Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1984)

MEMORANDUM

Poole appeals from the district court's entry of summary judgment in favor of various law enforcement officers, the City of Sacramento, the Sacramento Police Department, and the Chief of Police on his 42 U.S.C. § 1983 action. He alleges that the defendants conspired to violate his fourth amendment right to be free from unreasonable searches and seizures by (1) procuring a search warrant for his van without probable cause by intentionally misrepresenting material facts in the affidavit submitted in support of the search warrant, and (2) resorting to excessive force in effecting his arrest. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

"Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is clearly entitled to prevail as a matter of law." Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 677 (9th Cir. 1984). Summary judgment is reviewed de novo to determine whether, upon viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986), amended on other grounds, 811 F.2d 504 (9th Cir. 1987).

Poole does not challenge the district court's finding that he "failed to establish the existence of any policy, practice or custom, or failure to train or supervise upon which liability could be assessed against the City of Sacramento [acting through the Police Department] or Chief Kearns." Poole, in fact, conceded at oral argument that summary judgment was properly entered in favor of the City, the Police Department, and Police Chief Kearns. Summary judgment for these defendants is therefore affirmed on both the probable cause and excessive force issues.

Although Officer Roy and Deputy Sheriffs Long and Bettenhausen executed the search warrant secured by Officer Walker, Poole does not allege that they were in any way involved in its procurement. For purposes of section 1983 immunity, law enforcement officers called upon to execute a search warrant secured by fellow officers are entitled to assume its validity, Morris v. County of Tehama, 795 F.2d 791, 795 (9th Cir. 1986).

Poole concedes that both the search warrant for his van and the supporting affidavit were valid on their face. Therefore, Poole's claim for damages for an unlawful search of his van must be dismissed as to defendants Roy, Long, and Bettenhausen.

The district court entered summary judgment against Poole on his claim that Officer Walker, without probable cause, sought and obtained a search warrant for his van. Poole insists that there were disputed issues of fact relating to the existence of probable cause, thereby precluding summary judgment.

Poole was required to set forth specific facts demonstrating the existence of a genuine issue of material fact. International Union of Bricklayers & Allied Craftsmen, Local 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985). Mere suspicion that the opposing party's affiant may be lying, without more, does not raise a genuine issue of material fact. See Alsbury v. United States Postal Service, 530 F.2d 852, 855-56 (9th Cir.), cert. denied, 429 U.S. 828 (1976). Broad conclusory allegations of conspiratorial purpose and involvement or malice, without factual specificity, are properly dismissed at the pretrial stage on a motion for summary judgment. Hutchinson v. Grant, 796 F.2d 288, 291 (9th Cir. 1986). Although Poole maintains that Officer Roy had contacted Poole's arresting officer after he was arrested on July 11, 1984, and that Dawson informed him that he had been "set up," he fails to explain how a conspiracy can fairly be inferred from these two incidents. More important, however, he makes no attempt to elucidate how the existence of a conspiracy proves his ultimate contention that Officer Walker made deliberate misrepresentations in the warrant affidavit.

Poole also contends that the confidential informant relied upon by Officer Walker in the warrant affidavit in fact never existed. Poole's affidavits may have created a genuine issue of material fact regarding whether Poole was at the residence in question at the time of the alleged drug sales, but it is sheer speculation to infer from this fact alone the non-existence of the informant. Without more, the most that one can infer from this is that the informant was either wrong in his identification of Poole, or that he deliberately lied. Poole has recited no facts from which a reasonable juror could fairly infer, without undue speculation, that Officer Walker either lied about the existence of the informant or that, if such an informant indeed existed, that he knew or should have known that the informant was providing him with unreliable information. Poole's assertion that no informant ever existed is sheer guesswork on his part. Because the deliberate falsehood or reckless disregard that impeaches the affidavit supporting a warrant must be attributable to the affiant, not the informant, United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983), summary judgment was properly granted on Poole's section 1983 claim against Officer Walker.

Poole argues that he should have been allowed discovery of the informant's identity so that he could prove his non-existence. Poole does not take issue with the magistrate's holding that "there had not been any information or proof offered to the court sufficient to warrant the disclosure of the identity of the person to be used as the basis of the issuance of the search warrant in this case." What he argues, instead, is that the district court's failure to order an in camera hearing to determine whether such an informant really existed. Poole, however, concedes that he never requested that the district court hold such an in camera hearing. He did not preserve the issue.

Poole next contends that the question of reasonableness under the circumstances, which lies at the bottom of every probable cause determination, was still a question of fact that should have been left to the jury. Poole contends that the district court erred in holding that the existence of probable cause to justify issuing a warrant is a question of law that the court should decide in a motion for summary judgment. Any error, however, was harmless. The facts and circumstances that went into the probable cause equation in this case were not fairly in dispute, and such facts and circumstances unquestionably establish the existence of probable cause as a matter of law. See McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984). We believe that, presented with the evidence in this case, no reasonable jury could find that there was no probable cause to search Poole's van.

We also affirm the district court's entry of summary judgment against Poole on his claim that Officer Roy and Deputy Sheriffs Long and Bettenhausen resorted to excessive force in effecting his arrest on July 11, 1984. In his complaint, Poole had alleged that the conduct of the law enforcement officers in making his arrest violated his fourteenth amendment right to due process of law. Under the facts of this case, however, Poole has failed to allege a violation of due process. In Rochin v. California, 342 U.S. 165 (1952), the Supreme Court recognized that the police violate due process if they engage in conduct that "shocks the conscience." Id. at 172. This "shock-the-conscience" test is satisfied only when, as in Rochin, the police resort to outrageous acts of violence and brutality. Poole does not allege acts of such extreme physical violence, torture, or brutality on the part of his arresting officer as to "shock the conscience." Given the rigorous standard established by Rochin and its progeny, Poole's allegations of excessive force fall short of stating a due process violation.

AFFIRMED.