Judge James C. Chalfant, Case Number: 24STCP03364, Date: 2025-06-12 Tentative Ruling

Ibanez v. City of Burbank et al., 24STCP03364

Tentative decision on petition for administrative mandamus: denied

Petitioner Edgar Ibanez (“Ibanez”) seeks a writ of administrative mandamus directing Respondents City of Burbank (“City”) and City Manager Justin Hess (“City Manager”) (collectively, “City”) to set aside the decision to suspend Ibanez without pay.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

On October 17, 2024, Petitioner Ibanez filed the Petition against Respondents City and City Manager, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Ibanez was given a three-day suspension for failing to conduct a systematic and thorough booking search of a suspect’s fanny pack on November 27, 2022, allegedly missing a bag of narcotics. Pet., ¶6.

On December 1, 2022, the City issued a Complaint against Ibanez, launching an administrative investigation. Pet., ¶7. On February 16, 2023, Chief Michael Albanese (“Albanese”) issued Ibanez a Notice of Proposed Suspension Without Pay (“Notice”) for three 12 hour and 20-minute work periods. Pet., ¶8. The Notice stated that Ibanez had a right to respond. Pet., ¶9.

Ibanez met with Chief Albanese on March 10, 2023, but Albanese upheld the suspension. Pet., ¶9. Ibanez requested arbitration to appeal his suspension. Pet., ¶10. Arbitrator Norman A. Brand (“Arbitrator”) heard the matter on June 3, 4, and 6, 2024 and found there was no factual basis for the allegation that Ibanez did not conduct a systematic and thorough search of the pack. Pet., ¶10. The Arbitrator concluded the charge against Ibanez should be dismissed. Pet., ¶10.

On July 25, 2024, Hess rejected the Arbitrator’s recommendation and imposed a final suspension without pay for three work periods. Pet., ¶11.

Ibanez seeks a peremptory writ of mandate ordering the City to set aside the City Manager’s decision to suspend him and to provide back pay with interest at the legal rate and restore all other related emoluments of employment. Prayer, ¶¶ 1-2. Ibanez seeks actual damages according to proof, costs of suit, attorney fees, and such other and further relief as the court may deem just, necessary, and proper. Prayer, ¶¶ 3-6.

Proofs of service on file show that Ibanez served Respondents City and City Manager with the Petition and Summons on October 28, 2024 by substituted service.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). The court uses its independent judgment on matters affecting a public employee’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

The City suggests, without citation to any authority, that the modest suspension in this case does not warrant independent review. Opp. at 7. Ibanez correctly rebuts this argument. “It repeatedly has been held that ‘[d]iscipline imposed on public employees affects their fundamental vested right in employment,’ and therefore, when a public employee challenges an employer’s disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence.” Wences v. City of Los Angeles, (2009) 177 Cal. App.4th 305, 314. The focus must not on the amount of harm but rather the nature of the right. Id. (independent review applied to official reprimand). The level of discipline imposed on a public employee is irrelevant to whether the matter involves a fundamental vested right. Reply at 2.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 15.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The Burbank Police Department (“BPD”) hired Ibanez as a police officer on August 11, 2021. AR 21. Ibanez received training from both the Rio Hondo Police Academy and BPD. AR 21.

On September 4, 2022, Ibanez conducted a filed enforcement contact involving two subjects in a parked vehicle. AR 29. He searched the passenger and found a bag of cocaine in his left front pants pocket. AR 29. At the jail, Ibanez’s partner conducted a pre-booking search of the subject and found a loaded handgun I his waistband. AR 30-31.

In an administrative interview, Ibanez admitted that he was trained to clear the waistband when searching suspects, but he did not do so. AR 31-32. Ibanez remarked during the interview that fentanyl can be dangerous. AR 37.

