Garcia v. City of Merced et al, No. 1:2007cv00867 - Document 90 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION re County Defendants' Motion for Summary Judgment or Partial Adjudication 64 , 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 JOHN GARCIA, No. 1:07-CV-00867-OWW-DLB 7 Plaintiff, 8 9 v. 11 CITY OF MERCED, CITY OF MERCED POLICE DEPARTMENT, BUREAU OF NARCOTICS ENFORCEMENT SPECIAL AGENT SUPERVISOR ALFREDO CARDWOOD, et al., 12 MEMORANDUM DECISION RE COUNTY DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR PARTIAL ADJUDICATION (Doc. 64) Defendant. 10 13 I. Introduction. 14 Plaintiff John Garcia, an attorney, initiated this action on 15 March 13, 2007, and, on January 30, 2008, filed the operative fifth 16 amended complaint ( 5thAC ) alleging a violation of his Fourth 17 Amendment rights and several state law causes of action. His suit 18 arises from, but is not limited to, a warrant that was executed on 19 February 6, 2006 for the search of his law office in Merced, 20 California. The warrant was a culmination of the Merced Multi- 21 Agency Narcotic Task Force s investigation into allegations that 22 Garcia was smuggling narcotics into the Merced County Jail. Based 23 on information from Robert Plunkett, an incarcerated informant, the 24 Task Force conducted a reverse sting operation where Task Force 25 Agents observed Plaintiff receive, inspect, and transport 26 approximately fourteen grams of methamphetamine offered to him by 27 Mr. Plunkett. Following the sting, Task Force Agents obtained a 28 warrant to search 655 West Nineteenth Street, Merced, California, 1 the law offices of John Garcia. 2 affidavit of Deputy Sheriff John Taylor and was approved by Judge 3 Frank Dougherty of the Merced Superior Court. 4 On January 30, 2008, The warrant was based on the oral Plaintiff filed his Fifth Amended 5 Complaint against Defendants City of Merced; City of Merced Police 6 Department;1 Bureau of Narcotics Enforcement Special Agent Alfredo 7 Cardwood ( Cardwood ); County of Merced; Merced County Sheriff s 8 Department; Merced County Deputy Sheriff John Taylor ( Taylor ); 9 Merced County District Attorney s Office; and Merced County 10 District Attorney Gordon Spencer ( Spencer ). The First Cause of 11 Action alleges assault against all Defendants; the Second Cause of 12 Action alleges battery against all Defendants; the Third Cause of 13 Action alleges false arrest and imprisonment with a warrant against 14 all Defendants; the Fourth Cause of Action alleges defamation by 15 slander against Cardwood; the Fifth Cause of Action alleges a 16 violation of Title 42, United States Code, Section 1983 against all 17 Defendants.2 18 Before the court for decision is a motion for summary judgment 19 or, in the alternative, summary adjudication filed by Defendants 20 County of Merced, Merced County Sheriff s Department, Merced County 21 Deputy Sheriff John Taylor, Merced County District Attorney s 22 Office, and Merced County District Attorney Gordon Spencer. 23 24 25 26 27 28 1 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 The motion for summary judgment filed by Defendant Alfredo Cardwood, Special Agent, California Department of Justice, Bureau of Narcotic Enforcement is resolved by separate Memorandum Decision. 2 1 2 Factual Background.3 II. A. 3 The Parties Plaintiff is an individual and experienced criminal defense 4 attorney. 5 criminal defendants in Merced County, including Alfonso Robledo, an 6 inmate at Merced County Jail in early 2006. 7 For the past twenty years, Plaintiff represented Defendant Alfredo Cardwood is a special agent with the State 8 of California 9 Enforcement Department ( BNE ). task Justice, Bureau BNE has regional forces nine located of Narcotics offices throughout and 10 numerous 11 including the Merced Multi-Agency Narcotic Task Force. 12 Agent Cardwood was the supervising agent in charge of the Merced 13 Multi-Agency Narcotic Task Force. 14 regional The of California, Special Defendant County of Merced is a municipal entity organized 15 under California law. Merced County Sheriff s Department is a 16 political of 17 responsibility to maintain and administer law enforcement in Merced 18 County.4 subdivision the County of Merced, with the Defendant John Taylor is a deputy with the Merced County 19 20 21 22 23 24 25 26 27 28 3 Unless otherwise noted, the facts are undisputed. [(See Def. s Stmt. of Undisp. Facts in Supp. of Summ. J. ( SUF ), Doc. 66, 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. 4 Merced County Sheriff s Department is not a legal entity. Maxwell v. Henry, 815 F. Supp. 213, 215 (S.D. Tex. 1993). Nor is the Merced County Sheriff's Department a person for purposes of § 1983 litigation. Vance v. County of Santa Clara, 928 F. Supp. 993 (N.D. Cal. 1996). Plaintiff has also sued "Merced County" which is the proper legal entity to be sued in this type of case. Therefore, summary adjudication is GRANTED in favor of the Merced County Sheriff's Department. 3 1 Sheriff s Department, acting as the Task Force s primary case 2 agent. 3 Defendant Merced the County District Constitution of Attorney s established by 5 Government Code 6 enforcement services in adult and juvenile criminal matters in 7 Merced County.5 8 the District Attorney for Merced County. 26500, to State provide of was 4 Section the Office California, prosecution and At all relevant times herein, Gordon Spencer was 9 In January 2006, Doug Jensen, Commander of the Merced County 10 Sheriff s Department, notified Deputy Taylor that Robert Plunkett 11 ( Plunkett ), an inmate at Sandy Mush jail in Merced County, told 12 one of his Sergeants, Sergeant Pace, that a local attorney was 13 smuggling 14 Sergeant 15 contraband into the jail using Bugler tobacco packaging as a 16 cover.6 17 Commander Jensen, who relayed them to Deputy Taylor. 18 19 contraband Pace that (SUF 6.) into an the jail. attorney (SUF named 5.) John Plunkett Garcia told smuggled Sergeant Pace communicated these statements to Thereafter, Taylor interviewed the confidential informant, Mr. Plunkett, regarding the alleged smuggling. Plunkett informed 20 21 22 5 Merced County District Attorney s Office is not a proper party defendant. Summary adjudication is GRANTED in favor of the Merced County District Attorney s Office. 23 6 24 25 26 27 28 In his sworn deposition taken on September 22, 2008, Plaintiff conceded that, prior to December 6, 2006, he delivered tobacco three times to Mr. Robledo at the Merced County Jail. (Doc. 67-4, 91:17-93:12.) Plaintiff admitted that he knew it was against jail rules, that he delivered it in the interview room, and the delivery was orchestrated through Ms. Sylvia Brown. (Id.) Plaintiff also admitted that he had previously delivered tobacco to inmates approximately ten times over the twenty years I ve practiced. (Id.) 4 1 Taylor that Robledo, a fellow inmate, told him that he obtained 2 drugs through his attorney, John Garcia. 3 (via Robledo), Garcia would bring the drugs to their attorney- 4 client meetings, disguised in a Bugler cigarette package. 5 would give the Bugler package containing the contraband to Robledo, 6 who would return to his cell with the Bugler package. According to Plunkett Garcia 7 Taylor met with Plunkett between three and ten additional 8 times over the next twenty days. Plunkett provided further details 9 of the alleged smuggling, including that certain nonviolent 10 offenders smuggled contraband into the Jail while on a pass from 11 the 12 contraband and either place it in one of their body cavities or 13 hand it off to Garcia, who would bring it into the Jail at a later 14 date. 15 members of the smuggling ring included Robledo, Garcia, Sylvia 16 Brown, a friend of Robledo s, and two private investigators working 17 for Garcia, Augustine Provencio and Greg Hassen. Plunkett provided 18 only layer hearsay from third parties, not based on Plunkett s 19 personal knowledge. 20 facility. (SUF (SUF 14.) Deputy 14.) These individuals would obtain the Plunkett also told Taylor that the alleged Taylor then purportedly corroborated Plunkett s 21 statements about the smuggling ring, including the identities of 22 the alleged participants and the basis for Plunkett s knowledge by 23 researching jail records to confirm that inmate Robledo was in 24 custody at the Merced County Jail on various drug-related offenses 25 and that Robledo and Plunkett shared a housing unit. 26 Deputy 27 confirming that Garcia had a history of drug-related violations. 28 (SUF 20.) Taylor also checked John 5 Garcia s (SUF 18-19.) criminal record, 1 Deputy Taylor also checked Plunkett s name in a computer 2 database of unreliable informants, maintained by narcotics officers 3 who were given unreliable tips. 4 database. 5 number in one of Robledo s previous bookings. According to Taylor, 6 Plunkett s information was credible. Agent Cardwood was familiar 7 with the steps Deputy Taylor took to build the case. 8 Dec. ¶ 4.) Plunkett s name was not in the Deputy Taylor also discovered Sylvia Brown s phone (Cardwood 9 The Task Force then planned a reverse-sting operation to 10 confirm Plunkett s statements and determine whether or not Garcia 11 was smuggling contraband into the Jail. 12 Agent 13 evidence department for the reverse-sting operation. 14 Court granted the order to obtain the methamphetamine, it was 15 placed in a Bugler brand cigarette package. 16 and Cardwood, the methamphetamine was clearly visible upon opening 17 the Bugler package. Taylor obtained methamphetamine In early February 2006, from the Merced County After the According to Taylor 18 On February 6, 2006, Agent Taylor and another Task Force Agent 19 met with Plunkett, searched his person for illegal contraband or 20 narcotics, and upon finding none, the officers gave Plunkett the 21 methamphetamine. 22 digital recorder. 23 contact John Garcia at the Merced County Superior Courthouse, 24 giving him the Bugler tobacco pouch. 