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Case No.: CV 00-7149 ABC (CWx)
February 25, 2002
ORDER RE: GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This cases arises out the arrest, and subsequent prosecution, of Plaintiff R. Moreno ("Plaintiff" or "Moreno") for alleged possession of illicit drugs. Plaintiff filed a complaint on June 30, 2000 against the deputies of the Los Angeles County Sheriff's Department ("LACS") involved in his arrest, Los Angeles Sheriff Leroy Baca, and Los Angeles County Supervisors on the ground that the arrest was illegal and that Plaintiff's civil rights were therefore violated. See Complaint ¶ 4.
Defendants Leroy Baca ("Baca"), Deputy Sean Burke ("Burke") and Deputy Thomas Garcia ("Garcia") (collectively, "Defendants") filed a motion for summary judgment which came on for hearing before this Court on February 25, 2002 (the "Motion"). For the reasons indicated below, Defendants' Motion for Summary Judgment is DENIED in part and GRANTED in part.
I. STANDARD ON A MOTION FOR SUMMARY JUDGMENT
The party moving for summary judgment has the initial burden of establishing that there is "no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c); see British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978); Fremont Indemnity Co. v. California Nat'l Physician's Insurance Co., 954 F. Supp. 1399, 1402 (C.D. Cal. 1997).
If the moving party has the burden of proof at trial e.g., a plaintiff on a claim for relief, or a defendant on an affirmative defense), the moving party must make a "showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party."Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting from Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). Thus, if the moving party has the burden of proof at trial, that party "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [its] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original); see Calderone, 799 F.2d at 259.
If, as here, the opponent has the burden of proof at trial, the moving party has no burden to negate the opponent's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325. "Instead, . . . the burden on the moving party may be discharged by "showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. (citations omitted).
Once the moving party satisfies this initial burden, "an adverse party may not rest upon the here allegations or denials of the adverse party's pleadings . . . [T]he adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Pro. 56(e) (emphasis added). A "genuine issue" of material fact exists only when the nonmoving party makes a sufficient showing to establish the essential elements to that party's case, and on which that party would bear the burden of proof at trial. Celotex, 477 U.S. at 322-23. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a reasonable jury could reasonably find for plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in favor of the nonmovant. Id. at 248. However, the Court must view the evidence presented "through the prism of the substantive evidentiary burden." Id. at 252.
When a motion for summary judgment is based on a claim of qualified immunity, "the first inquiry must be whether a constitutional right would have been violated on the facts alleged. . . ." Saucier v. Katz, 121 S.Ct. 2151, 2155 (2001). "[T]he next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case. . . ."Id. at 2156.
II. PROCEDURAL HISTORY
Plaintiff filed his Complaint in this Court on June 30, 2000, against defendants Baca, Banks, Garcia, Michael Antonovich ("Antonovich"), Yvonne Burke ("Burke"), Donald Knabe ("Knabe"), Gloria Molina ("Molina") and Zev Yaroslavsky ("Yaroslavsky"). The Complaint asserted the following causes of action: (1) damages for deprivation of civil rights and conspiracy to deprive civil rights pursuant to 42 U.S.C. § 1983, (2) declaratory relief pursuant to 28 U.S.C. § 2201, (3) injunctive relief pursuant to 28 U.S.C. § 1651, (4) class action allegations pursuant to Fed.R.Civ.P. 23 and Local Rule 18 and (5) Racketeer Influenced and Corrupt Organizations ("RICO") claims for damages and for declaratory relief pursuant to 28 U.S.C. § 1961, et seq. On September 11, 2000, Plaintiff filed a First Amended complaint against the same defendants and alleging the same causes of action.
The Court dismissed the RICO claims against Yaroslavsky, Banks and Garcia on October 13, 2000, and against Antonovich and Burke on February 14, 2001.
On July 26, 2000, defendants Yaroslavsky, Banks and Garcia filed a motion to dismiss all claims alleged against Yaroslavsky, to dismiss the class allegations and to dismiss the RICO claim. On October 13, 2000, the Court denied the motion to dismiss as to all claims alleged against Yaroslavsky and denied the motion to dismiss the class allegations as premature. See Court's October 13, 2000 Order at 5. The Court granted the motion to dismiss as to the RICO claim and dismissed the RICO claim with prejudice. See Court's October 13, 2000 Order at 6.
On December 19, 2000, defendant Baca filed a motion to dismiss claims against him. On February 8, 2001, the Court denied that motion.
On January 29, 2001, defendants Antonovich and Burke filed a motion to dismiss claims against them. On February 14, 2001, the Court granted this motion with respect to the RICO claim and denies it as to all other claims.
On February 26, 2001, the Court set the discovery cut-off date to August 31, 2001, the motion cut-off date to September 10, 2001, the pre-trial conference to November 19, 2001 and the jury trial to December 4, 2001.
On May 14, 2001, defendants Baca, Antonovich, Yaroslavsky, Banks and Garcia filed a motion for judgment on the pleadings. The Court denied this motion without prejudice on July 6, 2001 because the collateral estoppel issues raised in that motion could not be determined at that stage in the litigation.
On October 19, 2001, defendants Banks, Garcia, Baca, Yaroslavsky, Antonovich and Burke filed a motion for leave to file a motion for summary judgment beyond the schedule motion cut-off date and lodged defendants Baca, Banks and Garcia's motion for summary judgment. On November 6, 2001, the Court granted that motion and filed the Baca, Banks and Garcia motion for summary judgement. Plaintiff filed his opposition to that motion on January 22, 2002 and Defendants filed their reply on January 29, 2002. On January 22, 2002, the Court granted Plaintiff's ex parte application for leave to file an over-sized opposition brief and accepted Plaintiff's twenty-eight page opposition. This motion for summary judgment came on for hearing on February 25, 2002.
On January 18, 2002, defendants Antonovich, Burke, Knabe, Molina, Yaroslavsky filed a motion for summary judgement. Plaintiff opposed that motion as it was filed passed the motion cut-off date without leave of Court. Accordingly, the Court declined to hear that motion.
Plaintiff has engaged in an unacceptable practice of filing additional briefs in opposition to this motion for summary judgment without leave of Court. Plaintiff should be well aware of Local Rule 7-10 which provides, in relevant part, that "[a]bsent prior written order of the court, the opposing party shall not file a response to the reply."
On January 28, 2002, Plaintiff filed a Notice of Errata to Plaintiff's Opposition to Defendants' Motion for Summary Judgment. The Court accepts this filing as it provided the Court with a page that Plaintiff had failed to include in his initial opposition. On February 5, 2002, Plaintiff filed a "Notice of Errata and Response to Defendants' Reply; Request to Strike Portions of Reply that Raise Arguments for First Time." As this "Response" was filed without leave of the Court, the Court will not consider it. Any motion to strike portions of the reply is denied both because of the improper filing of Plaintiff's motion to strike and the lack of meritorious arguments justifying striking portions of the reply. On February 7, 2002, Defendants filed a "Motion to Strike Plaintiff's Response to Reply Brief." As stated above, Plaintiff's "Response" has been stricken.
On February 11, 2002, Plaintiff filed a "Supplemental Opposition to Defendants' Motion for Summary Judgment." With this filing, Plaintiff again violated Local Rule 7-10. Not only was this "Supplemental Opposition" filed without leave of Court, in violation of Local Rule 7-10, this filing cites additional cases of which Plaintiff should have been aware when he filed his opposition. These two additional, improper, filings have provided Plaintiff with eight additional pages of argument, making Plaintiff's opposition thirty-six pages. On February 14, 2002, Defendants filed an "Application to Strike Plaintiff's Supplemental Opposition to Defendants' Motion for Summary Judgment; Request for Sanctions." Defendants assert that Plaintiff should be required to pay Defendants their reasonable costs and fees for preparing both of their motions to strike Plaintiff's "after-thought" briefing.
On February 19, 2002, Plaintiff filed a "Notice of Possible Violation of Local Rule 7-10" in which Plaintiff "apologized" for his February 5, 2002 filing (the "Notice of Errata and Response to Defendants' Reply; Request to Strike Portions of Reply that Raise Arguments for First Time") and withdrew his pleading to that extent. The Court notes that Plaintiff has not "apologized for" nor addressed his February 11, 2002 filing, which also violated the Local Rules. The Court, in its discretion, declines to sanction Plaintiff. See infra note 28.
