ Cerrone, 246 F.3d at 201. Thus, the Second Circuit concluded that a police officer’s rights were violated when he was seized, detained and questioned by several detectives regarding the suspected cover-up of a hit-andrun accident-all without probable cause. Id. at 196. See also Taketa, 923 F.2d at 675 (ruling that public employer may not ‘avoid the probable cause requirement when it is acquiring evidence for a criminal prosecution.’). Since police ‘are not relegated to a watered-down version of constitutional rights,’ Garrity, 385 U.S. at 500, we agree with the Second Circuit and hold that a law enforcement agency needs probable cause to seize its employees as part of a criminal investigation.”

Affirmed in part and reversed in part.

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Coffey, J.