25 that he was on a pass from Sandy Mush Correctional Facility and 26 that the package was for Robledo. Plunkett was fitted with both a "wire" and a The sting operation required Plaintiff to 27 28 6 Plunkett would tell Garcia Agent Cardwood personally the wire during the reverse-sting operation.7 1 monitored In 2 addition to audio surveillance, Agent Cardwood was stationed in a 3 vehicle near Plaintiff s office and had a clear view to monitor the 4 interaction between Plaintiff and Plunkett. (Cardwood Dec. ¶ 6.) 5 Plunkett proceeded to the Merced County Superior Court and 6 approached John Garcia in one of the courtrooms. Plunkett told him 7 that he was a friend of one of Garcia s clients, Alfredo Robledo. 8 Plaintiff gave Plunkett a business card and told him to contact his 9 office. 10 Plunkett then left the courtroom. Approximately one hour later, Plunkett approached Garcia 11 outside the courtroom and told him he had a package for Garcia. 12 Plaintiff instructed Pluckett to drop it off at his office and 13 returned to the courtroom. A short time later, Pluckett approached 14 Garcia outside the courthouse, telling him that he could not locate 15 his office. 16 Garcia that he was on an afternoon pass from Sandy Mush and celled 17 with Robledo. 18 containing the methamphetamine and handed it to Garcia. 19 took the Bugler tobacco pouch from Pluckett and continued walking 20 to his office. 21 the methamphetamine when he entered his office building. As they walked toward Garcia s office, Plunkett told Plunkett then produced the Bugler tobacco pouch Garcia Plaintiff possessed the Bugler package containing 22 The record reflects considerable dispute over whether Garcia 23 opened the Bugler package while he and Pluckett were walking to 24 Garcia s office. 25 the Bugler package, looked inside, closed the package, and walked Agent Cardwood maintains that Plaintiff opened 26 27 28 7 According to Cardwood, the transmission was of poor-quality, making it difficult to hear the parties. (Cardwood Dec. ¶ 6.) 7 1 to his office. (Cardwood Dec. ¶ 7.) Cardwood maintains that the 2 methamphetamine was directly underneath the flap, clearly visible 3 to anyone who opened it. 4 Plunkett also observed Garcia look inside the tobacco pouch during 5 the exchange. (Taylor Dec. ¶ 22.) (Cardwood Dec. ¶ 5.) Agent Carlisle and 6 According to Plaintiff, he told Pluckett that, if there s 7 anything in here besides tobacco, you take it back to Sylvia or 8 wherever you got it. 9 tobacco pouch during the exchange nor did he open it during the 10 11 Plaintiff testified that he did not open the walk to his office. At his office, Garcia and one of his investigators, Provencio, 12 opened 13 Garcia then instructed Provencio to flush the methamphetamine down 14 the toilet. 15 bathroom trash can. 16 the tobacco pouch and discovered the methamphetamine. Provencio did so and then discarded the bag into the Garcia then left his office in a black Volvo. After driving one mile, Garcia s Volvo was stopped by a 17 unmarked City of Merced police vehicle. 18 Garcia s stopped vehicle, directing him to exit the vehicle and 19 proceed 20 searched. 21 his office for questioning. 22 pending the issuance of a search warrant, ensuring that no one 23 entered or exited the building. 24 to the sidewalk. Plaintiff Agent Cardwood approached was then handcuffed and Plaintiff was then told he would be transported back to Plaintiff s office was frozen 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 Taylor sought a search warrant from Superior Court 2 Judge Frank Dougherty. 3 under penalty of perjury, Cardwood and Agent Taylor testified to 4 the investigation and their observations during the reverse-sting 5 operation. 6 search 7 possession of the methamphetamine. 8 a search of Plaintiff, Plaintiff s vehicle and Plaintiff s office 9 to allow, in part, the recovery of the methamphetamine. Judge 10 Dougherty appointed a Special Master, Gerald Brunn, to be present 11 during the search.8 12 In a verbal search warrant application, Judge Dougherty found probable cause to issue the warrant based on the fact that Plaintiff had taken The search warrant authorized Plaintiff s allegations focus on Agent Cardwood s and Deputy 13 Taylor s 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 nor did he see the methamphetamine. 19 accuses Deputy Taylor of misrepresenting and omitting material 20 facts, specifically, omitting Mr. Plunkett s criminal history and 21 incentive to avoid a third strike as bearing on his credibility. 22 Agent 23 information they provided to Judge Dougherty on February 6, 2006 24 was accurate and true. 25 alleged Cardwood The search misrepresentations and of Deputy Taylor and omissions to Judge According to Plaintiff maintains that maintain Plaintiff also that all of the (Taylor Dec. ¶ 24; Cardwood Dec. ¶ 14.) Garcia s office revealed a plastic baggie 26 27 28 8 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 containing a small amount of methamphetamine in the bathroom area 2 and a small amount of methamphetamine residue in the main office. 3 Six packages of Bugler brand tobacco and one ziplock bag of 4 tobacco were found in the top drawer of Garcia s office. 5 pound scale, similar to the kind used to weigh drugs, was found on 6 Garcia s desk.9 A one 7 Following the search, Agent Cardwood and Deputy Taylor removed 8 Garcia s handcuffs and advised him of his Miranda rights. Cardwood 9 and Taylor interviewed Garcia for approximately one hour.10 10 was then released. 11 Garcia Garcia was not arrestd, charged, or prosecuted in connection with the criminal investigation. 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 Police Department.11 Plaintiff alleged defendants were liable under 19 state law theories of assault, abuse of process, and defamation by 20 slander. 21 Sheriff s Department, Deputy Taylor, District Attorney Plaintiff filed his first amended complaint on March 21, 2007, 22 23 24 25 26 9 Plaintiff was detained in his office during the search, but was not arrested. According to Defendants, Plaintiff was permitted to use the restroom and was not threatened or mistreated during his detention. 10 Plunkett consented to wearing a wire and recording his conversation with Plaintiff. 27 11 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.12 On (Doc 1.) 6 On August 20, 2007, Plaintiff filed a Fourth Amended Complaint 7 against Defendants. Plaintiff alleged defendants were liable under 8 42 U.S.C. 1983 for unreasonable search and seizure (Count V); under 9 the California Constitution for unlawful search and seizure (Count 10 VI); and state law claims for assault and battery, false arrest and 11 imprisonment, abuse of process, and defamation by slander 12 I-IV). 13 the County of Merced is sued as a municipal entity that acts by and (Counts The deputies are sued in their individual capacities and 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 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 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 through its individual deputies. (Doc. 15.) 2 Defendants Merced County, Sheriff s Dept., Taylor and Spencer 3 filed their supplemental brief on the motion to dismiss the Fourth 4 Amended Complaint on September 4, 2007.13 5 Cardwood filed his supplemental briefing supporting the motion to 6 dismiss on September 10, 2007. 7 opposition to Defendants motions on October 2, 2007. (Doc. 23, 8 24.) 9 2008, although John Garcia was permitted leave to amend. 10 11 (Doc. 20.) (Doc. 19.) Defendant Plaintiff filed his Defendants motions were granted, in part, on January 10, (Doc. 34.) Plaintiff filed his Fifth Amended Complaint ( FAC ) on January 12 30, 2008. 13 against all Defendants; the Second Cause of Action alleges battery 14 against all Defendants; the Third Cause of Action alleges false 15 arrest and imprisonment with a warrant against all Defendants; the 16 Fourth Cause of Action alleges defamation by slander against 17 Cardwood; the Fifth Cause of Action alleges a violation of Title 18 42, United States Code, Section 1983 against all Defendants. 19 (Doc. 35.) The First Cause of Action alleges assault Defendants Merced County, Sheriff s Dept., Taylor and Spencer 20 filed their answer on February 19, 2008. (Doc. 36.) 21 Cardwood filed his answer on February 26, 2008. Defendant (Doc. 37.) 22 Defendants Merced County, Sheriff s Dept., Taylor and Spencer 23 filed this motion for summary judgment, or in the alternative, 24 25 26 27 28 13 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 1 summary adjudication on May 5, 2009. (Doc. 64.) Defendants seek 2 judgment on the grounds that Plaintiff cannot 1) establish his 3 federal constitutional claims, 2) overcome the qualified immunity 4 of the individual defendants, or 3) establish Monell liability of 5 the County of Merced. 6 should be dismissed because the deputies 4) acted lawfully, and 5) 7 Plaintiff lacks evidence to create a genuine issue of material 8 fact. Defendant also argues the state law claims 9 Plaintiff filed his opposition to summary judgment or, in the 10 alternative, summary adjudication on July 1, 2009. (Doc. 77.) 11 Plaintiff opposes summary judgment on grounds that triable issues 12 of material fact exist as to his constitutional claims and state 13 law theories. 14 searched and seized him in violation of is Fourth Amendment rights. 15 Plaintiff further contends that neither the County of Merced nor 16 the 17 immunity or any protections under the California Government Code. individual Plaintiff argues Defendant s deputies unlawfully defendant deputies are entitled to qualified 18 19 IV. Legal Standards. 20 21 A. Standard of Review. 22 Summary judgment is appropriate when the pleadings, the 23 discovery and disclosure materials on file, and any affidavits show 24 that there is no genuine issue as to any material fact and that the 25 movant is entitled to judgment as a matter of law. 26 P. 56(c). 