Cook v. Torres et al, No. 4:2019cv01370 - Document 141 (N.D. Cal. 2021)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; REFERRAL TO MEDIATION granting 64 MOTION for Summary Judgment filed by Ollie Sansen, granting in part and denying in part 74 MOTION for Su mmary Judgment filed by J. Downie, Marcos Torres, Elizabeth Scott, Jennifer Lee, John Cox, Carrie Moore, Martin Hynes, John Ramirez, denying 131 Administrative MOTION Seeking an Order That Plaintiff Further Oppositions to Sansen& #039;s Motion for Summary Judgment Dkt. Nos. 128 and 130 are Improper and Will Not be Considered filed by Ollie Sansen. Signed by Judge Phyllis J. Hamilton on 8/13/2021. (kcS, COURT STAFF) (Filed on 8/13/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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Cook v. Torres et al Doc. 141 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 1 of 22 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DAVID L. COOK, 7 Plaintiff, 8 v. 9 MARCOS TORRES, et al., 10 Defendants. 11 United States District Court Northern District of California Case No. 19-cv-01370-PJH ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; REFERRAL TO MEDIATION Re: Dkt. Nos. 64, 74, 131 12 Plaintiff, a former county detainee and current federal prisoner, proceeds with a 13 14 pro se civil rights complaint under 42 U.S.C. § 1983. Defendants filed motions for 15 summary judgment on the merits. Plaintiff has filed multiple oppositions and defendants 16 filed replies. For the reasons set forth below, the motions are granted in part and denied 17 in part. BACKGROUND 18 19 This action continues on the second amended complaint. Docket No. 24. Plaintiff 20 alleges that defendants unlawfully searched, arrested and detained him on four separate 21 occasions; specifically, on August 16, 2018, October 15, 2018 and January 9, 2019, by 22 Antioch Police (“Antioch Defendants”),1 and on October 3, 2018, he was searched, 23 arrested and detained by Concord Police Sergeant Sansen (“Concord Defendant”). The Antioch Defendants argue that plaintiff was on court-ordered probation with a 24 25 search clause and there was reasonable suspicion during the August 16, 2018 and 26 October 15, 2018, searches; therefore, there was no violation of his rights. The Antioch 27 28 1 These defendants include officers Cox, Downie, Hynes, Ramirez and Torres and dispatchers Lee, Moore and Scott. Dockets.Justia.com Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 2 of 22 1 Defendants state that with respect to the third search on January 19, 2019, plaintiff was 2 not on probation, but his claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994), 3 because plaintiff pled no-contest to charges stemming from that incident. The Concord 4 Defendant also argues that plaintiff was on court-ordered probation during the October 3, 5 2018, search, and there was reasonable suspicion to support the search in light of the 6 probation order. United States District Court Northern District of California 7 MOTIONS FOR SUMMARY JUDGMENT 8 Legal Standard 9 Summary judgment is proper where the pleadings, discovery and affidavits show 10 that there is "no genuine dispute as to any material fact and the movant is entitled to 11 judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may 12 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 13 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 14 reasonable jury to return a verdict for the nonmoving party. Id. 15 The moving party for summary judgment bears the initial burden of identifying 16 those portions of the pleadings, discovery and affidavits which demonstrate the absence 17 of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); 18 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When 19 the moving party has met this burden of production, the nonmoving party must go beyond 20 the pleadings and, by its own affidavits or discovery, set forth specific facts showing that 21 there is a genuine issue for trial. Id. If the nonmoving party fails to produce enough 22 evidence to show a genuine issue of material fact, the moving party wins. Id. 23 Facts 24 A review of the record indicates that the following facts are undisputed unless 25 otherwise noted: 26 Probation 27 This case discusses two different types of probation: court-ordered probation and 28 Postrelease Community Supervision (“PRCS”), also known as AB 109. PRCS was 2 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 3 of 22 1 enacted in 2011 pursuant to Assembly Bill 109. It is undisputed that plaintiff was not on 2 PRCS during the incidents in this case. The computer systems in these incidents 3 erroneously stated that he was on PRCS. It is undisputed that during the August 16, 2018, October 3, 2018 and October 15, United States District Court Northern District of California 4 5 2018 incidents, plaintiff was on court-ordered probation from the Contra Costa County 6 Superior Court in Martinez for a nonviolent misdemeanor. Concord Defendant Request 7 for Judicial Notice (“RJN”) at 4; Antioch Defendants Request for Judicial Notice (“RJN”) 8 Exs. A, E.2 Part of the probation provided that plaintiff had to “Submit your person, place 9 of residence, storage locker, any vehicle or property under your control to search and 10 seizure at any time of the day or night, with or without warrant, to any police officer.” Id. 11 The end date of the court-ordered probation was November 18, 2018. Id. Previously, the 12 Contra Costa County Superior Court in Pittsburg had ordered plaintiff on probation 13 through September 16, 2016, on a different case. Docket No. 108, Ex. F. The Pittsburg 14 court’s probation order is not relevant in this case. 15 October 3, 2018, Incident with Concord Police 16 On October 3, 2018, the Concord Defendant, sergeant Sansen was assigned to a 17 Special Enforcement Team (“SET”) for the City of Concord’s Police Department. Motion 18 for Summary Judgment 1 (“MSJ1”) Sansen Decl. ¶¶ 2-3. Sansen was the supervisor of 19 the team. Id. ¶ 3. The Concord Police received a report of a sexual assault perpetrated 20 by plaintiff, who was staying in a Motel 6 in Concord and had a firearm. Id. ¶ 4. Officers 21 performed a search of plaintiff’s name on the Automated Regional Information Exchange 22 System (“ARIES”) to determine if plaintiff was on probation. Id. ¶ 5. ARIES is a shared 23 information system maintained by Alameda, Solano and Contra Costa Counties. Id. 24 State courts within the counties input probation information, which includes effective and 25 expiration dates, terms and conditions, underlying offenses and court docket numbers. 