Unpublished Disposition, 936 F.2d 579 (9th Cir. 1991)

MEMORANDUM^* 

Kathleen Oborn appeals the district court's grant of defendants' motion for a directed verdict on Oborn's 42 U.S.C. § 1983 claim. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse.

* Kathleen Oborn, a Los Angeles police officer, was suspected by the Internal Affairs Division ("IAD") of the Los Angeles Police Department of engaging in a continuing sexual relationship with a 16 year old. The IAD was contacted by Allyson DiConti, a private individual, who provided the police with information about Oborn. DiConti was a friend of Oborn's, who had frequently stayed overnight as a guest and a babysitter.

The police decided to send DiConti into Oborn's house wearing a concealed wire transmitter, in the hope of obtaining incriminating statements from Oborn. According to the appellees, the police told DiConti several times that she should not take anything from Oborn's house.

Oborn let DiConti into the house and the two women talked for about fifteen minutes. DiConti then asked for permission to look for certain greeting cards which DiConti had left previously at Oborn's house. Oborn permitted DiConti to look in a drawer, in which DiConti found an audio tape and three letters. Without telling Oborn, DiConti took these items and gave them to the police.

Oborn brought suit under 42 U.S.C. § 1983 alleging that the police, through their agent DiConti, illegally searched her house and seized her personal property. The defendants moved for summary judgment, which the district court denied. This denial was affirmed by the Ninth Circuit. At the end of Oborn's case in chief, however, Judge Curtis granted the defendants' motion for a directed verdict. The judge concluded that because DiConti was specifically instructed not to take anything from the house, she was not acting under the color of state law. Oborn timely appealed.

II

The propriety of a directed verdict is reviewed de novo. West America Corp. v. Vaughan-Bassett Furniture Co., 765 F.2d 932, 934 (9th Cir. 1985). The issue in an appeal from a directed verdict against the party with the burden of persuasion is the sufficiency of the evidence of the appellant's claim. Cal. Computer Products v. Intern. Business Machines, 613 F.2d 727, 734 (9th Cir. 1979). The question is whether or not, viewing the evidence as a whole, there is substantial evidence present that could support a finding for the nonmoving party. Id. The court is "bound to view the evidence in the light most favorable to the non-moving party and to give it the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn." Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1219 (9th Cir. 1983), cert. denied, 471 U.S. 1007 (1985).

III

Oborn's section 1983 claim rests upon the search of her home by DiConti and the seizure of the tape and the three letters. There is no doubt that this search and seizure took place. In granting a directed verdict, however, the district court concluded that DiConti was not acting as a state agent when she took the items.

A wrongful search or seizure by a private party does not violate the fourth amendment. United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981). But when that party acts as an "instrument or agent" of the state, fourth amendment interests are implicated. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). The government must be involved either directly as a participant or indirectly as an encourager of the private party's actions in order for the citizen to be deemed an instrument of the state. United States v. Gumerlock, 590 F.2d 794, 800 (9th Cir.) (en banc), cert. denied, 441 U.S. 948 (1979). See also, United States v. Black, 767 F.2d 1334, 1339 (9th Cir.) ("The critical factors are (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further [her] own ends."), cert. denied, 474 U.S. 1022 (1985).

The appellees acknowledge that DiConti was acting on behalf of the police when she entered Oborn's house wearing a wire. This action was permissible because Oborn consented to DiConti's entry. They contend, however, that because DiConti had been told not to take anything, the seizure was not state action.

In granting the directed verdict, the district court relied on testimony by DiConti and three police officers that the police specifically told DiConti not to take anything from Oborn's house and that DiConti took the items on her own initiative. Oborn presented no direct evidence to contradict this testimony. The district court clearly thought that Oborn could not prevail in the face of this testimony. We agree that this evidence certainly was damaging to Oborn's case. But we do not believe that it was fatal.

The determination of witness credibility is an issue that belongs to the jury. Twin City Fire Ins. v. Philadelphia Life Ins. Co., 795 F.2d 1417, 1423 (9th Cir. 1986). The judge should not have usurped the jury's role by finding DiConti's and the police officers' testimony to be credible, unless the jury was compelled to accept the testimony. See Cooper, Directions for Directed Verdicts: A Compass for Federal Courts, 55 Minn. L. Rev. 903, 955-56 (1971) (" [T]he principle of minimum intrusion requires beginning from the assumption that the jury will believe only the parts of the direct testimony most favorable to the party opposing the directed verdict motion, as well as such other parts of the testimony as they are compelled to accept.") The appellees proceed from the assumption, as did Judge Curtis, that the jury was required to accept the testimony of the witnesses because Oborn failed to produce a witness to refute their statements.