27 initial responsibility of informing the district court of the basis 28 for its motion, and identifying those portions of the pleadings, Fed. R. Civ. A party moving for summary judgment always bears the 13 1 depositions, answers to interrogatories, and admissions on file, 2 together with the affidavits, if any, which it believes demonstrate 3 the absence of a genuine issue of material fact. Celotex Corp. v. 4 Catrett, quotation 5 omitted). 477 U.S. 317, 323 (1986) (internal marks 6 Where the movant will have the burden of proof on an issue at 7 trial, it must affirmatively demonstrate that no reasonable trier 8 of fact could find other than for the moving party. 9 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also 10 S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 11 2003) (noting that a party moving for summary judgment on claim as 12 to which it will have the burden at trial must establish beyond 13 controversy 14 quotation marks omitted). 15 non-moving party will have the burden of proof, the movant can 16 prevail merely by pointing out that there is an absence of evidence 17 to support the nonmoving party s case. 18 984. every essential element of the Soremekun v. claim) (internal With respect to an issue as to which the Soremekun, 509 F.3d at 19 When a motion for summary judgment is properly made and 20 supported, the non-movant cannot defeat the motion by resting upon 21 the 22 non-moving party must set forth, by affidavit or as otherwise 23 provided in Rule 56, specific facts showing that there is a 24 genuine issue for trial. Id. (quoting Anderson v. Liberty Lobby, 25 Inc., 26 testimony in affidavits and moving papers is insufficient to raise 27 genuine issues of fact and defeat summary judgment. 28 allegations 477 U.S. or denials 242, 250 of its (1986)). own pleading, Conclusory, rather the speculative Id. To defeat a motion for summary judgment, the non-moving party 14 1 must show there exists a genuine dispute (or issue) of material 2 fact. 3 suit 4 [S]ummary judgment will not lie if [a] dispute about a material 5 fact is genuine, that is, if the evidence is such 6 reasonable jury could return a verdict for the nonmoving party. 7 Id. at 248. 8 district court does not make credibility determinations; rather, 9 the 10 A fact is material if it might affect the outcome of the under the governing law. Anderson, 477 U.S. at 248. that a In ruling on a motion for summary judgment, the evidence of the non-movant is to be believed, justifiable inferences are to be drawn in his favor. and all Id. at 255. 11 12 B. Section 1983. 13 Plaintiff brings this lawsuit under 42 U.S.C. § 1983, which 14 provides a cause of action against any person acting under color 15 of 16 immunities secured by the Constitution and laws of the United 17 States. 18 (9th Cir. 2003)(quoting 42 U.S.C. § 1983). 19 by section 1983 are liberally and beneficently construed. 20 (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. 21 To establish liability under 1983, a plaintiff must show 1) 22 that he has been deprived of a right secured by the United States 23 Constitution or a federal law, and 2) that the deprivation was 24 effected under color of state law. 25 1023, 1028 (9th Cir. 2003). 26 27 28 15 Broam v. Bogan, 320 F.3d 1 C. Monell Liability governments14 2 Local 3 constitutional 4 Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep t 5 of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). [T]he legislative 6 history of the Civil Rights Act of 1871 compels the conclusion that 7 Congress did intend municipalities and other local government units 8 to be included among those persons to whom § 1983 applies. 9 690. tort[s] are persons under 42 U.S.C. subject § to 1983. suit for Haugen v. Id. at These bodies can be sued directly under § 1983 for monetary, 10 declaratory, or injunctive relief where, as here, the action that 11 is alleged to be unconstitutional implements or executes a policy 12 statement, ordinance, regulation, or decision officially adopted 13 and promulgated by that body's deputies...[or for] deprivations 14 visited pursuant to governmental custom even though such a custom 15 has not received formal approval through the body s official 16 decision making channels. 17 government can be held liable for its official policies or customs, 18 it will not be held liable for an employee s actions outside of the 19 scope of these policies or customs. 20 Id. at 690-91. Although a local To establish municipal liability, a plaintiff must prove the 21 existence of an unconstitutional municipal policy. 22 F.3d at 393. 23 Haugen, 351 [I]t is when execution of a government s policy or custom, whether made by its law-makers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the 24 25 26 27 28 14 Although Monell dealt with a municipal government s liability under § 1983, the standard there announced was more broadly framed in terms of a local government. Brass v. County of L.A., 328 F.3d 1192, 1198 (9th Cir. 2003). 16 1 government as an entity is responsible under § 1983. 2 Monell, 436 U.S. at 694. There are various ways a plaintiff may 3 prove the existence of an unconstitutional municipal policy under 4 the Monell doctrine. These are discussed in context below. 5 6 D. Suits Against Government Officials: Official Capacity and 7 Individual Capacity Suits. 8 Suits against an official in her or his official capacity are 9 treated as suits against the entity on whose behalf that official 10 acts. 11 for which the official works. 12 (1991). 13 individual State official acting in his official capacity is barred 14 by the Eleventh Amendment in the same way that an action against 15 the State is barred. 16 F.3d 836, 839 (9th Cir. 1997). 17 In such suits, the real party in interest becomes the entity In A federal contrast, action Hafer v. Melo, 502 U.S. 21, 25 for monetary damages against an Doe v. Lawrence Livermore Nat'l Lab., 131 [p]ersonal-capacity suits seek to impose 18 personal liability upon a government official for actions [taken] 19 under color of state law. 20 1027 (9th Cir. 1999)(citing Kentucky v. Graham, 473 U.S. 159, 165 21 (1985)) (internal quotations omitted). 22 liability in a § 1983 action, it is enough to show that the 23 official, acting under color of state law, caused the deprivation 24 of a federal right. 25 omitted). 26 assert personal liability defenses, such as qualified immunity. 27 Dittman, 191 F.3d at 1027. Dittman v. California, 191 F.3d 1020, To establish personal Hafer, 502 U.S. at 25 (internal quotations Public officials sued in their personal capacity may 28 17 1 E. Summary Judgment in the Qualified Immunity Context. 2 In this case, Defendant County of Merced asserts the defense 3 of qualified immunity on behalf of all the individual defendants. 4 Qualified 5 individuals would enter public service if they risked personal 6 liability for their official decisions. 7 U.S. 800, 814 (1982). 8 incompetent or those who knowingly violate the law, 9 Bryant, 502 U.S. 224, 228 (1991), and "spare[s] a defendant not 10 only unwarranted liability, but unwarranted demands customarily 11 imposed upon those defending a long drawn out lawsuit. Siegert v. 12 Gilley, 500 U.S. 226, 232 (1991). 13 defense on the merits; it is an entitlement not to stand trial or 14 face the burdens of litigation that may be overcome only by a 15 showing that (1) a constitutional right was in fact violated and 16 (2) no reasonable deputy could believe defendant s actions were 17 lawful in the context of fact-specific, analogous precedents. 18 Saucier v. Katz, 533 U.S. 194, 200-02 (2001). immunity is based on the policy concern that few Harlow v. Fitzgerald, 457 The immunity protects "all but the plainly Hunter v. Qualified immunity is not a 19 20 21 V. A. Discussion. Plaintiff s First and Second Causes of Action 22 Plaintiff s First and Second Causes of Action allege that 23 County Defendants committed assault and battery against Plaintiff 24 on December 6, 2006. 25 causes of actions on grounds that there is no genuine issue of 26 material fact to show that County Defendants assaulted or battered 27 Plaintiff. 28 abandoning both causes of action. Defendants seek summary judgment as to these Plaintiff does not 18 oppose Defendants motion, (Plaintiff s Opposition ( Pl. s 1 Opp. ), Doc. 77, 2:3-2:9, filed July 1, 2009.) Specifically, 2 Garcia concedes that he has developed no evidence to support his 3 first and second causes of action for assault and battery. (Id.) 4 Plaintiff s Fifth Amended Complaint also contains allegations 5 concerning a conspiracy by County Defendants against Plaintiff. 6 These allegations are not separately enumerated as a cause of 7 action. 8 a conspiracy against County Defendants, conceding that he has no 9 evidence of a conspiracy. In his opposition, Plaintiff abandons any allegations of (Id. at 2:8-2-9.) 10 Accordingly, summary judgment is GRANTED in favor of all 11 moving Defendants as to Plaintiff s first cause of action for 12 assault and his second cause of action for battery. 13 Summary judgment is also GRANTED in favor of County Defendants 14 as to the conspiracy allegations contained in Plaintiff s Fifth 15 Amended Complaint. 16 17 B. Fourth Amendment Claims 18 1. Deputy Taylor 19 Plaintiff raises a number of arguments concerning Deputy 20 Taylor s conduct in support of his Fourth Amendment claims: (a) 21 that Deputy Taylor violated his Fourth Amendment rights because he 22 lacked probable cause to conduct a reverse-sting operation; (b) 23 Deputy Taylor misrepresented facts and omitted material information 24 from the Oral Affidavit of Probable Cause, leading to an improper 25 search of Plaintiff s office; and (c) there was no probable cause 26 27 28 19 1 to detain Plaintiff following the reverse sting operation.15 2 3 a. Probable Cause for Reverse Sting 4 Plaintiff first alleges that Deputy Taylor violated his Fourth 5 Amendment rights because he did not have probable cause to conduct 6 a reverse-sting operation, transferring drugs to Plaintiff in the 7 process. 