III. STATEMENT OF FACTS
The facts in this case are largely disputed. Although both Plaintiff's and Defendants allegations differ, especially with respect whether Moreno placed "something" on the stoop of a building before being detained by the Officers, the Court draws all justifiable inferences in Plaintiff's favor, as it must do in a motion for summary judgment.
On the evening of January 21, 2000, Banks and Garcia (collectively, the "Officers" or "Deputies") were on patrol duty in a marked black and white patrol car the City of Terrace area of Los Angels county. Both were in uniform and Garcia was driving the marked car. See Motion, Exh. I ¶ 2, Exh. D ¶¶ 6, 7. The Deputies saw Plaintiff and another man, Mr. Rodriguez walking in their direction. See Declaration of Deputy Sheriff Sean Banks ("Banks Decl.") ¶ 7; Declaration of R. Moreno ("Moreno Decl.") ¶ 5.
The parties dispute whether Rodriguez and Moreno were walking side-by-side or whether Moreno was a few yards behind Rodriguez. See Banks Decl. ¶ 7; Moreno Decl. ¶ 5. The parties also dispute the time at which this initial encounter occurred. Moreno asserts that it occurred sometime after 5:00 p.m. and the Deputies assert that it occurred at approximately 6:50 p.m. See Banks Decl. ¶ 6; Moreno Decl. ¶ 3.
Deputy Banks states that it appeared to him that "Moreno was startled by our presence." See Banks Decl. ¶ 7. Banks asserts that he saw Moreno reach into his pocket, bend to his side, place something on the steps of an apartment building and walk away. See Banks Decl. ¶ 8. Deputy Banks alleges that this nervous behavior, along with the fact that the area in which these alleged events were taking place was an area with high narcotics activity, caused him to suspect that Moreno was in possession of illegal drugs. See Banks Decl. ¶ 9.
Moreno alleges that while he and Rodriguez were walking on the sidewalk, a Los Angeles County sheriff patrol car drove toward them, passed them, made a u-turn and then pulled up in front of them. See Moreno Decl. ¶ 6. Moreno asserts that at no time while he was walking did he or Rodriguez bend or stoop to place anything on the ground or on any steps. See Moreno Decl. ¶ 7; Plaintiff's Statement of Controverted Facts ("Pl.'s Statement") ¶ 8.
Deputy Banks and Garcia approached Moreno and Rodriguez. See Banks Decl. ¶ 10; Moreno Decl. ¶ 8. It is undisputed that Moreno was detained at this point. See Banks Decl. ¶ 10, Garcia Decl. ¶ 6. The descriptions concerning the events that took place after this point vary greatly.
Defendants assert that Rodriguez, however, was not detained at this point. See Banks Decl. ¶ 10.
Banks asserts that after detaining Moreno, he recovered the item he had seen Moreno place on the building step and recognized it from his training and experience as an apparent rock of cocaine. See Banks Decl. ¶ 11. The Officers assert that a warrant check through the patrol car computer terminal revealed that there was an outstanding arrest warrant for Moreno with bail of $10,000 and that Moreno was on active parole.See Banks Decl. ¶¶ 12 13; Garcia Decl. ¶ 8 9. The Officers assert that they were aware from their training and experience that a standard parole term subjects parolees to a warrantless search by any peace officer. See Garcia Decl. ¶ 15; Banks Decl. ¶ 14. The Officers assert that Moreno was arrested at that point for possession of cocaine and on authority of the outstanding warrant. See Banks Decl. ¶ 15, Garcia Decl. ¶ 11.
Moreno asserts that after the police vehicle pulled up on the curb directly in front of him and Rodriguez, the Officers exited the car and told both Moreno and Rodriguez to put their hands on the patrol car. See Moreno Decl. ¶ 6 8. According to Moreno, one of the Officers questioned him and Rodriguez as to what they were "doing around there."See Moreno Decl. ¶ 9. One of the officers then asked the men for identification, patted them down, emptied their pockets and put their personal items on the car. See Moreno Decl. ¶ 10. This same officer then instructed Moreno and Rodriguez to enter the marked car and then locked the men in the car. See Moreno Decl. ¶ 12. This officer then ran the men's names in the car computer and asked Moreno if he was on parole. Moreno answered in the affirmative. See Moreno Decl. ¶ 15.
While one of the officers was conducting this search and detaining Moreno and Rodriguez, the other officer, according to Moreno, was looking for something on the ground with a flashlight in the direction from which Moreno and Rodriguez had just walked. See Moreno Decl. ¶¶ 11 13. This officer returned to the car, talked to the other officer, and then opened the glove compartment and took out a Ziploc baggy, which he then returned to the glove compartment. See Moreno Decl. ¶ 17. Rodriguez was then told to leave and Moreno was told that he was under arrest for violating his parole by virtue of being in possession of rock cocaine.See Moreno Decl. ¶ 20.
It is undisputed that Moreno was arrested for possession of cocaine,see Banks Decl. ¶ 15; Moreno Decl. ¶ 23, and that a parole hold was also placed on him. See Banks Decl. ¶ 15; Moreno Decl. ¶ 23.
On February 8, 2002, a probable cause hearing was held where Banks testified to the reasons for detaining and arresting Moreno. See Defs.' Statement ¶ 14. At this hearing, no evidence was introduced in support of the probable cause to arrest other than Banks' testimony. Id. The court found "sufficient cause to believe the defendant (Moreno) is guilty of the possession of cocaine as a felony, as alleged in count 1."See Motion, Exh. A, Transcript of Preliminary Hearing at 10. At the close of the probable cause hearing, Moreno's attorney made a motion to dismiss for insufficiency of the evidence. See Defs.' Statement ¶ 16. The court denied Moreno's motion to dismiss, found probable cause to believe Moreno had possessed cocaine, and held him to answer at trial. See Defs.' Statement ¶ 17; Motion, Exh. A, Transcript of Preliminary Hearing at 10.
At trial, Moreno was represented by counsel, who cross-examined Banks regarding his probable cause to arrest Moreno. At the close of the prosecution case, Moreno's attorney made a motion to dismiss, which was denied by the trial judge. See Defs.' Statement ¶ 19. On April 26, 2002, Moreno was acquitted of the possession of cocaine charge. See Moreno Decl. ¶ 28. Moreno was not released from custody until May 22, 2000, when his parole hold was lifted. See Moreno Decl. ¶ 28.
IV. DISCUSSION
Defendants move for summary judgment on the following grounds, (1) the suit is barred by collateral estoppel, (2) Plaintiff's parole terms diminished his Fourth Amendment rights, (3) Plaintiff's outstanding arrest warrant authorized the actions taken by Garcia and Banks, (4) Banks and Garcia are shielded by qualified immunity (5) a Monell claim does not lie and (6) there are no triable issues of fact supporting a claim for conspiracy. The Defendants also claim that Moreno has failed to properly assert class allegations and claims for injunctive and declaratory relief.
Defendants initially argued that Sheriff Baca was entitled to summary judgment on the grounds of qualified immunity. However, this argument was withdrawn by Defendants after the Ninth Circuit's ruling inBrewster v. Shasta County, 275 F.3d 803 (9th Cir. 2001). See Supplemental Brief to Defendants' Motion for Summary Judgment, filed January 2, 2002.
A. The Suit is Not Barred by Collateral Estoppel
Defendants contend that "Moreno is collaterally estopped from relitigating the issue of probable cause for his arrest for possession of cocaine, because that issue was determined in the preliminary hearing."See Motion at 6. While Plaintiff acknowledges that a finding of probable cause at a preliminary hearing generally serves to collaterally estop a subsequent civil trial addressing those probable cause issues, Plaintiff contends that the three recognized exceptions to this rule are present in the instant case. Accordingly, Plaintiff argues, the instant civil suit is not barred by collateral estoppel. Defendants counter that none of these exceptions apply.