26 27 28 2 Defendants’ requests for judicial notice are granted and the court takes judicial notice of the relevant state court records. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) 3 United States District Court Northern District of California Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 4 of 22 1 Id. ¶ 6. Local law enforcement personnel have access to ARIES, but they cannot alter 2 data in ARIES generated by other agencies. Motion for Summary Judgment 2 (“MSJ2”) 3 Lee Decl. ¶ 8. Thus, local law enforcement agencies cannot alter or modify information 4 regarding probation status because that information is entered by courts. Id. 5 The ARIES search the Concord police officers conducted indicated that on 6 October 3, 2018, plaintiff was on active probation, the terms of which included the search 7 clause. Sansen Decl. ¶7; Concord Defendant RJN at 4. Sansen and several other 8 officers responded to the Motel 6 at approximately 10:00 p.m. to conduct a probation 9 search of plaintiff. Sansen Decl. ¶ 8. 10 Sansen states he was only present as a supervisor and did not search or assist in 11 searching plaintiff. Id. ¶¶ 9, 10. Plaintiff disputes this and states that Sansen did instruct 12 another officer to search plaintiff. Docket No. 104 at 7. Sansen observed a gun being 13 removed from plaintiff’s pocket. Sansen Decl. ¶ 11. Another police officer made the 14 decision to arrest plaintiff based on the circumstances, and Sansen’s approval was not 15 required to perform the arrest. Id. ¶ 13. Plaintiff disputes this assertion and maintains 16 that Sansen instructed another officer to handcuff plaintiff and then Sansen told plaintiff 17 he was under arrest. Docket No. 104 at 7. Other officers drafted the police reports and 18 Sansen’s only responsibility was to approve the reports once they were completed. 19 Sansen Decl. ¶ 14. Plaintiff was arrested and taken to jail. Id. ¶ 13; Docket No. 24 at 4. 20 Antioch Police 21 August 16, 2018, Incident 22 On August 16, 2018, at approximately 7:00 p.m., defendant officer Torres was in a 23 fully marked patrol vehicle patrolling the area of Gentrytown Park in Antioch. MSJ2 24 Torres Decl. ¶ 2. The Gentrytown Park parking lot is commonly used by individuals for 25 the purpose of doing illegal drugs, drinking alcohol and having sex. Id. At that time there 26 were still numerous children playing in the playground. Id. Torres observed a Jeep 27 Cherokee parked in the lot with two people inside. Id. ¶ 3. Torres ran the license plate 28 and fouhd there were no warrants associated with the car and it was currently registered. 4 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 5 of 22 1 Id. ¶ 4. Torres did not activate his patrol vehicle’s lights or sirens or otherwise interact 2 with the people in the car when he stopped to run the license plate. Id. While Torres ran the license plate, plaintiff, the driver of the car, exited the vehicle 3 4 and asked why he was being stopped. Id. ¶ 5. Torres stated that he was not stopping 5 him but, due to the illegal activity in the parking lot, he asked for plaintiff’s identification. 6 Id. Plaintiff voluntarily provided his California Driver’s License. Id. Plaintiff asked Torres 7 why he was stopping him, and Torres stated that he was out “duck hunting.” Docket No. 8 104 at 33. Torres contacted the Antioch Police Department dispatcher, who informed him that United States District Court Northern District of California 9 10 plaintiff was on PRCS. Id. ¶ 6. The dispatcher did not state that plaintiff was on court- 11 ordered probation. Lee Decl. ¶ 6. Torres later discovered that plaintiff was not on PRCS. 12 Docket No. 108 at 12. Data in ARIES indicated that plaintiff was also on court-ordered probation with a 13 14 search clause. Torres Decl. ¶ 6. However, Torres does not allege that he conducted the 15 ARIES search or was aware of plaintiff’s court-ordered probation status prior to 16 performing a search of the vehicle and plaintiff. The police report of this incident 17 indicates that the dispatcher stated plaintiff was on court-ordered probation. Docket No. 18 108 at 12. However, this is incorrect. Lee Decl. ¶ 6. Torres informed plaintiff that he was going to conduct a probation search of the 19 20 vehicle, at which point plaintiff became uncooperative and stated, “[y]ou’re not going to 21 search my vehicle.” Torres Decl. ¶ 7. Based on concerns for his own safety, Torres 22 handcuffed plaintiff and placed him in the patrol vehicle while he searched plaintiff’s 23 vehicle. Id. 24 During the search of the vehicle, Torres discovered a loaded firearm concealed in 25 the center console with an additional ammunition magazine. Id. ¶ 8. Torres conducted a 26 3 27 28 During an internal affairs investigation into plaintiff’s allegations, an internal affairs official heard an audio recording of part of the incident that plaintiff had recorded. Docket No. 108 at 31. Torres was heard saying, “When you go duck hunting, you can’t shoot all the ducks at once.” Id. 5 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 6 of 22 1 records search and learned that the firearm was not registered to plaintiff and that plaintiff 2 had numerous prior felony convictions, including for sale of narcotics, rape, assault with a 3 deadly weapon, burglary, forgery, robbery and for violations for failing to register as a sex 4 offender. Id. ¶¶ 8,9. Based on all of this information, Torres determined there was 5 probable cause to arrest plaintiff. Id. ¶ 10. Torres also discovered three counterfeit 6 $100.00 bills on plaintiff. Id. 7 Defendant officer Hynes arrived on the scene to ensure Torres’ safety, but Hynes 8 did not participate in the search of plaintiff or his vehicle. Id. ¶ 13. Hynes and defendant 9 officer Ramirez handcuffed plaintiff, while Torres conducted a search of plaintiff’s vehicle. 