8 violated because Taylor could not corroborate any of Plunkett s 9 bogus allegations ... so they set up an equally bogus reverse sting 10 operation. (Doc. 77, 11:16-11:19.) Plaintiff frames the relevant 11 issue as whether Taylor had probable cause to plant the drugs on 12 Garcia as a pretext to obtain a search warrant. 13 10:8.) Plaintiff states that his Fourth Amendment rights were (Id. at 10:6- 14 This argument partially fails because Plaintiff does not 15 provide any authority for the proposition that the Fourth Amendment 16 requires probable cause to conduct an undercover investigation or, 17 in 18 established that being a target of a law enforcement investigation 19 - absent some allegation of a constitutional violation such as the 20 fabrication of evidence - is not in and of itself actionable under 21 Section 1983. 22 (9th Cir. 2007) (stating that there is no requirement of probable 23 cause when a law enforcement agency investigates an individual or 24 group. ); this instance, a reverse sting operation. It is well- See United States v. Mayer, 503 F.3d 740, 749-50 see also Shields v. Twiss, 389 F.3d 142, 150-51 (5th 25 26 27 28 15 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. 20 1 Cir. 2004) (dismissing allegations of unreasonable investigation 2 because appellant pointed to no legal basis for a § 1983 action of 3 this sort, and the court knows of none. ). 4 The Ninth Circuit recently reaffirmed this principle in 5 Sanders v. City and County of San Francisco, 226 F. App x 687, 688 6 (9th Cir. 2007). 7 chief and former deputy police chief, brought a § 1983 action 8 against the City, its former district attorney, and board of 9 supervisors, In Sanders, Plaintiffs, a former city police alleging that these defendants violated their 10 constitutional rights when they directed and participated in a 11 criminal investigation against the chiefs without probable cause. 12 The Ninth Circuit held that there is no requirement to have 13 probable cause before commencing a criminal investigation: 14 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. 15 16 17 18 19 20 (Id. at 689.) 21 As Macon and Sanders demonstrate, Deputy Taylor did not 22 violate Plaintiff s constitutional rights when he coordinated a 23 sting 24 confidential informant to Plaintiff to test Plaintiff s willingness 25 to 26 operation was a pre-indictment investigation into possible criminal 27 behavior by the Plaintiff, which does not require a probable cause 28 determination. See id; operation knowingly which transport transferred narcotics methamphetamine into the jail. Mayer, 503 F.3d at 749-50. 21 from The a sting As the Ninth 1 Circuit stated in United States v. Aguilar, 883 F.2d 662, 705 (9th 2 Cir. 3 investigation 4 investigation in its entirety, because the information learned from 5 undercover government agents is often the basis for probable 6 cause. 16 7 such a criminal investigation violates any law, constitutional or 8 otherwise. 1989), requiring would be a search warrant tantamount to prerequisite prohibiting a to an criminal Under the facts of this case, it is difficult to see how 9 It is equally well-established that the protections of the 10 Fourth Amendment are implicated only if there has been a search or 11 seizure under Fourth Amendment. 12 that he has a reasonable expectation of privacy in being free from 13 a 14 informants on public property, his claim is foreclosed by Supreme 15 Court and Ninth Circuit precedents.17 sting operation conducted by To the extent Plaintiff argues government agents and their 16 17 18 19 20 21 22 23 24 25 26 27 28 16 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. 17 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. The protections of the Fourth Amendment only apply if there has been a search or seizure, a circumstance not present in this case. It is well-established that not every investigatory technique is a search 22 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 to 17 establish 18 operation - or the courthouse where the sting operation took place a subjective expectation of privacy in the sting 19 20 21 22 23 24 25 26 27 28 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. 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. ). 23 1 - because Defendant Taylor never met with Task Force Agents in 2 Plaintiff s 3 suggests that the parties ever crossed paths or shared a jail 4 meeting room. 5 the sting; nor did he own the walkway adjacent to the courthouse. 6 On the issue of objective reasonableness, Garcia did not have 7 a possessory interest in the items used in the sting; Garcia could 8 not exclude others from the courtroom or the sidewalk adjacent to 9 the courthouse; Garcia took no precautions to maintain his privacy 10 outside the courthouse, as he accepted the Bulger tobacco package 11 from Pluckett on the courthouse steps, a public walkway. 12 evidence cuts against Plaintiff s claims of an unreasonable search 13 under the Fourth Amendment. 14 193 F.3d 930, 933 (8th Cir. 1999); LaDuke v. Nelson, 762 F.2d 1318, 15 1326 n.11 (9th Cir. 1985). 16 office or on Plaintiff s property. No evidence Plaintiff did not own the physical property used in This See, e.g., United States v. McCaster, Plaintiff's allegations do not provide a basis for a Fourth 17 Amendment privacy violation by coordinating the sting.18 18 extent that Plaintiff argues that Defendant Taylor violated his 19 Fourth Amendment rights because he did not have probable cause to 20 conduct a reverse-sting operation, Plaintiff s To the claim is 21 22 23 24 25 26 27 18 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 24 1 foreclosed by well-established Ninth Circuit precedent. 2 equally 3 expectation 4 conducted by trained law enforcement officers on public property. 5 Plaintiff s attempt to expand the outer boundaries of Fourth 6 Amendment 7 constitute 8 enforcement conduct is not actionable. clear that of Plaintiff privacy jurisprudence a search in is under does a not have pre-indictment unavailing. the Fourth a reasonable sting The It is operation sting Amendment. did not This law 9 Deputy Taylor s motion for summary adjudication on Plaintiff s 10 Fourth Amendment claim for lack of probable cause to conduct a 11 sting operation is GRANTED. 12 13 b. Oral Affidavit of Probable Cause 14 The heart of Garcia s civil rights challenge is that Affiant 15 Taylor caused Garcia s office to be improperly searched without 16 probable cause because Taylor misrepresented facts and omitted 17 material information from Taylor s Oral Affidavit of Probable 18 Cause, 19 application for a search warrant for Plaintiff s law office and 20 automobile. 21 liability 22 Deputy Taylor failed to disclose the criminal history of the 23 informant, Mr. Plunkett, to Judge Dougherty; (2) Deputy Taylor 24 misrepresented to Judge Dougherty that one of the Task Force Agents 25 observed Garcia open the Bugler pouch, when he did not; and (3) the 26 warrant was overbroad. which he executed Plaintiff under the and presents submitted three in support primary misrepresentation/omission of the theories for framework: (1) 27 A search made without probable cause violates the Fourth 28 Amendment right to be free from unreasonable searches and can be 25 1 the basis of a claim under 42 U.S.C. § 1983. An officer generally 2 has qualified immunity from a claim that he lacked probable cause, 3 absent a showing that a reasonably well-trained officer in his 4 position would have known that his warrant affidavit failed to 5 establish probable cause. 6 Where, as here, the officer is accused of deliberately omitting 7 information from the affidavit making it materially false and 8 misleading, and claims qualified immunity, the Ninth Circuit has 9 tailored this inquiry.19 Malley v. Briggs, 475 U.S. 335 (1986). Specifically, in order to survive summary 10 judgment, plaintiff must: (1) make a substantial showing that 11 Deputy Taylor s warrant application contained a false statement or 12 omission 13 disregard for the truth; and (2) establish that if the offending 14 material 15 information provided to the Magistrate would be insufficient to 16 establish probable cause. 17 1117, 1124-26 (9th Cir. 1997); Hervey v. Estes, 65 F.3d 784, 789 18 (9th Cir. 1995); see also Liston v. County of Riverside, 120 F.3d 19 965, 972-73 (9th Cir. 1997). 20 that is was deliberately excised (and/or false the or omission made is with reckless included), the Lombardi v. City of El Cajon, 117 F.3d Whether the statements were deliberately false is ultimately 21 19 22 23 24 25 26 27 28 In Franks v. Delaware, 438 U.S. 154 (1978), the Court held that when a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the search warrant is void and improper. Franks, 438 U.S. at 155-156. The Ninth Circuit has subsequently extended Franks violations to omissions as well as misrepresentations. In United States v. Stanert, 762 F.2d 775 (9th Cir. 1985), amended by 769 F.2d 1410 (9th Cir. 1985), the court held that deliberate or reckless omissions of facts that mislead can negate a facial showing of probable cause. See Lombardi v. City of El Cajon, 117 F.3d 1117, 1122 (9th Cir. 1997). 26 1 a factual issue for the jury, but the plaintiff must at least make 2 a "substantial showing" on this issue to survive summary judgment. 3 See Lombardi, 117 F.3d at 1126, n.6; Hervey, 65 F.3d at 790-91. 4 Whether the alleged omissions are material is a question of law for 5 the Court to decide. 6 satisfy both of the above requirements, then the officer is not 7 entitled to qualified immunity and the claim proceeds to trial for 8 the 9 recklessly included false statements (or omitted information) in 10 jury to the affidavit. Hervey, 65 F.3d at 789. determine whether the If the Plaintiff can officer deliberately or Id. at 791. 11 12 13 i. Introduction to Plaintiff s Allegations In order for Deputy Taylor to liable under the 14 misrepresentation/omission 15 admissible 16 deliberately or recklessly omitted information from his affidavit 17 for a search warrant. 