Argued and Submitted Sept. 12, 2013.
Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division; and Owen P. Martikan (argued), Assistant United States Attorney, United States Attorney's Office, Northern District of California, San Francisco, CA, for Plaintiff-Appellee.
Paul F. DeMeester (argued) and Treva Stewart, San Francisco, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California, Richard Seeborg, District Judge, Presiding. D.C. No. 3:08-cr-00192-RS-1.
Before: J. CLIFFORD WALLACE and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.[*]
BERZON, Circuit Judge:
Appellant Cassandra B. Nickerson appeals from the District Court's affirmation of her conviction before a Magistrate Judge for three Class B misdemeanors: operating a motor vehicle while under the influence of alcohol in violation of 36 C.F.R. § 1004.23(a)(1); operating a motor
vehicle with a blood alcohol content over 0.08% in violation of 36 C.F.R. § 1004.23(a)(2); and failure to maintain control of a vehicle in violation of 36 C.F.R. § 1004.22(b)(1). We affirm her conviction.
On January 6, 2008, at about 10:20 p.m., United States Park Police Officer April Ramos responded to an incident involving a car hitting a curb in the Presidio of San Francisco. At the scene, Officer Ramos saw Nickerson standing next to a disabled vehicle. After Nickerson failed field sobriety tests and preliminary blood alcohol screening tests, Officer Ramos placed her under arrest and transported her to the police station.
At the police station, Officer Ramos conducted a breath test on Nickerson and then placed her in a holding cell. Unbeknownst to Nickerson, a motion-sensitive surveillance camera captured her time in the holding cell. There was no sign posted to warn individuals in the holding cell that they were being taped, and the camera was not readily visible to the cell's occupants. A real-time monitor was available to all officers on duty, including both male and female officers.
The Park Police had no written standards to guide their exercise of discretion with respect to video surveillance. Other police stations across the country, however, use motion-sensitive video cameras, such as the one in the cell in which Nickerson was held, for several purposes. These include for medical and security concerns, such as if a detainee attempts suicide, if a physical altercation occurs between detainees, or if a detainee becomes progressively more intoxicated or sick in the holding cell and needs medical attention. The cameras also serve to deter abusive police ...