10 United States District Court Northern District of California 11 Docket No. 24 at 3. Torres placed plaintiff under arrest, and later the Contra Costa County District 12 Attorney’s Office filed a complaint charging plaintiff with the commission of several 13 felonies related to this incident. Torres Decl. ¶¶ 10, 14. 14 October 15, 2018, Incident 15 On October 15, 2018, at approximately 3:32 a.m., defendant officer Cox was in a 16 fully marked patrol vehicle conducting a fraud investigation at the Comfort Inn in Antioch. 17 MSJ2 Cox Decl. ¶ 2. The Comfort Inn is in a high crime area and is the site of numerous 18 arrests for narcotics violations, prostitution and gang activity. Id. ¶ 6. The fraud 19 investigation involved a suspect who had been seen with plaintiff, and Cox was informed 20 that plaintiff had attempted to rent a room at the hotel with the suspect. Id. ¶ 3. Cox was 21 informed that plaintiff’s credit card had been declined and that plaintiff later returned to 22 the hotel and used counterfeit money to rent a room. Id. 23 Cox recognized plaintiff from a prior investigation and saw plaintiff leaving the 24 hotel parking lot in a blue jeep. Id. ¶¶ 4-5. Cox was aware that plaintiff was subject to a 25 court-ordered probation search clause. Id. ¶ 5. In light of plaintiff’s probation status, his 26 association with the subject of the fraud investigation, his use of forged money, and the 27 high crime activity around the Comfort Inn, Cox believed he had reasonable suspicion to 28 stop, question and search plaintiff. Id. ¶ 7. 6 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 7 of 22 1 Cox activated his patrol vehicle’s emergency lights and stopped plaintiff. Id. ¶ 8. 2 While still inside his patrol vehicle, Cox checked ARIES and confirmed that plaintiff was 3 on probation and subject to a warrantless search. Id. ¶ 9; Antioch Defendants RJN Exs. 4 A, E. Plaintiff’s probation was active until November 18, 2018. Id. Cox also contacted 5 dispatch, who stated that plaintiff was on PRCS. Moore Decl. ¶ 6. United States District Court Northern District of California 6 Cox directed plaintiff to exit his vehicle so that he could conduct a probation 7 search. Cox Decl. ¶ 10. While searching the vehicle, Cox discovered a container 8 containing heroin, a plastic bag with rock cocaine base and an air pistol. Id. ¶ 11. While 9 searching plaintiff’s person, Cox discovered a Visine eyedrop bottle that contained a 10 brownish liquid with a vinegar-like smell that, based on Cox’s experience was likely 11 heroin. Id. ¶ 12. During a search of plaintiff’s hotel room at the Comfort Inn, police 12 officers found various narcotics and narcotics paraphernalia, including a glass stem pipe, 13 heroin, crack cocaine, a digital scale and methamphetamine. Id. ¶ 16. Police officers 14 also found two firearm magazines loaded with eight rounds each of live ammunition. Id. 15 ¶ 16. Plaintiff was arrested for several felonies. Id. ¶ 19. 16 January 9, 2019, Incident 17 On January 9, 2019, at approximately 1:05 a.m., defendant officer Downie was in 18 a fully marked police vehicle patrolling the parking lot of a 7-Eleven convenience store in 19 Antioch. MSJ2 Downie Decl. ¶ 2. Downie noticed a blue Jeep parked in a disabled 20 parking space and that the vehicle did not have a disabled license plate or disabled 21 placard displayed. Id. Parking in a designated disabled parking space by an individual 22 who is not disabled is a violation of California Vehicle Code section 4461. Id. ¶ 3. 23 Downie determined that he had reasonable suspicion to conduct a traffic stop. Id. 24 Downie approached the vehicle, and the driver, later identified as plaintiff, exited 25 the vehicle. Id. Plaintiff stated that he did not have a disabled placard and provided 26 Downie with a California-issued guard card as a form of identification. Id. Downie 27 contacted police dispatch and defendant dispatcher Scott responded and stated that 28 plaintiff was on PRCS. Id. Downie later learned that plaintiff was not on PRCS. Id. 7 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 8 of 22 1 For safety reasons, Downie conducted a pat down of plaintiff. Id. ¶ 4. Downie felt 2 a body armor vest underneath plaintiff’s shirt and a small bottle of Visine which contained 3 a brown liquid that Downie suspected was an illegal narcotic. Id. Downie contacted 4 police dispatch and learned that plaintiff had several felony convictions. Id. ¶ 6. Downie 5 arrested plaintiff for felon in possession of body armor, heroin and failure to register as a 6 sex offender. Id. ¶¶ 11-12. 7 Conviction and Sentence 8 On February 5, 2019, the Contra Costa County District Attorney’s Office filed a United States District Court Northern District of California 9 criminal complaint against plaintiff related to the August 16, 2018, and January 9, 2019, 10 arrests. Antioch Defendants RJN Ex. D. On January 19, 2020, plaintiff entered a plea of 11 no-contest to California Penal Code section 31360, felon in possession of body armor, 12 related to the January 9, 2019, arrest. Id. Ex. F. On January 28, 2020, plaintiff was 13 sentenced to two years’ imprisonment related to his plea to possession of body armor. 14 Id. Ex. B. 15 On April 11, 2019, plaintiff was indicted in federal court for being a felon in 16 possession of ammunition due to a separate, unrelated arrest on February 3, 2019. Id. 17 Ex. G. Plaintiff was later sentenced to 41 months’ imprisonment on the federal charges. 18 Id. Ex. H. Plaintiff’s sentence for the state charges is being served concurrently with the 19 federal charges. Id. Ex. B at 2. ANALYSIS 20 21 Fourth Amendment 22 Legal Standard 23 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. 24 Const. amend IV. The touchstone of all Fourth Amendment analysis is reasonableness, 25 and the reasonableness of a search is determined by weighing the degree to which it 26 intrudes on an individual’s privacy against the legitimate government interests in the 27 search. Graham v. Connor, 490 U.S. 386, 395-96 (1989). The reasonableness of the 28 search is assessed under “the totality of the circumstances.” United States v. Knights, 8 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 9 of 22 1 United States District Court Northern District of California 2 534 U.S. 112, 118 (2001); United States v. King, 736 F.3d 805, 808 (9th Cir. 2013). Under this approach, the reasonableness of a search is determined by “assessing, 3 on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the 4 other, the degree to which it is needed for the promotion of legitimate governmental 5 interests.” Knights, 534 U.S. at 118-19. A probationer’s reasonable expectation of 6 privacy is “significantly diminished.” Id. at 119-20. In Knights, the Supreme Court upheld 7 the warrantless search of defendant’s apartment where law enforcement had a 8 reasonable suspicion that the defendant was engaged in criminal activity. Id. at 121. 