18 information was second layer hearsay and that Taylor did not inform 19 Judge Dougherty about Pluckett s specific criminal history and 20 bolstered Mr. Plunkett s credibility in the affidavit by omitting 21 his true motive for helping with the investigation - avoidance of 22 a third strike. 20 23 evidence framework, be supporting his Plaintiff must submit allegation that Taylor Plaintiff submits that all of Plunkett s Garcia relies heavily on a recent Ninth Circuit case, United 24 25 26 27 28 20 Plaintiff also claims that nothing Plunkett said was against his penal interest. (Doc. 77, 14:1-14:3.) 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). 27 1 States v. Stadnisky, 309 F. App x 185 (9th Cir. 2009), to support 2 his omission arguments, contending a minimum standard of required 3 conduct 4 enforcement misrepresentation and/or omission analysis. Relying on 5 Stadnisky, Plaintiff argues that Taylor and Cardwood did not even 6 take those most rudimentary steps ... they never investigated 7 Plunkett s previous reliability and helpfulness as an informant. 8 (Doc. 77, 12:11-12:14.) However, Plaintiff s reliance on Stadnisky 9 is misplaced for a number of reasons, most notably that the 10 detectives in Stadnisky relied on information obtained from a 11 confidential informant, not a known and disclosed informant such as 12 Mr. Plunkett. 13 position. If anything, Stadnisky weakens it. See Florida v. J.L., 14 529 U.S. 266, 271 (2000) (stating that a known informant's tip is 15 thought to be more reliable than an anonymous informant's tip 16 because an anonymous informant typically cannot be questioned about 17 the basis for knowing the information or motive for providing the 18 tip, nor can the anonymous informant be held accountable for 19 providing false information in violation of the law.). (i.e., corroboration and disclosure) under the law Stadnisky does not support Plaintiff s litigation 20 21 ii. Plunkett s Criminal History 22 Plaintiff first maintains that Deputy Taylor deliberately 23 omitted Plunkett s criminal history from his Oral Affidavit and 24 that this omission materially altered Judge Dougherty s probable 25 cause finding.21 A review of the affidavit reveals that Taylor did 26 27 28 21 Plaintiff also alleges that Plunkett originally claimed that guards were responsible for smuggling drugs into the prison, not Garcia or Robledo. Plaintiff claims that Taylor knew of Plunkett s 28 1 not recite Plunkett s specific criminal history, but did disclose 2 that Plunkett was in custody at the Merced County Jail on theft 3 charges and that his case was ongoing: 4 5 6 7 8 9 10 11 12 13 14 In the last twenty days, your Affiant began conducting investigation regarding distribution of methamphetamine in Merced County. On one-ten-two thousand and six, I was contacted by Merced County Sheriff s Department Correctional Sergeant Mark Pace. Sergeant Pace informed me that he had received information from Robert Anthony Plunkett, date of birth five-ten-nineteen-seventy, an inmate at the Merced County Jail, that narcotics were being smuggled into the Merced County Jail by a private attorney ... On one-thirty-two thousand and six, Merced MultiAgency Narcotic Task Force Agent Paul Johnson and I met with and conducted an interview with Robert Anthony Plunkett at the Merced County Correctional Facility. Plunkett explained to Agent Johnson and I that he wished to provide information to us, regarding a criminal organization that was smuggling narcotics into Merced County Jail. Plunkett explained to Agent Johnson and I that he was currently in custody for theft and that he was housed in a westside lock-down area of the facility. 15 ( Verbal Search Warrant, Doc. 58-7, Exh. A, pgs. 6-7.) 16 Based on Taylor s representations in his Oral Affidavit, Judge 17 Dougherty knew the sting operation was based in large part on 18 statements by a known criminal informant, who was charged with a 19 crime of moral turpitude. See Cuevas-Gaspar v. Gonzales, 430 F.3d 20 1013, 1020 (9th Cir. 2005) (holding that crimes of theft are 21 crimes involving moral turpitude. ). However, the record indicates 22 that Plunkett was previously convicted of violating Health and 23 Safety Code § 11359, misdemeanor possession of marijuana; Health 24 and Safety Code § 11360, felony sale of marijuana; Health and 25 26 27 28 previous allegations, yet did not include them in his Affidavit. The affidavit demonstrates Taylor conveyed this information - or some limited version of it - to Judge Dougherty. 29 1 Safety Code § 11364, possession of drug paraphernalia; Health and 2 Safety 3 substance without a prescription; Health and Safety Code § 11378, 4 felony possession of a controlled substance for sale; Health and 5 Safety 6 substance into California; Vehicle Code § 10851, felony vehicle 7 theft; Penal Code § 459, burglary; and Penal Code § 451(c), arson.22 8 Despite Plunkett s lengthy criminal history, including convictions 9 for crimes involving moral turpitude and the sale/transport of 10 narcotics, Deputy Taylor only disclosed Plaintiff s recent theft 11 charge. Taylor s omission of Plaintiff s specific criminal history 12 rises to the level of deliberate falsehood or reckless disregard 13 for the truth if found to be true. 14 Code Code § § 11377, 11379, misdemeanor felony possession transportation of of a a controlled controlled The omission of Mr. Plunkett's specific criminal record does 15 not per se foreclose a finding of probable cause. 16 the search warrant and affidavit recount the events that do not 17 necessarily 18 decision whether, given all the legitimate circumstances set forth 19 in the affidavit before him, there was a fair probability that 20 contraband or evidence of a crime would be found on Plaintiff s 21 person or at the Plaintiff s law office. 22 U.S. 213, 238-39 (1983). 23 Deputy 24 statements support Taylor that Judge Dougherty s The remainder of practical, common-sense Illinois v. Gates, 462 The affidavit recounts testimony from he partially corroborated concerning: Robledo s involvement Mr. Plunkett s with narcotics; 25 26 27 28 22 A detailed review of Plaintiff s criminal history can be found in Doc. 77 at 2:23-2:28. In his deposition, Plaintiff stated he had felony convictions for auto theft, burglary, and arson. (Dep. Plunkett 109:15-109:23.) 30 1 Plunkett s own relationship with Robledo; Robledo s relationship 2 with the Plaintiff; the general nature and persons involved in the 3 smuggling ring; and the importance of Bugler packaging to smuggle 4 narcotics into the jail. (Doc. 58-7, Exh. A, pgs. 6-10.) 5 Defendants argue that absent Plunkett s specific criminal 6 history, the affidavit sufficiently states evidence supporting the 7 probability that objects of the prospective search - e.g., the 8 methamphetamine used in the sting, the Bugler tobacco pouch, drug 9 paraphernalia, etc. - might be found at Plaintiff s law office, in 10 his car, or on his person. However, probable cause rested in large 11 part on Plunkett s representations concerning Garcia s involvement 12 in the smuggling ring; the information allegedly omitted by Deputy 13 Taylor goes directly to the level of his credibility, which was not 14 presented to the issuing judge. 15 16 iii. Plaintiff s Remaining Allegations 17 Plaintiff argues that the single most significant material 18 misrepresentation to the judge in the oral affidavit is the Task 19 Force Agents misrepresentation in the oral affidavit that he 20 observed Garcia open the Bugler pouch. 21 Affidavit stated that he observed Garcia open the flap, close it, 22 and walk back to his office with the tobacco pouch in his hand. 23 Plaintiff testifies that he never opened the flap of the tobacco 24 bag, but instead only accepted the Bugler tobacco pouch from 25 Plunkett and took it to his office. 26 Plunkett handed him the Bugler pouch, he stated, if there s 27 anything else in here besides tobacco, you take it back to Sylvia 28 or wherever you got it. 31 Agent Cardwood s Oral Plaintiff also alleges that as 1 Although these specific allegations concern Deputy Taylor - 2 not Agent Cardwood, Deputy Taylor stated in his Affidavit that 3 Garcia took the package from him, which was a Bugler cigarette 4 pack containing methamphetamine, which he had already looked at. 5 (Doc. 58-7, Exh. A, pg. 13.) 6 personally witness Garcia open the Bugler pouch, he incorporated 7 Cardwood s observations about Plaintiff looking in the pouch in his 8 testimony to the issuing judge which, had the information not been 9 included, would have resulted in a finding of no probable cause. 10 With respect to Plaintiff s statement to Plunkett when he handed 11 over 12 monitored the transaction between Plunkett and Plaintiff via CB 13 radio.23 14 exculpatory statement in his Oral Affidavit to the issuing judge. 15 Omitting, arguendo, the statement about Garcia looking at 16 it, and adding Plaintiff s statements concerning the package s 17 contents, as well as Plunkett s extensive criminal history, does 18 the affidavit still contain sufficient probable cause for a search 19 warrant against Garcia and his law office? 20 circumstances test applies to determine whether a search warrant 21 is supported by probable cause. 22 test requires a practical, common-sense decision whether, given 23 all the circumstances set forth in the affidavit, including the 24 veracity and basis of knowledge of persons supplying hearsay 25 information, the Bugler pouch, However, there it Deputy is a Although Taylor claims he did not is undisputed Taylor fair did not that Deputy include Taylor Plaintiff s A totality of the Gates, 462 U.S. at 238-39. . probability that This contraband or 26 27 23 28 radio. Specifically, Plaintiff listened to the wire using his CB (Doc. 64, 4:18-4:20.) 32 1 evidence of a crime will be found in a particular place. 2 United States v. Feeney, 984 F.2d 1053, 1055 (9th Cir. 1993). 3 The affidavit states that Deputy Taylor met with Mr. Plunkett 4 between three and ten times to investigate Plunkett s allegations 5 concerning the jailhouse drug smuggling ring. 6 confirmed Plunkett s information (and his credibility) with outside 7 sources. 