The doctrine of collateral estoppel, or issue preclusion, prevents re-litigation of legal and/or factual issues necessarily considered and determined in a prior legal proceeding between the the parties, or their privies. See e.g., Allen v. McCurry, 449 U.S. 90, 94 (1980); Teitelbaum Furs. Inc. v. Dominion Insurance Co., Ltd., 58 Cal.2d 601, 604 (1962);McGowan v. City of San Diego, 208 Cal.App.3d 890, 895 (1989). The collateral estoppel doctrine applies with equal force to claims brought under Section 1983. See Allen, 449 U.S. at 105. Whether collateral estoppel applies in a given case is primarily a legal question. See Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). State law governs the application of collateral estoppel to issues that were decided in a prior state court proceeding. See id.; Allen, 449 U.S. at 96 (state law applicable for prior state judgments).
Res judicata is often used to refer to a general "species" of defense including both claim preclusion and issue preclusion. It is most useful, however, to equate res judicata solely with claim preclusion, andcollateral estoppel with issue preclusion. See, e.g., Americana Fabrics, Inc. v. L L Textiles, Inc., 754 F.2d 1524, 1529 (9th Cir. 1985); Ross v. International Broth. of Elec. Workers, 634 F.2d 453, 457 n. 6 (9th Cir. 1980); 18 Wright, Miller Cooper, Federal Practice and Procedure § 4402 (1981). This Motion argues solely collateral estoppel/issue preclusion.
Under California law, collateral estoppel is applied where: (1) the issue sought to be precluded is identical to that which was decided in a prior proceeding; (2) that issue was actually litigated and necessarily decided in that proceeding; (3) there was a final judgment on the merits; and (4) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior proceeding. See McCutchen v. City of Montclair, 73 Cal.App.4th 1138, 1145 (1999); see also Heath v. Cast, 813 F.2d 254, 258 (9th Cir. 1987). In California, a prior criminal proceeding may have collateral estoppel implications for a subsequent civil suit. See e.g., McGowan, 208 Cal.App.3d at 895;McCutchen, 73 Cal.App.4th at 1144; Heath, 813 F.2d at 258.
In addition, under the right set of circumstances, issues necessarily determined during a preliminary hearing in a criminal case may be precluded from re-litigation in a subsequent civil suit. See Teitelbaum, 58 Cal. 2d at 606-07; McCutchen, 73 Cal.App.4th at 1145; McGowan, 208 Cal.App.3d at 896; Morley v. Walker, 175 F.3d 756, 760-61 (9th Cir. 1999); see also Haupt v. Dillard, 17 F.3d 285, 288-89 (9th Cir. 1994) (applying Nevada law); De Anda v. City of Long Beach, 7 F.3d 1418, 1422 (9th Cir. 1993); Ayers, 895 F.2d at 1270-71; Heath, 813 F.2d at 258-59.
Under California law, a finding in a preliminary hearing of probable cause to hold a criminal defendant over for trial is a final judgment on the merits for collateral estoppel purposes because an accused can immediately appeal the probable cause determination by filing a motion to set aside (Cal. Pen. Code § 995) and obtain review of the decision on the motion to set aside by filing for a writ (Cal. Pen. Code § 999a). In addition, probable cause cannot be litigated further because it provides no defense for an accused at trial. See McCutchen, 73 Cal.App.4th at 1146; Morley, 175 F.3d at 760-61; Haupt, 17 F.3d at 288-89. Thus, issues necessarily determined in that hearing may not be subsequently re-litigated.
As the Ninth Circuit concluded in Haupt v. Dillard (applying Nevada law), a determination of probable cause sufficient to bind a criminal defendant over for trial made at a preliminary hearing may estop the defendant from later seeking damages under Section 1983 by alleging his arrest was not supported by probable cause. See Haupt, 17 F.3d at 288-90. In Haupt, the Ninth Circuit found that a finding of probable cause was the purpose of a preliminary hearing. "[T]he probable cause determination was necessary to the judgment; the sole purpose of the preliminary hearing was to determine whether Haupt should have been bound over for trial. But for the probable cause determination, there would have been no trial and no judgment of acquittal." Id. at 289 (emphasis in original).
The Haupt court concluded that in most instances the issues necessarily determined in a preliminary hearing, and those which underscore a Section 1983 claim premised on unlawful arrest, will be the same. See id. at 289-90. On that basis, the court found that Haupt was estopped from bringing his Section 1983 claim:
[T]he issue determined at his preliminary hearing is identical to the issue whether there was probable cause to arrest him; both involved a determination that the evidence available and known to the officers at the time of his arrest supported a reasonable belief that Haupt committed the offenses charged.Id. at 289 (citations omitted). The court did identify factual circumstances that would limit or eliminate collateral estoppel effects of a prior criminal preliminary hearing. These "exceptions" identified inHaupt have been explicitly adopted for California preliminary hearings byMcCutchen, 73 Cal.App.4th at 1145-48. The California Court of Appeals inMcCutchen also identified a third "exception." Thus, the three situations in which a preliminary hearing will not collaterally estop a plaintiff from pursuing a later civil claim based on the same issue are: (1) where there were facts presented to the judicial officer presiding over the preliminary hearing which were additional to (or different from) those available to the officers at the time they made an arrest; or (2) where tactical considerations prevented a litigant/prior criminal defendant from vigorously pursuing the issue of probable cause during the prior criminal prosecution/preliminary hearing, see id. at 289, and (3) where a plaintiff alleges that the arresting officer lied or fabricated evidence presented at the preliminary hearing. See McCutchen, 73 Cal.App.4th at 1147 ("When the officer misrepresents the nature of the evidence supporting probable cause and that issue is not raised at the preliminary hearing, a finding of probable cause . . . would not preclude relitigation of . . . integrity of the evidence."). In the absence of one of these three exceptions, however, California plaintiffs may not "re-litigate" the "issue" of probable cause. R. Moreno v. Leroy Baca, et al., No. CV00-07149, 2001 WL 1204113 *4, (C.D. Cal. July 9, 2001).
Defendants argue that the doctrine of collateral estoppel should apply to this case because the issue of probable cause has already been litigated at the preliminary hearing and none of the three "exceptions" recognized by the California courts are present. Plaintiff contends that collateral estoppel should not apply because all three of the recognized "exceptions" apply in this case. The Court finds that collateral estoppel does not bar the instant suit because Plaintiff has presented sufficient evidence that one of the "exceptions," the litigation strategy exception, applies. Specifically, Moreno's counsel did not vigorously pursue the issue of probable cause during the prior preliminary hearing for tactical considerations.
While the Plaintiff has also contended that the other two "exceptions" to the application of the collateral estoppel doctrine are present, the Court need not address those exceptions as the existence of one exception is sufficient to prevent the doctrine of collateral estoppel from barring the instant action.
In order to invoke the "litigation strategy exception" to the collateral estoppel doctrine, Plaintiff has the burden of showing that the issue of probable cause was not litigated at the preliminary hearing for tactical reasons. See McCutchen, 73 Cal.App.4th at 1147. As the California Court of Appeals stated, "[s]ince a decision to hold the defendant over for trial requires a ruling on the sufficiency of the evidence, absent a showing to the contrary, the issue of probable cause to arrest will typically be actually litigated and necessarily decided at the preliminary hearing." (emphasis added) Id. at 1147.
The California Court of Appeal also noted in McCutchen, "unless the plaintiff in a civil suit can demonstrate that the issue probable cause was not litigated at the preliminary hearing for tactical reasons, we will presume that the plaintiff had a full and fair opportunity to litigate the issue of probable cause to arrest." Id. at 1147.
Defendants argue that Plaintiff has not made a "showing" that the issue of probable cause to arrest was not litigated because (1) Moreno's counsel at the preliminary hearing actually cross-examined the witness, Banks, thoroughly on the probable cause issue, (2) Moreno's counsel made a motion for dismissal based on insufficiency of the evidence — which amounted to a challenge only to the existence of probable cause for the arrest, since the narcotic character of the white rock had been stipulated, see Motion at 8, and (3) a mere declaration by Moreno's counsel that he did not fully litigate the probable cause issue in the preliminary hearing is insufficient to substantiate a showing that the issue of probable cause was not actually litigated. See Reply at 3-4.