9 The search was conducted pursuant to the terms of defendant’s probation which 10 authorized searches of his residence “with or without a search warrant, warrant of arrest 11 or reasonable cause.” Id. at 114. Balancing the intrusion on defendant’s privacy against 12 the government’s legitimate interest in the search, the court concluded that the search 13 was reasonable under the totality of the circumstances, with “the probation search 14 condition being a salient circumstance.” Id. at 118. The Court did not decide whether, 15 and under what circumstances, a suspicionless search pursuant to a search condition 16 would be consistent with the Fourth Amendment. Id. at 120 n.6. 17 In King, the Ninth Circuit held that the suspicionless search of probationer’s 18 premises was permissible where the defendant, a violent felon, had accepted a 19 suspicionless search condition as part of the probation agreement. 736 F.3d at 810. The 20 court noted that the sentencing judge had “determined that it was necessary to condition 21 the probation on [his] acceptance of the search provision,” that the probation order 22 “clearly expressed” the condition, and that the defendant was “unambiguously informed” 23 of it. Id. at 808-09. Weighing defendant’s diminished privacy interest against the 24 government’s interest in discovering criminal activity and protecting potential victims, and 25 taking into account defendant’s probation conditions, the court concluded that the search 26 was reasonable. Id. at 810. The holding in King was limited to individuals on probation 27 for a violent felony and “did not decide whether, and under what circumstances, a 28 suspicionless search condition would be appropriate for ‘low level offenders’”. United 9 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 10 of 22 1 2 October 3, 2018 Incident 3 The Concord Defendant first argues that he took no action that caused any 4 violation of plaintiff’s rights because while he was present, he did not participate in the 5 search or the decision to arrest plaintiff. These assertions are disputed because plaintiff 6 contends that the Concord Defendant was involved in the incident. 7 The Concord Defendant further argues that even if he was involved in the search 8 and arrest, the undisputed evidence shows that there was no constitutional violation. A 9 review of the undisputed facts demonstrates that there was reasonable suspicion that 10 11 United States District Court Northern District of California States v. Aviles, 229 F. Supp. 3d 1039, 1045 (N.D. Cal. 2017). plaintiff had engaged in criminal activity. As noted above, reasonable suspicion that a probationer subject to a search 12 condition is engaged in criminal activity satisfies the requirements of the Fourth 13 Amendment. Knights, 534 U.S. at 121. Such reasonable suspicion “is formed by 14 ‘specific articulable facts which, together with objective and reasonable inferences, form 15 the basis for suspecting that the particular person detained is engaged in criminal 16 activity.’” United States v. Job, 871 F.3d 852, 861 (9th Cir. 2017) (quoting United States 17 v. Colin, 314 F.3d 439, 442 (9th Cir. 2002)). In determining whether reasonable 18 suspicion existed, the court considers the totality of the circumstances, including an 19 officer’s training and experience. United States v. Valdes-Vega, 738 F.3d 1074, 1080 20 (9th Cir. 2013) (en banc) (further observing that “[p]rotection of the public safety justifies 21 such an approach”). Courts have considered a variety of factually specific contextual 22 considerations in determining whether an officer had reasonable suspicion to perform a 23 search, including: (1) whether any bulges were visible on the suspect, Job, 871 F.3d at 24 861; (2) the type of crime that is suspected to have been committed, id.; (3) whether the 25 suspect exhibited nervous and evasive behavior, Illinois v. Wardlow, 528 U.S. 119, 124 26 (2000); and (4) whether the encounter occurred in a high crime area, id. Additionally, an 27 individual's “status as a probationer means that he begins with a lower expectation of 28 privacy than is enjoyed by a citizen who is not subject to a criminal sanction.” King, 736 10 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 11 of 22 1 F.3d at 808. Concord Police received a report of a sexual assault committed by plaintiff, who 2 3 was staying in a Motel 6 in Concord and had a firearm. The individual who submitted the 4 report provided his name and the name of his girlfriend, who was the victim. Docket No. 5 109 at 2. It was also discovered that plaintiff was on active probation with a search 6 clause. All of this occurred and was known prior to the Concord Defendant’s interaction 7 with plaintiff. The Concord Defendant has demonstrated reasonable suspicion that plaintiff was 8 United States District Court Northern District of California 9 involved in criminal activity to warrant the search in light of the report of the sexual 10 assault. See United States v. Terry-Crespo, 356 F.3d 1170, 1173-77 (9th Cir. 2004) 11 (officer had reasonable suspicion to conduct stop based on victim’s 911 call because call 12 in which victim identified himself, exhibited sufficient “indicia of reliability”). Moreover, 13 balancing the intrusion on plaintiff’s privacy against the Concord Defendant’s legitimate 14 interest in investigating the serious crimes of sexual assault and possession of a firearm, 15 the search was reasonable under the totality of the circumstances. Summary judgment is 16 granted to the Concord Defendant.4 October 15, 2018 Incident 17 Antioch Defendant Cox was conducting a fraud investigation at the Comfort Inn, 18 19 which is considered a high crime site by the Antioch Police Department, when he 20 observed plaintiff. Cox learned that plaintiff was associating with the subject of the fraud 21 investigation and had attempted to use counterfeit money. It is undisputed that Cox 22 recognized plaintiff from a prior investigation and was aware that plaintiff was on 23 probation subject to a search condition. Based on these circumstances, Cox believed he 24 had reasonable suspicion to stop, question and search plaintiff. 