Unpublished Disposition, 921 F.2d 282 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1987)

No. 89-55858.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and WILLIAM A. NORRIS, Circuit Judges, and GEORGE,*  District Judge.

MEMORANDUM** 

This action is before this court on appeal from the United States District Court for the Central District of California. Appellant, Raymond Wilson, originally filed this civil rights action pursuant to 42 U.S.C. § 1983 against Appellee, Detective John Whiteley of the City of Orange Police Department. On appeal, Wilson contends that the district court erred in granting defendant's motion for summary judgment. The primary issue on appeal is whether Whiteley had probable cause to arrest Wilson on suspicion of loan-sharking. Wilson argues that Whiteley's receipt of a bribe negated probable cause. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and Rule 4(a) of the Federal Rules of Appellate Procedure.

On the evening of July 13, 1987, Rodeway Inn management notified police of suspicious activity. The police, led by Detective Whiteley, determined that Wilson was attempting to collect $368,000 from Ernest Casey. Within the past year, Wilson had loaned Casey $96,000. On July 14, 1987, Whiteley arrested Wilson on suspicion of loan-sharking.1  Whiteley took this action after consultations with a deputy district attorney. After officials dropped the charges against him, Wilson filed this action.

In addition to these primary facts, Wilson notes several facts. Based upon his business relationship with Casey, Wilson asserts that he was trying to collect his original loan and a "division of profits." Upon questioning by police, Wilson, who is black, asserts that Whiteley and other officers directed several racial slurs towards him. Furthermore, Wilson believes that the officers erroneously failed to arrest Casey despite the presence of an outstanding arrest warrant. Finally, the officers found several guns when they searched Casey's hotel room. However, various officers reported anywhere from five to twenty guns. Subsequent to the search, Wilson and an associate, Ellen Fortune, allegedly observed the officers remove some rifles covered with a tarp and place them in their police car.

This court reviews a grant of summary judgment de novo. Nevada v. United States, 731 F.2d 633, 635 (9th Cir. 1984). This court must use the same Rule 56(c) standard as the trial court. Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328 (9th Cir. 1983). Summary judgment is appropriate only if no genuine issues of material fact exist. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir. 1984). This court must view all facts in the record and all inferences drawn from them in the light most favorable to Wilson. Wood v. Ostrander, 879 F.2d 583, 586-87 (9th Cir. 1989), cert. denied, 111 S. Ct. 341 (1990). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), the Supreme Court noted that summary judgment is not appropriate "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." However, "the adverse party must set forth specific facts showing that there is a genuine issue for trial." Id. at 250. Additionally, the Court noted that " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. If the factual context renders a claim implausible, a party must present more persuasive evidence to support the claim than would be otherwise necessary. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

As noted above, the primary issue is whether Whiteley had probable cause to arrest Wilson. All of Wilson's claims center on his contention that his arrest was improper.2  The Fourth Amendment requires that police officers have probable cause prior to making an arrest. Beck v. Ohio, 379 U.S. 89, 91 (1964). A person may bring a section 1983 action if arrested without probable cause. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). California Penal Code Sec. 836(3) allows a peace officer to make a warrantless arrest "whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed." As the Supreme Court noted in Michigan v. DeFillippo, 443 U.S. 31, 37 (1979), probable cause to arrest exists when "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, [to believe], in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." When considering whether probable cause existed for a warrantless search, the Supreme Court established an objective standard based upon the beliefs of a reasonable officer given clearly established law and the information which he possessed. Anderson v. Creighton, 483 U.S. 635, 641 (1987). Although the existence of probable cause is generally a factual question, summary judgment is appropriate if no reasonable jury could find that probable cause for the arrest did not exist. McKenzie, 738 F.2d at 1008.

