Unpublished Disposition, 875 F.2d 319 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1987)

No. 88-6546.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and KOZINSKI, Circuit Judges, and LEGGE,*  District Judge.

MEMORANDUM** 

Kathleen Oborn seeks damages under 42 U.S.C. § 1983 for the search of her house by her babysitter. The babysitter allegedly acted at the direction of several Los Angeles police officers. The district court denied the defendants' motion for summary judgment on the basis of qualified immunity. We affirm.

* This case grew out of the Los Angeles Police Department's investigation of the relationship between Kathleen Oborn and Andre Rossky, a German high school exchange student who lived with Oborn during the 1986-87 school year. After receiving a phone "tip" that Oborn and Rossky were engaging in a sexual relationship, the Internal Affairs Division (IAD) initiated an investigation. In January of 1987, the IAD interviewed Oborn, her four children, one of Oborn's former lovers (Moutrie), and Rossky about the nature of Rossky's and Oborn's relationship.

Allyson DiConti routinely babysat for Oborn's children and apparently was also one of Oborn's personal friends. On March 25, 1987, Allyson DiConti contacted the Los Angeles Police Department, provided officers Cheatham and Goebel with information about Oborn's and Rossky's relationship, and volunteered to enter Oborn's house with a recording device. She told officers Cheatham and Goebel that, while Rossky was away in Germany, he "mailed several letters to [Tara] Henninger's house which were written to Oborn. He addressed the letters to Henninger and DiConti to avoid detection by the Police." (Henninger was a friend and former neighbor of Oborn's.) In "Investigator's Notes" which were prepared after the allegedly illegal search by DiConti, the officers stated without elaboration that on March 25 "DiConti indicated knowledge of letters and cassette tapes that Oborn had received from Rossky." In his declaration, Officer Goebel stated that on March 25 "DiConti ... mentioned ... that Oborn had stored numerous letters and papers in a box at a friend's house. DiConti thought that these papers revealed the intimate nature of the relationship between Oborn and Rossky, and would support DiConti's story to us. DiConti had reported that the storage box had recently been moved back to Oborn's residence."

On March 26, Officer Szymanski had a conversation with DiConti in his police car. In his declaration, he stated that during the conversation "DiConti mentioned numerous letters and papers which DiConti thought revealed the intimate nature of the contacts between Oborn and Rossky. DiConti stated that Oborn had stored these materials temporarily at a friend's home but had recently moved the materials back to Oborn's residence. DiConti expressed an interest in obtaining some of these materials in order to demonstrate the nature of the relationship she had been describing to us."

On March 27, 1987, DiConti was taken to Oborn's house in a police monitoring van. While in Oborn's house, Oborn took three letters and a cassette tape from Oborn's bureau without Oborn's knowledge.

The exhibits in support of the summary judgment motion do not contain any statement or an account of a statement by DiConti to the effect she had read any of Rossky's letters to Oborn prior to searching Oborn's bureau. The only item in the record describing DiConti's search is DiConti's deposition; in the portion of her deposition presented to the district court, DiConti states only that "I took letters and tape recordings addressed to Tara and Allyson."

According to Oborn, the original tape and letters have never been returned to her. She claims that copies of the letters and tape were not returned to her until March of 1988, approximately a year after the search and seizure.

The denial of a motion for summary judgment on the basis of qualified immunity is appealable immediately. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). We review the grant or denial of summary judgment de novo. Darring v. Kinchloe, 783 F.2d 874, 876 (9th Cir. 1986).

II

In Anderson v. Creighton, 107 S. Ct. 3034 (1987), the Supreme Court recently explained the concept of qualified immunity. The Court explained that a police officer may be held liable for an unconstitutional search only if "in the light of pre-existing law the unlawfulness [of the search was] apparent." Id. at 3039. "The contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right." Id. The court noted, however, that the plaintiff need not show that "the very action in question has previously been held unlawful." Id.

In this case, critical facts surrounding the search are unclear. Where, as here, the reasonableness of officers' belief in the lawfulness of their conduct under pre-existing law turns on disputed factual issues, the denial of summary judgment is proper. See Thorsted v. Kelley, 858 F.2d 571, 575 (9th Cir. 1988) ("when there are triable issues of a fact of a reasonable belief that a search is lawful, viewed in light of the settled nature of the law, these issues are for the jury").