On October 11, 2022, Ibanez received notice of a proposed suspension for three 12-hour, 20-minute work periods (workdays) for failure to properly search the suspect. AR 33. After a Skelly hearing, Chief Albanese reduced the suspension to two workdays. AR 34-35. Ibanez received notice of the suspension on November 14, 2022. AR 34, 719-23.

On November 27, 2022, Ibanez was assigned to assist the booking officer at Burbank County Jail, tasked with searching a blue fanny pack belonging to a suspect arrested for theft. AR 39-41, 251. Ibanez removed two baggies, a clear baggie containing two blue pills and a bag containing fentanyl. AR 41-42, 588. The next day Officer Carl Vogelsang (“Vogelsang”) searched the fanny pack and recovered another baggie containing fentanyl about the size of a golf ball. AR 69-70,391-94.

Vogelsang’s finding of fentanyl started a BPD investigation. AR 510. During Ibanez’s IA interview, Ibanez stated that he wanted to exercise extra caution in the search because of his prior discipline. AR 223-24. He described a thorough and systematic search of the fanny pack. AR 367.

On May 12, 2023, Chief Albanese issued a Notice of Suspension, suspending Ibanez for three workdays based on the following charges:

“BPOA MOU Article Vl, Section B, 8.22. - Violation of administrative rules and regulations.

Policy 340.5.7(b) - Efficiency - Unsatisfactory work performance including, but not limited to, failure, incompetence, inefficiency or delay in performing and/or carrying out proper orders, work assignments or the instructions of supervisors without a reasonable and bona fide excuse.

Policy 902.4 BOOKING SEARCHES Inmate searches represent a critical component of a secure and safe jail. It is imperative that all employees working within the jail facility acknowledge their professional obligation to maintain a safe environment for fellow officers and other inmates under the care and control of the Department.

(c) It is the booking officer’s responsibility to conduct a systematic and comprehensive booking search of the arrestee in order to retrieve and inventory all appropriate personal property and seize and book all illegal contraband.” AR 499-504.

Ibanez appealed his suspension. AR 1. During the administrative hearing, Ibanez argued that chain-of-custody issues cast doubt on the reliability of the evidence, and the later-discovered fentanyl may not have been in the fanny pack when Ibanez searched the pack. AR 19, 319, 322-25.

Ibanez testified that the fanny pack had already been searched by Officer Nunez (“Nunez”) at the scene of detention. AR 343-44. Nunez’s body-worn camera shows he removed a brown wallet and searched it, searched the main compartment of the fanny pack and pulled out wires and other items, then placed the items back in the pack and closed the main compartment. AR 344. Nunez also searched the front compartment. AR 156-57, 346. Nunez did not find any drugs. AR 156-57.

Ibanez was wearing a body-worn camera on his chest when he searched the fanny pack. AR 252.[1] The fanny pack is puffy with multiple pockets. AR 281-82. Ibanez angled the pack slightly up to search it. AR 253. The jail lights were bright. AR 253. Ibanez opened the front compartment first, removing cables and other items which he placed in a clear plastic property bag. AR 251. Ibanez then opened the large compartment, which had two small side pockets. AR 251. The pockets were small, approximately the size of a tea bag, and topped with elastic. AR 252, 254. Ibanez first looked in the larger section of the main compartment, pulling out a wallet, which he examined then placed in the property bag. AR 588 (Resp. Ex. 9). In the left pocket, there briefly appeared to be two white baggies. AR 254-55, 484, 588. Ibanez removed two baggies, a clear baggie containing two blue pills and a bag containing fentanyl. AR 41-42, 588. The white baggie was in the center of the pocket while the clear baggie was against the seam separating the pockets. AR 255. Ibanez showed the bags to Nunez who asked the suspect what they were. AR 256. The suspected identified them as fentanyl. AR 256.

