Garcia v. City of Merced et al, No. 1:2007cv00867 - Document 89 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION and ORDER re Defendant Alfredo Cardwood's Motion for Summary Judgment or Partial Adjudication 58 , signed by Judge Oliver W. Wanger on 9/25/2009. (Verduzco, M)
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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 JOHN GARCIA, 8 No. 1:07-CV-00867-OWW-DLB Plaintiff, v. 9 10 11 CITY OF MERCED, CITY OF MERCED POLICE DEPARTMENT, BUREAU OF NARCOTICS ENFORCEMENT SPECIAL AGENT SUPERVISOR ALFREDO CARDWOOD, et al., MEMORANDUM DECISION RE DEFENDANT ALFREDO CARDWOOD S MOTION FOR SUMMARY JUDGMENT OR PARTIAL ADJUDICATION (Doc. 58) 12 Defendant. 13 14 I. 15 INTRODUCTION. Plaintiff John Garcia, an attorney, brings this action under 16 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. 17 suit arises from, but is not limited to, a warrant that was 18 executed on February 6, 2006 for the search of his law office in 19 Merced, California. The warrant culminated the Merced Multi-Agency 20 Narcotic Task Force s investigation into allegations that John 21 Garcia was smuggling narcotics into the Merced County Jail. 22 on information from Robert Plunkett, an inmate at Merced County 23 Jail, the Task Force conducted a reverse sting operation whereby 24 Task 25 transport approximately fourteen grams of methamphetamine Plunkett 26 offered to Plaintiff. 27 obtained a warrant to search 655 West Nineteenth Street, Merced, 28 California, the law offices of John Garcia. Force Agents observed Plaintiff receive, inspect, His Based and Following the sting, Task Force Agents The warrant was based on the oral affidavit of Deputy Sheriff John Taylor and Special 1 Agent Alfredo Cardwood and was authorized by Judge Frank Dougherty 2 of the Merced Superior Court. 3 On March 13, 2007, Plaintiff filed a Complaint against 4 Defendants City of Merced; City of Merced Police Department;1 5 California Bureau of Narcotics Enforcement Special Agent Alfredo 6 Cardwood ( Cardwood ); County of Merced; Merced County Sheriff s 7 Department; Merced County Deputy Sheriff John Taylor ( Taylor ); 8 Merced 9 District Attorney Gordon Spencer ( Spencer ). County District Attorney s Office; and Merced County Agent Cardwood and 10 Deputy Taylor are sued in their individual capacities. 11 of Merced is sued as a municipal entity that acts by and through 12 its individual deputies. 13 The First Cause of Action alleges assault The County against all 14 Defendants; the Second Cause of Action alleges battery against all 15 Defendants; the Third Cause of Action alleges false arrest and 16 imprisonment with a warrant against all Defendants; the Fourth 17 Cause of Action alleges defamation by slander against Cardwood;2 18 the Fifth Cause of Action alleges a violation of Title 42, United 19 States Code, Section 1983 against all Defendants.3 20 Before the court for decision is Cardwood s motion for summary 21 1 22 23 24 25 City of Merced and City of Merced Police Department were dismissed pursuant to stipulation (F.R.C.P. 41(a)) on June 17, 2009. (Doc. 70.) 2 Plaintiff s claim for defamation against previously dismissed. (Doc. 73, 2:6-2:9.) 3 26 27 28 Cardwood was The motion for summary judgment filed by Defendants County of Merced; Merced County Sheriff s Department; Merced County Deputy Sheriff John Taylor; Merced County District Attorney s Office; and Merced County District Attorney Gordon Spencer is resolved by separate Memorandum Decision. 2 1 judgment or, in the alternative, summary adjudication. Cardwood is 2 a Special Agent for the California Department of Justice, Bureau of 3 Narcotic Enforcement. 4 5 FACTUAL BACKGROUND.4 II. 6 Plaintiff is an experienced criminal defense attorney. 7 the past twenty years, Plaintiff represented criminal defendants in 8 Merced County, including Alfonso Robledo, an inmate at Merced 9 County Jail in early 2006. 10 For Defendant Alfredo Cardwood is a special agent with the State 11 of California Department 12 Enforcement 13 numerous 14 including the Merced Multi-Agency Narcotic Task Force. 15 Agent Cardwood was the supervising agent in charge of the Merced 16 Multi-Agency Narcotic Task Force. ( BNE ). regional task The of Justice, Bureau BNE has regional forces nine located of throughout Narcotics offices and California, Special (Cardwood Dec. ¶ 4.) 17 Defendant County of Merced is a public entity organized under 18 California law. Merced County Sheriff s Department is a department 19 of the County of Merced, with the responsibility to maintain and 20 administer law enforcement in Merced County. Defendant John Taylor 21 is a deputy with the Merced County Sheriff s Department, who acted 22 as the Task Force s primary case agent. 23 Defendant Merced County District Attorney s Office was 24 4 25 26 27 Unless otherwise noted, the facts herein are undisputed. (See Def. s Stmt. of Undisp. Facts in Supp. of Summ. J. ( SUF ), Doc. 58-5, filed May 5, 2009). Plaintiff filed objections to certain items of Defendant s evidence. Except where otherwise noted, such evidence is immaterial to the court s analysis of Defendant s motion or the objections are without merit. 28 3 1 established by the Constitution 2 Government Code 3 enforcement services in adult and juvenile criminal matters for 4 Merced County. 5 District Attorney for Merced County. Section 26500, of to the State provide of California, prosecution and At all relevant times, Gordon Spencer was the 6 In early 2006, Doug Jensen, Commander of the Merced County 7 Sheriff s Department, contacted Deputy Taylor with information 8 about a contraband smuggling operation at the County Jail. (Taylor 9 Dep. 11:12-11:22.) Jensen told Taylor that an inmate named Robert 10 Plunkett ( Plunkett ), told one of his Sergeants, Sergeant Pace, 11 that a local attorney was smuggling contraband into the jail. (Id. 12 at 11:23-11:25.) 13 operation involved an attorney named John Garcia. Plunkett told Sergeant Pace that the smuggling (Id.) 14 Deputy Taylor began a formal investigation into the smuggling 15 operation, without apprising Garcia of the events and occurrences 16 related to his investigation. 17 interviewed Plunkett multiple times in late January and early 18 February. 19 ( Robledo ), a fellow inmate at Merced County Jail, told him that 20 he obtained drugs through his attorney, John Garcia. 21 Plunkett (via Robledo), Garcia would bring the drugs to their 22 attorney-client meetings, disguised in a Bugler cigarette package. 23 Garcia would give the Bugler package containing the drugs to 24 Robledo, who would return to his cell with the Bugler package. 25 According to Taylor, Plaintiff s versions of the smuggling ring 26 were consistent. Plunkett (Cardwood Dec. 4.) informed Taylor that Deputy Taylor Alfonso Robledo According to 27 Taylor met with Plunkett between three and ten additional 28 times over the next twenty days. Plunkett provided further details 4 1 of the alleged 2 offenders smuggled contraband into the Jail while on a pass from 3 the 4 contraband and either place it in one of their body cavities and/or 5 hand it off to Garcia, who would bring it into the Jail at a later 6 date. 7 members of the smuggling ring included Robledo, Garcia, Sylvia 8 Brown, a friend of Robledo s, and two private investigators working 9 for Garcia, Augustine Provencio and Greg Hassen. facility. smuggling, (SUF (SUF 14.) 14.) including These that individuals certain would nonviolent obtain the Plunkett also told Taylor that the alleged 10 Deputy Taylor sought corroboration for Plunkett s statements 11 concerning the smuggling ring, including the identities of the 12 alleged 13 Deputy Taylor researched jail records and confirmed that inmate 14 Robledo was in custody at the Merced County Jail on various drug- 15 related offenses and that Robledo and Plunkett shared a housing 16 unit. 17 criminal record, confirming that Garcia had a history of drug- 18 related violations. participants (SUF 18-19.) and the basis for Plunkett s knowledge. Deputy Taylor also checked John Garcia s (SUF 20.) 19 Deputy Taylor checked for Plunkett s name in a computer 20 database of unreliable informants, maintained by narcotics officers 21 who were given unreliable tips. 22 database. 23 number in one of Robledo s previous bookings. According to Taylor, 24 Plunkett s information was credible. 25 with the steps Deputy Taylor took to build the case. 26 Dec. ¶ 4.) Plunkett s name was not in the Deputy Taylor also discovered Sylvia Brown s phone Agent Cardwood was familiar (Cardwood 27 The Task Force then planned a reverse-sting operation to 28 confirm Plunkett s statements and determine whether or not Garcia 5 1 was smuggling contraband into the Jail. 2 Agent 3 evidence department for the reverse-sting operation. 4 Court granted the order to obtain the methamphetamine, it was 5 placed in a Bugler brand cigarette package. 6 According to Taylor and Cardwood, the methamphetamine was clearly 7 visible upon opening the Bugler package. Taylor obtained methamphetamine In early February 2006, from the Merced County After the (Cardwood Dec. ¶ 5.) (Cardwood Dec. ¶ 5.) 8 On February 6, 2006, Agent Taylor and another Task Force Agent 9 met with Plunkett, searched his person for illegal contraband or 10 narcotics, and upon finding none, the officers gave Plunkett the 11 methamphetamine. 12 digital recorder. 13 contact John Garcia at the Merced County Superior Courthouse, 14 giving him the Bugler tobacco pouch. 