25 26 27 28 4 To the extent that plaintiff seeks to raise new allegations in his opposition, of excessive force and that officers pointed guns at him, any such request is denied. The claim against the Concord Defendant was outlined in the screening order. Plaintiff’s motion to amend was already denied. Docket Nos. 127, 137. 11 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 12 of 22 1 It is undisputed that dispatch stated that plaintiff was on PRCS and did not 2 mention the court-ordered probation. However, it is also undisputed that Cox used the 3 computer in his patrol car to confirm that plaintiff was on court-ordered probation subject 4 to a search condition. Plaintiff, in an attempt to indicate disputed facts, presents many allegations that United States District Court Northern District of California 5 6 Cox’s statements about a fraud investigation are a lie and that Cox never did a computer 7 search in his patrol car. Plaintiff fails to present any suitable arguments to support these 8 conclusory allegations. Simply stating that Cox is lying without any support is insufficient. 9 Plaintiff argues that defendants have presented no evidence showing computer records 10 that confirm that Cox used his computer when he states that he did. However, Cox 11 presented these statements in his declaration under the penalty of perjury. In addition, 12 the the police report that Cox prepared contemporaneously with the arrest reflects that he 13 knew plaintiff from a prior investigation (he included the investigation number in the 14 report) and that he confirmed plaintiff’s probation status in his patrol car. MSJ2 Cox Decl. 15 at 16. 16 Conclusory statements, such as that an opponent is lying or that documents have 17 been fabricated – without presentation of any explanation of what portion of a statement 18 or document is false and without offering an explanation of one's view of the true state of 19 events – are insufficient to raise a triable issue. "When the nonmoving party relies only 20 on its own affidavits to oppose summary judgment, it cannot rely on conclusory 21 allegations unsupported by factual data to create an issue of material fact." Hansen v. 22 United States, 7 F.3d 137, 138 (9th Cir. 1993). While plaintiff has attempted to support 23 other arguments in this motion for summary judgment that defendants are lying, he has 24 not done so for his contentions about Cox. His conclusory assertions are insufficient to 25 defeat summary judgment. 26 In light of plaintiff’s association with the subject of the fraud investigation, his 27 attempt to use forged money, the high crime nature of the location and plaintiff’s 28 probation status, Cox has shown he had reasonable suspicion to stop, question and 12 United States District Court Northern District of California Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 13 of 22 1 search plaintiff. Balancing the intrusion on plaintiff’s privacy against the legitimate 2 interest in investigating the fraud allegations concerning the individual with whom plaintiff 3 was associating and that plaintiff had used counterfeit money, the search was reasonable 4 under the totality of the circumstances. Cox is entitled to summary judgment. For these 5 same reasons, summary judgment is also granted to the dispatch operator defendant 6 who communicated with Cox about plaintiff’s probation status. 7 August 16, 2018 Incident 8 Antioch Defendant Torres contends that there was reasonable suspicion for this 9 search; however, he concedes it is a close call and presents few arguments in support. 10 MSJ2 at 26. Instead, he argues that in light of the search condition of plaintiff’s 11 probation, the suspicionless search was permissible under the circumstances. Torres 12 notes that there is no controlling law regarding whether a search condition can justify a 13 suspicionless search of a person on probation for a nonviolent crime. It is undisputed 14 that plaintiff was on probation for a nonviolent misdemeanor at the time of the incident. 15 While not binding, Torres urges the court to follow the reasoning of United States v. 16 Aviles, 229 F. Supp. 3d 1039 (N.D. Cal. 2017) and find the search valid.5 Torres’ argument that he was aware of plaintiff’s court-ordered probation status 17 18 prior to the search and arrest is unavailing. This is at best disputed or perhaps 19 inaccurate. The dispatcher did not indicate that plaintiff was on court-ordered probation, 20 as Torres stated in the police report. Furthermore, there are no specific allegations in 21 Torres’ declaration that he discovered this fact prior to the search. 22 23 24 25 26 27 28 5 In Aviles, the Northern District addressed the issue of whether a search condition can justify a suspicionless search of a person on probation for a nonviolent crime. Id. at 1045-46. In Aviles, law enforcement conducted a suspiconless search of the residence of defendant, who was on probation for a nonviolent crime. Id. at 1040-41, 1045-46. The defendant’s order of probation included a suspiconless search provision. Id. at 1040. The court found that the search was reasonable after looking at the suspiconless search condition itself and making an individualized inquiry regarding the search condition and looking at the crime, defendant’s criminal history and any other characteristics specific to the defendant. Id. at 1044-46. 13 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 14 of 22 With respect to this search, arrest and detention, material facts are in dispute; 1 2 specifically, there is a contest between plaintiff’s version of the facts and Torres’ 3 explanation. Viewing the evidence in the light most favorable to plaintiff and taking his 4 sworn allegations as true, he has met his burden and a jury could conclude there was a 5 constitutional violation. Torres’ motion for summary judgment with respect to this incident 6 must be denied. Torres’ argument, that the search was valid due to reasonable suspicion and the United States District Court Northern District of California 7 8 search clause of plaintiff’s probation, lacks merit due to his apparent lack of knowledge of 9 the court-ordered probation. The only fact to support reasonable suspicion is that the 10 search occurred in a high crime area, but that alone is insufficient in this case. Nor will 11 the court address the legality of a suspicionless search of a person on probation for a 12 nonviolent crime because it is disputed if Torres was aware of plaintiff’s probation status 13 when he conducted the search. 