a. DiConti and the Police Investigators

If DiConti was not acting as a government agent when she searched for and seized the letters and the tape, then DiConti's and the officers' conduct was constitutional under clearly established law. A private search does not implicate the protections of the fourth amendment. See United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981). A preliminary question is thus whether DiConti "act [ed] as an instrument or agent of the state in conducting the search." United States v. Black, 767 F.2d 1334, 1339 (9th Cir.), cert. denied, 474 U.S. 1022 (1985). We will find that a private person acted as a government agent if the government was involved "indirectly as an encourager of the private citizens' actions." Walther, 652 F.2d at 791. The defendants argue that the police officers' explicit instructions to DiConti not to search Oborn's house demonstrates that the police did not in any way encourage DiConti's search. Goebel's, Syzmanski's, and DiConti's statements, however, could be read as meaning that the police directed DiConti to search Oborn's house. DiConti's deposition is contradictory. She maintained at one point that the police in effect directed her to search Oborn's house and at another that all they told her was to encourage Oborn to discuss her relationship. DiConti's answers to interrogatories strongly imply that the police never instructed her not to search Oborn's house:

What advice or instructions, if any, was she given at any time at all with respect to what she should do for or with the police in connection with plaintiff?

Answer: On March 27, 1987, the officers Goebel and Cheatham said: "Don't act like an agent." "Be casual." "Be yourself." The officers also told defendant DICONTI to try to get plaintiff to talk about ANDRE ROSSKY.

Was she told to make the acquaintance of plaintiff or to rent a room at plaintiff's home or to remove things from plaintiff's home? List what she was told to do.

Answer: The one thing defendant DICONTI was told was to engage plaintiff in a conversation about ANDRE ROSSKY.

Given the contradictions in DiConti's statements, a jury would be entitled to find that DiConti was lying when she stated that the police told her not to search Oborn's house. See United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985). The police officers admit that DiConti told them on March 25 and 26 that she believed that Oborn's house contained "letters and papers" which might confirm her account of Oborn's and Rossky's relationship and that she was interested in obtaining them for the police. Since the police soon thereafter (March 27) brought DiConti to Oborn's house and sent her into it with the clear purpose of developing a case against Oborn, DiConti may have reasonably interpreted the police's silence on the issue of searching for the letters as a directive to conduct a search. See Walther, 652 F.2d at 791 (silence on the part of government authorities can constitute encouragement to perform a search). Even if the police explicitly instructed DiConti not to search Oborn's house, DiConti may have reasonably interpreted the police's expressions of interest in her comments about Oborn's letters and papers and their subsequent act of sending her into Oborn's house as a directive to ignore any explicit instructions not to searching Oborn's house. Finally, the police's acceptance of the letters and tape, their alleged permanent retention of them, and their alleged failure to provide Oborn with copies for an entire year also supports the inference that the government acquiesced in Oborn's search. We have held that the government's knowledge of and acquiescence in a private individual's intrusive conduct is one of the critical factors in determining whether the individual is acting as a state agent. United States v. Black, 767 F.2d at 1339-40; United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982). Since the record permits the "justifiable" and "legitimate" inference that DiConti was acting as a government agent when she searched Oborn's house, the district court was required to accept this inference for purposes of evaluating the defendants' summary judgment motion. See Matsushita Electric v. Zenith Radio, 475 U.S. 574, 587-88 (1986) (a court evaluating a summary judgment motion must consider all "justifiable" and "legitimate" inferences in favor of the nonmoving party).

b. The Plain View Exception

The defendants argue that, even if DiConti was acting as a government agent, the denial of summary judgment was improper because her search was legal under clearly established law. Specifically, they contend that Oborn's search fell within the plain view exception to the prohibition on warrantless searches. There are three requirements for a plain view search. "First, there must be a legitimate justification for the officer's presence. Second, the discovery must be 'inadvertent.' Finally, it must be 'immediately apparent to the police that they have evidence before them.' " United States v. Chesher, 678 F.2d 1353, 1356 (9th Cir. 1982) (citing Collidge v. New Hampshire, 403 U.S. 443, 466 (1971).

The defendants probably have met their burden of showing that Oborn consented to a limited search of the bureau drawer and that DiConti therefore had a "legitimate prior justification" for opening the drawer. In her deposition, DiConti claimed that she kept some of her personal cards in the drawer in Oborn's bureau; that she told Oborn on March 27 that she wanted to retrieve some of the cards; and that Oborn said "that I could help myself to the cards." Oborn confirmed in her deposition that she realized DiConti was searching through the bureau drawer; that she thought DiConti was "looking for a friend of her's greeting card"; and that she did not object to DiConti's actions. However, nothing in the record before the district court indicates that Oborn ever consented to anything more than DiConti's search for her greeting cards.1

It is unclear, however, whether DiConti's "discovery" of the cassette and the three letters was "inadvertent." The police cannot invoke the plain view exception if they had probable cause to conduct the search and thus could have obtained a warrant for the search. See C. Whitebread, Criminal Procedure 220 (1980) ("In conclusion, it seems correct to say that a discovery will be inadvertent whenever there is the absence of probable cause to secure a warrant"); W. LaFave, 2 Search and Seizure 352 (1987) (" 'What Coolidge ... requires is a search warrant for any item of evidence which the police anticipate finding, but for which they have probable cause to support the issuance of a warrant' ") (citation omitted).

