Opinion
B186764
12-6-2006
DAVID VENEGAS et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.
Robert Mann and Donald W. Cook for Plaintiffs and Appellants Franscell, Strickland, Roberts & Lawrence, David D. Lawrence, Jin S. Choi and Scott E. Caron for Defendants and Respondents County of Los Angeles, Los Angeles County Sheriffs Department, Sheriff Lee Baca, Deputy Sheriffs Michael Gray, Robert Harris and Thomas Jimenez. Revere & Wallace, Frank Revere, Gabriel Dermer and Annie Kyureghian for Defendants and Respondents City of Vernon, Vernon Police Department and Detective Steve Wiles.
Welcome to Venegas IV. This case is before us once again after the trial court granted defendants motion for summary judgment as to all the causes of action remaining after our decision in Venegas III. We reverse the judgment and remand the cause to the trial court with directions to enter summary adjudication in favor of the defendants on all remaining causes of action except the cause of action for negligence which survives for the reasons we explain below.
Venegas v. County of Los Angeles (July 28, 2004, B148398)[nonpub. opn.]) (Venegas III.)
FACTS
The Task Force for Regional Auto Theft Prevention (TRAP) was an interagency task force run by the County of Los Angeles Sheriffs Department to facilitate multi-jurisdictional theft investigations. Defendant Steven Wiles, a police officer for defendant City of Vernon, was assigned to the southeast TRAP. At approximately 7:00 p.m. Wiles was in a staging area in Bellflower with other TRAP members preparing to execute a search warrant for a nearby residence belonging to Ricardo Venegas, the older brother of plaintiff David Venegas. Wiles had information Ricardo was involved in switching vehicle identification numbers (VINs) on stolen cars and fraudulently getting titles at the Temecula DMV. Wiles had a photograph of Ricardo and a description of him as 5 feet, 11 inches tall, weighing 210 pounds.
While the TRAP team was waiting in the staging area, a Mercury Cougar with no license plates drove past. The driver was a woman, later identified as plaintiff Beatriz Venegas. The male passenger in the car, later identified as Beatrizs husband, David, appeared to some TRAP officers to resemble his brother Ricardo. The TRAP officers followed the car until it stopped at a gas station about a block away. According to Wiles, Los Angeles County Sheriffs Deputies Michael Gray and Robert Harris were the first officers to arrive at the gas station and contact David.
Beatriz went inside the gas station to pay for the gas while David stood outside by the car to pump the gas. Two cars from the TRAP pulled into the gas station and blocked the Cougar. Four officers in casual clothes, but with badges around their necks, approached David and asked him who he was and whether he knew a Ricardo Venegas. David told them Ricardo was his brother. Other officers approached Beatriz when she came out of the gas station building and detained her apart from David.
According to Wiles, David became irate at the officers questioning, using profanities, and inquiring why he was not free to go. According to Wiles testimony, because of Davids belligerent attitude he was handcuffed for reasons of officer safety. Gray admitted being at the gas station and participating in the decision to detain David.
Wiles spoke with David while other officers searched the Cougar for its VIN. In response to Wiles questions about the Cougar, David told him he had just bought the car in Los Angeles; it was a salvaged vehicle; he and Beatriz had gone to the DMV and were told they had to go to the CHP to have a VIN issued. Officer Peloquin from the Los Angeles Police Department was Wiles partner on the team. Peloquin spent about 10 minutes looking for a public VIN on the Cougar and could not find one. He did, however, inform Wiles he found a partial VIN on the cars engine. Meanwhile, another officer searched the glove box and under the seats of the car. This officer found documents in the glove box consisting of a VIN number consistent with the partial VIN on the cars engine, an odometer disclosure statement, a bill of sale, and a blank application for registration. The bill of sale and odometer disclosure statement listed Beatriz Venegas as the buyer and gave the date of sale as two weeks earlier.