In spite of Defendants' arguments to the contrary, the Court finds that Plaintiff has made a showing that the issue of probable cause was not litigated at the preliminary hearing. First, Moreno's counsel's sworn declaration that he did not fully litigate the issues of probable cause for tactical reasons is clearly stated and substantiated by the record. In his declaration, Moreno's counsel states,
The Court agrees with Defendants' statement that the determination of whether probable cause was actually litigated at the preliminary hearing cannot be "foreclosed by a declarant's personal opinion." See Reply at 4. However, the Court has before it more than simply a personal opinion of a declarant. The Court has the declaration of the attorney who actually represented Moreno at the preliminary hearing, as well as the transcript of that proceeding which fully supports the declarant's assertion that he did not fully litigate the issue of probable cause at the preliminary hearing for tactical reasons.
I did not fully litigate the issue off the initial stop, nor probable cause to arrest on the crime charged because that was my litigation strategy based on the fact that (i) all of the required discovery and disclosure of, inter alia, Brady materials and any additional materials required to be disclosed under state law, had not been made available to me as of the preliminary hearing date; (ii) it is not atypical of the deputy sheriffs of the County of Los Angeles to exclude relevant information and identities of material witnesses from their arrest reports; (iii) in this case, based on the evidence that came out subsequently at the trial, Banks, who had testified at the preliminary hearing, had lied about their being another person at the scene, and who in fact was with Mr. Moreno and was stopped with Mr. Moreno; and (iv) after a preliminary hearing in a case that is going to trial, it is referred to the felony trial section of the public defender's office, and the trial attorney then further investigates and prepares the defense making further discovery requests where appropriate, in part based on what evidence that was presented at the preliminary hearing as compared to the arrest report.
Moreno's counsel also stated that "[i]n this case, in accordance with my litigation strategy, which depends in part on what facts I know at the time, in turn dependent upon the evidence presented by and the veracity of the testifying officer, I did not fully challenge or litigate the issue of probable cause to arrest, or the initial stop . . . [i]n accordance with my litigation strategy, I also did not challenge the alleged evidence seized by the arresting officers." See Erpino Decl. ¶ 9.
Declaration of Michael Erpino ("Erpino Decl.") ¶ 8. Moreno's counsel's unambiguous declaration is fully supported by the record which indicates that at the preliminary hearing Moreno's counsel was specifically asked whether he was making a "1538.5 motion for probable cause" by the deputy district attorney. See Transcript 5: 15-17, Motion, Exh. A. Moreno's counsel unequivocally responded, "[n]o. Just trying to establish the set of facts for observation purposes." See Transcript 5: 18-19, Motion, Exh. A.
The Court notes that a 1538.5 motion is a search and seizure motion, not a probable cause motion. See Cal. Penal Code § 1538.5 Motion to Return Property or Suppress Evidence (2002).
Defendants also argue that preclusive effect should be given to the probable cause issue because Moreno's counsel at the preliminary hearing, Michael Erpino ("Erpino") actually cross-examined the witness, Banks, thoroughly on the probable cause issue. However, given that Banks was the only witness presented at the preliminary hearing, and the fact that Moreno's counsel did not present any evidence negating the existence of probable cause, it is not evident that the issue of probable cause was fully litigated. As stated by the court in McCutchen, a "preliminary hearing is an adversary judicial proceeding, designed to litigate the issue of probable cause to try the accused on criminal charges, in which the accused may cross examine witnesses pertinent to the issue of probable cause to arrest, such as the arresting officer and the complaining witness, and present evidence negating the existence of probable cause." McCutchen, 73. Cal.App.4th at 1146-47. While Moreno's counsel did indeed cross-examine the arresting deputy, he did not present any evidence negating the existence of probable cause.
Similarly, Defendants' final argument that Moreno's counsel's motion for dismissal based on insufficiency of the evidence amounted to a challenge only to the existence of probable cause for the arrest, given that the narcotic character of the white rock had been stipulated, is speculative. The record does not state, and therefore, Defendants cannot purport to know, the reasoning underlying Erpino's motion to dismiss. The Court again notes that Erpino expressly stated, when asked, that he was not making a motion on probable cause grounds. See Motion Exh. A, Transcript at 5:15-19.
Indeed, speculation on Erpino's strategy at the preliminary hearing can cut the other way and indicate that he was not investigating probable cause. For example, Erpino asked a number of questions relating to another individual who was walking near Moreno when the Government objected as to the relevance of that line of questioning. Erpino responded that he was "just trying to set the stage for who was there, who was present, who might be a witness and what happened that night."See Motion, Exh. A, Transcript at 6:2-7.
B. Moreno's Parole Terms did Not Limit his Fourth Amendment Rights
On October 15, 1997, Moreno was placed on parole for a period of three years. When placed on parole, Moreno signed a "Notice of Conditions of Parole" form which provided that Moreno "may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." See Defs.' Statement ¶ 4.
Moreno was released on parole on October 15, 1997 for a period of three years. One of the conditions of Moreno's parole was that he, his residence and any property under his control could "be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." See Motion, Exh. H.
Defendants argue that since Moreno was subject to a parole search condition, Moreno had no Fourth Amendment right to be free from a warrantless detention and search. See Motion at 9-10. Plaintiff counters that the stop cannot be justified by a parole search condition of which the seizing officers had no prior knowledge, and where the detention was not for legitimate law enforcement purposes. See Plaintiff's Opposition ("Opp'n.") at 7.
As an initial matter, the Court notes that federal law controls analysis of this issue. See United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (noting that "[w]hile the federal courts may consider state precedent for its persuasive value, the validity of a search conducted by state law enforcement officers is ultimately a question of federal law" (citations omitted)); see also United States v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997) ("While federal courts must look to state law to determine the validity of the underlying probation condition itself (citation omitted), and may consider state precedent for its persuasive value (citation omitted), the validity of a search conducted by state law enforcement officers is ultimately a question of federal law.") (citation omitted).
The validity of Moreno's state probation condition, however, is governed by California law. See United States v. Johnson, 722 F.2d 525, 527 (9th Cir. 1983). The California Penal Code authorizes the court to impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done . . . and generally and specifically for the reformation and rehabilitation of the probationer." Cal. Penal Code § 1203.1. The Court finds that Moreno's probation condition, which provides that "you and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law-enforcement officer," see Motion, Exh. G, is valid. In 1998, the California Supreme Court found a probation search condition identical to Moreno's to be valid. See People v. Rudolfo Reyes, 19 Cal.4th 743, 746 (1998) (probation search provision identical to Moreno's accepted as valid).
Defendants argue that the search and seizure was proper under federal law because neither prior knowledge of the parole condition nor reasonable suspicion is required to uphold a search of a parolee subject to a warrantless search condition. See Reply at 9. Defendants further argue that even if reasonable suspicion were required for a parole search, Moreno's actions before the search — looking over his shoulder, appearing startled at seeing the patrol car, removing something from his pocket and placing it on the steps — provided that reasonable suspicion. See Reply at 9. Plaintiff, on the other hand, argues that the search and seizure was not proper because the Defendants did not know of the parole condition prior to the search and seizure and the search and seizure was not based on reasonable suspicion.
Defendants further contend that Moreno "does not dispute removing something from his pocket and placing it on the steps." See Reply at 9. However, Moreno clearly disputes this fact in his declaration. At paragraph 7 of his declaration, Moreno unequivocally states "At no time while we were walking did either Mr. Rodriguez or I bend or stoop to place, drop or throw anything down on the ground or on the steps of any building we passed, nor at anytime did either Mr. Rodriguez or I stop to do so." Id. ¶ 7.
While neither the Supreme Court nor the Ninth Circuit has provided a clear rule on the validity of a search and seizure conducted without prior knowledge of a suspect's parole conditions, the Court finds Moreno's parole terms did not justify the search and seizure in this case. Given that neither the Supreme Court nor the Ninth Circuit have upheld searches of parolees when the officer does not have prior knowledge of the condition and where the search is not based on reasonable suspicion, and given that all justifiable factual inferences are to be drawn in favor of the Plaintiff, the Court finds that Moreno's parole condition does not entitle Defendants to a judgment as a matter of law.