Ibanez checked the left pocked twice more. AR 588. Ibanez then removed a bag from the right pocket, then reach into the right pocket again. AR 588. He inspected both pockets visually, then the main compartment twice, then the outside compartment. AR 588. Finally, Ibanez squeezed the whole pack between his palms. AR 263-66, 588. Ibanez did not press the pack against the counter or turn the pack inside out. AR 287, 588. Ibanez found no other objects. AR 257.

In total, the search took about one minute and thirty seconds. AR 287, 588. In some photographs, the clear baggie containing two blue pills looks white on top, but in other footage, the baggie can be seen to be clear. AR 472-73. No footage shows three baggies at once. AR 472-82, 484-85, 595.

After Ibanez searched the pack, he put it in a clear large property bag and provided it to the jailer, Taylor George (“George”). AR 258, 588. George searched the bag and found nothing. AR 157, 213-14, 588.

Vogelsang testified that he was one of the officers who apprehended the suspect on November 27, 2022 for shoplifting at Costco. AR 63-64. The next day, he began to write his police report and was advised by his lieutenant to see if the suspect had any means of payment in his wallet. AR 67-69.

Vogelsang went to the jail and obtained the suspect’s wallet out of the fanny back. AR 68. He did not have any money in the wallet. AR 68. But that was when Vogelsang located the other contraband. AR 68.

The bag was unsecured and left open on a shelf. AR 78. The wallet and other items had been placed back into the fanny pack, but Ibanez did not return any items to the fanny pack after his search. AR 69, 296.

When he opened the fanny pack, he saw the wallet immediately. AR 69. He then saw a plastic baggie that was potentially contraband sticking out of a pouch in the main compartment. AR 69, 81-82. It was a white substance about the size of a golf ball and difficult to miss. AR 69-70,391-94. The substance was tested and found to be fentanyl. AR 119-20.

Chief Albanese testified that, 13 days after Ibanez’s suspension for his epic failure of failing to find a gun in a suspect’s waistband, he became aware of allegations that Ibanez failed to find fentanyl in the jail. AR 185, 190.

He reviewed a frame-by-frame analysis of the body camera footage and confirmed that Ibanez missed a bag of fentanyl. AR 196. The video footage shows Ibanez checking all pockets of the fanny pack with his fingers, corner to corner. AR 212. However, once he found evidence of contraband Ibanez should have kept looking until he could say with certainty that there was no more. AR 200-01. That means turning the fanny pack inside out, rubbing his fingers along it to make sure there were no drugs stitched in. AR 200-201. Running your fingers around is not the same as turning it inside out to see if there are hidden zippers or compartments. AR 225-26. Ibanez did not conduct a detailed search. AR 226.

He believed that a three-day suspension was appropriate for Ibanez’s sloppy policework. AR 189.

After watching Ibanez’s’ body-worn camera footage, the Arbitrator concluded that Ibanez’s search was systematic and comprehensive. AR 327. The Arbitrator stated:

“I saw him put his fingers into those pockets multiple times. I saw him feel around in there multiple times. I saw the size of the fanny pack, which was not terribly large…. In my view, if there were two bags of fentanyl inside that fanny pack at the time that Officer Ibanez examined it, he would have found both. Certainly I don’t see how, given what I saw of how he examined that fanny pack, how deeply he went, how carefully he went.” AR 327.

“The whole business of something in the stitching or something like that may be very relevant for the settings but it’s nonsense here. We have something the size of a golf ball. But let’s say it’s -- in my view, it’s probably -- looking at the item next to a ruler as the picture was shown, it's smaller than a golf ball. But it is still at least an inch in diameter and rock hard. There's no way that he missed that. Second, the state in which Officer Vogelsang found the pouch was altered from the way in which Officer Ibanez left it.” AR 328.

The Arbitrator concluded that there was no factual basis for concluding that Ibanez failed to conduct a systematic and comprehensive booking search of the fanny pack. AR 338.

The City Manager rejected the Arbitrator’s recommendation, stating his review of the transcripts and the body worn camera footage “clearly shows two bags of fentanyl in the blue fanny pack” and concluding Ibanez’s search was not within policy. AR 789.