8 the reverse sting and obtained fourteen ounces of methamphetamine 9 from the Merced County Sheriff s Department. Taylor purportedly He then contacted Special Agent Cardwood and organized Deputy Taylor placed 10 the methamphetamine in a Bugler brand cigarette package, per the 11 reported modus operandi. 12 upon opening the Bugler package according to Taylor and Cardwood, 13 which is categorically contradicted by Plaintiff.24 14 only be resolved by the trier of fact, not the court. The methamphetamine was in plain view This fact can 15 According to the affidavit, the sting operation required 16 Plaintiff to contact John Garcia at the Merced County Superior 17 Courthouse and give Garcia the Bugler tobacco pouch. 18 to tell Garcia that he was on a pass from Sandy Mush Correctional 19 Facility 20 unsuccessful attempts to give Garcia the Bugler pouch, Plunkett and that the package was for Robledo. Plunkett was After two 21 22 23 24 25 26 27 28 24 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. 33 1 approached Garcia outside the courthouse. The two walked to 2 Garcia s office together, and Plunkett told Garcia he was on a 3 pass from jail. 4 tobacco pouch containing the methamphetamine and handed it to 5 Garcia. 6 continued walking to his office. Other Task Force members observed 7 the above events and confirmed that Plaintiff possessed the Bugler 8 package containing the methamphetamine when he entered his office 9 building. 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 10 whether Plaintiff had knowledge of the presence of the controlled 11 substance, specifically whether the meth was in plain view and 12 whether Plaintiff opened the Bugler flap. 13 Although it is undisputed that the Bugler pouch contained 14 fourteen grams of methamphetamine, Plaintiff took possession of the 15 pouch, and continued on to his office, the dispute is whether 16 Plaintiff opened the tobacco package flap to show knowledge of the 17 presence 18 establishment of an essential element of the crime existed to 19 believe that Plaintiff would knowingly accept a Bulger tobacco 20 package with meth for transport to Plaintiff s incarcerated client 21 at the jail, which Plaintiff took to his office. of the controlled substance, which prevents the 22 To determine if what remains [is] sufficient to justify the 23 issuance of the warrant, the missing information must be added to, 24 and 25 affidavit. 26 2005); Liston, 120 F.3d at 973. 27 not as a matter of law support a finding that there was probable 28 cause the to misrepresentations subtracted from, Deputy Taylor s Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. believe that Here, the surviving assertions do Garcia 34 knowingly transported the 1 methamphetamine to his office or that some portion of it remained 2 at the office at the time Taylor and Cardwood made their oral 3 affidavits. The judge, if Plaintiff s facts are true, did not have 4 cause to believe that a search of Garcia s office would lead to the 5 recovery of the methamphetamine and other incriminating evidence 6 related to a scheme to knowingly transport meth to the jail for 7 prisoners. 8 9 iv. Conclusion 10 For the reasons set forth above, Deputy Taylor s motion for 11 summary adjudication based upon qualified immunity is DENIED. 12 Deputy Taylor s misrepresentations and omissions, taken together, 13 were material to the judge s determination of probable cause and 14 had the statements been truthful and the omissions added, no 15 probable cause would have existed. Probable cause to search rested 16 on 17 methamphetamine and, to some extent, on Mr. Plunkett s credibility. 18 The information allegedly falsified and omitted by Deputy Taylor 19 goes directly to the level of Plaintiff s knowledge and Plunkett s 20 credibility. Plaintiff s knowledge that the Bugler bag contained 21 A reasonable jury could determine that Deputy Taylor acted 22 with at least recklessness in filling out the affidavit, given the 23 importance of Plaintiff s knowledge and Plunkett s credibility to 24 a probable cause determination. 25 qualified immunity on Plaintiff s judicial deception claim. Deputy Taylor is not entitled to 26 27 28 c. Stop of Plaintiff s Vehicle Plaintiff argues that there was no probable cause to stop and 35 1 detain him following the reverse sting operation. 2 the tactics used but does not squarely address the issue of 3 probable cause for post-sting events. 4 Plaintiff cannot maintain his constitutional challenge because he 5 was 6 challenge is permissible, Deputy Taylor argues that probable cause 7 existed to effectuate a warrantless detention of Plaintiff until he 8 obtained search warrant for Plaintiff s law office and automobile. 9 Deputy Taylor also raises the defense of qualified immunity. 10 not present at the vehicle He criticizes Deputy Taylor contends that stop. Assuming Plaintiff s All of this is abrogated if Plaintiff s testimony is believed. 11 A peace officer is entitled to qualified immunity in a civil 12 rights action if the district court determines that, in light of 13 clearly established law governing the conduct in question at the 14 time of the challenged conduct, the officer could reasonably have 15 believed that the conduct was lawful. Levine v. City of Alameda, 16 525 F.3d 903, 906-07 (9th Cir. 2008). This determination requires 17 a 18 official's 19 challenged conduct occurred. 20 clearly established law, a reasonable official would have believed 21 the conduct to be unlawful. 22 this inquiry, the Court must first consider the threshold question 23 of whether the facts viewed in the light most favorable to the 24 party asserting the injury show the officer's conduct violated a 25 constitutional right. 26 "If no constitutional right would have been violated were the 27 allegations 28 inquiries concerning qualified immunity." Id. two-step analysis. conduct First, was whether clearly established Id. Id. the law at governing the the the time Second, whether, under that However, even before engaging in Saucier v. Katz, 533 U.S. 194, 201 (2001). established, there 36 is no necessity for further 1 The Fourth Amendment protects the right of the people to be 2 secure in their persons, houses, papers, and effects, against 3 unreasonable searches and seizures. In conformity with the rule at 4 common law, a warrantless arrest by a law officer is reasonable 5 under the Fourth Amendment where there is probable cause to believe 6 that a criminal offense has been or is being committed. Devenpeck 7 v. Alford, 543 U.S. 146, 153 (2004) (citing United States v. 8 Watson, 423 U.S. 411, 417-424 (1976)). 9 Probable cause exists when, under the totality of the 10 circumstances known to the arresting officers, a prudent person 11 would have concluded that there was a fair probability that [the 12 defendant] had committed a crime. 13 F.3d 834, 837 (9th Cir. 1999) (quoting United States v. Garza, 980 14 F.2d 546, 550 (9th Cir. 1992)). 15 overwhelmingly 16 trustworthy information. 17 (2001). convincing United States v. Buckner, 179 Probable cause does not require evidence, but only reasonably Saucier v. Katz, 533 U.S. 194, 207 18 Probable cause is an objective standard and the officer's 19 subjective intention in exercising his discretion is immaterial in 20 judging whether his actions were reasonable for Fourth Amendment 21 purposes. 22 2007) (citing United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 23 2007)). 24 consider additional facts that became known only after the arrest 25 was made. Id. (citing Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 26 1989)). 27 28 John v. City of El Monte, 505 F.3d 907, 911 (9th Cir. It is essential to avoid hindsight analysis, i.e., to Plaintiff urges that Deputy Taylor is not entitled to qualified immunity with respect to the stop of his vehicle and 37 1 subsequent arrest/detention. 2 there are material issues whether Taylor .. [h]ad probable cause 3 to 4 substantial 5 testimony, that establishes Deputy Taylor s was not present when 6 Plaintiff s car was stopped and he was arrested/detained by law 7 enforcement 8 believed, there was no basis for the search or any of the resulting 9 events. plant drugs on Garcia, evidence, Specifically, Plaintiff states that then including personnel. However, stop him .... Plaintiff s if There own Plaintiff s is deposition testimony is 10 In Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 11 2008), the Ninth Circuit affirmed the dismissal of Plaintiffs case 12 against the Detective Defendant because it is undisputed that 13 Detective Hickman was not present when Torres was arrested, and 14 there is no evidence that Detective Hickman instructed the other 15 detectives 16 consulted with her before making the arrest. 17 Ninth Circuit found that the lack of participation - and presence - 18 led to one conclusion: that there is no evidence of integral 19 participation by Detective Hickman in the alleged constitutional 20 violation. 21 Circuit authority on the issue. See Blankenhorn v. City of Orange, 22 485 F.3d 463, 481 n. 12 (9th Cir. 2007) (explaining that integral 23 participation requires some fundamental involvement in the conduct 24 that allegedly caused the violation and affirming summary judgment 25 in favor of officer who arrived on the scene after the allegedly 26 unconstitutional 27 control); Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005) (en 28 banc) (affirming grant of summary judgment in favor of government to arrest Torres or that any of those detectives Id. at 1206. The Id. Torres is consistent with other recent Ninth arrest and officer 38 who provided only crowd 1 agent who did not participate in the allegedly unconstitutional 2 search). 3 Nevertheless, if Deputy Taylor s affidavit is false, it 4 provided the causal impetus for the vehicle stop on February 6, 5 2006; 6 deposition that Deputy Taylor was not present at the vehicle stop 7 and did not use excessive force against him.25 8 the deputy who obtained the warrant, there would have been no basis 9 to detain Plaintiff if the search had not been conducted. even if Plaintiff conceded in his December 30, 2008 Although Taylor was 10 11 ii. Did Probable Cause Exist? 