The most recent discussion of the Fourth Amendment rights of parolees by the Supreme Court is contained in United States v. Knights, ___ U.S. ___, 122 S.Ct. 587 (2001). The defendant in Knights was subject to a parole condition that required that he "[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer."Id. at 588. The Sheriffs' Department had information which led it to suspect that the defendant, Knights, was responsible for acts of vandalism to certain facilities in the area. The Sheriffs' Department knew that Knights had agreed as a condition of probation to submit to searches or seizures with or without a warrant and with or without reasonable cause. Id. at 588. With this information, a sheriff's deputy conducted a warrantless probation search of Knights' apartment, which produced numerous incriminating items. The Supreme Court held that the search was lawful and concluded that only reasonable suspicion was required to search the probationer's house in that case. The Supreme Court balanced the degree to which a search intrudes upon an individual's privacy and the promotion of legitimate governmental interests, in holding that the warrantless search of Knights was supported by reasonable suspicion and authorized by a condition of probation. Therefore, the search was reasonable within the meaning of the Fourth Amendment. The Supreme Court specifically declined to reach the issue of whether a search of a probationer would have been constitutional even if there had been no reasonable suspicion: "The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion." Knights, 122 S.Ct. at 591, n. 6.
The Supreme Court also noted that the Fourth Amendment does not limit searches pursuant to a probationary condition to those with "probationary" purpose. See Knights, 112 S.Ct. at 590-591.
The Supreme Court reached a similar conclusion in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164 (1987), another Supreme Court decision addressing Fourth Amendment rights of probationers. In Griffin, a probation officer received information from a police detective that there might be guns in Griffin's apartment. The officers had prior knowledge that the defendant was subject to a parole search condition. The probation officer and a number of police officers conducted a search of Griffin's apartment, which produced a handgun. The Supreme Court upheld the search, finding that "the search of Griffin's residence was "reasonable" within the meaning of the Fourth Amendment because it was conducted pursuant to a valid state regulation governing probationers." Id. at 880.
The regulation permitted "any probation officer to search a probationer's home without a warrant as long as his supervisor approves and as long as there are "reasonable grounds' to believe the presence of contraband." Id. at 870, 871, 107 S.Ct. 3164.
Given the holdings in these two Supreme Court cases, the Court finds that at least reasonable suspicion is required to justify the search, and subsequent seizure, of Moreno.
See also United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (noting that even the permissible bounds of a probation search are governed by a reasonable suspicion standard).
Defendants next argue that even if "reasonable suspicion" is required in order to justify a warrantless search and seizure of a parolee subject to warrantless searches, "reasonable suspicion" existed in this case. The Court cannot determine as a matter of law that "reasonable suspicion" existed in this case, as the undisputed actions of Plaintiff do not arise to the level of "reasonable suspicion" that existed in either Knights or Griffin. In Knights, the sheriffs had observed Knights with items necessary to commit the acts of vandalism a few weeks before the arson. After the arson, a deputy sheriff felt the hood of Knights' truck, which was warm. The Sheriffs had also set up surveillance of Knights' apartment and observed him existing the apartment with suspect items. See Knights, 122 S.Ct. at 589. In Griffin, a probation officer had received information from a detective that there might be guns in Griffin's apartment.
Here, neither Banks nor Garcia had received any information that would cause them to suspect Moreno of any illegal activity. Banks asserts that Moreno was in a high drug use area and "was startled by our presence" and that he saw Moreno reach into his pocket, bend to his side, place something on the stop of an apartment building and walk away. See Banks Decl. ¶¶ 78. However, Moreno denies reaching into his pocket, bending to his side and placing anything on the ground. See Moreno Decl. ¶ 7. Thus, the facts, when viewed in the light most favorable to the nonmoving party, as is required in a motion for summary judgment, do not come close to the level of suspicion that existed in Knights andGriffin.
In addition to the requirement of "reasonable suspicion," the authority controlling on this Court does not support Defendants' contention that officers do not need prior knowledge of a suspect's warrantless search parole condition to validate a search and seizure. In Knights, the officers were well aware that the defendant was subject to a parole condition requiring him to submit to a warrantless search at any time. The Supreme Court did not address whether a search would be lawful if the searching officer did not become aware of the search condition until after the search had been conducted. Similarly, in Griffin, the probation officers and police officers who searched Griffin's apartment were fully aware that Griffin was subject to a warrantless search condition. The Ninth Circuit cases dealing with situations where a warrantless search was conducted of a parolee subject to a warrantless search condition also involved cases where the officers conducting the search knew that the parolee was subject to such a condition. See United States v. Johnson, 722 F.2d 525 (9th Cir. 1983) (upholding the search of a probationee's apartment when the police officer conducting the search was aware of the search condition).
Defendants argue that based on California state law, prior knowledge of a warrantless search parole condition is not required to validate a warrantless search of a parolee subject to this condition. As discussed above, federal law applies, not state law. The Court notes that the California Supreme Court has upheld a warrantless search of a juveniles on probation even though the searching officer was not aware of the juvenile's probation status on the ground that the juvenile did not have a legitimate expectation of privacy. See In re Tyrell J., 8 Cal.4th 68 (1994). However, in People v. Robles, 23 Cal.4th 789 (2000). the California Supreme Court declined to extend the holding in In re Tyrell J., finding that an officer cannot rely on the probation search condition of one person to justify the search of another resident when the officer is not aware of the parole condition before conducting the search. The Court also notes that the California Supreme Court has recently declined to review People v. Moss, S062600, which called the holding of In re Tyrell J. into question.
Therefore, the Court cannot find as a matter of law that Moreno's detention and search by Officers Banks and Garcia was justified by Moreno's parole condition.
C. Moreno's Outstanding Arrest Warrant Did Not Authorize the Actions taken by Garcia and Banks
On November 8, 1999, a bench warrant in the amount of $10,000.00 was issued for Moreno's failure to make a court appearance in state court. See Defs.' Statement ¶ 5; Motion, Exh. F. It is undisputed that the Deputies were not aware of the arrest warrant when they initially stopped Moreno. Exactly when the officers learned of the existence of this warrant, however, is disputed. Plaintiff contends that Banks and Garcia did not know of the outstanding arrest warrant when they arrested Moreno because they told Moreno that he was under arrest for violating his parole. See Opp'n. at 15; Moreno Decl. ¶ 20. Plaintiff asserts that the existence of the warrant was not noted until the day after Moreno was arrested, and that its existence was not even noted by Banks or Garcia, but by an official named "Tapia".See Opp'n. at 15. Defendants argue that the Officers were aware of the arrest warrant prior to arresting Moreno when they ran the MDT printout, which indicated that a "Warrant: Misdemeanor" existed on Moreno's record. See Reply at 12; Opp'n., Exh. 7.
Defendants contend that the existence of this warrant stripped Moreno of his substantive Fourth Amendment rights not to be detained and arrested. Defendants further contend that Moreno also did not have a right to be arrested only by an officer with knowledge of the warrant.See Motion at 11. Defendants rely on a number of cases for the proposition that even if the Officers lacked probable cause to detain Moreno, investigate his possession of cocaine and later arrest him on that charge, Moreno's detention and arrest would not be unlawful because they were objectively justifiable on the basis of an outstanding arrest warrant. See Motion at 13. These cases, however, merely support the proposition that the subjective intent of an officer does not make an otherwise lawful conduct unlawful. None of these cases validate an unlawful act. It is the lawfulness of Moreno's detention and arrest that is the subject matter of the instant case.
The Court notes that none of the cases cited by Defendants involve factual scenarios where a suspect has an outstanding arrest warrant.
In Whren v. United States, 517 U.S. 808, 812 (1996), for instance, the Supreme Court held that the reasonableness of a traffic stop does not depend on the subjective motivations of the officers. In Whren, police officers in an unmarked car observed the petitioners in a Pathfinder truck with temporary license plates stopped at an intersection for an unusually long time. When the officers executed a U-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signaling and sped off at an "unreasonable" speed. When the officers stopped the truck and the driver rolled up his window, the officers observed two large plastic bags of what appeared to be crack cocaine. Id. at 808-09. In their appeal, the petitioners acknowledged that the officers had probable cause to believe that various provisions of the traffic code had been violated, but argued that the Fourth Amendment test for traffic stops should be whether a police officer, acting reasonably, would have made the stop for the reason given. Id. at 810. The Supreme Court rejected this argument and held that the constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers involved. Id. at 813. The Court stated that "[s]ubjective intentions play no role in the ordinary, probable-cause Fourth Amendment analysis." Id. The stop in Whren was lawful and uncontested; however, in the instant case, the constitutionality of the detainment and subsequent arrest of Moreno is highly contested. Defendants cannot, therefore, rely on Whren to support their argument that Moreno's seizure and arrest was legal regardless of the Officers' subjective knowledge or intent.