The record before the district court was far too sketchy for it to decide whether the police had probable cause to believe that Oborn's house contained letters and tapes which revealed that Oborn was engaging in criminal conduct. Whether an informant's "tip" constitutes probable cause for a warrant must be assessed by examining the totality of the circumstances, including the informant's veracity, reliability, and basis for knowledge. Illinois v. Gates, 462 U.S. 213, 230-31 (1982). The record before the district court indicated that the police had no longstanding relationship with DiConti which would have allowed them to assess her reliability as an informant. Moreover, the record was completely devoid of any specific explanation of the basis for DiConti's belief that Oborn's house contained letters detailing Oborn's allegedly illegal sexual relationship. Since the district court could not possibly have determined from the sketchy record before it what basis DiConti had for believing that Oborn's house contained incriminating letters and what DiConti told the police about the basis for her belief, the district court could not have assessed DiConti's "basis for knowledge" and thus could not have assessed whether under the totality of the circumstances the police had probable cause.

The district court also had no basis for deciding whether the "immediately apparent" requirement was met in this case. In Arizona v. Hicks, 480 U.S. 321, 326 (1986), the Supreme Court held that (1) the "immediately apparent" requirement is not less than probable cause; both the search for and the seizure of items in plain view require probable cause, and (2) moving an item only a few inches constitutes a search and thus falls within the plain view exception only if the officer had probable cause to believe the item is evidence of a crime at the time he moved it. The Court made clear that it did not recognize any such thing as a de minimis search: "the distinction between looking at a suspicious object in plain view and moving it even a few inches is much more than trivial for purposes of the Fourth Amendment.... A search is a search, even if it happens to disclose nothing but the bottom of a turntable." 480 U.S. at 325. The officer in Hicks moved some stereo components so that he could read the serial numbers. Since the officer admittedly had only reasonable suspicion (as opposed to probable cause) to believe that the stereo was stolen and that the serial numbers would therefore be evidence of a crime, his movement of the stereo components was an illegal search.

The record before the district court does not include a clear description of what DiConti did while in Oborn's house. The two declarations by police officers do not include any description of the search. According to Oborn's deposition, she did not directly observe DiConti's movements while the bureau drawer was open. Apparently, Oborn was on crutches and spent most of the relevant time period on her bed. DiConti's deposition informs us only that "I took letters and tape recordings addressed to Tara and Allyson." It is entirely possible, therefore, that DiConti had to move a number of items to "find" the three letters and the tape or to turn them over to identify what they were. For example, when DiConti opened the drawer, all of her personal cards may have been neatly piled on top. Hicks instructs us that, in order to remove the cards to look beneath, DiConti needed probable cause to believe that the items underneath were evidence of a crime. There is absolutely nothing in the record which indicates that DiConti had any good reason to believe that Oborn was storing her letters and tapes from Rossky in that drawer. DiConti testified that she shared the drawer with Oborn, but she did not say that she had looked in the drawer shortly before March 27 and seen the letters and tape or that Oborn had told her she was storing those items there.

Finally, the district court could not have determined whether DiConti had probable cause to seize the letters and tape on the basis of the record before it. Officers Cheatham and Goebel's report on their March 25 interview with DiConti states that she told them that Rossky was addressing his letters intended for Oborn to DiConti and Henninger in "order to avoid detection by the Police department." Thus, when DiConti saw the letters addressed to DiConti and Henninger, she may have had good reason to believe that these letters were in fact letters from Rossky which were intended for Oborn. However, as noted above, nothing in the record that was before the district court states that DiConti had ever read any of these letters, been told what they contained, or (even if she had) had reason to believe the three particular letters she seized were the same ones that she had read or heard about. There is thus simply no basis for the conclusion that DiConti had probable cause to seize the letters as containing evidence of a crime. There is likewise no basis for believing that DiConti had heard the contents of the cassette she seized.

III

At oral argument, the defendants for the first time argue that the district court failed to consider the defendants individually for purposes of deciding the summary judgment motion. Specifically, the defendants argue that officers Dyment's and Cudio's contact with DiConti was minimal or non-existent and that there is therefore no basis for Oborn's claims against them. However, the defendants had "the responsibility of ... identifying those portions of the record which it believes demonstrate the absence of a genuine issue of fact" with respect to officers Dyment and Cudio. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The record reveals that the defendants made no effort to meet this responsibility.

In sum, this case involves numerous unresolved issues of fact which are critical to the evaluation of the defendants' claim of qualified immunity. We therefore affirm the district court's denial of the defendants' motion for summary judgment.

 *

Hon. Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3