12 The oral affidavit of probable cause to search, while not 13 definitive on the issue of probable cause to make a warrantless 14 arrest,26 provides a guide for determining the facts at the time of 15 Garcia s 16 Garcia s office and person sets forth: Garcia was the subject of a 17 criminal investigation into his alleged role in an operation 18 involving smuggling contraband into Merced County Jail. Task Force 19 members claim to have confirmed Garcia s alleged role in the 20 operation and organized a reverse sting whereby a confidential stop. The declaration of probable cause to search 21 22 23 24 25 26 27 28 25 It is undisputed that District Attorney Gordon was not present during the vehicle stop. 26 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. 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. 39 1 informant would transfer to Garcia a Bugler pouch containing 2 fourteen grams of methamphetamine. On the afternoon of February 6, 3 2006, Garcia took possession of the tobacco pouch containing the 4 methamphetamine and proceeded to his office. 5 office a few minutes, then left in his black Volvo. 6 stopped by an unmarked police vehicle, searched, and placed in 7 handcuffs. Garcia was in his He was then 8 Plaintiff does not dispute that he met with the Plunkett and 9 took the Bugler pouch - and the methamphetamine, ostensibly to 10 deliver to Robledo. 11 possessed fourteen ounces of methamphetamine on the afternoon of 12 February 13 Plaintiff does dispute his knowledge of the contents of the 14 pouch, 15 methamphetamine. Plaintiff argues that this forecloses any finding 16 of probable cause to support a warrantless arrest. 17 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 18 public offense within the meaning of the statute. 19 Code, § 15(2), (3) (defining "public offense" as violation of the 20 law for which a person may be, inter alia, imprisoned or fined); 21 Cal. Health & Safety Code, §§ 11377, 11378; 21 USC § 844(a). 22 Although Deputy Taylor was not required to be completely accurate 23 in 24 methamphetamine in order to make a warrantless arrest, he was 25 required to have known whether the meth was immediately visible in 26 the pouch to support a believed that Plaintiff knowingly possessed 27 the methamphetamine in order to make a warrantless arrest. 28 his belief that Plaintiff knowingly See Cal. Pen. possessed the Plaintiff claims that he did not open the Bugler package until 40 1 he arrived at his office and therefore did not knowingly possess 2 methamphetamine. 3 belief is completely inconsistent with Plaintiff s description of 4 what was visible when Plaintiff accepted the Bugler package from 5 Plunkett. 6 the flap of the Bugler pouch and the methamphetamine was not in 7 plain view, negating any purported knowledge of a controlled 8 substance. 9 package, the Agents could not entertain an honest and strong 10 suspicion that Plaintiff had knowledge of the contents of the 11 Bugler package, which would have revealed the methamphetamine, if 12 it was not visible as Plaintiff has testified. 13 not established. The record demonstrates that Deputy Taylor s Specifically, Plaintiff maintains that he did not open Regardless of whether Plaintiff actually did open the Probable cause is 14 The focus is on all the facts in the Agents possession and 15 whether, in light of these facts, there was probable cause to 16 arrest Garcia, or whether a reasonable officer could have believed 17 there was probable cause to arrest. 18 dispute. This remains in material 19 Viewing the evidence in the light most favorable to Plaintiff, 20 he has shown that if the trier of fact believes Plaintiff had no 21 knowledge, he was arrested or detained without probable cause in 22 violation of the Fourth Amendment. The qualified immunity analysis 23 ends there. 24 issue 25 adjudication on this claim is DENIED. 26 of See Saucier, 533 U.S. at 201. material Although the fact. parties Defendants frame their There is a genuine motion arguments for in summary terms of 27 probable cause for arrest, an alternate analysis exists under 28 Terry v. Ohio, 392 U.S. 1 (1968). 41 A "Terry" stop or investigative 1 detention requires only reasonable suspicion that the detainee is 2 engaged in criminal activity. 3 439 (1984). 4 reasonable 5 together with objective and reasonable inferences, form the basis 6 for suspecting that the particular person detained is engaged in 7 criminal activity.'" United States v. Michael R., 90 F.3d 340, 346 8 (9th Cir. 1996) (quoting United States v. Garcia-Camacho, 53 F.3d 9 244, 245 Berkemer v. McCarty, 468 U.S. 420, "To detain a suspect, a police officer must have suspicion, (9th Cir. or 'specific, 1995)). To articulable determine facts whether which, reasonable 10 suspicion existed, the court must consider the totality of the 11 circumstances surrounding the stop. Id. (citing United States v. 12 Hall, 974 F.2d 1201, 1204 (9th Cir. 1992)). 13 This involves no different result based on the dispute over 14 the truthfulness of the law enforcement witnesses version of 15 events. 16 was engaged in criminal activity, i.e., to transport the meth to 17 the jail for Robledo, depends on Plaintiff s knowledge of the 18 presence of the meth, which is totally in dispute. 19 Agents observations do not create a reasonable suspicion that 20 Plaintiff may have been involved in criminal activity if the agents 21 were truthful. 22 pending further investigation pursuant to the search warrant was 23 unnecessary. Whether the agents had a reasonable suspicion that Garcia The Task Force If the affidavit was false, Plaintiff s detention Summary adjudication on this ground is DENIED. 24 25 b. Unreasonable Detention 26 Although not addressed in his opposition papers, Plaintiff 27 appeared to raise the issue of unreasonable detention during oral 28 argument on July 27, 2009. 42 1 First, although not disputed by Plaintiff, the length of 2 Plaintiff s detention was unreasonable if there was no cause for 3 his detention. 4 detained Mena for two to three hours in handcuffs while executing 5 a search warrant. 6 approximately three hours while agents waited for a special master. 7 Plaintiff was released ninety minutes after the special master 8 arrived. 9 unlawful if Plaintiff s facts are believed. 10 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 11 if there was no cause for the detention. 12 handcuffed during the search of his office, he was never physically 13 touched by officers, other than to place him in handcuffs or to 14 remove his handcuffs to let him use the bathroom. 15 30, 2008 deposition, Plaintiff conceded that the officers acted 16 reasonably when they detained him: 17 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... 18 19 20 (Garcia Dep. 195:3-195:7.) 21 In support of its argument, the County of Merced submitted the 22 deposition of an expert on police procedures, Mr. Miller, who has 23 been a full-time peace officer since 1981.27 Mr. Miller testified 24 25 27 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. 43 1 in his deposition that in his opinion the agents acted reasonably 2 in detaining Garcia and excessive force was not used; that the 3 period of time was not unreasonable because the special master did 4 not arrive until 1940 hours; Deputy Taylor moved the investigation 5 along by taking statements from those named in the warrant; and the 6 search took only 95 minutes once the special master arrived. (Doc. 7 67-8, ¶ 13.) 8 excessive force as Garcia was purportedly involved in a narcotics 9 smuggling ring. 10 11 Mr. Miller also opined that the officers did not use (Id.) Miller emphasized that drug offenses are frequently associated with weapons. Based on the overall dispute (Id.) in the evidence, summary 12 adjudication is DENIED on Plaintiff s unreasonable detention claim, 13 because the detention was unlawful if the seizure was tainted by a 14 prior illegal search warrant and search. 15 16 c. Conclusion 17 After viewing the entirety of the evidence in Plaintiff s 18 favor, drawing all inferences in his favor, Defendant is not 19 entitled to qualified immunity. 20 facts concerning Deputy Taylor s alleged wrongful conduct under the 21 Fourth Amendment. 22 23 There remains disputed material Summary adjudication is DENIED as to Agent Cardwood s motion on Plaintiff s fifth cause of action. 24 25 2. District Attorney Gordon Spencer 26 27 28 1992) (noting matters of law are for the court s determination, not that of an expert witness). 44 1 As best understood, 2 Spencer 3 implemented and created and approved decisions and conduct in 4 obtaining and executing the fraudulent warrant. 5 that Plaintiff contends that DA Spencer violated his constitutional 6 rights 7 participation in the sting operation. violated by offering his Mr. Plaintiff Fourth alleges Amendment Plunkett a District rights reduced Attorney because he It also appears sentence for his 8 As to Plaintiff s first contention, although it has not been 9 established that the search warrant obtained from Judge Dougherty 10 on February 6, 2006 was valid, i.e., there was not probable cause 11 to support the search of Plaintiff s automobile, his person, and 12 his law office, to the extent Plaintiff alleges DA Spencer was a 13 participant in the vehicle stop or his detention, it is undisputed 14 that DA Spencer had no role in and was not present during the stop 15 of Plaintiff s vehicle or the search of his office. 16 inappropriate under Torres v. City of Los Angeles, 548 F.3d 1197. 17 As to Plaintiff s allegations about Plunkett, there is no 18 record evidence, and Plaintiff points to none, demonstrating that 19 Mr. Plunkett received a reduced jail sentence based on his 20 participation in the reverse sting operation. 21 Spencer states in his sworn deposition that he did not arrange for 22 a plea agreement or lighter sentence for Robert Plunkett in return 23 for his cooperation in the investigation. 