After the officers learned the car had no public VIN, they decided to impound the car to determine whether it was stolen. According to Peloquin, the fact the partial VIN on the engine matched the VIN as stated on the odometer disclosure statement was not conclusive evidence for him the car was not stolen because the engine and transmission could have been replaced. David admitted to Wiles he knew the public VIN was missing. He told Wiles the person who sold him the car told him it was a salvaged vehicle. Wiles testified at that point he did not know whether the paperwork found in the vehicle was fraudulent or legitimate. Although Beatriz produced a California drivers license, David had no drivers license or California identification card in his possession. Beatriz produced Davids employee badge but some of the officers believed it did not positively identify David as not being Ricardo. Wiles, however, admitted he knew within minutes David, who was only five feet, 6 inches tall, was not Ricardo.
The evidence shows David or Beatriz told the officers David had his identification at home, only about a minute and a half from the gas station. Wiles asked David to sign an entry and search waiver form so officers could go to his home and pick up his identification. At first David refused to give consent, but then gave his verbal consent for the officers to accompany Beatriz to their home to retrieve his identification. David testified he and Beatriz were told the officers would not search their home.
According to Wiles it was necessary to go to Davids home to obtain his identification because a positive identification "is to be made through a valid license where we can run the name through dispatch and find out who he is." Wiles testified neither he nor any of the other officers ran Davids name through the computer system, even though, he conceded, they could have done so and found out whether the person described in the system fit the description of the person they had in front of them.
Wiles was at the gas station for about 10 to 15 minutes before his immediate supervisor told him to leave to serve the search warrant at Ricardos home. At that point the officers placed David, still handcuffed, in the back of Harriss van. Wiles admitted that while at the gas station, Beatriz was not free to leave.
According to El Segundo Police Officer Rudy Kerkhof, also assigned to the TRAP team, someone told him the Venegases had consented to a search of their home. He testified it was possible he was the one who obtained Beatrizs signature on a written entry and search waiver form, which had been filled in by another officer and handed to him. The waiver form provided in pertinent part Beatriz "hereby grant[s] full and unconditional authority to the Los Angeles County Sheriffs Department to enter those [above described] premises to conduct a search for identification—C.D.L.—and to conduct any related investigation in any related criminal or non-criminal law enforcement matter." (Italics added.) This statement was preprinted on the form except for the italicized portion which was handwritten by Harris on blank lines contained on the form. Kerkhof transported Beatriz to her home. According to Beatriz, the officers said she could not go into her home alone to retrieve her husbands identification.
After arriving at her home with Kerkhof, Beatriz retrieved Davids California identification card from their bedroom and brought it along with Davids wallet to the officer in her living room. The officer took Davids wallet from her and searched it. Two other police officers arrived at her home. Beatriz sat with Kerkhof on the couch in the living room while the other two officers searched the entire house including the bedroom of the Venegasess minor son, Vincent. While David was sitting in the van with Harris, Harris received a radio call stating the officers had verified Davids identification.
About an hour after Wiles left the gas station, he received a radio call from Harris informing him Davids identification had been verified and that David was on felony probation for drug dealing. Wiles decided at that point David should be arrested for violation of Vehicle Code section 10751(a), a misdemeanor committed in his presence, and for violating his probation under Penal Code section 1203.2.
Vehicle Code section 10751 provides in pertinent part: "(a) No person shall knowingly buy, sell, offer for sale, receive, or have in his or her possession, any vehicle. . . from which any serial or identification number, including, but not limited to, any number used for registration purposes, that is affixed by the manufacturer to the vehicle or component part . . . has been removed, defaced, altered, or destroyed, unless the vehicle or component part has attached thereto an identification number assigned or approved by the department in lieu of the manufacturers number."