15 that he was on a pass from Sandy Mush Correctional Facility and 16 that the package was for Robledo. 17 monitored the wire during the reverse-sting operation.5 (SUF 32.) 18 In addition to audio surveillance, Agent Cardwood was stationed in 19 a vehicle near Plaintiff s office and had a clear view to monitor 20 the interaction between Plaintiff and Plunkett. (Cardwood Dec. ¶ 21 6.) Plunkett was fitted with both a "wire" and a The sting operation required Plaintiff to Plunkett would tell Garcia Agent Cardwood personally 22 Plunkett proceeded to the Merced County Superior Court and 23 approached John Garcia in one of the courtrooms. Plunkett told him 24 that he was a friend of one of Garcia s clients, Alfredo Robledo. 25 Plaintiff gave Plunkett a business card and told him to contact his 26 27 28 5 According to Cardwood, the transmission was of poor-quality, making it difficult to hear the parties. (Cardwood Dec. ¶ 6.) 6 1 office. 2 Plunkett then left the courtroom. Approximately one hour later, Plunkett approached Garcia 3 outside the courtroom and told him he had a package for Garcia. 4 Plaintiff instructed Pluckett to drop it off at his office. Garcia 5 then went back inside the courtroom. 6 approached Garcia outside the courthouse, telling him that he could 7 not locate his office. 8 Plunkett told Garcia that he was on an afternoon pass from Sandy 9 Mush and knew Robledo. A short time later, Pluckett As they walked toward Garcia s office, Plunkett then produced the Bugler tobacco 10 pouch containing the methamphetamine and handed it to Garcia. (SUF 11 31.) 12 continued walking to his office. 13 possessed the Bugler package containing the methamphetamine when he 14 entered his office building. Garcia took the Bugler tobacco pouch from Pluckett and (SUF 31, 33, 37.) Plaintiff (SUF 38.) 15 The record reflects considerable dispute over whether Garcia 16 opened the Bugler package while he and Pluckett were walking to 17 Garcia s office. 18 the Bugler package, looked inside, closed the package, and walked 19 to 20 methamphetamine was directly underneath the flap, clearly visible 21 to anyone who opened it. 22 also observed Garcia look inside the tobacco pouch during the 23 exchange. his office. Agent Cardwood maintains that Plaintiff opened (SUF 34, 35.) (SUF 36;) Cardwood declares that the Agent Carlisle and Plunkett (Taylor Dec. ¶ 22.) 24 According to Plaintiff, he told Pluckett that, if there s 25 anything in here besides tobacco, you take it back to Sylvia or 26 wherever you got it. 27 tobacco pouch during the exchange nor did he open it while walking 28 to his office. Plaintiff maintains that he did not open the 7 1 When Plaintiff and Plunkett arrived at the office, Plaintiff 2 placed the Bulger package on his secretary s desk. 3 investigator, Provencio, was present in the office. 4 stayed in the office only a few moments before leaving. 5 contacted Agent Taylor and told him that Plaintiff took the Bugler 6 pouch into the office and handed it to his secretary. 7 ¶ 21.) 8 9 Plaintiff s Plunkett He (Taylor Dec. Plaintiff s other investigator, Hassen, arrived shortly after Plunkett left. Garcia and his investigators opened the tobacco 10 pouch, discovering the methamphetamine. 11 Provencio to flush the methamphetamine down the toilet. 12 did so and then discarded the bag into the bathroom trash can. 13 Garcia then left his office in a black Volvo. 14 Garcia then instructed Provencio After driving one mile, Garcia s Volvo was stopped by a City 15 of Merced Police patrol vehicle. 16 officers, including Cardwood, were present when Plaintiff was 17 stopped leaving his office. 18 approached Garcia s stopped vehicle, directing him to exit the 19 vehicle and proceed to the sidewalk. 20 Plaintiff was handcuffed and searched. (SUF 40.) 21 then transported back to his office for questioning. 22 Plaintiff s office was frozen pending the issuance of a search 23 warrant, ensuring that no one entered or exited the building. 24 (SUF 39.) A total of three (Cardwood Dec. ¶ 10.) Agent Cardwood (Cardwood Dec. ¶ 10.) Plaintiff was (SUF 41.) Garcia was not threatened during the vehicle stop and there 25 was no physical contact other than the brief search. 26 did the Task Force Agents tell Plaintiff he was under arrest. 27 entire stop took less than half an hour. 28 At no time The While Plaintiff was transported back to his office, Agent 8 1 Cardwood and Deputy Taylor sought a search warrant from Superior 2 Court Judge Frank Dougherty. (SUF 41-42.) 3 warrant application, under penalty of perjury, Cardwood and Agent 4 Taylor testified to the investigation and their observations during 5 the reverse-sting operation. (Id.) Judge Dougherty found probable 6 cause to issue the search warrant based on the fact that Plaintiff 7 had taken possession of the methamphetamine. 8 warrant authorized a search of Plaintiff, Plaintiff s vehicle and 9 Plaintiff s office to in part, the (Id.) The search recovery 10 methamphetamine. 11 of the Master, Gerald Brunn, to be present during the search.6 12 (Id.) allow, In a verbal search Judge Dougherty appointed a Special Plaintiff s allegations focus on Agent Cardwood s and Deputy 13 Taylor s alleged misrepresentations and omissions to Judge 14 Dougherty supporting Deputy Taylor s Oral Affidavit. 15 Plaintiff, Agent Cardwood s observation that Garcia opened the 16 bugler pouch is a total fabrication. 17 while he accepted the Bugler pouch from Plunkett, he did not open 18 the flap. 19 and omitting material facts, specifically, omitting Mr. Plunkett s 20 extensive criminal history, bearing on his credibility. 21 Cardwood and Deputy Taylor maintain that all of the information 22 they provided to Judge Dougherty on February 6, 2006 was accurate 23 and true. According to Plaintiff maintains that Plaintiff also accuses Deputy Taylor of misrepresenting Agent (Taylor Dec. ¶ 24; Cardwood Dec. ¶ 14.) 24 The search of Garcia s office revealed a plastic baggie 25 containing a small amount of methamphetamine in the bathroom area 26 27 28 6 The search did not commence until Specal Master Brunn arrived. Defendants provided Garcia s staff with dinner while waiting for Special Master Brunn to arrive. 9 1 and a small amount of methamphetamine residue in the main office. 2 (SUF 45.) 3 bag of tobacco were found in the top drawer of Garcia s desk. (SUF 4 45.) 5 was found on Garcia s desk.7 6 Six packages of Bugler brand tobacco and one ziplock A one pound scale, similar to the kind used to weigh drugs, (SUF 45.) Following the search, Agent Cardwood and Deputy Taylor removed 7 Garcia s handcuffs and advised him of his Miranda rights. 8 48.) 9 hour.8 (SUF Cardwood and Taylor interviewed Garcia for approximately one (SUF 49.) arrested, Garcia was then released. 10 not charged, 11 criminal investigation. or prosecuted (SUF 49.) in Garcia was connection with the (SUF 50-52.) 12 13 III. PROCEDURAL HISTORY. 14 On March 13, 2007, Plaintiff filed a complaint in the Superior 15 Court, County of Merced, against the County of Merced, Merced 16 County 17 Gordon Spencer, Special Agent Cardwood, City of Merced, and Merced 18 City Police Department.9 19 under 20 defamation by slander. 21 Sheriff s state law Department, Deputy Taylor, District Attorney Plaintiff alleged defendants were liable theories of assault, abuse of process, and Plaintiff filed his first amended complaint on March 21, 2007, 22 23 7 24 25 26 Plaintiff was detained in his office during the search, but was not arrested. He was permitted to use the restroom and was not threatened or mistreated during his detention. 8 Plunkett consented to wearing a wire and recording the conversation. 27 9 28 Defendants City of Merced and City of Merced Department were dismissed on June 17, 2009. (Doc. 70.) 10 Police 1 his second amended complaint on April 5, 2007, and his third 2 amended complaint on May 23, 2007. Unlike his previous complaints, 3 Garcia s third amended complaint included a cause of action for 4 violation of federal civil rights pursuant to 42 U.S.C. 1983. 5 June 15, 2007, the case was removed to federal court.10 6 On (Doc 1.) On August 20, 2007, Plaintiff filed a Fourth Amended Complaint 7 against Defendants. Plaintiff alleged defendants were liable 8 under 42 U.S.C. 1983 for unreasonable search and seizure (Count V); 9 under the California Constitution for unlawful search and seizure 10 (Count VI); and state law claims for assault and battery, false 11 arrest and imprisonment, abuse of process, and defamation by 12 slander (Counts I-IV). Agent Cardwood and Deputy Taylor were sued 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Plaintiff filed his original complaint in the Superior Court of Merced on March 13, 2007. Plaintiff then amended his complaint and filed his First Amended Complaint on March 21, 2007 to substitute real names for fictitious Doe defendants. Plaintiff filed yet another amended complaint, his Second Amended Complaint on April 5, 2007, pursuant to an ex parte application before Defendants Merced and Merced Police could file a demurrer on the first amended complaint, which they claim they were preparing. Defendants Merced, Merced Police and Merced County timely filed demurrers against the Second Amended Complaint, and a hearing was set for May 31, 2007. Plaintiff filed yet another amended complaint, a Third Amended Complaint on May 23, 2007. The Superior Court of Merced permitted the hearing on the demurrer to the Second Amended Complaint go forward despite the filing of the Third Amended Complaint. At the hearing the Court stated that it would allow the Third Amended Complaint but would allow no further amendments until Defendants have had the opportunity to test the sufficiency of the new complaint s allegations. The Third Amended Complaint contained a federal cause of action pursuant to 42 U.S.C § 1983 and, Defendants removed the action to Federal Court. Defendants then timely filed a motion to dismiss the Third Amended Complaint on June 19, 2007. Plaintiff filed his Fourth Amended Complaint on August 20, 2007. Defendants Merced and Merced Police then sought relief from the Court by their filing on August 28, 2007. 