14 Nor is Torres entitled to summary judgment to the extent he was erroneously 15 informed that plaintiff was on PRCS. Torres does not provide sufficient evidence or 16 allegations regarding any search provisions that are part of PRCS and how they would 17 have applied to plaintiff. Nor has Torres argued the merits of a suspicionless search for 18 an individual on PRCS. The court finds that the reasoning of Aviles is inapplicable to this 19 case due to the lack of information in the record surrounding searching an individual who 20 is on PRCS. For all these reasons, summary judgment is denied as to Torres. The only allegations against defendant officers Hynes and Ramirez are that they 21 22 handcuffed plaintiff while Torres conducted a search of the car. It is undisputed that 23 these defendants were not involved in Torres’ decisions to conduct the search and arrest 24 of plaintiff. They are entitled to summary judgment.6 25 26 27 28 6 The court will address the allegations against defendant dispatcher Lee below while discussing qualified immunity. 14 United States District Court Northern District of California Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 15 of 22 1 Heck v. Humphrey 2 The Antioch Defendants argue that plaintiff’s allegations regarding the January 9, 3 2019, arrest for body armor are barred by Heck because plaintiff pled no-contest to 4 possession of the body armor and was sentenced to two years’ imprisonment. 5 Legal Standard 6 The Supreme Court held in Heck, 512 U.S. at 486-87, that “in order to recover 7 damages for allegedly unconstitutional conviction or imprisonment, or for other harm 8 caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 9 1983 plaintiff must prove that the conviction or sentence has been reversed on direct 10 appeal, expunged by executive order, declared invalid by a state tribunal authorized to 11 make such determination, or called into question by a federal court's issuance of a writ of 12 habeas corpus.” 13 The Ninth Circuit has repeatedly treated no-contest pleas in California state court 14 as convictions when applying the Heck doctrine. See Szajer v. City of Los Angeles, 632 15 F.3d 607, 609-12 (9th Cir. 2011); Ove v. Gwinn, 264 F.3d 817, 823 n.4 (9th Cir. 2001); 16 see also Radwan v. Cnty. of Orange, 519 F. App’x 490, 490-91 (9th Cir. 2013) (“We have 17 repeatedly found Heck to bar §1983 claims, even where the . . . prior convictions were 18 the result of guilty or no-contest pleas.”). 19 To be sure, a few months after Szajer was decided, the Ninth Circuit issued a 20 decision in Lockett v. Ericson, 656 F.3d 892 (9th Cir. 2011) which contained dicta that 21 could be interpreted as inconsistent with Szajer. In Lockett the Ninth Circuit reversed the 22 district court, which had held that plaintiff's complaint was Heck barred. Id. at 893. 23 Although the Ninth Circuit noted that Lockett’s conviction was obtained as the result of his 24 no-contest plea and that “[h]e was not tried, and no evidence was introduced against 25 him,” Id. at 896-97, the court found that Lockett’s conviction did “not in any way depend 26 on the legality of the search of his home,” and that his conviction therefore did not bar his 27 § 1983 suit. Id. at 897. In short, if he were to succeed in challenging the legality of the 28 search, that would not undermine the conviction. Hence, despite the court’s reference to 15 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 16 of 22 1 the no-contest plea, the decision did not turn on the fact that it was a no-contest rather 2 than a guilty plea. Tellingly, the court did not address or distinguish Szajer. See Byrd v. 3 Phoenix Police Dep’t, 885 F.3d 639, 645 (9th Cir. 2018) (Heck did not bar the plaintiff’s 4 search and seizure claims in his civil rights action because he pleaded guilty to a 5 conspiracy charge and no evidence was produced against him at his plea hearing). 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 No Ninth Circuit case has treated a no-contest plea differently than a guilty plea with respect to Heck. As one district court has summarized: Taken together, the precedent discussed above indicates that Heck’s inapplicability to certain cases involving [ ] pleas is essentially an application of the harmless error exception first recognized in Heck itself, or more generally, the rule that success on a claim must necessarily imply the invalidity of the conviction in order to be barred by Heck. Where an alleged constitutional violation relates only to evidence that might or might not be admissible despite the error, might or might not be necessary to convict the defendant at trial, and regardless is not necessary for the defendant to enter a [ ] plea, then a successful claim that the evidence was obtained in violation of the Constitution would not necessarily imply the invalidity of the conviction. Accordingly, in considering whether Heck bars claims of other constitutional violations by defendants who have pled [ ] to crimes, a court must look to what effect such a violation would necessarily have on the validity of the conviction. 17 Farrow v. Lipetzky, No. 12-cv-6495 JCS, 2017 WL 1540637, at *9 (N.D. Cal. April 28, 18 2017). The question under Heck is whether subsequent civil rights claims are 19 inconsistent with the conviction and thus need to be dismissed to avoid implying the 20 invalidity of the conviction. 21 The Antioch Defendants argue that plaintiff’s allegations in this civil rights case 22 with respect to the January 9, 2019, incident are fundamentally inconsistent with his plea 23 and conviction and are therefore barred by Heck. In this action plaintiff argues that he 24 was stopped and searched by defendant Downie on January 9, 2019, without probable 25 cause and that the search violated his Fourth Amendment rights. It is undisputed that 26 defendant discovered the body armor during a pat-down search of plaintiff. It is also 27 undisputed that plaintiff pled no-contest to possession of the body armor. 