Similarly, in Arkansas v. Sullivan, ___ U.S. ___, 121 S.Ct. 1876, 1878 (2001), noting that the lower court had correctly refrained from questioning the officer's authority to arrest the defendant for a fine-only traffic violation, the Supreme Court held that a traffic-violation arrest would not be rendered invalid by any improper subjective motivation for making the stop.
The Supreme Court reached similar conclusions and reaffirmed the position that an officer's subjective intent does not render an otherwise legal detention or arrest illegal in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717 (1978) and Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778 (1985). In Scott, the Supreme Court affirmed the lower court's finding that information garnered from an objectively proper wiretap should not be suppressed. In reaching this holding, the Supreme Court noted that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide, the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. at 138. Similarly, in Macon, the Supreme Court upheld a seizure because, objectively viewed, the transaction constituted a sale in the ordinary course of business. The sale was not "retrospectively transformed into a warrantless seizure by virtue of the officer's subjective intent." Id. at 471.
The two state cases cited by Defendants, In re Donald L., 81 Cal.App.3d 770 (1978) and The People v. Hai Minh Le, 169 Cal.App.3d 186 (1985), also fail to support Defendants' argument. In re Donald L. merely establishes that an arrest is valid even though the arrestee was arrested on the wrong charge. Hai Minh Le, like the Supreme Court cases cited by Defendants, involved a factual scenario where the search or arrest at issue was constitutionally valid and holds that "it is not essential that the arresting officer at the time of the arrest or search have a subjective belief that the arrestee is guilty of a particular crime or that the search is being conducted on the basis of a particular legal theory, so long as the objective facts, when fully determined, afford probable cause." Id. at 186.
None of the cases cited by Defendants address a situation where the lawfulness of a stop, detention and arrest of a suspect is challenged and the officers rely on subsequently learned knowledge that the suspect is subject to an outstanding arrest warrant to justify the officers' actions. Rather, these cases support the proposition that the subjective intent of an officer does not render otherwise lawful conduct unlawful. In the instant case, it is the actual lawfulness of the stop, detention and arrest that is challenged. Therefore, the Court cannot find that the Officers' subjective knowledge or lack of knowledge of Moreno's outstanding warrant is irrelevant and that the mere existence of the warrant rendered the Officers' actions constitutional.
In Macon, an undercover police officer purchased "obscene" magazines from a vendor with a marked $50 bill. After making the purchase and consulting with other officers as to whether the magazines were obscene, the officer returned to the store, arrested the vendor, and took back the marked $50 bill to use as evidence. The Court found that the transaction constituted a sale in the ordinary course of business and the officer's subsequent act of retrieving the marked $50 bill was not a warrantless seizure because "[w]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's action in light of the facts and circumstances confronting him at the time (citations omitted), and not on the officer's actual state of mind at the time the challenged action was taken." Id. at 470-71.
In fact, the Ninth Circuit has found that contraband retrieved during an unlawful stop should be suppressed even though the officers learned of the suspect's outstanding warrant during the search. In United States v. Luckett, 484 F.2d 89 (9th Cir. 1973), police officers observed Luckett cross a street against a traffic light, drove up to him and waived him to the car and questioned him about the possible jaywalking. Luckett admitted his error and produced five pieces of identification. Because Luckett had failed to produce a driver's licence, the officers continued to detain him in order to run a warrant check on the name he gave. The warrant check indicated that there was an outstanding traffic warrant against him and he was subsequently arrested and searched. The Ninth Circuit suppressed the counterfeit money orders found during that search on the ground that Luckett was improperly detained. The officers, reasoned the Ninth Circuit, "had no reasonable grounds to be suspicious that there might be a warrant outstanding against him." Id. at 91. Accordingly, Luckett's continued detention and search were unreasonable.
Based on the authority discussed above, as well as the disputed facts as to when the Officers learned of the existence of the arrest warrant, the Court finds that Defendants's cases fail to support their argument that the arrest warrant justified Plaintiff's search, detention and subsequent arrest. Accordingly, Defendants' motion for summary judgment is DENIED on this ground.
D. Banks and Garcia are Not Shielded by Qualified Immunity
Under Katz, the first question in determining whether officer are shielded by qualified immunity is whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the (officers'] conduct violated a constitutional right[.]" Katz, 121 S.Ct. at 1256. Defendants allege that Moreno did not suffer a violation of a constitutional right because (1) Moreno's conduct justified his detention and arrest, (2) Moreno's parole status justified his detention and search and (3) Moreno's outstanding arrest warrant justified his detention and arrest. See Motion at 13. As the Court has already found that neither Moreno's parole status nor his outstanding warrant justified his detention, search or arrest, the only inquiry relevant at this point is whether Moreno's conduct justified his detention and arrest.
One of the central disputed issues in this case is whether Moreno retrieved something from his pocket, bent over and placed it on an apartment step. Defendants assert that Moreno's conduct justified his detention and search because Moreno was in a high crime area, Banks observed him look in the direction of the officers and appear startled and then reach into his pocket, bend to his side and then place something on the steps of an apartment building. See Banks Decl. ¶¶ 78. Banks asserts that these actions, based on his experience and training, indicated to him that Moreno was attempting to dispose of drugs. See Banks Decl. ¶ 4. Plaintiff alleges that he was stopped by deputies Banks and Garcia on the evening of January 21, 2000 after it was already dark. See Pl.'s Statement ¶¶ 6 8. Moreno asserts unequivocally that neither he nor Rodriguez at any time prior to or during the detention pulled something from their pockets, bent over and placed an object on the ground. See Moreno Decl. ¶ 7; Pl.'s Statement ¶ 8. These facts, when viewed in the light most favorable to Moreno, the party asserting the injury, show that the officers' conduct violated Plaintiff's Fourth Amendment right to be free from unlawful seizure and an unlawful arrest.
Even assuming that Moreno looked startled or nervous, those actions are clearly insufficient to provide the Officers with reasonable suspicion to detain Moreno. See United States v. Chavez Valenzuela, 268 F.3d 719 (9th Cir. 2001) (finding that nervousness along is insufficient to justify a prolonged detention); Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996) (finding that nervousness and a general physical resemblance to actual suspects insufficient to justify an arrest).
On the second prong of the qualified immunity analysis, "whether the right was clearly established," Katz, 121 S.Ct. at 2156, the Court asks whether ""the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The clearly established "inquiry . . . must be undertaken in light of the specific context of the case . . .," id., and with regard to the law at the time of the alleged violations. See Anderson, 483 U.S. at 639.
At the time of Moreno's detention, preexisting law clearly required officers to establish reasonable suspicion before detaining a person. Nervousness alone has never been sufficient to create reasonable suspicion. See Chavez-Valenzuela, 268 F.3d at 726 (noting that no circuit has held that nervousness alone suffices to create reasonable suspicion).
Thus the appropriate question for the Court is whether, viewing the facts in the light most favorable to Plaintiff and in light of the then-existing case law, a reasonable officer in Burke's and Garcia's position would have been justified in detaining and arresting Moreno As the case law is clear that nervousness alone does not justify a detention, the answer must be that no reasonable officer would have found that reasonable suspicion (or any exception to the reasonable suspicion requirement) existed in this case.
E. Conspiracy Claim is Dismissed
Plaintiff asserts that all of the Defendants are liable for conspiracy to violate Plaintiff's Fourth Amendment and Fourteenth Amendment Rights pursuant to 42 U.S.C. § 1983. See First Amended Complaint ¶ 47. According to Plaintiff, the conspiracy consisted of the Los Angeles County Sheriff's Department defendants agreeing, understanding and doing "the underlying bad acts specifically alleged in this action to plaintiff, and of all defendants understanding and agreeing to do all the things alleged against them in this complaint." Id. Plaintiff further asserts that Banks' and Garcia's wrongful acts could not have occurred without either the participation, willful blindness or deliberate indifference of the non-police officer defendants. Id. ¶ 48.