11 1 in their individual capacities and the County of Merced was sued as 2 a 3 deputies. municipal entity that acts by and through its individual (Doc. 15.) 4 Defendants Merced County, Sheriff s Dept., Taylor and Spencer 5 filed their supplemental brief on the motion to dismiss the Fourth 6 Amended Complaint on September 4, 2007.11 7 Cardwood filed his supplemental briefing supporting the motion to 8 dismiss on September 10, 2007. 9 opposition to Defendants motions on October 2, 2007. (Doc. 23, (Doc. 20.) (Doc. 19.) Defendant Plaintiff filed his 10 24.) 11 2008, although John Garcia was permitted leave to amend. 12 34.) 13 Defendants motions were granted, in part, on January 10, (Doc. Plaintiff filed his Fifth Amended Complaint ( 5thAC ) on 14 January 30, 2008. 15 assault against all Defendants; the Second Cause of Action alleges 16 battery against all Defendants; the Third Cause of Action alleges 17 false 18 Defendants; the Fourth Cause of Action alleges defamation by 19 slander against Cardwood;12 the Fifth Cause of Action alleges a 20 violation of Title 42, United States Code, Section 1983 against all 21 Defendants. arrest and (Doc. 35.) The First Cause of Action alleges imprisonment with a warrant against all 22 23 11 24 25 26 27 28 A stipulation and order was entered by the Court and parties on August 31, 2007 setting the motion to dismiss hearing date on Plaintiff s previous complaints and permitting supplemental briefings to be filed to address any alleged remaining deficiencies in the Fourth Amended Complaint1 on the pending motions to dismiss. (Doc. 18.) 12 Plaintiff s claim for defamation against Cardwood was previously dismissed. (Doc. 73, 2:6-2:9.) 12 1 Defendants Merced County, Sheriff s Dept., Taylor and Spencer 2 filed their answer on February 19, 2008. 3 Cardwood filed his answer on February 26, 2008. 4 (Doc. 36.) Defendant (Doc. 37.) Defendant Cardwood filed this motion for summary judgment, or 5 in the alternative, summary adjudication on May 5, 2009. (Doc. 6 58.) Defendant seeks judgment on the grounds that Plaintiff cannot 7 1) establish his federal constitutional claims, 2) overcome the 8 defense of qualified immunity. Defendant also argues the state law 9 claims should be dismissed because the deputies 3) acted lawfully, 10 and 4) Plaintiff lacks evidence to create a genuine issue of 11 material fact. 12 Plaintiff filed his opposition to summary judgment or, in the 13 alternative, summary adjudication on July 1, 2009. (Doc. 73.) 14 Plaintiff opposes summary judgment on grounds that triable issues 15 of material fact exist as to his constitutional claims and state 16 law theories. 17 and seized him in violation of is Fourth Amendment rights, relying 18 on Agent Cardwood s and Deputy Taylor s alleged misrepresentations 19 and omissions to Judge Dougherty. 20 neither the County of Merced nor the individual defendant deputies 21 are entitled to qualified immunity or any protections under the 22 California Government Code. Plaintiff argues that Cardwood unlawfully searched Plaintiff further contends that 23 24 25 IV. LEGAL STANDARDS. A. Standard of Review. 26 Summary judgment is appropriate when the pleadings, the 27 discovery and disclosure materials on file, and any affidavits show 28 that there is no genuine issue as to any material fact and that the 13 1 movant is entitled to judgment as a matter of law. Fed. R. Civ. 2 P. 56(c). 3 initial responsibility of informing the district court of the basis 4 for its motion, and identifying those portions of the pleadings, 5 depositions, answers to interrogatories, and admissions on file, 6 together with the affidavits, if any, which it believes demonstrate 7 the absence of a genuine issue of material fact. Celotex Corp. v. 8 Catrett, quotation 9 omitted). A party moving for summary judgment always bears the 477 U.S. 317, 323 (1986) (internal marks 10 Where the movant will have the burden of proof on an issue at 11 trial, it must affirmatively demonstrate that no reasonable trier 12 of fact could find other than for the moving party. Soremekun v. 13 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also 14 S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 15 2003) (noting that a party moving for summary judgment on claim as 16 to which it will have the burden at trial must establish beyond 17 controversy 18 quotation marks omitted). 19 non-moving party will have the burden of proof, the movant can 20 prevail merely by pointing out that there is an absence of evidence 21 to support the nonmoving party s case. Soremekun, 509 F.3d at 984. 22 When a motion for summary judgment is properly made and supported, 23 the 24 allegations or denials of its own pleading, rather the non-moving 25 party must set forth, by affidavit or as otherwise provided in Rule 26 56, specific facts showing that there is a genuine issue for 27 trial. 28 242, 250 (1986)). Conclusory, speculative testimony in affidavits every non-movant essential cannot element of the claim) (internal With respect to an issue as to which the defeat the motion by resting upon the Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 14 1 and moving papers is insufficient to raise genuine issues of fact 2 and defeat summary judgment. Id. 3 To defeat a motion for summary judgment, the non-moving party 4 must show there exists a genuine dispute (or issue) of material 5 fact. 6 suit 7 [S]ummary judgment will not lie if [a] dispute about a material 8 fact is genuine, that is, if the evidence is such that a 9 reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the under the governing law. Anderson, 477 U.S. at 248. 10 Id. at 248. In ruling on a motion for summary judgment, the 11 district court does not make credibility determinations; rather, 12 the 13 justifiable inferences are to be drawn in his favor. evidence of the non-movant is to be believed, and all Id. at 255. 14 15 B. Section 1983. 16 Plaintiff brings this lawsuit under 42 U.S.C. § 1983, which 17 provides a cause of action against any person acting under color 18 of 19 immunities secured by the Constitution and laws of the United 20 States. 21 (9th Cir. 2003)(quoting 42 U.S.C. § 1983). 22 by section 1983 are liberally and beneficently construed. 23 (quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991). law who deprives another of any rights, privileges, or S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 The rights guaranteed Id. 24 To establish liability under 1983, a plaintiff must show 1) 25 that he has been deprived of a right secured by the United States 26 Constitution or a federal law, and 2) that the deprivation was 27 effected under color of state law. 28 1023, 1028 (9th Cir. 2003). 15 Broam v. Bogan, 320 F.3d 1 C. Suits Against Government Officials: Official Capacity and 2 Individual Capacity Suits. 3 Suits against an official in her or his official capacity are 4 treated as suits against the entity on whose behalf that official 5 acts. 6 for which the official works. 7 (1991). 8 individual State official acting in his official capacity is barred 9 by the Eleventh Amendment in the same way that an action against In such suits, the real party in interest becomes the entity A federal action Hafer v. Melo, 502 U.S. 21, 25 for 10 the State is barred. 11 monetary damages against an F.3d 836, 839 (9th Cir. 1997). 12 In contrast, Doe v. Lawrence Livermore Nat'l Lab., 131 [p]ersonal-capacity suits seek to impose 13 personal liability upon a government official for actions [taken] 14 under color of state law. 15 1027 (9th Cir. 1999)(citing Kentucky v. Graham, 473 U.S. 159, 165 16 (1985))(internal 17 liability in a § 1983 action, it is enough to show that the 18 official, acting under color of state law, caused the deprivation 19 of a federal right. 20 omitted). 21 assert personal liability defenses, such as qualified immunity. 22 Dittman, 191 F.3d at 1027. 23 his individual and official capacities. quotations Dittman v. California, 191 F.3d 1020, omitted). To establish personal Hafer, 502 U.S. at 25 (internal quotations Public officials sued in their personal capacity may Here Plaintiff sues Agent Cardwood in 24 25 26 D. Summary Judgment in the Qualified Immunity Context. In this case, Agent Cardwood asserts the defense of qualified 27 immunity. Qualified immunity is based on the policy concern that 28 few individuals would enter public service if they risked personal 16 1 liability for their official decisions. Harlow v. Fitzgerald, 457 2 U.S. 800, 814 (1982). 3 incompetent or those who knowingly violate the law, 4 Bryant, 502 U.S. 224, 228 (1991), and "spare[s] a defendant not 5 only unwarranted liability, but unwarranted demands customarily 6 imposed upon those defending a long drawn out lawsuit. Siegert v. 7 Gilley, 500 U.S. 226, 232 (1991). 