A jury is required to believe and the judge may therefore accept as true on a motion, uncontradicted and unimpeached evidence from disinterested witnesses. Wright and Miller, Federal Practice & Procedure: Civil Sec. 2527. See also, Chicago, Rock Island and Pacific R. Co. v. Howell, 401 F.2d 752, 754 (10th Cir. 1968) ("The fundamental rule which makes the jury the sole judge of the weight and credibility of testimony is subject to the caveat that testimony concerning a simple fact capable of contradiction, not incredible, and standing uncontradicted, unimpeached, or in no way discredited by cross examination, must be taken as true.") An examination of the testimony in this case shows that it does not fit this criteria.

First, this was not testimony that Oborn could easily contradict, since only the police and DiConti knew whether the instruction had been given. Second, all of these witnesses were interested. They were all defendants, who knew that they would prevail if Oborn failed to show that DiConti was a government agent.

Furthermore, there was evidence that tended to impeach DiConti's testimony. DiConti was unable to recall which officers had told her not to take anything. In her interrogatory answers, she made no mention of being told not to take anything. She also changed her deposition testimony, "correcting" on the written transcript her failure at the deposition to mention the instruction.

In addition, events subsequent to the seizure tend to diminish the credibility of the defendants' story. The police claim that when DiConti returned to the van and turned over the evidence, the agent in charge was "extremely angry" at her. Immediately after this incident, the police took DiConti to another location where, they claim, they again instructed her to not remove anything. Yet, they admit, "DiConti decided for her own reasons to take a telephone bill". The jury might have found more credible Oborn's explanation, that the police never gave an instruction to DiConti to not take evidence.

Thus, giving all inferences to the non-moving party, we believe that the jury could have chosen to reject the testimony of DiConti and the officers. Appellees note, however, that jury disbelief is not sufficient. In Anderson v. Liberty Lobby, 477 U.S. 242 (1986), the Supreme Court, in discussing a motion for summary judgment, stated,

a plaintiff may [not] defeat a defendant's properly supported motion ... by merely asserting that the jury might, and legally could, disbelieve the defendant's denial of a conspiracy or of legal malice. The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.

Id. at 256. Thus, Oborn still had the duty of producing substantive evidence that DiConti was acting under color of state law when she seized the items.

We believe that she satisfied this burden. It is unquestioned that DiConti took the items while she was in the house on behalf of the police. The police kept the items, booking them as evidence of crime. Except for DiConti's and the officer's denials, the evidence raises an inference that the seizure was at least implicitly authorized by the police. If the jury disbelieved the testimony of DiConti and the officers, it could have found that there was state action.

IV

The appellees argue that even if DiConti was acting as a government agent at the time she took the tape and the letters, the seizure was permissible because the items were in plain view. While the jury might have accepted this theory, a directed verdict on this ground would have been improper.

In order for the "plain view" doctrine to apply, the state actor must have had "a prior justification for an intrusion in the course of which he came ... across a piece of evidence incriminating to the accused." Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). It must be "immediately apparent to the police that they have evidence before them." Id. The Supreme Court has recently concluded, however, that the discovery need not be inadvertent. Horton v. California, 110 S. Ct. 2301, 2304 (1990).

DiConti not only had received permission to be in Oborn's house, but Oborn had also given her permission to look in the drawer for the purpose of finding certain greeting cards. The unanswered question is whether she came upon the evidence while legitimately searching for the greeting cards, or if she actually searched the drawer for the evidence.

DiConti and Oborn present different views of what happened when DiConti looked in the drawer. DiConti argues that the letter and tape, all in an envelope addressed to 'Tara and Alison,' were readily apparent in clear view when she opened the drawer. Oborn counters that DiConti's testimony indicated that she spent ten minutes looking through the drawer even though she found the greeting cards immediately.

Once again, we face an issue of witness credibility. There is even less reason here to hold that the jury was required to accept DiConti's version of the facts. Unlike the state actor issue, there are no witnesses corroborating DiConti's testimony. Had the jury chosen to disbelieve DiConti's claim that the items were in plain view, it could have found in favor of Oborn. A directed verdict on the theory of plain view would therefore have been improper.

REVERSED AND REMANDED.