28 16 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 17 of 22 1 2 imply if successful that his arrest and plea were invalid. This implication which would 3 contravene Heck. Plaintiff argues that he is not challenging the fact that he possessed 4 body armor in this civil rights action. Docket No. 104 at 12. He contends that he is only 5 challenging the search that led to his arrest for possession of heroin and failure to 6 register as a sex offender and that these charges were dismissed as part of the plea 7 deal. Id. 8 9 United States District Court Northern District of California Plaintiff’s allegations in this civil rights action, that he was illegally searched, would It is undisputed that it was the same search of plaintiff that uncovered the body armor, heroin and the fact that he had failed to register as a sex offender. Plaintiff’s 10 contention that he can circumvent Heck by only challenging the aspects of the search to 11 which he did not plead no-contest lacks merit. 12 In Szajer, law enforcement executed a search warrant at defendants’ business 13 and home and seized illegal firearms at both locations. 632 F.3d at 608. The defendants 14 pled no-contest to the firearms found at their home. Id. The defendants later filed a 15 lawsuit against the law enforcement officers arguing that the search of the business was 16 unlawful. Id. The defendants argued that they were not challenging the seizure of the 17 weapons at their home, for which they pled no-contest; rather, they were only challenging 18 the seizure of the guns at the business for which they were not convicted, and Heck did 19 not apply. Id. at 612. The Ninth Circuit affirmed the district court in finding the action was 20 barred by Heck and noted that the searches of both locations were based on the same 21 search warrant. Id. The Circuit found that defendants had an opportunity to challenge 22 the search in the criminal proceeding but failed to do so and that if their civil rights case 23 succeeded it would challenge the validity of the entire search warrant, thus implying there 24 was no probable cause for the search. Id. As a result, the claim was Heck barred. Id. 25 Here, plaintiff challenges the lawfulness of the search of his person that led to the 26 seizure of the body armor and heroin and the discovery that he had failed to register as a 27 sex offender. While plaintiff only pled no-contest to possessing the body armor, all three 28 discoveries arose from the same search, and a finding that the search that resulted in the 17 United States District Court Northern District of California Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 18 of 22 1 discovery of the heroin or sex offender information was invalid would call into question 2 the body armor plea. Similar to Szajer, plaintiff’s claim is barred by Heck and summary 3 judgment is granted to Antioch Defendants Downie and Scott for this claim. 4 Qualified Immunity 5 The defense of qualified immunity protects “government officials . . . from liability 6 for civil damages insofar as their conduct does not violate clearly established statutory or 7 constitutional rights of which a reasonable person would have known.” Harlow v. 8 Fitzgerald, 457 U.S. 800, 818 (1982). The rule of “qualified immunity protects ‘all but the 9 plainly incompetent or those who knowingly violate the law.’” Saucier v. Katz, 533 U.S. 10 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants can 11 have a reasonable, but mistaken, belief about the facts or about what the law requires in 12 any given situation. Id. at 205. A court considering a claim of qualified immunity must 13 determine whether the plaintiff has alleged the deprivation of an actual constitutional right 14 and whether such right was clearly established, such that it would be clear to a 15 reasonable officer that his conduct was unlawful in the situation he confronted. See 16 Pearson v. Callahan, 555 U.S. 223, 236 (2009) (overruling the sequence of the two-part 17 test that required determining a deprivation first and then deciding whether such right was 18 clearly established, as required by Saucier). The court may exercise its discretion in 19 deciding which prong to address first, in light of the particular circumstances of each 20 case. Pearson, 555 U.S. at 236. With respect to the October 3, 2018, and October 15, 2018, incidents, the court 21 22 has not found a constitutional violation, and, even if there was a violation, defendants 23 would be entitled to qualified immunity. It would not be clear to reasonable police officers 24 that conducting a search of a probationer subject to a search clause, when there was 25 reasonable suspicion, as described above for each incident, would be a constitutional 26 violation.7 27 28 7 Plaintiff is barred from proceeding with the January 9, 2019, incident pursuant to Heck; therefore, the court need not address qualified immunity for that incident. 18 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 19 of 22 United States District Court Northern District of California 1 With respect to the police dispatcher defendants, even assuming they committed a 2 constitutional violation by relaying information that was later discovered to be erroneous, 3 they are also entitled to qualified immunity. “‘Where an officer has an objectively 4 reasonable, good-faith belief that he is acting pursuant to proper authority he cannot be 5 held liable if the information supplied by other officers turns out to be erroneous.’” Torres 6 v. City of Los Angeles, 548 F.3d 1197, 1212 (9th Cir. 2008) (quoting Motley v. Parks, 432 7 F.3d 1072, 1082 (9th Cir. 2005) (en banc), rev'd on other grounds by United States v. 8 King, 687 F.3d 1189 (9th Cir. 2012) (en banc)). In this case it was objectively reasonable 9 for the dispatch officers to rely on the information from ARIES regarding plaintiff’s 10 probation status. It is undisputed that ARIES is a shared information system maintained 11 by several counties and that the police departments in this case can access but cannot 12 modify or alter information input by state courts regarding the probation status of an 13 individual. Thus, all police dispatcher defendants are entitled to qualified immunity. 