8 defense on the merits; it is an entitlement not to stand trial or 9 face the burdens of litigation that may be overcome only by a 10 showing that (1) a constitutional right was in fact violated and 11 (2) no reasonable deputy could believe defendant s actions were 12 lawful in the context of fact-specific, analogous precedents. 13 Saucier v. Katz, 533 U.S. 194, 200-202 (2001). The immunity protects "all but the plainly Hunter v. Qualified immunity is not a 14 15 16 V. A. DISCUSSION. Plaintiff s First and Second Causes of Action 17 Plaintiff s First and Second Causes of Action allege that 18 Agent Cardwood committed assault and battery against Plaintiff on 19 December 6, 2006. 20 causes of actions on grounds that there is no genuine issue of 21 material fact to show that County Defendants assaulted or battered 22 Plaintiff. 23 abandoning both causes of action. 24 ( Pl. s Opp. ), 2:3-2:12, filed July 1, 2009.) 25 that Cardwood s motion has pierced plaintiff s fifth amended 26 complaint; and that he has developed no evidence to support his 27 first and second causes of action for assault and battery. 28 Cardwood seeks summary judgment as to these Plaintiff does not oppose Defendants motion, (See Plaintiff s Opposition Plaintiff states (Id.) Plaintiff s Fifth Amended Complaint also contains allegations 17 1 concerning a conspiracy against Plaintiff by Agent Cardwood. 2 These allegations are not separately enumerated as a cause of 3 action. Despite Agent Cardwood s motion for summary judgment as to 4 the conspiracy claim, Plaintiff does not allege or discuss a 5 conspiracy, nor does he provide any evidence to support Agent 6 Cardwood s connection to the alleged conspiracy. Based on the lack 7 of evidentiary support and Plaintiff s concession that he has no 8 evidence of a conspiracy, there is no issue of material fact on as 9 to Plaintiff s allegations of a conspiracy.13 10 Accordingly, summary judgment is GRANTED in favor of Agent 11 Cardwood as to Plaintiff s first cause of action for assault and 12 his second cause of action for battery. 13 Summary judgment is GRANTED in favor of Agent Cardwood as to 14 the conspiracy allegations contained in Plaintiff s Fifth Amended 15 Complaint. 16 17 B. Fourth Amendment Claims (42 U.S.C. § 1983) 18 Plaintiff raises a number of arguments in support of his 19 Fourth Amendment claims: (1) that Agent Cardwood violated his 20 Fourth Amendment rights because he did not have probable cause to 21 plant the drugs on Garcia; (2) Agent Cardwood misrepresented 22 facts and omitted material information from the Oral Affidavit of 23 Probable Cause, leading to an improper search of Plaintiff s 24 office; and (3) there was no probable cause to detain Plaintiff 25 13 26 27 28 In his opposition to County Defendants motion for summary judgment, Plaintiff abandons any allegations of a conspiracy, conceding that he has no evidence of a conspiracy. (Id. at 2:82-9.) For all intensive purposes, Plaintiff s opposition to the County s motion is identical his opposition to Cardwood s motion. 18 1 following the reverse sting operation.14 2 3 1. Reverse Sting Operation 4 Plaintiff first alleges that Agent Cardwood violated his 5 Fourth Amendment rights because he did not have probable cause to 6 conduct 7 Plaintiff in the process. 8 whether Cardwood had probable cause to plant the drugs on Garcia as 9 a pretext to obtain a search warrant. a reverse-sting operation, transferring drugs to Plaintiff frames the relevant issue as 10 This argument partially fails because Plaintiff does not 11 provide any authority for the proposition that the Fourth Amendment 12 requires probable cause to conduct an undercover investigation or, 13 in 14 established that being a target of a law enforcement investigation 15 - absent some allegation of a constitutional violation such as the 16 fabrication of evidence - is not in and of itself actionable under 17 § 1983. 18 2007) (stating that there is no requirement of probable cause when 19 a law enforcement agency investigates an individual or group. ); 20 see also Shields v. Twiss, 389 F.3d 142, 150-51 (5th Cir. 2004) 21 (dismissing allegations of unreasonable investigation because 22 appellant pointed to no legal basis for a § 1983 action of this 23 sort, and the court knows of none. ). 24 this The instance, a reverse sting operation. It is well- See United States v. Mayer, 503 F.3d 740, 749-50 (9th Cir. Ninth Circuit recently reaffirmed this principle in 25 26 27 28 14 Although pled as a single cause of action, Plaintiff s Fifth Amended Complaint contains several non-enumerated claims for relief under the Fourth Amendment. For purposes of this motion, each subsidiary theory for relief under the Fourth Amendment is treated as its own separate and distinct claim. 19 1 Sanders v. City and County of San Francisco, 226 F. App x 687 (9th 2 Cir. 2007). In Sanders, Plaintiffs, a former city police chief and 3 former deputy police chief, brought a § 1983 action against the 4 City, its former district attorney, and board of supervisors, 5 alleging that these defendants violated their constitutional rights 6 when they directed and participated in a criminal investigation 7 against the chiefs without probable cause. 8 that 9 commencing a criminal investigation: there 10 is no requirement to have The Ninth Circuit held probable cause before The district court properly dismissed appellants' claim that Hallinan violated their constitutional rights when he directed and participated in a criminal investigation into Sanders's and Robinson's police department activities, despite lacking probable cause to do so. Appellants point to no case law that supports the proposition that probable cause must exist before an investigation can commence. That is not surprising, given that the impetus behind criminal investigations is to develop probable cause. 11 12 13 14 15 16 (Id. at 689.) 17 As Macon and Sanders demonstrate, Agent Cardwood did not 18 violate Plaintiff s constitutional rights when he coordinated a 19 sting 20 confidential informant to Plaintiff to test Plaintiff s willingness 21 to 22 operation was a pre-indictment investigation into possible criminal 23 behavior by the Plaintiff, which does not require a probable cause 24 determination. 25 Circuit stated in United States v. Aguilar, 883 F.2d 662, 705 (9th 26 Cir. 27 investigation 28 investigation in its entirety, because the information learned from operation knowingly 1989), which transport transferred narcotics methamphetamine into the jail. See id; Mayer, 503 F.3d at 749-50. requiring would be a search warrant tantamount 20 to from The sting As the Ninth prerequisite prohibiting a a to an criminal 1 undercover government agents is often the basis for probable 2 cause. 15 3 such a criminal investigation violates any law, constitutional or 4 otherwise. Under the facts of this case, it is difficult to see how 5 It is equally well-established that the protections of the 6 Fourth Amendment are implicated only if there has been a search or 7 seizure under Fourth Amendment. 8 that he has a reasonable expectation of privacy in being free from 9 a sting operation conducted by To the extent Plaintiff argues government agents and their 10 informants on public property, his claim is foreclosed by Supreme 11 Court and Ninth Circuit precedents.16 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Under slightly different facts in United States v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989), the Ninth Circuit discussed undercover operations in the context of probable cause: A search warrant requirement for undercover government agents to investigate an organization concededly engaging in protected first amendment activities indeed would prohibit law enforcement officials from using an indispensable method of criminal investigation appropriate in any other circumstance ... [i]n many cases, a search warrant prerequisite would be tantamount to prohibiting a criminal investigation in its entirety, because the information learned from undercover government agents is often the basis for probable cause. The Constitution does not impose this high cost in the present case. 16 During oral argument, following a discussion of the relevant case authorities on point, Plaintiff continued to disagree that there was probable cause for the sting operation in the first place. Plaintiff s arguments are misplaced. It is wellestablished that not every investigatory technique is a search for Fourth Amendment purposes. See Maryland v. Macon, 472 U.S. 463, 470 (1985) ( The use of undercover officers is essential to the enforcement of vice laws ... [a]n undercover officer does not violate the Fourth Amendment merely by accepting an offer to do business that is freely made to the public. ); United States v. Mayer, 503 F.3d 740, 750 (9th Cir. 2007) (stating that undercover operations, in which the agent is a so-called invited informer, are not searches under the Fourth Amendment. ); United States v. 21 1 The relevant Fourth Amendment language provides that "[t]he 2 right of the people to be secure in their persons, houses, papers, 3 and effects, against unreasonable searches and seizures, shall not 4 be violated." 5 if there has been a search or seizure, making the threshold inquiry 6 in every Fourth Amendment analysis whether a search or seizure has 7 occurred. 8 expectation 9 subjective expectation of privacy and that the expectation is The protections of the Fourth Amendment only apply A search is an intrusion on a person s "reasonable of privacy" 10 objectively reasonable. 