In order to maintain a conspiracy claim under § 1983, the Plaintiff must demonstrate some deprivation of a constitutional right which resulted from the alleged conspiracy. Woodrum v. Woodward County. Okl., 866 F.2d 1121, 1126 (9th Cir. 1989); Brennen v. Hendrigan, 888 F.2d 189, 195 (1st Cir. 1989). In addition, to establish a conspiracy, Plaintiff must show an agreement or a meeting of the minds to violate his Constitutional rights. Woodrum, 866 F.2d at 1126; Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). While it is not necessary to prove that each participant in a conspiracy know the exact parameters of the plan, they must at least share the general conspiratorial objective. Id. Finally, vague and conclusory allegations with no supporting factual averments are insufficient Co. withstand an adequately supported motion for summary judgment. Woodrum, 866 F.2d at 1126; Fonda, 707 F.2d at 438;Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983).
The Court finds that Plaintiff's conspiracy claim under 42 U.S.C. § 1983 must be dismissed as a matter of law because Plaintiff has made only vague and conclusory allegations involving a conspiracy and has failed to support these allegations with any factual assertions. In his opposition, Plaintiff asserts that he has sufficiently alleged a conspiracy claim and states that "the creepy consistency between the officers' declarations submitted on their motion, particularly when contrasted with the contradictory testimony given between these two at the criminal trial, is record evidence that these guys conspired to tell the same story, stick to their story and slam Mr. Moreno." See Opp'n. at 22. As an initial matter, the Court notes that Plaintiff describes only actions between Banks and Garcia, or "these guys." Plaintiff fails to even attempt to explain how Baca or the other named defendants were part of this conspiracy.
Plaintiff also appears to assert that a conspiracy exists because "Banks and Garcia were on patrol, rabidly running on their car computer checks on people. They were looking to get someone . . . [c]oncocting a story about how light it was outside and that Mr. Moreno appeared nervous as they stalked him in their patrol car, they stopped Mr. Moreno and his friend, ran computer checks on them, found out Mr. Moreno was on parole, they decided to claim Mr. Moreno dropped drugs on some steps . . ." See Opp'n. at 23. Plaintiff relies on Delew v. Wagner, 143 F.3d 1219 (9th Cir. 1998) for the proposition, that "when it is reasonable to infer an understanding to cover-up true fact, a conspiracy is shown." See Opp'n. at 23. However, the actual proposition that Delew supports is that circumstantial evidence may be considered in determining whether a conspiracy exists. Furthermore, the holding in Delew does not support Plaintiff's argument that he has shown a conspiracy, as the circumstantial evidence in Delew was considerably more extensive than any evidence presented by Plaintiff.
In Delew, the Ninth Circuit found that the lower court had erred in dismissing the plaintiffs' conspiracy claim on the ground that there was no evidence or allegation of evidence that the alleged conspirators infringed upon any cognizable protected right. Id. at 1222. The Ninth Circuit held that the plaintiff had pled allegations that made it reasonable to infer an understanding between the officers and the person who had killed the plaintiffs' family member, Wagner, to cover-up the true facts of the death and thereby deprive plaintiffs of their right of access to the courts. Id. at 1223. In stark contrast to the evidence presented to the court in Delew, Plaintiff here has presented only speculation as to what Moreno and Banks were doing and thinking on the evening of Moreno's arrest. These opinions do not amount to the circumstantial evidence present in Delew. Accordingly, the Court grants Defendants' motion for summary judgment on this ground.
In Delew, plaintiffs had alleged that Wagner, who was married to a police officer, left the accident during the investigation and that the officers permitted her to do so. Id. at 1223.
F. The County's Liability: A Monell claim does not lie
In his complaint, Plaintiff alleges that all defendants are liable to plaintiff because they fostered a policy, practice, procedure and custom which constitutes violations of the Fourth and Fourteenth Amendments. These policies include, among others, planting evidence, coercing confessions from innocent persons, lying in police reports, making illegal seizures, lying under oath and suborning perjury. See Complaint ¶ 49.
Defendants argue that Plaintiff has failed to produce any evidence to support his claim. As evidence of his claim, Plaintiff refers to Banks' testimony that "we routinely run people that we contact to check for possible wants or outstanding warrants," (sic) See Opp'n. at 24, citing Def. Exh. B at 54: 6-7. Plaintiff argues that Banks' testimony indicates the existence of a policy that violated Moreno's right to be free from unlawful search and seizure. See Opp'n. at 24. Plaintiff also contends that Moreno's due process rights to a fair preliminary hearing were violated because of an unconstitutional policy of withholding and hiding identities of witnesses from arrest reports. See id. Finally, Plaintiff contends that these policies were ratified and condoned by the sheriff.
Under Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 690 (1978), the Los Angeles County Sheriffs' Department ("LACS") can be sued for "constitutional deprivations visited pursuant to governmental custom." To establish liability, a plaintiff must show that, for each claim, "(1) [they] were deprived of a constitutional right; (2) the County had a policy; (3) the policy amounted to deliberate indifference to [their] constitutional right; and (4) the policy was the "moving force behind the constitutional violation.'" Mabe, 237 F.3d at 1110-11 (quotingVan Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)).
The Court finds that the Monell claim fails because Plaintiff has failed to show that LACS has a policy that violates Plaintiff's right to be free from an unlawful search and seizure and Plaintiff's due process rights to a fair preliminary hearing. Plaintiff has also failed to show that Baca ratified and condoned any unconstitutional policy. The only evidence advanced by Plaintiff for the proposition that the LACS has a policy violating his right to be free from an unlawful search and seizure is Banks' testimony that "we routinely run people that we contact to check for possible wants or outstanding warrants," (sic) See Opp'n. at 24, citing Def. Exh. B at 54: 6-7. This sole comment, made during an extensive cross-examination at the criminal trial and in response to Moreno's attorney's question regarding why Rodriguez was run through the "MDT," does not amount to a description of a policy that demonstrates deliberate indifference to Plaintiff's right to be free from an unlawful search and seizure. The ambiguousness of "we routinely" does not indicate a department-wide policy as Banks could have been referring solely to himself and Garcia. The ambiguousness of "people we contact" also makes it difficult to know to whom Banks was referring and therefore, to whom any alleged practice or policy referred.
Plaintiff also contends that Moreno's due process rights to a fair preliminary hearing were violated because of an unconstitutional policy of withholding and hiding identities of witnesses from arrest reports. This policy is evident, argues Plaintiff, from Garcia's testimony, see Opp'n. at 24, citing Def. Ext. B at 158:13-28, Garcia's withholding of Rodriguez' existence from the arrest report and Banks' lying about the existence of Rodriguez at the hearing. See Opp'n. at 24. However, the Court has found no indication in the record, nor does Plaintiff refer the Court to any indication in the record, that withholding of identities of witnesses is LACS policy. There are a number of places in the transcript of the criminal trial where Officer Banks states that he did things because of his "training and experience." See e.g., Defs' Ext. B at 55:27-28. However, Plaintiff has not shown that Banks followed any procedure or policy of withholding identities of witnesses from arrest reports. In fact, when asked by Moreno's counsel at trial "[i]s there a particular reason why you followed the steps that you told us the way that you did," Banks replied, "[i]t's just through training and experience the way you work with your partner. I'm not saying everybody works the same way but I mean it's kind of hard to stay exactly the same every day because like I said, every situation is different." See Defs' Ext. B at 55-56. Clearly Banks was not describing any kind of departmental policy and much less any kind of policy of withholding identities from arrest reports.
During oral argument, counsel brought a recently issued Ninth Circuit case, Fairley v. Luman, No. 99-56483, 2002 WL 226744 (Feb. 15, 2002), to the Court's attention. The Court has reviewed that case and is not persuaded to change its tentative.
Therefore, Plaintiff has failed to identify any specific policies or customs that caused any alleged violations. Accordingly, the motion for summary adjudication of the LACS liability under Monell is granted.
