Unpublished Disposition, 923 F.2d 862 (9th Cir. 1991)

No. 89-15393.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL and KOZINSKI, Circuit Judges, and SINGLETON,^**  District Judge.

MEMORANDUM^*** 

Appellants brought an action for damages against appellee, an officer of the Tehama County Sheriff's Department, alleging violations of their civil rights under 42 USC Sec. 1983 and defamation of character under California law, arising out of a marijuana raid on their property. Officer Carlton, without obtaining a search warrant, had used a 20-power spotting scope while standing on a public road to identify marijuana in appellants' greenhouse. Carlton's identification of the marijuana was used to authorize the search of appellants' property. The district court granted defendant's motion for summary judgment, finding that he was entitled to qualified immunity. We affirm.

Appellants argue that the district court erred in granting the summary judgment because Officer Carlton's observation was an illegal search conducted without a warrant.

We agree with the district court that the defendant was entitled to qualified immunity. An official is entitled to qualified immunity from damages if his conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 US 800, 818 (1982). In viewing appellants' property with a spotting scope from a public road, appellee did not violate any clearly established right. We have upheld warrantless observation with visual enhancement devices by officers on the public right of way in several cases. United States v. Allen, 675 F2d 1373, 1381-82 (9th Cir 1980), cert denied, 454 US 833 (1981); see also United States v. Dubrofsky, 581 F2d 208, 211 & n 1 (9th Cir 1978). Summary judgment for defendant was therefore proper.

Appellants allege that the trial court erred in denying their motion to disqualify under 28 USC Sec. 144 based on alleged bias. The denial was proper as appellants did not file an affidavit stating the grounds for their belief that the judge was biased, as required by the statute. CR 53, at 2. They also did not suggest any basis for recusal under 28 USC Sec. 455.

Appellants allege that the court erred in denying their motion to amend the complaint. The denial was proper as appellants did not file an amended complaint with their motion or explain why an amendment was necessary. ER 19.

Appellants allege that the trial court erred in denying their motion for a continuance. The denial was proper as the motion was not timely under the local rules. ER 18-19.

Defendant's request that we find this appeal frivolous and award him damages and double costs pursuant to FRAP 38 is denied.

AFFIRMED.