As the district court correctly recognized, several facts gave Whiteley probable cause to arrest Wilson on suspicion of loan-sharking: the hotel's management observed suspicious activity, Wilson surrounded the hotel with three limousines and several of his employees, Wilson was monitored Casey and attempted to collect $368,000 for a debt of approximately $96,000, Wilson had four checks for $368,000, and there is some evidence that Casey was fearful of Wilson.3  Wilson was clearly trying to collect $368,000 based upon a $96,000 loan. Wilson classifies his recovery as "profits", but as the district court noted, the recovery amounted to a 280% return on the $96,000 loan. This was well in excess of the maximum California statutory interest rate which the district court calculated as 17%. See Cal. Const. art. 15, Sec. 1. In fact, at oral argument for the summary judgment motion Wilson's counsel admitted:

[i]f the Court were to have no evidence in front of it, or if the jury were to have no evidence in front of it that it could reasonably conclude that these police officers were bribed, then I think, your Honor, that probable cause that the police had may--not "is" but "may"--have been sufficient.

Trial Transcript at p. 15. Considered in their totality these facts clearly provided Whiteley with probable cause to arrest Wilson. Given these facts, summary judgment is appropriate since no reasonable jury could find probable cause failed to exist. McKenzie, 738 F.2d at 1008.

Prior to the arrest, a deputy district attorney also determined that probable cause for an arrest existed. In Smiddy v. Varney, 665 F.2d 261, 266-67 (9th Cir. 1981), cert. denied, 459 U.S. 829 (1982), the court noted that the filing of a criminal complaint insulated the police officers from subsequently suffered damages. The prosecutor was presumed to exercise independent judgment in determining that probable cause existed for the arrest. This presumption can be rebutted by showing that the police officers prevented the district attorney from exercising independent judgment or knowingly supplied false information. Id. Wilson argues that Whiteley should have informed the deputy district attorney that Wilson classified his return as "profits" rather than "interest." Furthermore, the bribery caused the officers to conduct an insufficient investigation. However, the record contains no indication that Whiteley provided false information.

Wilson's primary argument is that genuine issues of material fact exist concerning whether Casey bribed the officers. This alleged bribery somehow tainted Whiteley's determination of probable cause. In support of his theory, Wilson notes the discrepancies about the number of guns in Casey's room, the removal of the rifles, and the failure to arrest Casey despite the outstanding warrant.4  However, these issues are irrelevant to the finding of probable cause. The facts which provided probable cause were evident well before the alleged bribery occurred. In addition, the bribery issue is primarily based upon speculation. As the district court concluded, " [t]he plaintiff appears to be seizing on a collateral evidentiary issue to raise a highly unlikely theory of bribery against the defendant." A dispute over a collateral issue will not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. Additionally, Wilson must produce greater evidence to support his position given the speculative nature of his claim. Matsushita Electric, 475 U.S. at 587. Thus, the court finds that these issues do not preclude summary judgment.

Finally, this court agrees with Whiteley that this appeal is frivolous. Wilson completely failed to negate the existence of probable cause, and the bribery issue is immaterial. Thus, the court awards Whiteley costs and reasonable attorney fees pursuant to 28 U.S.C. § 1927, Rule 38 of the Federal Rules of Appellate Procedure and Hamblen v. Los Angeles County, 803 F.2d 462, 465 (9th Cir. 1986). The clerk shall tax costs, and Whiteley shall provide this court with evidence of his fees.

The district court's order is AFFIRMED.

 *

Honorable Lloyd D. George, United States District Judge for the District of Nevada, 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 Ninth Circuit Rule 36-3

 1

The loan-sharking statute is found in West's Annotated California Civil Code at Sec. 1916-3(b), and it provides in part that:

Any person who willfully makes or negotiates, for himself or another, a loan of money, credit, goods, or things in action, and who directly or indirectly charges, contracts for, or receives with respect to any such loan any interest or charge of any nature, the value of which is in excess of that allowed by law, is guilty of loan-sharking, a felony....

The validity of this law has been upheld by California courts. See People v. Asuncion, 152 Cal. App. 3d 422, 199 Cal. Rptr. 514 (1984).

 2

On summary judgment, the parties argued as to whether Wilson's initial detention qualified as an arrest. However, the parties have not addressed this issue in their briefs, and it is irrelevant if probable cause for an arrest existed at the time of the original detention

 3

In his deposition, Whiteley states that Casey admitted he was afraid of Wilson. Defendant's Supplemental Excerpts of Record, p. 53

 4

The warrant was apparently for a minor traffic infraction, and it did not authorize Casey's arrest