11 There requires Garcia to show both a (9th Cir. 2000). 12 and is no United States v. Sandoval, 200 F.3d 659 evidence to suggest that Plaintiff had a 13 subjective expectation of privacy in any aspect of the reverse 14 sting operation or that his privacy expectation, if established, 15 was objectively reasonable. Viewing all the evidence in his favor, 16 as required on a motion for summary judgment, Plaintiff cannot 17 establish 18 operation - or the courthouse where the sting operation took place 19 - because Defendant Taylor never met with Task Force Agents in 20 Plaintiff s 21 suggests that the parties ever crossed paths or shared a jail 22 meeting room. a subjective office or expectation on of Plaintiff s privacy property. in the No sting evidence Plaintiff did not own the physical property used in 23 24 25 26 27 28 Dovali-Avila, 895 F.2d 206, 207-08 (5th Cir. 1990) (use of a welltrained and reliable narcotics dog on vehicles passing through a fixed border patrol checkpoint does not violate Fourth Amendment rights); United States v. Hoffa, 437 F.2d 11, 14 (6th Cir. 1971) (taping of a conversation between an information and a person being investigated does not violate Fourth Amendment rights when the consent of the informant is given. ). 22 1 the sting; nor did he own the walkway adjacent to the courthouse. 2 On the issue of objective reasonableness, Garcia did not have 3 a possessory interest in the items used in the sting; Garcia could 4 not exclude others from the courtroom or the sidewalk adjacent to 5 the courthouse; Garcia took no precautions to maintain his privacy 6 outside the courthouse, as he accepted the Bulger tobacco package 7 from Pluckett on the courthouse steps, a public walkway. 8 evidence cuts against Plaintiff s claims of an unreasonable search 9 under the Fourth Amendment. This See, e.g., United States v. McCaster, 10 193 F.3d 930, 933 (8th Cir. 1999); LaDuke v. Nelson, 762 F.2d 1318, 11 1326 n.11 (9th Cir. 1985). 12 Plaintiff's allegations do not provide a basis for a Fourth 13 Amendment privacy violation by coordinating the sting.17 14 extent that Plaintiff argues that Defendant Taylor violated his 15 Fourth Amendment rights because he did not have probable cause to 16 conduct 17 foreclosed by well-established Ninth Circuit precedent. 18 equally 19 expectation 20 conducted by trained law enforcement officers on public property. a reverse-sting clear of that operation, Plaintiff privacy in a does Plaintiff s not have pre-indictment a To the claim is It is reasonable sting operation 21 22 23 24 25 26 27 17 Although somewhat unclear, it also appears Plaintiff raises arguments similar to those contained in a line of cases holding where it is the government that initiates the alleged criminal activity and where the government either purchases or supplies the drugs, which party initiates the alleged crime is relevant and important in assessing the degree of government involvement in setting up the crime. See, e.g., Hampton v. United States, 425 U.S. 484, 491 (1976). Plaintiff s arguments in this regard are unpersuasive, as the Hampton line of cases involved criminal appeals. 28 23 1 Plaintiff s attempt to expand the outer boundaries of Fourth 2 Amendment 3 constitute 4 enforcement conduct is not actionable. 5 jurisprudence a Agent search is under Cardwood s unavailing. the motion Fourth for The sting did not This law adjudication on Amendment. summary 6 Plaintiff s Fourth Amendment claim for lack of probable cause to 7 conduct a sting operation is GRANTED. 8 9 2. Oral Affidavit of Probable Cause 10 The heart of Garcia s civil rights challenge is that Affiant 11 Cardwood caused Garcia s office to be improperly searched without 12 probable cause because Cardwood misrepresented facts and omitted 13 material information from the Oral Affidavit of Probable Cause. 14 A search made without probable cause violates the Fourth 15 Amendment right to be free from unreasonable searches and can be 16 the basis of a claim under 42 U.S.C. § 1983. 17 has qualified immunity from a claim that he lacked probable cause, 18 absent a showing that a reasonably well-trained officer in his 19 position would have known that his warrant affidavit failed to 20 establish probable cause. 21 Where, 22 misrepresenting and omitting information from the affidavit making 23 it 24 qualified immunity, the Ninth Circuit has tailored this inquiry. 25 Specifically, in order to survive summary judgment, plaintiff must: 26 (1) 27 application contained a false statement or omission that was 28 deliberately false or made with reckless disregard for the truth; as here, materially make a the false Malley v. Briggs, 475 U.S. 335 (1986). officer and substantial An officer generally is misleading, showing 24 that accused and of the Deputy deliberately officer Taylor s claims warrant 1 and (2) establish that if the offending material is excised (and/or 2 the 3 Magistrate would be insufficient to establish probable cause. 4 Lombardi v. City of El Cajon, 117 F.3d 1117, 1124-26 (9th Cir. 5 1997); Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995); see also 6 Liston v. County of Riverside, 120 F.3d 965, 972-73 (9th Cir. 7 1997). omission is included), the information provided to the 8 Whether the statements were deliberately false is ultimately 9 a factual issue for the jury, but the plaintiff must at least make 10 a "substantial showing" on this issue to survive summary judgment. 11 See Lombardi, 117 F.3d at 1126, n.6; Hervey, 65 F.3d at 790-91. 12 Whether the alleged omissions are material is a question of law for 13 the Court to decide. 14 satisfy both of the above requirements, then the officer is not 15 entitled to qualified immunity and the claim proceeds to trial for 16 the 17 recklessly included false statements (or omitted information) in 18 the affidavit. Id. at 791. jury to Hervey, 65 F.3d at 789. determine whether the If the plaintiff can officer deliberately or 19 20 21 a. Mr. Pluckett s Reliability In order for Agent Cardwood be liable 23 admissible 24 deliberately or recklessly omitted information from his affidavit 25 for a search warrant. 26 Judge Dougherty in his Oral Affidavit because he did not mention his allegation must the misrepresentation/omission supporting Plaintiff under 22 evidence framework, to that submit Cardwood Plaintiff alleges that Deputy Taylor misled 27 28 25 1 Pluckett s criminal history.18 2 Deputy Taylor - not Agent Cardwood. 3 present during Deputy Taylor s recitation of his investigation, 4 Plaintiff does not provide any evidence that Taylor s omissions 5 and/or misrepresentations were known to or should have been known 6 to Agent Cardwood, to create liability under the Fourth Amendment. 7 Plaintiff has not cited any case law supporting his theory of a 8 peace officer s duty to correct, as there is no foundational 9 evidence that Cardwood had any knowledge about Plunkett or Deputy 10 Taylor s alleged 11 However, these allegations concern misrepresentations Although Agent Cardwood was and omissions, which are Taylor s.19 12 Garcia relies heavily on a recent Ninth Circuit case, United 13 States v. Stadnisky, 309 F. App x 185 (9th Cir. 2009), to support 14 his omission arguments, contending a minimum standard of required 15 conduct 16 enforcement misrepresentation and/or omission analysis. Relying on 17 Stadnisky, Plaintiff argues that Taylor and Cardwood did not even 18 take those most rudimentary steps ... they never investigated 19 Plunkett s previous reliability and helpfulness as an informant. 20 (Doc. 77, 12:11-12:14.) However, Plaintiff s reliance on Stadnisky (i.e., corroboration and disclosure) under the law 21 18 22 23 24 Plaintiff also claims that nothing Plunkett said was against his penal interest. This is not entirely accurate. See United States v. Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004) (observing that exposure to legal sanction for providing false information increases reliability of tip). 25 19 26 27 Plaintiff asserts that Taylor did not inform about Pluckett s specific criminal history and Plunkett s credibility in the affidavit by covering for helping with the investigation - avoidance of a 28 26 Judge Dougherty bolstered Mr. his true motive third strike. 1 is misplaced for a number of reasons, most notably that the 2 detectives in Stadnisky relied on information obtained from a 3 confidential informant, not a known and disclosed informant such as 4 Mr. Plunkett. 5 position. If anything, Stadnisky weakens it. 6 529 U.S. 266, 271 (2000) (stating that a known informant's tip is 7 thought to be more reliable than an anonymous informant's tip 8 because an anonymous informant typically cannot be questioned about 9 the basis for knowing the information or motive for providing the 10 tip, nor can the anonymous informant be held accountable for 11 providing false information in violation of the law.). Stadnisky does not support Plaintiff s litigation See Florida v. J.L., 12 Assuming, arguendo, that Plaunkett was facing a third strike 13 and that Agent Cardwood knew about it, Plaintiff s strongest 14 argument is that the issuing judge was prevented from evaluating 15 Plunkett s credibility and motive to misrepresent based on the 16 withholding of Plunkett s specific criminal history. 