“The preponderance of the evidence indicates that you failed to locate the second bag of fentanyl. The body worn camera footage from the search clearly shows two bags of fentanyl in the blue fanny pack; these two bags of fentanyl are different from the clear plastic bag with the two blue pills.

Under department policy 902.4, you were required to conduct a systematic and comprehensive search of the blue fanny pack. The body worn camera footage shows that the search was neither systematic nor comprehensive, and I agree with the Police Department’s conclusion that your search was not within policy.” AR 789.

The City Manager concluded that escalating discipline of a three-day suspension from the previous two-day suspension for failure to find a firearm in a suspect’s waistband was appropriate. AR 789.

Petitioner Ibanez seeks administrative mandamus overturning his three-workday suspension. The sole issue is whether the weight of the evidence supports the City Manager’s finding that the search was neither systematic nor comprehensive, and therefore not within BPD policy.

Ibanez replies that the purpose of mandate is to question the manner and propriety of a public agency’s decision. Ibanez is not questioning the City Manager’s honesty, or the fact that he reviewed the body camera footage. Rather, Ibanez questions whether the City Manager’s his use of the term “footage” in his decision referred to the body-worn camera footage or the video stills, given the evident thoroughness exhibited by Ibanez in searching the fanny pack as depicted in the body camera footage. Reply at 3.

Ibanez is relying on a purported ambiguity in the City Manager’s decision, which he is entitled to do. However, the City Manager’s decision is not ambiguous. He stated that he reviewed the transcripts and the body worn camera footage, and that “the body worn camera footage from the search clearly shows two bags of fentanyl in the blue fanny pack…. AR 789. The decision is clear that the City Manager saw two baggies of fentanyl in the footage.

As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080. The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 291-93.

The exhaustion doctrine includes issue exhaustion as well as exhaustion of administrative remedies. The agency must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which it has jurisdiction to act before it is raised in a judicial forum. Hill RHF Housing Partners, L.P. v. City of Los Angeles, (2021) 12 Cal.5th 458, 479 (citation omitted). “Exhaustion requires ‘a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.’” City of San Jose v. Operating Engineeers Local Union No. 3, (2010) 49 Cal.4^th 597, 609 (citations omitted). “The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary.” Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4^th 377, 391. The exact issue raised in the lawsuit must have been presented to the administrative agency. Tahoe Vista Concerned Citizens v. County of Placer, (2000) 81 Cal.App.4^th 577, 594. Otherwise, a litigant could present narrow arguments or even omit them before the final administrative authority in hopes of obtaining a more favorable decision from a trial court. Id.

The court agrees that questioning chain-of-custody is not the same as raising an issue that someone else actually placed contraband in the fanny pack. Raising the specter of unreliability is not the same as accusing BPD of placing drugs in the fanny pack.

However, Ibanez shows that the issue adequately was raised. As Ibanez replies (Reply at 4-5), his opening statement at the administrative hearing asserted that “the chain-of-custody issues that arose from the unsecured handling of the suspect’s property and the subsequent discovery of additional drugs by Officer Vogelsang without body-worn camera documentation casts serious doubts on the reliability of the evidence presented against Officer Ibanez.” AR 19. In his closing argument, Petitioner stated that “consideration should be made that the additional baggie of fentanyl later discovered by Officer Vogelsang quite possibly was not in the fanny pack on the night of November 27th when Officer Ibanez searched the bag.” AR 319. In support of this argument, Ibanez relies on the fact that Officer Vogelsang found the baggie sticking out of an elasticized pocket inside the bag—a baggie that was not present in that space when Ibanez looked inside.