According to Kerkhof, he had been in the Venegas home about 10 minutes when Harris arrived with David. Harris brought David into the house and sat him on the couch with Beatriz and Kerkhof. Beatriz was crying. For 30 minutes, Harris participated in the search of the home with two other officers. Neither David nor Beatriz was ever able to ascertain the identity of the two officers who searched their home with Harris. According to Venegas, the officers searched the home like they were looking for drugs. Beatriz testified she was not claiming the officers damaged anything in her home. She further stated she did not question the officers or protest the search because she was scared.
Harris took David to the Lakewood Sheriffs station, where he was booked into custody at 8:55 p.m. on the Vehicle Code and probation violation charges. Beatriz was detained for about two hours, but was not charged with any offense.
The next day, Gray partially dismantled the Cougar by removing six bolts and found a confidential full VIN which matched the VIN as stated in the documents found in the glove box. Given this information, Wiles directed David be released from custody but he was not released until two days later. No charges were filed against David arising out of the incident.
PROCEEDINGS BELOW
David and Beatriz and their minor son Vincent, whose bedroom was among the rooms searched, filed an action against the County of Los Angeles and the Los Angeles County Sheriffs Department, Sheriff Lee Baca, former Sheriff Sherman Block and three sheriffs deputies, Harris, Gray and Jimenez. The suit also named the City of Vernon, the Vernon Police Department and Officer Wiles, and the City of El Segundo, whose officer, Kerkhof, was part of the TRAP team but not named as a defendant. Plaintiffs complaint alleged violations of their federal and state civil rights under 42 United States Code section 1983 and Civil Code section 52.1 and various state law torts arising out of the detention and arrest of David and Beatriz by members of TRAP and the subsequent search of plaintiffs home by sheriffs deputies. The trial court ruled in favor of defendants on all but two claims prior to trial, sustaining demurrers as to some causes of action and granting summary adjudication on others.
The City of El Segundo did not join in the motion for summary judgment and is not a party to this appeal.
When the case went to trial, plaintiffs presented their case-in-chief claiming their detentions, the search and seizure of their car and the subsequent search of their home violated their Fourth Amendment rights to be free from unreasonable search and seizure. At the close of plaintiffs evidence the trial court granted defendants motion for nonsuit, finding the officers had "acted reasonably by any objective standard" and therefore were entitled as a matter of law to immunity from any civil liability. The court explained, "The situation was there was an ongoing investigation of Mr. Venegass brother. His sister-in-law . . . had been arrested the day before. When Mr. Venegas was stopped there were no VINs on the car. Ive seen the picture. He looks very, very similar to his brother, at least as far as Im concerned. He was belligerent and noncooperative with the officers. He had no California drivers license or I.D. So under the circumstances I think there was more than enough probable cause. I thought the officers acted reasonably by any objective standard. So Im going to grant the nonsuit at this time."
We reversed the judgment of nonsuit in Venegas I, concluding the evidence in plaintiffs case-in-chief raised factual issues regarding defendants entitlement to qualified immunity that were properly determined by the jury, not the trial court. We also held the trial court erred in sustaining without leave to amend the demurrers of the Los Angeles County Sheriffs Department and Sheriff Baca to plaintiffs federal civil rights claims under the Eleventh Amendment to the United States Constitution, holding that, when engaged in a criminal investigation, the sheriff is acting as an agent of the county, not the state, and therefore is a "person" under section 1983. In addition, we reversed the trial courts order sustaining without leave to amend the demurrer to plaintiffs claim under section 52.1, subdivision (b), finding plaintiffs had adequately stated a cause of action under this provision.
Venegas v. County of Los Angeles (Dec. 23, 2002, B148398) [superseded by grant of review April 16, 2003 (S113301)]. (Venegas I.)
The Supreme Court granted the petition for review filed by the County, Sheriff Baca and his three deputies and reversed in part and affirmed in part our judgment.