17 18 b. Did Garcia Open the Bugler Flap? 19 Plaintiff argues that the single most significant material 20 misrepresentation to the judge in Agent Cardwood s oral affidavit 21 is his misrepresentation that he observed Garcia open the Bugler 22 pouch.20 Cardwood s Oral Affidavit stated that he observed Garcia 23 24 25 26 27 28 20 Cardwood stated in the Affidavit: I think it s important to clarify, and that in, when during the surveillance, I saw Mister Garcia take possession of, when Mister Plunkett handed it to him. ( Verbal Search Warrant, Doc. 58-7, Exh. A, pg. 15.) There does not appear to any other mention of Garcia opening the Bugler pouch, other than Taylor stating: Garcia took the package from him, which was a Bugler cigarette pack containing methamphetamine, which he had already looked at. (Id. at pg. 13.) However, it is undisputed 27 1 open the flap, close it, and walk back to his office with the 2 tobacco pouch in his hand. 3 opened the flap of the tobacco bag, but instead only accepted the 4 Bugler tobacco pouch from Plunkett and took it to his office. 5 Plaintiff also alleges that as Plunkett handed him the Bugler 6 pouch, 7 tobacco, you take it back to Sylvia or wherever you got it. 8 undisputed that Cardwood, who monitored the transaction via audio, 9 did not include this statement in his Oral Affidavit. he stated, if Plaintiff testifies that he never there s anything else in here besides It is This is an 10 irreconcilable conflict in material facts bearing on Plaintiff s 11 alleged knowledge that the pouch contained methamphetamine. 12 Omitting, arguendo, the statement about Garcia opening the 13 flap and adding Plaintiff s statements concerning the package s 14 contents, does the affidavit still contain sufficient probable 15 cause for a search warrant against Garcia and his law office? 16 totality of the circumstances test applies to determine whether 17 a search warrant is supported by probable cause. 18 Gates, 462 U.S. 213 (1983). 19 common-sense decision whether, given all the circumstances set 20 forth in the affidavit, including the veracity and basis of 21 knowledge of persons supplying hearsay information, there is a 22 fair probability that contraband or evidence of a crime will be 23 found in a particular place. 24 1053, 1055 (9th Cir. 1993). 25 A Illinois v. This test requires a practical, United States v. Feeney, 984 F.2d Here, the affidavit states that Deputy Taylor met with Mr. 26 27 28 that Agent Cardwood maintains that he saw Garcia open the lid of the Bugler pouch. (Doc. 58-8, Cardwood Dec. ¶ 7.) 28 1 Plunkett between three and ten times to investigate Plunkett s 2 allegations concerning the jailhouse drug smuggling ring. 3 purportedly confirmed Plunkett s information (and his credibility) 4 with outside sources. He then contacted Special Agent Cardwood and 5 organized 6 methamphetamine 7 Deputy Taylor and Agent Cardwood placed the methamphetamine in a 8 Bugler brand cigarette package, per the reported modus operandi. 9 The methamphetamine was in plain view upon opening the Bugler 10 package according to Taylor and Cardwood, which is categorically 11 contradicted by Plaintiff.21 12 trier of fact, not the court. the reverse from sting the and Merced obtained County fourteen Sheriff s Taylor ounces of Department. This fact can only be resolved by the 13 According to the affidavit, the sting operation required 14 Plaintiff to contact John Garcia at the Merced County Superior 15 Courthouse and give Garcia the Bugler tobacco pouch. 16 to tell Garcia that he was on a pass from Sandy Mush Correctional 17 Facility 18 unsuccessful attempts to give Garcia the Bugler pouch, Plunkett 19 approached Garcia outside the courthouse. 20 Garcia s office together, and Plunkett told Garcia he was on a and that the package was for Robledo. Plunkett was After two The two walked to 21 22 23 24 25 26 27 28 21 Plaintiff avers that Cardwood misled the judge when he stated the methamphetamine was outside the bag and outside the pouch. (Doc. 73, 13:27-13:28.) Plaintiff essentially argues Cardwood s misrepresentation created an inference that the methamphetamine was in plain view, leading the issuing judge to find probable cause for knowing possession of methamphetamine. (Id. at 1:27-1:28.) Drawing all inferences in Plaintiff s favor, coupled with the factual dispute about whether Plaintiff opened the Bugler pouch during his meeting with Plunkett, Cardwood s statement that the meth was outside the bag, there is a material factual dispute as to Plaintiff s knowledge of a controlled substance. 29 1 pass from jail. 2 tobacco pouch containing the methamphetamine and handed it to 3 Garcia. 4 continued walking to his office. Other Task Force members observed 5 the above events and confirmed that Plaintiff possessed the Bugler 6 package containing the methamphetamine when he entered his office 7 building. 8 whether Plaintiff had knowledge of the presence of the controlled 9 substance, specifically whether the meth was in plain view and 10 At this point, Plunkett produced the Bugler Garcia took the Bugler tobacco pouch from Plunkett and However, there is a total conflict in the evidence whether Plaintiff opened the Bugler flap. 11 Although it is undisputed that the Bugler pouch contained 12 fourteen grams of methamphetamine, Plaintiff took possession of the 13 pouch, and continued on to his office, the dispute is whether 14 Plaintiff opened the tobacco package flap to show knowledge of the 15 presence 16 establishment of an essential element of the crime existed to 17 believe that Plaintiff would knowingly accept a Bulger tobacco 18 package with meth for transport to Plaintiff s incarcerated client 19 at the jail, which Plaintiff took to his office. 20 of the controlled substance, which prevents the The affidavit also includes communications between Officer 21 Cardwood 22 secretary following the pouch exchange and asked her if an unknown 23 man (Plunkett) followed Garcia into the office. She replied in the 24 affirmative. 25 the office, he handed her the Bugler pouch and told her to hold on 26 to this. 27 went into Garcia s office. 28 here, to and Garcia s secretary. Cardwood called Garcia s She also told Cardwood that when Garcia walked into Cardwood then states that the secretary and Provencio which Provencio Garcia said look at what we have stated, 30 I ll take care of this. 1 Provencia then told the secretary it was methamphetamine and 2 entered the bathroom. The secretary then heard the toilet flush. 3 To determine if what remains [is] sufficient to justify the 4 issuance of the warrant, the missing information must be added to, 5 and 6 affidavit. 7 2005); Liston, 120 F.3d at 973. 8 not as a matter of law support a finding that there was probable 9 cause the misrepresentations subtracted from, Agent Cardwood s Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. to believe that Here, the surviving assertions do Garcia knowingly transported the 10 methamphetamine to his office or that some portion of it remained 11 at the office at the time Taylor and Cardwood made their oral 12 affidavits. The judge, if Plaintiff s facts are true, did not have 13 cause to believe that a search of Garcia s office would lead to the 14 recovery of the methamphetamine and other incriminating evidence 15 related to a scheme to knowingly transport meth to the jail for 16 prisoners.22 17 18 c. Miscellaneous Allegations 19 Plaintiff also alleges that the warrant was overbroad if 20 their purpose was to recover the methamphetamine, this could have 21 22 23 24 25 26 27 28 22 As to evidence concerning bad faith or a deliberate motive to fabricate evidence, Cardwood testified in his declaration that he had only a few brief encounters with Garcia prior to the sting operation and that he never felt animosity towards him. (Cardwood Dec. ¶ 19.) Plunkett and Agent Carlisle also observed Garcia open the Bugler package, corroborating Cardwood s perceptions. This according to Plaintiff is false which, if believed, is direct evidence of bad faith and dishonesty. Based on the totality of the evidence, if believed, Plaintiff s facts could provide the inference Cardwood acted recklessly or in bad faith and that he intentionally and/or recklessly misrepresented these facts. 31 1 been accomplished by arresting Garcia outside his office. The 2 Task Force s purpose was to investigate the smuggling of contraband 3 into the jail. 4 priority, it was not the primary or sole objective. 5 Exh. A, pgs. 2-3, 16-17.) 6 constitutional duty to call a halt to a criminal investigation the 7 moment they have the minimum evidence to establish probable cause. 8 See United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986) 9 (citing United States v. Leon, 460 F.2d 299, 300 (9th Cir. 1972)); 10 see also Hoffa v. United States, 385 U.S. 293, 310 (1966) (stating 11 that [t]here is no constitutional right to be arrested ... [t]he 12 police are not required to guess at their peril the precise moment 13 at which they have probable cause to arrest a suspect. ). Although recovery of the methamphetamine was a (Doc. 58-7, Law enforcement officers are under no 14 15 16 d. Conclusion For the reasons set forth above, Agent Cardwood s motion for 17 summary adjudication based upon qualified immunity is DENIED. 18 Agent 19 misrepresentations and omissions, when taken together, present an 20 issue that they were material to the judge s determination of 21 probable 22 omissions added, probable cause would not have existed. 