G. Moreno's Class Allegations, Declaratory Relief and Injunctive Relief Claims are Stricken
Defendants also argue that Moreno should not be permitted to bring this action on behalf of a class because he has not properly alleged a class action. Fed.R.Civ.P. 23, which governs class actions requires that the following factors must be satisfied in order for a class to exist: (1) numerosity, (2) commonality, (3) typically, and (4) adequacy of representation. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 2245, (1997). The prerequisite of numerosity is discharged if "the class is so large that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). A motion for class certification should be filed "as soon as practicable" after a defendant's answer. See Fed.R.Civ.P. 23(c)(1).
Plaintiff asserts that he has satisfied all of the requirements necessary to bring a class action. However, the Court finds that these requirements have not been satisfied. Plaintiff refers the Court to the Complaint (without any specific cite) as evidence that he has alleged that the class is so numerous that it was impractical to being all of its members before the court. However, this allegation is not found anywhere in the complaint, Plaintiff's opposition, any other filing or exhibit. While Plaintiff has alleged that his claims are typical of the claims and defenses of the class, Plaintiff has not substantiated this contention and the Court does not see how the Plaintiff can be a typical representative of the class he purports to represent. Plaintiff's status is unique because he is a detainee who was subject to an arrest warrant and parole search conditions when detained and arrested.
Most importantly, however, Plaintiff has failed to file a motion for class certification, which should be filed "as soon as practicable" after defendants answer. See Fed.R.Civ.P. 23(c)(1). The Court made Plaintiff fully aware of this rule, and of its disposition to entertain a motion to strike class allegations if Plaintiff failed to bring a motion for class certification within a reasonable time after Defendants filed their answer. See Court Minute Order, dated October 13, 2000 at 5. Defendants Banks and Garcia filed their Answer to the First Amended Complaint on December 11, 2000 and defendant Baca filed his Answer on May 1, 2001. Additionally, because the discovery cut-off date was August 31, 2001, Plaintiff would have had to conduct any discovery concerning the class prior to August 31, 2001. Therefore, over a year after the first defendants answered, Plaintiff has still not made a motion for class certification. As a motion for class certification has not been brought within a reasonable time, the Court STRIKES Plaintiff's class allegations.
Count Four of the Complaint seeks a declaration by the court that a custom, pattern and practice of Fourth Amendment violations exist. Presumably Plaintiff intended that this declaration be made as to the LACS. See Complaint ¶ 62. Count Five of the Complaint seeks, on behalf of plaintiff and the class he purports to represent, an injunction enjoining all of the defendants from engaging in the wrongdoing that is the subject matter of this action. See Complaint ¶¶ 63-69. Defendants contend that Plaintiff's declaratory and injunctive relief claims should be dismissed as a matter of law because Moreno has not established the existence of a policy or practice that threatens him or anyone else with immediate irreparable injury. See Motion at 18.
A plaintiff must show that he has Article III standing in order to seek injunctive or declaratory relief. "Article III standing requires an injury that is actual or imminent, not conjectural or hypothetical." Cole v. Oroville Union High Sch., 228 F.3d 1092, 1100 (9th Cir. 2000) (internal quotations and citations omitted). If a plaintiff has standing to seek injunctive relief, the plaintiff also has standing to seek a declaratory judgment. See Nashville, C. St. L. Ry. v. Wallace, 288 U.S. 249, 261, 264, 53 S.Ct. 345 (1933) (holding that because the matter would have been justiciable as a request for an injunction, the suit for declaratory judgment was capable of federal adjudication).
In cases for injunctive relief, the plaintiff must show that he is likely to suffer a similar injury in the future. See Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660 (1983) (finding that plaintiff did not have standing for injunctive relief because he could not show a sufficient likelihood that he would be injured in the future by the police chokehold he sought to enjoin). Injunctive relief is unavailable where the plaintiff's claim of future injury is merely speculative. See id. Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects. See O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669 (1974). Courts have repeatedly held that this requirement is satisfied if the plaintiff alleges a persistent pattern of police misconduct from which a threat of future injury can be inferred.See LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985).
Plaintiff relies on Guerrero v. Gates, 110 F. Supp.2d 1287 (C.D. Cal. 2000) for the proposition that the "future injury" requirement for injunctive relief is satisfied if the plaintiff alleges a persistent pattern of police misconduct from which a threat of future injury can be inferred. See Opp'n. at 27. In Guerrero, the court found that the plaintiff faced real and immediate threat of serious injury or death at the hands of the now-infamous LAPD Rampart Division CRASH officers. Unlike the substantial record of wrongdoing by the LAPD Rampart Division CRASH officers that was undoubtedly considered by the Guerrero court, Plaintiff has not provided the Court with any evidence showing that Moreno's injury will be recurring. In fact, Plaintiff has not supplemented his initial allegations of police misconduct with any additional evidence from which a persistent pattern of police misconduct can be inferred.
Plaintiff also unsuccessfully relies on LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985) for his contention that he is entitled to injunctive relief. In LaDuke, the Ninth Circuit found that plaintiffs had standing to seek a permanent injunction because they had shown a "personal stake" in the prospective relief provided by an injunction. Id. at 1323. However, the Ninth Circuit indicated that this finding was based on the fact that the district court had made a specific finding that the INS engaged in a "standard pattern" of improper warrantless searches and a likely recurrence of the wrongdoing. Id. at 1318. The Ninth Circuit noted that this finding by the district court enabled it to reach a different result than Lyons. As this Court has not made a finding of a "standard pattern" of improper behavior on the part of the LACS, Plaintiff cannot rely on LaDuke to support his argument of standing for injunctive relief.
Because Plaintiff has failed to establish a likelihood of future injury, his claim for declaratory relief must also be dismissed because it is unripe. The ripeness doctrine protects against premature adjudication of suits in which declaratory relief is sought. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980 (1977). "In suits seeking both declaratory and injunctive relief against a defendant's continuing practices, the ripeness requirement serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive relief."Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th Cir. 1999). Therefore, since Plaintiff has failed to show imminent-harm, the Court grants Defendants' Motion for Summary Judgment on these grounds and finds as a matter of law that Plaintiff is not entitled to either injunctive or declaratory relief.
H. Rico Claims
While the Court granted defendants Banks, Garcia and Yaroslavsky's motion to dismiss the RICO claim on October 13, 2000, and that of defendants Burke and Antonovich on February 14, 2001, the Court notes that the RICO claim still stands as to Baca, Knabe and Molina. A RICO claim cannot be sustained absent an injury to "business or property." Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th Cir. 1990). The Eleventh Circuit has held that "the ordinary meaning of the phrase "injured in his business or property' excludes personal injuries, including the pecuniary losses therefrom." Grogan v. Platt, 835 F.2d 844, 847 (11th Cir. 1988). In so stating, the Eleventh Circuit held that RICO does not permit recovery for the economic aspect of personal injuries inflicted by acts involving murder. Id. at 845-48. In Berg, the Ninth Circuit adopted the Grogan rationale. "We follow the Eleventh Circuit and hold that, as a matter of law, personal injury, including emotional distress, is not compensable under . . . RICO. Even if the directors had incurred pecuniary losses from emotional distress, they would not be compensable under RICO." Berg, 915 F.2d at 464.
The Court severely admonishes defense counsel for failure to move to dismiss the RICO claims on the remaining defendants. The Court gave serious consideration to sanctioning defense counsel for its failure to properly represent defendants. However, give the Court's decision not to sanction Plaintiff's counsel (see infra note 3), the Court will not sanction defense counsel. However, as the Court made clear in its February 8, 2002 Order, the Court will not tolerate any future violations.
Under Berg and Grogan, the Court has dismissed Plaintiff's RICO claims as to Banks, Garcia, Yaroslavsky, Antonovich and Burke. As Plaintiff's RICO claim must fail as a matter of law as to all defendants in this case, the Court hereby dismisses Plaintiff's RICO claim as to defendants Baca, Knabe and Molina.
V. CONCLUSION
Based on the foregoing, the Court hereby GRANTS IN PART Defendants' Motion for Summary Judgment and DISMISSES the conspiracy claims, the claims for injunctive and declaratory relief and the class action allegations. The Court also GRANTS Defendants' Motion for Summary Judgment of the claim under Monell. Consistent with its Orders dated October 13, 2000 and February 14, 2001, the Court also dismisses the RICO claim as to defendants Baca, Knabe and Molina as a matter of law. The Court DENIES Defendants' Motion for Summary Judgment on all other grounds.