In a closely divided decision, the court disagreed with our reasoning as to the Sheriffs liability under section 1983. The court held the trial court had properly sustained the demurrers of the County and Sheriff Baca to plaintiffs section 1983 action, concluding a county sheriff acts as a law enforcement officer on behalf of the state, not the county, and thus is absolutely immune from liability in a federal civil rights action: "California sheriffs act as state officers while performing state law enforcement duties such as investigating possible criminal activity."
Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 839. (Venegas II.) The Supreme Court denied the separate petition for review filed by the Vernon Police Department and Officer Wiles.
The court affirmed our determination plaintiffs had adequately pleaded a cause of action against the County and Baca under section 52.1 for interference with statutory or constitutional rights: "[I]n pursuing relief for [alleged unconstitutional search and seizure violations extending far beyond ordinary tort claims] under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion."
Venegas II, supra, 32 Cal.4th at page 843.
Finally, with respect to the sheriffs deputies entitlement to qualified immunity from civil liability under section 1983, the Supreme Court explained under Saucier v. Katz, "despite a possible Fourth Amendment violation, officers still must be granted immunity `for reasonable mistakes as to the legality of their actions. [Citation.]" "Saucier set forth the following framework for ruling on a claim of qualified immunity: First, accepting the plaintiffs allegations as true, was a constitutional right violated? If so, was the right so well established that it would be clear to a reasonable officer that his conduct was unlawful in the circumstances?" Concerned we may have misapplied governing legal principles, the Court remanded the case for reconsideration of the issue of the officers qualified immunity.
Saucier v. Katz (2001) 533 U.S. 194, 201-202.
Venegas II, supra, 32 Cal.4th at page 840.
Venegas II, supra, 32 Cal.4th at page 840.
Venegas II, supra, 32 Cal.4th at page 840. In our initial opinion we reversed the trial courts orders sustaining demurrers to Davids claim for battery and to portions of all three plaintiffs claims for negligence. We affirmed orders granting summary adjudication and sustaining demurrers that fully resolved in favor of defendants civil rights claims based on alleged violations of their Fifth Amendment rights. Because no issues relating to these additional claims were addressed in Venegas II, our initial decision remains determinative on those matters. (See Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12.)
Upon remand from the Supreme Court we only addressed the question the high court directed us to reconsider: whether the sheriffs deputies were entitled to qualified immunity from civil liability under section 1983. We held the deputies were entitled to qualified immunity because (1) "[the deputies] initial detention and questioning of David and Beatriz and the search and impounding of their car violated no constitutional rights" and (2) "[t]he continued detention of Beatriz and the warrantless search of the Venegas home, even if unlawful, were `reasonable mistakes" under Saucier v. Katz. Accordingly we ordered: "The judgment is reversed as to plaintiffs cause of action under Civil Code section 52.1 . . . , as set forth in [Venegas II] and as to the causes of action for battery . . . and negligence . . . as set forth in our initial decision. [Venegas I.] In all other respects the judgment is affirmed. The matter is remanded to the trial court for further proceedings consistent with the Supreme Courts decision, this opinion and those portions of our initial decision that have not otherwise been reversed or modified."
Venegas II, supra, 32 Cal.4th at page 843.
Saucier v. Katz, supra, 533 U.S. at page 206.
When the case returned to the trial court defendants City of Vernon, Vernon Police Department, Officer Wiles, County of Los Angeles and Deputy Harris moved for summary judgment on the remaining causes of action: violation of state constitutional rights under section 52.1, battery and negligence. The court granted the motion "in its entirety as to all defendants." Plaintiffs filed a timely notice of appeal.
The trial courts minute order states Sheriff Baca and Deputies Gray and Jimenez had previously been dismissed from the case. Their dismissal is not an issue in this appeal.
DISCUSSION
I.
DEFENDANTS WERE ENTITLED TO SUMMARY ADJUDICATION ON THE SECTION 52.1 CAUSE OF ACTION FOR VIOLATION OF STATE CONSTITUTIONAL RIGHTS.