23 cause to search rested on Plaintiff s knowledge that the Bugler bag 24 contained methamphetamine; the information allegedly falsified and 25 omitted by Agent Cardwood goes directly to the existence of this 26 requisite knowledge. Cardwood cause is and found if by the the trier statements of were fact to have truthful and If made the Probable 27 A reasonable jury could determine that Agent Cardwood acted 28 with at least recklessness in filling out the affidavit, given the 32 1 importance of Plaintiff s knowledge to a probable cause 2 determination and the number of misstatements and omissions. Agent 3 Cardwood is not entitled to qualified immunity on Plaintiff s 4 judicial deception claim. 5 6 7 8 9 3. Stop of Plaintiff s Vehicle a. Did Probable Cause Exist? Plaintiff argues that there was no probable cause to stop and detain him following the reverse sting operation. He criticizes 10 the tactics used but does not squarely address the issue of 11 probable cause for post-sting events. 12 qualified immunity, claims that probable cause was established by 13 Plaintiff s knowledge of the methamphetamine during the exchange 14 and that any inconsistencies in the affidavit do not affect the 15 outcome of this case. The analysis above, however, shows that the 16 discrepancies were not minor, and that the record contains enough 17 evidence, if believed, to support a finding that Agent Cardwood 18 misrepresented these facts. Having already found that there was no 19 probable cause to search Plaintiff's law office for evidence of the 20 crime of knowing possession of a controlled substance, it follows 21 that genuine issues of material fact remain as to whether Cardwood 22 had probable cause to detain Plaintiff for that crime. Agent Cardwood, invoking 23 A peace officer is entitled to qualified immunity in a civil 24 rights action if the district court determines that, in light of 25 clearly established law governing the conduct in question at the 26 time of the challenged conduct, the officer could reasonably have 27 believed that the conduct was lawful. 28 U.S. ---, 129 S.Ct. 808 (2009). Pearson v. Callahan, --- The Supreme Court in Saucier v. 33 1 Katz, 533 U.S. 2 qualified immunity. 3 whether "[t]aken in the light most favorable to the party asserting 4 the 5 violated 6 Millender v. County of Los Angeles, 564 F.3d 1143, 1148 (9th Cir. 7 2009). 8 inquiry is whether the right was clearly established: in other 9 words, 'whether it would be clear to a reasonable officer that his injury, a do 194 the (2001), outlined a two-step approach to The first step requires the court to ask facts alleged show the constitutional right?" Saucier, officer's 533 U.S. conduct at 201; "If the answer to the first inquiry is yes, the second 10 conduct was unlawful in the situation he confronted.'" Millender, 11 564 F.3d 1143, 1148 (quoting Saucier, 533 U.S. at 201). 12 Pearson, the Supreme Court held that the court could exercise its 13 discretion in deciding which of the two prongs of the qualified 14 immunity analysis should be addressed first. 15 Millender, 564 F.3d at 1149. In Id. at 818; see also 16 The Fourth Amendment protects the right of the people to be 17 secure in their persons, houses, papers, and effects, against 18 unreasonable searches and seizures. In conformity with the rule at 19 common law, a warrantless arrest by a law officer is reasonable 20 under the Fourth Amendment where there is probable cause to believe 21 that a criminal offense has been or is being committed. Devenpeck 22 v. Alford, 543 U.S. 146, 153 (2004) (citing United States v. 23 Watson, 423 U.S. 411, 417-24 (1976)). 24 Probable cause exists when, under the totality of the 25 circumstances known to the arresting officers, a prudent person 26 would have concluded that there was a fair probability that [the 27 defendant] had committed a crime. United States v. Buckner, 179 28 F.3d 834, 837 (9th Cir. 1999) (quoting United States v. Garza, 980 34 1 F.2d 546, 550 (9th Cir. 1992)). 2 overwhelmingly 3 trustworthy information. 4 (2001). convincing Probable cause does not require evidence, but only reasonably Saucier v. Katz, 533 U.S. 194, 207 5 Probable cause is an objective standard and the officer's 6 subjective intention in exercising his discretion is immaterial in 7 judging whether his actions were reasonable for Fourth Amendment 8 purposes. 9 2007) (citing United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. John v. City of El Monte, 505 F.3d 907, 911 (9th Cir. 10 2007)). It is essential to avoid hindsight analysis, i.e., to 11 consider additional facts that became known only after the arrest 12 was made. 13 Cir. 1989)). Id. (citing Hansen v. Black, 885 F.2d 642, 645 (9th 14 The oral affidavit of probable cause to search, while not 15 definitive on the issue of probable cause to make a warrantless 16 arrest,23 provides a guide for determining the facts in Agent 17 Cardwood s 18 declaration of probable cause to search Garcia s office and person 19 sets forth: Garcia was the subject of a criminal investigation into 20 his alleged role in an operation involving smuggling contraband 21 into Merced possession County at Jail. the time Task of Force Garcia s members stop. claim to The have 22 23 24 25 26 27 28 23 Although the parties frame their arguments in terms of an arrest, there appears to be an argument that Plaintiff was merely detained while the agents obtained a search warrant. See INS v. Delgado, 466 U.S. 210, 216 (1984). Agent Cardwood acknowledges this argument, but gives it short notice. In his reply he states that Plaintiff was never placed under arrest, only lawfully detained while a search warrant was sought and executed. (Def. s Reply, 3:11-3:14.) He then assumes there was a warrantless arrest and proceeds into his probable cause analysis. 35 1 confirmed Garcia s alleged role in the operation and organized a 2 reverse sting whereby a confidential informant would transfer to 3 Garcia a Bugler pouch containing fourteen grams of methamphetamine. 4 On the afternoon of February 6, 2006, Garcia took possession of the 5 tobacco pouch containing the methamphetamine and proceeded to his 6 office. 7 black Volvo. 8 searched, and placed in handcuffs. 9 Plaintiff s knowing possession was fabricated, all that follows is Garcia was in his office a few minutes, then left in his He was then stopped by an unmarked police vehicle, If the basis to establish 10 fruit from of the poisonous tree. See, e.g., United States v. 11 Patane, 542 U.S. 630, 637 (2004) (citing Wong Sun v. United States, 12 371 U.S. 471 (1963)). 13 Plaintiff does not dispute that he met with the Plunkett and 14 took the Bugler pouch - and the methamphetamine, ostensibly to 15 deliver to Robledo. 16 possessed fourteen ounces of methamphetamine on the afternoon of 17 February 18 Plaintiff does dispute his knowledge of the contents of the 19 pouch, 20 methamphetamine. Plaintiff argues that this forecloses any finding 21 of probable cause to support a warrantless arrest. 22 6, 2006 claiming In essence, Plaintiff does not dispute he or that was he not left aware his office the minutes package later. contained Knowing or intentional possession of methamphetamine is a 23 public offense within the meaning of the statute. 24 Code, § 15(2), (3) (defining "public offense" as violation of the 25 law for which a person may be, inter alia, imprisoned or fined); 26 Cal. Health & Safety Code, §§ 11377, 11378; 21 U.S.C. § 844(a). 27 Although Agent Cardwood was not required to be completely accurate 28 in his belief that Plaintiff 36 knowingly See Cal. Pen. possessed the 1 methamphetamine in order to make a warrantless arrest, he was 2 required to have known whether the meth was immediately visible in 3 the pouch to support a believed that Plaintiff knowingly possessed 4 the methamphetamine in order to make a warrantless arrest. 5 Here, Plaintiff claims that he did not open the Bugler package 6 until he arrived at his office and therefore did not knowingly 7 possess methamphetamine. 8 record 9 inconsistent with Plaintiff s description of what was visible when 10 Plaintiff accepted the Bugler package from Plunkett. Specifically, 11 Plaintiff maintains that he did not open the flap of the Bugler 12 pouch and the methamphetamine was not in plain view, negating any 13 purported knowledge of a controlled substance. 14 whether Plaintiff actually did open the package, the Agents could 15 not entertain an honest and strong suspicion that Plaintiff had 16 knowledge of the contents of the Bugler package, which would have 17 revealed the methamphetamine, if it was not visible as Plaintiff 18 has testified. demonstrates (Garcia Dep. 88:14-17; 89:9-14.) that Cardwood s belief is The completely Regardless of Probable cause is not established. 19 The focus is on all the facts in Agent Cardwood s possession 20 and whether, in light of these facts, there was probable cause to 21 arrest Garcia, or whether a reasonable officer could have believed 22 there was probable cause to arrest. 23 dispute. This remains in material 24 Viewing the evidence in the light most favorable to Plaintiff, 25 he has shown that if the trier of fact believes Plaintiff had no 26 knowledge, he was arrested or detained without probable cause in 27 violation of the Fourth Amendment. The qualified immunity analysis 28 ends there. See Saucier, 533 U.S. at 201. 37 There is a genuine 1 issue 2 adjudication on this claim is DENIED. 3 of material Although the fact. parties Defendants frame their motion arguments for in summary terms of 4 probable cause for arrest, an alternate analysis exists under 5 Terry v. Ohio, 392 U.S. 1 (1968). 