Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1985)

MEMORANDUM^** 

Richard Koenig appeals pro se the district court's grant of summary judgment in favor of Kenneth Engh, a county sheriff, the sheriff's department, and the county in Koenig's 42 U.S.C. § 1983 action. Koenig contends that Engh violated his civil rights by causing Koenig to be arrested without probable cause. We affirm.

FACTS

In March 1985, Linda Snead reported to Detective Kenneth Engh of the Washington County Sheriff's Department that she believed her son, Jacob, had been abducted by Richard Koenig. Snead explained that she had lived with Koenig, that Koenig was Jacob's father, and that she had recently allowed Koenig to take Jacob to Seattle. Koenig had since left Seattle with Jacob, leaving no information as to their whereabouts.

Engh investigated Snead's report and consulted with a deputy district attorney. Based on his investigation and the district attorney's advice, Engh submitted a warrant application for Koenig's arrest for kidnapping and custodial interference.

On April 4, 1985, the Washington County District Court issued a warrant for Koenig's arrest, and on the same day the police in West Covina, California, arrested Koenig. Koenig was taken into custody in Los Angeles County and Jacob was returned to his mother. On April 18, 1985, the criminal charges against Koenig were dismissed.

Koenig brought an action under 42 U.S.C. § 1983, alleging the defendants had caused Koenig to be arrested without probable cause. The district court, adopting the findings of the magistrate, granted summary judgment in favor of the defendants. Koenig timely appeals.

DISCUSSION

This court reviews de novo a district court's grant of summary judgment. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983). When conducting such a review, this court "views the evidence in the light most favorable to the party opposing the motion and accords that party's papers a liberal construction." Allen v. Scribner, 812 F.2d 426, 430 (9th Cir. 1987), modified, 828 F.2d 1445 (9th Cir. 1987).

Koenig argues that because he is Jacob's father, there was no probable cause to arrest him for kidnapping or custodial interference. We find that there was probable cause for the arrest.

An arrest without probable cause violates the fourth amendment and gives rise to a claim for damages under section 1983. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). Whether probable cause existed is normally a question of fact for the jury, and summary judgment for the defense is appropriate only when no reasonable jury could find the officer lacked probable cause for the arrest. McKenzie, 738 F.2d at 1007-08. To establish probable cause, the arresting officer must show he had some objective evidence which would allow a reasonable officer to deduce that the suspect had committed or was in the process of committing a crime. Id. See also Beck v. Ohio, 379 U.S. 89, 91 (1964). While mere suspicion, common rumor, or even strong reason to suspect will not suffice to show probable cause, conclusive evidence of guilt is not necessary. See McKenzie, 738 F.2d at 1008.

Koenig was arrested for and charged with two crimes: kidnapping¹  and custodial interference.²  Engh's information came from Linda Snead and Kay Kreel, a social service worker for the Oregon's Children's Services Division. Snead reported to Engh that her son, Jacob, was missing, and that she believed Koenig had taken him out of state. Engh then contacted Kreel, who told him that Koenig admitted to having custody of Jacob and indicated an intention to leave the state, giving her a forwarding address of Glendora, California. Engh presented this evidence to a deputy district attorney who advised him that there was probable cause to charge Koenig with both offenses.

Koenig does not deny any of the allegations in the affidavit Engh submitted to support the arrest warrant. Rather, he argues that they established that he is Jacob's father and that, because paternity is a defense to kidnapping under Oregon law, his arrest was unsupported by probable cause. Engh and the Sheriff's Department maintain that Koenig never established paternity under Oregon law and that his argument therefore fails.

Although it does not appear that Koenig ever established paternity under Oregon law,³  there is still some merit to his argument. The issue is not whether paternity was actually established, but rather whether the evidence before Engh would allow a reasonable officer to conclude that Koenig was not Jacob's father and that Koenig had therefore committed the crime of kidnapping. Jacob's mother told Engh that Koenig was the father of Jacob and she had listed him as the father on the birth certificate, although she and Koenig had never married and Koenig had refused to sign Jacob's birth certificate. Given the ambiguity of this information regarding Koenig's parental status, a reasonable police officer might have an obligation to investigate further before concluding he had probable cause to arrest for kidnapping.

Questions as to Koenig's parental status have no bearing however, on the second charge, that of custodial interference. See State v. West, 70 Or.App. 167, 171, 688 P.2d 406, 408 (1984) (custodial interference against a child's mother upheld). The focus of Or.Rev.Stat. Secs. 163.245 and 163.257 is on the protection of the rights and interests of the two "victims" of the offense: the child and the "lawful custodian" from whom the child is "taken, enticed, or kept." West, 688 P.2d at 408. The legal status of the offending party is irrelevant. Id. All that was necessary to establish probable cause for the custodial interference charge was credible evidence that Koenig had taken Jacob from the state without the consent of Snead. Based on the statements of Snead and Kreel, Engh clearly had such evidence before him. Accordingly, the district court did not err in determining that probable cause existed as a matter of law. See McKenzie, 738 F.2d at 1007-08.

Koenig petitions the court to allow augmentation of the record with a portion of a transcript of state court proceedings. We grant the petition, and have reviewed the material submitted, but find that it does not alter the result in this case.

AFFIRMED.