A. The County Of Los Angeles And Deputy Harris.
Section 52.1 authorizes a suit for damages against any "person . . . , whether or not acting under color of law, [who] interferes by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state."
In Venegas III we held the officers initial detention and questioning of David and Beatriz and the search and impounding of their car did not violate their rights under the United States Constitution. This ruling necessarily means Deputy Harriss involvement in the initial detention and questioning of David and Beatriz and the search and impounding of their car did not violate their rights under the California Constitution because plaintiffs have not accused Harris of violating any state constitutional right which is separate and distinct from their federal protections.
As to the continued detention of Beatriz and the warrantless search of plaintiffs home, we held Harris "possibly" violated plaintiffs Fourth Amendment rights but at most he made "`"reasonable mistakes as to the legality of [his] actions"" entitling him to qualified immunity from liability under section 1983. The county and Harris argue their qualified immunity from liability under section 1983 should extend to plaintiffs state constitutional claims under section 52.1. We have found no case, however, in which a defendant who violated a California statute or constitutional provision was granted immunity in a section 52.1 action under federal qualified immunity standards because he made a "reasonable mistake." We need not decide this issue in the present case, however, because the undisputed facts show Harris did not "interfere[]by threats, intimidation, or coercion, with the exercise or enjoyment by [plaintiffs] of rights secured. . . by the Constitution or laws of this state."
See Venegas II, supra, 32 Cal.4th at page 840; Saucier v. Katz, supra, 533 U.S. at page 201.
Our opinions in Venegas I and III and the Supreme Courts opinion in Venegas II were limited to the question whether the complaint stated a cause of action under section 52.1. The issue of qualified immunity raised in the present appeal was not before us or the Supreme Court.
The section 52.1 case relied on by the county and Harris, Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 124-125, did not affirm the judgment for defendants because they made a "reasonable mistake" but because "plaintiff did not meet his burden of proof . . . to show defendants conduct violated his rights under state law." Similarly, in Reynolds v. County of San Diego (9th Cir. 1996) 84 F.3d 1162, 1170, the court affirmed the trial courts summary judgment on plaintiffs section 52.1 cause of action "because there is . . . no conduct specified which constitutes a state constitutional violation" and, therefore, "there is no conduct upon which to base a claim of liability under section 52.1." But see OToole v. Superior Court (2006) 140 Cal.App.4th 488, 509 , holding police officers sued under section 52.1 were immune from liability for violating plaintiffs free speech rights by reason of Government Code section 820.6 which provides a police officer is not civilly liable for enforcing an unconstitutional statute or regulation if the enforcement is in good faith and without malice.
Section 52.1, subdivision (a).
The evidence shows Harris was not involved in the detention of Beatriz. His only involvement in the search of plaintiffs home consisted of filling in some language on the consent form Beatriz signed and participating for 30 minutes in the search of her home with two other officers. There is no evidence Harris used threats, intimidation or coercion to obtain Beatrizs signature on the consent form or to accomplish his part in the search of plaintiffs home.
See Venegas II, supra, 32 Cal.4th at page 843: Provisions of section 52.1 "are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right."
For the reasons stated above we conclude the county and Harris were entitled to summary judgment on the section 52.1 cause of action.
B. The City Of Vernon And Officer Wiles.
The city and its officer, Wiles, were entitled to summary judgment on the section 52.1 cause of action because the undisputed evidence showed Wiles did not violate any of plaintiffs state constitutional rights.
In Venegas III we held the actions of the officers at the gas station, including Wiles, were justified under established law, violating none of Davids or Beatrizs federal constitutional rights. And, as was the case with Deputy Harris, plaintiffs have not alleged Wiles violated any state constitutional right separate and distinct from their federal rights. Although before leaving the gas station Wiles assured both David and Beatriz their home would not be searched if they agreed to permit officers to go there to retrieve Davids identification, he was not involved in obtaining Beatrizs consent to a broader search and, to the extent he advised the officers who conducted the search that consent had been given, there is no evidence Wiles misrepresented the nature or scope of the consent. Wiles did not participate in the search of the plaintiffs home.