Ibanez’s position has always been that there was no second baggie of fentanyl when he looked through the fanny pack. That someone placed a second baggie into the unsecured fanny pack is simply an inference drawn from this position. It is thus not true that the Arbitrator “never heard or considered the issue that someone put something back in the fanny pack between Petitioner’s inspection and the inspection that found the second fentanyl bag”. In fact, the Arbitrator found that the fanny pack had been “altered” from the way Petitioner left it, and “there was not a one-inch bag of fentanyl inside” the fanny pack when Petitioner searched it. AR 337-38. The Arbitrator then declined to speculate as to how the fentanyl got in the fanny pack. AR 328, 338. The fact that the Arbitrator made these findings shows that the issue had been raised and his refusal to speculate on how the fentanyl got there does not change this fact.

As the City correctly points out (Opp. at 11), the City Manager’s decision that Ibanez did not conduct a thorough search of the fanny pack has a strong presumption of correctness and Ibanez must show that the weight of the evidence does not support this finding.[2] See Fukuda, supra, 20 Cal.4th at 817 . Opp. at 11.

Ibanez argues that his body-worn camera footage (AR 588) shows that he conducted a systematic and comprehensive search of the suspect’s fanny pack:

· 18:53:28: Ibanez opens the suspect’s wallet, looking through every card and every pocket;

· 18:54:00: Ibanez looks through the wallet a second time, putting his fingers in every opening;

· 18:54:21: Ibanez opens the left back pocket inside the main compartment; it briefly appears that there are two white baggies. He then pulls out, with his right hand, a clear bag containing two blue pills and, with his left hand, a baggie containing fentanyl;

· 18:54:35: Ibanez opens the right-side back pocket and pulls out a baggie containing a black substance;

· 18:54:44: Ibanez again puts his hand inside the right-side back pocket and pulls it open to further inspect it visually;

· 18:54:46: Ibanez puts his hand inside the left-side back pocket and pulls it open to further inspect it visually;

· 18:54:58: Ibanez looks again inside the main compartment and then opens a zipper pocket on the outside of the main compartment and inspects it;

· 18:55:00: Ibanez squeezes the fanny pack, folds it in half, and squeezes it a second time. Pet. Op. Br. at 10-11.

During his IA interview, Ibanez stated that, given his prior discipline for missing the handgun, he “wanted to be extra careful in the search that [he] conducted.” AR 223-24. He then described his search to the interviewer:

“Ibanez talked about how he searched the bag, to include a systematic search of each individual pocket and compartment. He recalled initially opening the large or main compartment of the bag. Inside was a wallet, cable, and other items. He took the wallet out and looked through it, finding only cards. He put the wallet inside the plastic jail property bag. He then took other miscellaneous items out of the blue bag and placed them in the jail property bag.

In the main compartment were two elastic style pockets. Inside those pockets, Ibanez observed four baggies of various drugs. From the left pocket he pulled out a clear baggie with a white “almost like paper inside of it” as well as two blue pills. In the right compartment, he took out a piece of foil and a blue baggie with what he thought was one pill. He handed those items to Officer Nunez, who had asked to see them.

Ibanez said that based on a prior incident where he was disciplined for conducting a poor search, he elected to “re-conduct” his search of the bag. He looked through both interior pockets and “stuck my whole hand in both of them,” not finding anything or feeling anything. He looked inside a larger compartment and did not see anything. He looked through the front compartment and did not see anything inside it either. AR 367-68.

Ibanez’s search revealed a baggie with a white substance later proving to be fentanyl and a baggie with two blue pills. Ibanez argues that, after pulling out the baggie with fentanyl and the baggie with two blue pills, he continued to search the internal pockets multiple times and did not feel any other objects. AR 257. He argues that it is reasonable to conclude that the second white baggie that flashes in the camera footage was merely a reflection of the clear baggie containing the blue pills. This conclusion is supported by the photographs of the contraband. The first photograph (AR 472) shows the “clear baggie” containing the two blue pills (AR 472), but the baggie looks white at the top even though it is clear. AR 472-73. At no point were three baggies of drugs seen at the same time. Furthermore, Ibanez testified that the fanny pack’s rear pocket was not big enough for him to have overlooked a one-inch diameter ball of fentanyl inside a baggie with a large knot at the top as he felt inside it with his fingers and pulled the elastic top away to look inside. AR 254, 293-94, 328, 486. Pet. Op. Br. at 12.