24 Plunkett 25 participation in the sting operation. 26 confirms that he did not Liability is To the contrary, DA (Doc. 67-12, ¶ 6.) receive a deal for Mr. his DA Spencer s conduct was intimately associated with the 27 28 45 1 judicial phase of the criminal process, he is immune.28 2 comports 3 Ashcroft, No. 06-36059, --- F.3d ---, 2009 WL 2836448 (9th Cir. 4 Sept. 4, 2009), as well as Imbler v. Pachtman, 424 U.S. 409 (1976) 5 and KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004).29 6 with Ninth Circuit s recent decision in This Al-Kidd v. Summary adjudication is GRANTED in favor of the County of 7 Merced as to Plaintiff s claims against District Attorney Gordon 8 Spencer. 9 10 3. Plaintiff's § 1983 Claims Against the County of Merced 11 Plaintiff claims that material issues remain as to his Monell 12 claim against the County because Taylor met with Gordon Spencer 13 several times regarding the information he had developed in the 14 investigation, solicited advice from Gordon Spencer about putting 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 All of District Attorney Spencer s conduct involved functions that are protected by absolute immunity. In his declaration, Spencer states that in February 2006, he was contacted by agents of the Task Force and informed that a criminal investigation was underway involving John Garcia allegedly smuggling drugs into the county jail. (Spencer Dec. ¶ 3.) The agents told Spencer that they would secure a search warrant if a drug transfer occurred. (Id.) Spencer advised the agent to include everything that had occurred in the search warrant affidavit and seek the warrant through Judge Frank Dougherty. That ended Spencer s involvement with the sting. Spencer was not present during the application for the search warrant, the stop of John Garcia s vehicle, or the search of his office. (Id at 7-8.) Spencer also did not charge Garcia with a crime. (Id at 9.) Plaintiff presents no evidence or argument that District Attorney Spencer took actions outside his protected functions. 29 As a California district attorney is considered to be a State officer under most circumstances - i.e., if he was acting in a prosecutorial capacity, - DA Spencer would also be immune under the eleventh amendment. See, e.g., Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000); Sanders v. City and County of San Francisco, 226 F. App x 687, 692-93 (9th Cir. 2007). 46 1 the case together for prosecution, and obtained Spencer s approval 2 for the reverse sting operation. (Doc. 77, 16:11-16:13.) 3 However, not only are Plaintiff s claims inconsistent with the 4 record but, as Defendants note, a California district attorney is 5 considered to be a State, not a County, officer under most 6 circumstances. Weiner v. San Diego County, 210 F.3d 1025, 1031 (9th 7 Cir. 2000). Any statements and/or conduct by District Attorney 8 Spencer cannot be the basis for liability against the County. 9 As to Plaintiff s remaining Monell allegations, Plaintiff has 10 not presented any evidence establishing the existence of a County 11 policy, custom or practice which would support his claim under § 12 1983. Plaintiff has not pointed to any prior instances of Merced 13 County officers omitting material facts from their affidavits in 14 support of search warrants. See Ulrich v. City and County of San 15 Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (prior instances of 16 similar unconstitutional conduct may establish a longstanding 17 practice or custom which constitutes the standard operating 18 procedure of the local government entity. ) In addition, Plaintiff 19 has presented no evidence of any written or verbal statement of 20 policy by any County official, who can be said to be an official 21 policy-maker, encouraging County officers to omit material 22 information from their affidavits in order to secure search warrants 23 for which there would not otherwise be probable cause.30 24 25 26 27 28 30 To the extent that Garcia argues that municipal liability attaches to the County based upon Taylor or Cardwood allegedly exercising policymaking authority on behalf of the County, this argument is also unpersuasive. Garcia cites neither facts nor law to support the proposition that a Sheriff s deputy, or a DOJ Special Agent are individuals whose acts represent official County 47 1 Because Plaintiff has failed to establish a County policy, 2 custom or practice which resulted in the alleged constitutional 3 violation in this case, summary adjudication is GRANTED in favor of 4 Defendant County of Merced on Plaintiff's Monell claim under § 1983. 5 6 C. State Law Claim - False Arrest/Imprisonment 7 Defendants argue that summary adjudication is warranted on the 8 false arrest/imprisonment claim for the same reasons that it was 9 warranted for Plaintiff s claim under § 1983, i.e, because probable 10 cause existed for the warrant and the search. 11 The tort of false imprisonment is: "(1) the nonconsenual, 12 intentional confinement of a person, (2) without lawful privilege, 13 and (3) for an appreciable period of time, however brief." Easton 14 v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000). "Under 15 California law, the torts of false arrest and false imprisonment are 16 not separate torts, as false arrest is 'but one way of committing 17 a false imprisonment.'" Watts v. County of Sacramento, 256 F.3d 18 886, 891 (9th Cir. 2001) (quoting Asgari v. City of Los Angeles, 15 19 Cal.4th 744 (1997)). "A cause of action for false imprisonment based 20 on unlawful arrest will lie where there was an arrest without 21 process followed by imprisonment." Watts, 256 F.3d at 891 (citing 22 City of Newport Beach v. Sasse, 9 Cal. App. 3d 803 (1970)). 23 In this case, Plaintiff alleges that he was falsely arrested 24 during the vehicle stop prior to the search of his office and that 25 26 27 28 policy. The law in the Ninth Circuit cuts against Plaintiff s litigation position. See Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996) (concluding that police officers are not officials with final policy-making authority). 48 1 he was falsely imprisoned based on Agent Cardwood s 2 misrepresentations and omissions in his Oral Affidavit for a Search 3 Warrant. If there was no probable cause to arrest and detain 4 Plaintiff based on the Task Force Agents allegedly false 5 observations and reports that Plaintiff allegedly possessed the 6 methamphetamine and returned with it to his office. There is a 7 genuine issue of material fact that probable cause existed to stop 8 Plaintiff s vehicle on February 6, 2006. 9 The latter claims survive because Plaintiff has establish a 10 genuine issue of fact regarding whether Deputy Taylor knowingly 11 provided misinformation to Judge Dougherty, deliberately omitted 12 material facts, or otherwise engaged in wrongful or bad faith 13 conduct that was actively instrumental in causing the warrant to be 14 issued. 15 Plaintiff s cause of action for false imprisonment/arrest is 16 not subject to summary judgment as the existence of probable cause 17 is in dispute.31 See Blankenhorn v. City of Orange, 485 F.3d 463, 18 486-87 (9th Cir. 2007). Whether probable cause existed for Deputy 19 Taylor s stop of Plaintiff and for the search of his law office is 20 a jury issue. The false imprisonment/arrest claims against 21 Defendants cannot be determined as a matter of law. 22 Summary judgment is DENIED as to Plaintiff s state law claims 23 24 31 25 26 27 28 In California, false arrest is a species of the tort of false imprisonment. Collins v. City & County of San Francisco, 50 Cal. App. 3d 671 (1975) ("False arrest is but one way of committing a false imprisonment."). "False imprisonment is 'the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.'" George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992). 49 1 for false imprisonment/arrest. 2 3 V. Conclusion 4 For the reasons discussed above: 5 1. The motion for summary adjudication on the first cause of 6 action for assault and the second cause of action for battery is 7 GRANTED. 8 2. The motion for summary adjudication on the conspiracy 9 allegations contained in Plaintiff s Fifth Amended Complaint is 10 GRANTED. 11 3. The motion for summary adjudication on Plaintiff s 12 allegations that Deputy Taylor violated his Fourth Amendment rights 13 by conducting a reverse sting operation on February 6, 2006 is 14 GRANTED . 15 4. The motion for summary adjudication on the Fourth 16 Amendment claim for judicial deception (Franks claim) is DENIED. 17 5. The motion for summary adjudication on the Fourth 18 Amendment claim for unreasonable arrest and detention under the 19 Fourth Amendment Claim is DENIED. 20 6. The motion for Summary adjudication on Plaintiff s claim 21 against District Attorney Gordon Spencer is GRANTED. 22 7. The motion for summary adjudication on Plaintiff s Monell 23 claim against the County of Merced is GRANTED. 24 8. The motion for summary adjudication on the related state 25 law claim for false arrest/imprisonment is DENIED. 26 27 Consistent with Rule 56(d)(1), both parties shall have five (5) 28 days following service of this decision to file a list of material 50 1 facts which each party believes are not genuinely at issue for 2 purposes of trial. If separately filed by the parties, these lists 3 shall not exceed five pages. To the extent practicable, the parties 4 should meet and confer to determine whether and to what extent any 5 material facts are agreed upon for purposes of trial. Agreed upon 6 facts should be listed in a joint filing. Any such joint filing has 7 no page limitation. 8 Plaintiff shall submit a form of order consistent with, and 9 within five (5) days following electronic service 10 memorandum decision. 11 IT IS SO ORDERED. 12 Dated: 9i274f 13 September 25, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51 of, this
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