We conclude, therefore, the city and Officer Wiles were entitled to summary adjudication on the section 52.1 cause of action.
II.
DEFENDANTS WERE ENTITLED TO SUMMARY ADJUDICATION ON THE BATTERY CAUSE OF ACTION
David pled a cause of action for battery based on Harris and Jimenez handcuffing him at the gas station.
The undisputed evidence shows the handcuffing occurred after David became belligerent and argued with Harris. Wiles testified David was irate, using profanities and "visibly agitated." In Venegas III we held the officers had probable cause to arrest David and handcuffing him did not violate his Fourth Amendment right to be free from unreasonable seizure. We held: "Because David conceded he was agitated and hostile when approached by the officers, handcuffing him was reasonably justified by the need of a reasonably prudent officer to protect himself and others.[.]" This holding collaterally estops David from maintaining a battery action against the officers who handcuffed him because a battery is not committed by a police officer unless the plaintiff proves the officer used unreasonable force. Penal Code section 835a states: "Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest . . . to overcome resistance."
Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1273.
Therefore the defendants were entitled to summary adjudication on Davids cause of action for battery.
We note, in addition, Deputy Jimenez was dismissed as a defendant prior to the defendants motion for summary judgment and the undisputed facts show Officer Wiles was not involved in Davids handcuffing.
III.
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS SUMMARY ADJUDICATION ON THE NEGLIGENCE CAUSE OF ACTION.
A. Venegas III Only Determined The Initial Detention And
Questioning Of Plaintiffs Did Not Violate Their Constitutional Rights.
In Venegas III we concluded the defendant officers were not liable under section 1983 for the detention of David and Beatriz and the search of their home. Defendants contend our ruling is res judicata as to the plaintiffs cause of action for negligence. We disagree.
We do not need to address the question whether plaintiffs common law negligence action involves the same "primary right" as their action under section 1983 for violation of their Fourth Amendment right to be free from unreasonable search and seizure. Venegas III only decided the officers initial detention and questioning of David and Beatriz did not violate their Fourth Amendment rights. The officers escaped constitutional liability for their succeeding conduct either because they were not involved in it (e.g., Wiles did not participate in the search of the plaintiffs home) or because we determined they were entitled to qualified immunity under Saucier v. Katz since it would not have been clear to a reasonable officer his conduct was unlawful under the circumstances. There is no comparable qualified immunity under California law.
See Saucier v. Katz, supra, 533 U.S. at page 202. We noted in Venegas III the search of the plaintiffs home constituted "a possible Fourth Amendment violation."
Robinson v. Solano County (9th Cir. 2002) 278 F.3d 1007, 1016-1017 holding officers were entitled to qualified immunity under Saucier on plaintiffs federal law claim of excessive force but not on plaintiffs California law claim of negligence. And see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215; Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 264-265. See also cases cited at footnote 16, above.
B. Triable Issues Of Fact Exist As To Whether The Defendant Officers Were Negligent In Their Conduct Following The Initial Detention Of David And Beatriz At The Gas Station.
Defendants have failed to show no triable issues of material fact exist as to plaintiffs cause of action for negligence. On the contrary, as we discussed in Venegas I, there was substantial evidence in the first trial from which a jury reasonably could find the defendant officers negligent in detaining plaintiffs and searching their home following their initial detention at the gas station. Defendants produced no new material evidence in support of their motion for summary judgment.
Code of Civil Procedure section 437c, subdivision (c).