The court concludes that the weight of the evidence supports the City Manager’s conclusion.

First and foremost, while the parties debate whether the second baggie of fentanyl was in the fanny pack when Ibanez searched it, the fact that Officer Vogelsang subsequently discovered the second baggie of fentanyl is not the direct issue. Ibanez was not charged with failing to find the second baggie; he was charged with failing to conduct a thorough search. A failure to find the second baggie is simply the consequence of an inadequate search.

The court agrees. The footage shows that Ibanez conducted a hurried search. After finding contraband, he should have laid down the fanny pack flat on the metal surface and patted it down. AR 287, 588. He also should have turned the fanny pack inside out and rubbed his fingers along the seams. Ibanez did neither. Chief Albanese’s testimony shows that Ibanez did not conduct a thorough search.

Second, the court has viewed the body camera footage multiple times and agrees with the City Manager that two baggies with white content are visible. AR 588 at 18:54:21. The second bag is not merely a reflection of the blue pill baggie as Ibanez argues. Pet. Op. Br. at 12.

The City argues that expert opinion was required but the court disagrees. A layperson can make this observation, and the court agrees with Chief Albanese and the City Manager that the second baggie in Petitioner’s body worn camera footage is not a reflection. AR 499-504, 200-01. The second white baggie is roundish, and the blue pill baggie is not round. Moreover, the blue pill baggie appears to be directly under the first white content baggie as it is drawn out. The second white content baggie appears to be more to the left. While Ibanez did reach into the fanny pack pocket where the second white baggie was located, he did not searchingly do so to the left side. Had Ibanez’s search been systematic and comprehensive, he would have discovered the second white baggie.

In his opening brief, Ibanez notes that Vogelsang testified that, when he looked inside the fanny pack, he immediately noticed the suspect’s wallet “and then sticking out, like slightly protruding through another pouch inside that bag was the top of like a plastic baggie that I recognized as, you know, possible contraband based on how it was packaged.” AR 69. The body camera footage shows, however, that Ibanez searched through the fanny pack, removed the wallet, and placed it in a clear property bag. AR 251, 588 at 18:54:11. Ibanez concludes that, at some point after he put the wallet in the property bag, it was removed by an unknown person and put back in the fanny pack. Further, while Vogelsang testified that he “immediately noticed the plastic baggie protruding through that pocket” (AR 81-82), the footage shows no plastic baggie protruding from any pocket when Ibanez folded the fanny pack up and put it inside the property bag. As the Arbitrator noted, “the state in which Officer Vogelsang found the pouch was altered from the way in which Officer Ibanez left it.” AR 328. Pet. Op. Br. at 13.

This is incorrect. The footage shows that Ibanez gave the fanny pack in the property bag to the jailer. AR 588, 258. The jailer also performed a search, and then put the credit cards back in the wallet and the wallet back into the fanny pack. AR 213-14, 588 at 18:55:13 to 18:56:11. Hence, the footage explains the state in which Officer Vogelsang found the fanny pack. Ibanez acknowledges as much in reply. Reply at 5, n. 1.

Ibanez is left with the fact that the fanny pack was left unsecured overnight. AR 81. Reply at 5, n. 1. The availability for access does not show that anyone accessed the fanny pack and placed a second baggie very similar in nature and white powder content as the first baggie found by Ibanez. The weight of the evidence shows an inadequate search.

The Petition is denied. The City’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for July 17, 2025 at 9:30 a.m.

[1] The search was captured on a BPD Jail camera. AR 356-58.

[2] In this regard, the Arbitrator’s proposed findings are irrelevant.