6 detention requires only reasonable suspicion that the detainee is 7 engaged in criminal activity. 8 439 (1984). 9 reasonable A "Terry" stop or investigative Berkemer v. McCarty, 468 U.S. 420, "To detain a suspect, a police officer must have suspicion, or 'specific, articulable facts which, 10 together with objective and reasonable inferences, form the basis 11 for suspecting that the particular person detained is engaged in 12 criminal activity.'" United States v. Michael R., 90 F.3d 340, 346 13 (9th Cir. 1996) (quoting United States v. Garcia-Camacho, 53 F.3d 14 244, 15 suspicion existed, the court must consider the totality of the 16 circumstances surrounding the stop. Id. (citing United States v. 17 Hall, 974 F.2d 1201, 1204 (9th Cir. 1992)). 245 (9th Cir. 1995)). To determine whether reasonable 18 This involves no different result based on the dispute over 19 the truthfulness of the law enforcement witnesses version of 20 events. Task Force Agents observed Garcia take the methamphetamine 21 to his law office. 22 entered his vehicle, and drove away. 23 agents had a reasonable suspicion that Garcia was engaged in 24 criminal activity, i.e., to transport the meth to the jail for 25 Robledo, depends on Plaintiff s knowledge of the presence of the 26 meth, which is totally in dispute. 27 create a reasonable suspicion that Plaintiff may have been involved 28 in criminal activity if the agents were truthful. If the affidavit A few minutes later, he exited his office, 38 At that time, whether the These observations do not 1 was false, Plaintiff s detention pending further investigation 2 pursuant 3 adjudication on this ground is DENIED. to the search warrant was unnecessary. Summary 4 5 b. Unreasonable Detention 6 Although not addressed in his opposition papers, Plaintiff 7 appeared to raise the issue of unreasonable detention during oral 8 argument on July 27, 2009. 9 First, although not disputed by Plaintiff, the length of 10 Plaintiff s detention was unreasonable if there was no cause for 11 his detention. 12 detained Mena for two to three hours in handcuffs while executing 13 a search warrant. 14 approximately three hours while agents waited for a special master. 15 Plaintiff was released ninety minutes after the special master 16 arrived. 17 unlawful if Plaintiff s facts are believed. 18 In Muehler v. Mena, 544 U.S. 93 (2005), police Id. at 1469. Here, Plaintiff was detained for Nevertheless, the length of Plaintiff s detention was The level of force used by the agents is not disputed, except 19 if there was no cause for the detention. 20 handcuffed during the search of his office, he was never physically 21 touched by officers, other than to place him in handcuffs or to 22 remove his handcuffs to let him use the bathroom. 23 30, 2008 deposition, Plaintiff conceded that the officers acted 24 reasonably when they detained him: 25 Although Plaintiff was In his December Q. Do you have any facts to show that the defendants used unreasonable force? A. No. They didn t manhandle me, they didn t throw me to the ground. I wasn t physically harmed in any way. 26 27 28 39 1 (Garcia Dep. 195:3-195:7.) 2 In support of its argument, the County of Merced submitted the 3 deposition of an expert on police procedures, Mr. Miller, who has 4 been a full-time peace officer since 1981.24 5 in his deposition that in his opinion the agents acted reasonably 6 in detaining Garcia and excessive force was not used; that the 7 period of time was not unreasonable because the special master did 8 not arrive until 1940 hours; Deputy Taylor moved the investigation 9 along by taking statements from those named in the warrant; and the 10 search took only 95 minutes once the special master arrived.25 11 (Doc. 67-8, ¶ 13.) 12 not use excessive force as Garcia was purportedly involved in a 13 narcotics smuggling ring. 14 offenses are frequently associated with weapons. 15 Based on the Mr. Miller testified Mr. Miller also opined that the officers did overall (Id.) dispute Miller emphasized that drug in the (Id.) evidence, summary 16 adjudication is DENIED on Plaintiff s unreasonable detention claim, 17 because the detention was unlawful if the seizure was tainted by a 18 prior illegal search warrant and search. 19 20 21 22 23 24 Mr. Martin s deposition is offered in support of County Defendants motion for summary judgment. (Doc. 67-8.) However, Martin s declaration, specifically opinions number four, five, and six, addressed the steps taken by the agents in detaining Mr. Garcia. (Id. at ¶¶ 12-14.) 24 25 25 26 27 28 Portions of Miller s declaration contain inappropriate legal conclusions. These opinions are inadmissible and not considered. See United States v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999) (excluding expert testimony offering a legal conclusion); Aguilar v. International Longshoremen's Union, 966 F.2d 443, 447 (9th Cir. 1992) (noting matters of law are for the court s determination, not that of an expert witness). 40 1 c. Conclusion Re: Stop of Plaintiff s Vehicle 2 After viewing the entirety of the evidence in Plaintiff s 3 favor, drawing all inferences in his favor, Defendant is not 4 entitled to qualified immunity. 5 facts concerning Agent Cardwood s alleged wrongful conduct under 6 the Fourth Amendment. 7 8 There remains disputed material Summary adjudication is DENIED as to Agent Cardwood s motion on Plaintiff s fifth cause of action. 9 10 C. State Law Claim - False Arrest/Imprisonment 11 Agent Cardwood argues that summary adjudication is warranted 12 on the false arrest/imprisonment claim for the same reasons that it 13 was warranted for Plaintiff s claim under § 1983, i.e, because 14 probable cause existed for the search warrant and the arrest. 15 The tort of false imprisonment is: "(1) the nonconsenual, 16 intentional confinement of a person, (2) without lawful privilege, 17 and (3) for an appreciable period of time, however brief." Easton 18 v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000). "Under 19 California law, the torts of false arrest and false imprisonment 20 are not separate torts, as false arrest is 'but one way of 21 committing a false imprisonment.'" Watts v. County of Sacramento, 22 256 F.3d 886, 891 (9th Cir. 2001) (quoting Asgari v. City of Los 23 Angeles, 15 Cal.4th 744 (1997)). "A cause of action for false 24 imprisonment based on unlawful arrest will lie where there was an 25 arrest without process followed by imprisonment." 26 at 891 (citing City of Newport Beach v. Sasse, 9 Cal. App. 3d 803 27 (1970)). 28 Watts, 256 F.3d In this case, Plaintiff alleges that he was falsely arrested 41 1 during the vehicle stop prior to the search of his office and that 2 he 3 misrepresentations and omissions in his Oral Affidavit for a Search 4 Warrant. 5 arrest and detention of Plaintiff based on the Task Force Agents 6 observations 7 returned with it to his office, summary adjudication must be denied 8 on this claim. was falsely imprisoned based on Agent Cardwood s Because there is a total dispute as to probable cause for that Plaintiff possessed the methamphetamine and 9 It is disputed whether probable cause existed for Agent 10 Cardwood s stop of Plaintiff and for the search of his law office. 11 Summary judgment is DENIED as to Plaintiff s state law claims for 12 false imprisonment/arrest. 13 14 IV. CONCLUSION. 15 For the reasons discussed above: 16 1. The motion for summary adjudication on the first cause of 17 action for assault and the second cause of action for battery is 18 GRANTED. 19 developed no evidence to support his first and second causes of 20 action for assault and battery. 21 2. Plaintiff concedes in his opposition that he has The motion for summary adjudication on the conspiracy 22 allegations contained in Plaintiff s Fifth Amended Complaint is 23 GRANTED. 24 a conspiracy against Agent Cardwood. 25 3. In his opposition, Plaintiff abandons any allegations of The motion for summary adjudication on Plaintiff s 26 allegations that Agent Cardwood violated his Fourth Amendment 27 rights by conducting a reverse sting operation on February 6, 2006 28 is GRANTED. 42 1 2 4. The motion for summary adjudication on the Fourth Amendment claim for judicial deception (Franks claim) is DENIED. 3 5. The motion for summary adjudication on the Fourth 4 Amendment claim for unreasonable arrest and detention under the 5 Fourth Amendment is DENIED. 6 7 6. The motion for summary adjudication on the related state law claim for false arrest/imprisonment is DENIED. 8 Consistent with Rule 56(d)(1), both parties shall have five 9 (5) days following service of this decision to file a list of 10 material facts which each party believes are not genuinely at issue 11 for purposes of trial. If separately filed by the parties, these 12 lists shall not exceed five pages. 13 parties should meet and confer to determine whether and to what 14 extent any material facts are agreed upon for purposes of trial. 15 Agreed upon facts should be listed in a joint filing. Any such 16 joint filing has no page limitation. 17 To the extent practicable, the Plaintiff shall submit a form of order consistent with, and 18 within five (5) days 19 memorandum decision. 20 IT IS SO ORDERED. 21 Dated: 9i274f September 25, 2009 following electronic service of, /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 43 this
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