Although the officers may have had reasonable suspicion of the section 10751(a) violation the evidence presents a jury question as to whether the traffic stop detention was unreasonably prolonged for a two-hour period, which included a search of the plaintiffs home. From the record before us the jury reasonably could have determined the officers knew within minutes David was not his brother Richard. Wiles had a photograph of Ricardo Venegas and a description of him which Wiles admitted did not closely resemble his brother David. Furthermore, the information obtained by the officers at the gas station did nothing to implicate David and Beatriz in any offense other than the section 10751(a) violation. The officers knew they could have run the name "David Venegas" through their system to see if any results matched up with the individual they had before them. They did not do so. A jury could reasonably conclude from this evidence it was unnecessary for the officers to detain Beatriz further and accompany her to her home. A jury could also find the two-hour detention, including the search of the Venegas home, was not reasonably designed to quickly resolve the issue of Davids identity. In other words, a reasonable jury could conclude the detention and search were not reasonably necessary to perform the duties incurred by virtue of the stop (i.e., writing a citation for the Vehicle Code violation or effecting a custodial arrest under Vehicle Code section 40302(a)). In fact, a jury could conclude the information the officers obtained at the gas station actually dispelled, rather than verified, suspicions of any further criminal activity, including the suspicion the Cougar automobile was stolen.
As we have previously noted, the evidence shows the officers handcuffing of David was initially justified by the need of a "reasonably prudent" officer to protect himself and others during the traffic stop. It is, however, a question for the jury as to whether the continued detention and handcuffing of David was reasonable.
Accordingly, whether the search of the plaintiffs home was with or without their valid consent, the plaintiffs were nevertheless detained during the search as a result of a traffic stop. The evidence is sufficient to raise a jury question as to whether the detention of David and Beatriz was unlawfully prolonged and intrusive and not properly within the scope of activities permitted by the stop.
A jury also could find Wiles, Gray, Harris and Jimenez were all involved in the detention. The involvement of Wiles and Harris is established by their own testimony; Gray admitted he participated in the decision to detain David; and David testified Harris and Jimenez were the ones who held him and handcuffed him. The evidence is also sufficient to raise a jury question regarding the point when the conduct of the officers evolved from a traffic stop into the arrest of David and whether their conduct constituted an arrest of Beatriz.
Turning to the search of the plaintiffs home, the facts are disputed as to the scope of the consent. Plaintiffs presented sufficient evidence to permit a jury to infer there was no voluntary and valid consent to search the home and plaintiffs consented only to have an officer accompany Beatriz into the home in order for her to retrieve her husbands identification. While Beatriz admitted signing the written entry and search waiver form, that is just one circumstance for the jury to consider in determining whether there was a valid consent to search. The jury could infer Beatriz signed the waiver form reasonably believing she was only consenting to having an officer transport her to, and escort her into, her home for the purpose of retrieving Davids drivers license. At least in our review of the trial courts summary judgment for the defendants it is permissible to discount the broad, literal language of the preprinted form signed by Beatriz in evaluating the validity of her consent on the ground she reasonably believed she was only consenting to having an officer escort her home to retrieve Davids identification so the police would let her husband go. Indeed, Wiles admitted this was precisely what he told Beatriz.
A jury could also conclude Wiles knew plaintiffs had not consented to a search of their home, yet Wiles told Kerkhof the Venegases had consented to such a search. In other words, it was Wiles who was responsible for the other officers searching the plaintiffs home, even though Wiles personally did not conduct the search.
In addition, sufficient evidence in the record creates a jury question as to whether the officers took advantage of Davids failure to possess a drivers license or identification card in order to search his home without probable cause and without reasonable suspicion of any criminal activity on his part but simply because he happened to be the brother of Ricardo who was the subject of another investigation. Because the jury could infer arbitrary or capricious conduct on the part of the officers, triable issues exist as to whether the search was lawful pursuant to Davids probation condition.
For the reasons stated above, defendants were not entitled to summary adjudication on plaintiffs cause of action for negligence.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to enter an order granting summary adjudication to defendants on all remaining causes of action except the cause of action for negligence. As to that cause of action the
trial court shall enter an order denying summary adjudication. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
WOODS, J.
ZELON, J.