14 With respect to defendant Torres and the August 16, 2018 incident, the court 15 found that Torres was not entitled to summary judgment on the merits. With respect to 16 that incident, when viewed in the light most favorable to plaintiff, it would be clear to any 17 reasonable police officer that a constitutional violation would occur by searching, 18 detaining and arresting an individual in the circumstances Torres encountered. There 19 was no probable cause to search plaintiff, nor was there reasonable suspicion, even 20 assuming Torres had been aware of plaintiff’s probation status, which is disputed. Torres 21 is not entitled to qualified immunity. 22 With respect to defendant police officers Hynes and Ramirez’s involvement in the 23 August 16, 2018 incident, the court has not found a constitutional violation, and, even if 24 there was a violation, defendants would be entitled to qualified immunity. It would not be 25 clear to reasonable police officers that handcuffing plaintiff after a different police officer 26 determined a search was necessary would be a constitutional violation. See Motley, 432 27 F.3d at 1081 (“effective and efficient law enforcement requires cooperation and division 28 of labor to function. For that reason, law enforcement officers are generally entitled to 19 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 20 of 22 United States District Court Northern District of California 1 rely on information obtained from fellow law enforcement officers.”). 2 Discovery 3 Plaintiff previously requested subpoenas that the court deferred on issuing until 4 ruling on the summary judgment motion. Docket No. 93. Plaintiff sought video footage 5 from a surveillance camera at a 7-11 convenience store with respect to the January 9, 6 2019, incident, and data, phone records and audio from a mobile phone application 7 recording from the Metro PCS cellular phone company related to the August 16, 2018, 8 incident. 9 With respect to the January 9, 2019 incident, the court has found the claim barred 10 by Heck; therefore, the video footage is immaterial. With respect to the August 16, 2018 11 incident, plaintiff sought to introduce an audio of the incident to show that the dispatcher 12 did not say he was on court-ordered probation and that Torres made statements about 13 going duck hunting. As noted above, the court found plaintiff’s allegations to be 14 undisputed. Therefore, the audio was not necessary for purposes of the motion for 15 summary judgment. The court will reconsider plaintiff’s efforts to obtain this audio at a 16 future date, after settlement discussions. Plaintiff and the Antioch Defendants also submitted many filings regarding the 17 18 dispatch recordings as described in the court’s June 11, 2021, order. Docket No. 127. 19 Plaintiff has since indicated that he has listened to the recordings and the court has 20 considered his arguments. Docket No. 139.8 21 Referral to Pro se Prisoner Mediation Program 22 This case appears to be a good candidate for the court’s mediation program. 23 Good cause appearing therefore, this case is now referred to Magistrate Judge Illman for 24 mediation or settlement proceedings pursuant to the Pro Se Prisoner Mediation Program. 25 26 27 28 8 The court notes that the relevant substance of the recordings was completely and accurately reflected in the declarations of the dispatcher Antioch Defendants that was part of their motion for summary judgment filed on January 8, 2021. Plaintiff has had access to these declarations for many months and extensively cited to them and the substance of the recordings in his opposition filings. 20 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 21 of 22 1 The proceedings will take place within 120 days of the date this order is filed. Magistrate 2 Judge Illman will coordinate a time and date for mediation or settlement proceedings with 3 all interested parties and/or their representatives and, within five days after the 4 conclusion of the proceedings, file with the court a report for the prisoner mediation or 5 settlement proceedings. United States District Court Northern District of California 6 Plaintiff must attend and participate in the mediation or settlement conference 7 proceedings. The conference may be set up so that he will appear in person, by 8 videoconference or by telephone and he must attend whatever format Magistrate Judge 9 Illman chooses. Plaintiff is cautioned that he may be sanctioned for failure to comply with 10 an order to participate in a mediation or settlement conference, and such sanctions may 11 include dismissal of part or all of the action. See Fed. R. Civ. P. 16(a), (f), and 41(b). 12 Plaintiff does not have to settle, but he must participate. 13 CONCLUSION 14 1. For the reasons set forth above, Concord Defendant Sansen’s motion for 15 summary judgment (Docket No. 64) is GRANTED. Sansen is dismissed with prejudice 16 from this action. Plaintiff’s request for sanctions is DENIED. 17 2. For the reasons set forth above, the Antioch Defendants’ motion for summary 18 judgment (Docket No. 74) is GRANTED in part and DENIED in part. All defendants 19 except Torres are dismissed from this action with prejudice. This action continues 20 against Torres with respect to the August 16, 2018, incident. 21 22 3. Concord Defendant’s motion (Docket No. 131) for the court not to consider plaintiff’s further oppositions is DENIED. The court has reviewed and considered all of plaintiff’s filings in light of his status as a pro se incarcerated prisoner. 23 4. This action is now referred to Magistrate Judge Illman for mediation or 24 settlement proceedings pursuant to the Pro Se Prisoner Mediation Program. The clerk 25 shall SEND a copy of this order to Magistrate Judge Illman. This case is STAYED and 26 the clerk is requested to ADMINISTRATIVELY CLOSE this case until further order from 27 the court. 28 21 Case 4:19-cv-01370-PJH Document 141 Filed 08/13/21 Page 22 of 22 1 2 IT IS SO ORDERED. Dated: August 13, 2021 3 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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