Rustin Smith v. City & County of Honolulu

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RICHARD R. CLIFTON and SANDRA S. IKUTA) AFFIRMED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [10833645]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RUSTIN I. SMITH,

No. 14-17309
Plaintiff-Appellant,
v.

CITY AND COUNTY OF HONOLULU,
Defendant-Appellee.

D.C. No.
1:11-cv-00498LEK-RLP
OPINION

Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 15, 2018
Honolulu, Hawaii
Filed April 12, 2018
Before: Diarmuid F. O’Scannlain, Richard R. Clifton,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton

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SMITH V. CITY & COUNTY OF HONOLULU
SUMMARY*

Civil Rights
The panel affirmed the district court’s judgment, entered
following a jury trial, and affirmed the denial of plaintiff’s
post-trial motions in a 42 U.S.C. § 1983 action alleging that
plaintiff’s Fourth Amendment rights were violated by
Honolulu police officers, when following his arrest on drug
charges that were subsequently dropped, he was improperly
detained for approximately 47 hours.
The panel held that plaintiff waived any argument that the
district court erred in denying his motion for judgment as a
matter of law and his motion for a new trial brought pursuant
to Fed. R. Civ. P. 50(b) and 60. The panel held that the
district court did not abuse its discretion in denying the
motion for a new trial brought pursuant to Fed. R. Civ. P. 59.
The panel held that because police obtained a probable cause
determination within 48 hours following his arrest, plaintiff
bore the burden at trial to prove that his detention was
unreasonable. The panel agreed with the district court that
the jury’s verdict that plaintiff was not unreasonably detained
was not against the clear weight of the evidence.
The panel held that the district court did not err by
rejecting three of plaintiff’s proposed jury instructions. The
panel determined that the instruction pertaining to a claim for
an unreasonable seizure of property was properly rejected
because the claim was not presented in plaintiff’s complaint.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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A second instruction pertaining to defendants’ failure to
admit plaintiff to bail was also properly rejected because,
among other things, the panel was not persuaded that a jury
could have found that bail was unnecessarily delayed after
finding that the determination of probable cause was not
unreasonably delayed. Finally, the panel held that the district
court properly rejected plaintiff’s proposed instruction
regarding whether plaintiff knew that the drug in his
possession was illegal.
The panel held that plaintiff had not established plain
error arising from purported attorney and witness misconduct
because any improper references made by the attorney and
witness were harmless. Finally, the panel held that it was not
error for the court to dismiss, with plaintiff’s agreement, a
juror who had threatened another juror.

COUNSEL
Eric A. Seitz (argued), Della Au Belatti, and Sarah R. Devine,
Honolulu, Hawaii, for Plaintiff-Appellant.
Curtis E. Sherwood (argued), Deputy Corporation Counsel;
Donna Y.L. Leong, Corporation Counsel; Department of the
Corporation Counsel, Honolulu, Hawaii; for DefendantAppellee.

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SMITH V. CITY & COUNTY OF HONOLULU
OPINION

CLIFTON, Circuit Judge:
Plaintiff-Appellant Rustin Smith brought an action under
42 U.S.C. § 1983 alleging that his rights under the Fourth
Amendment were violated by police officers employed by
Defendant-Appellee City and County of Honolulu.
Specifically, he alleged that following his arrest on drug
charges that were subsequently dropped, he was improperly
detained by the Honolulu police for approximately 47 hours.
The case went to trial, and the jury returned a verdict in favor
of the City and against Smith. The district court denied
Smith’s post-trial motion for judgment as a matter of law or
a new trial. Smith challenges the denial of his post-trial
motion and the rejection of three proposed jury instructions.
He also alleges purported misconduct by defense counsel,
defense witnesses, and the jury. We affirm.
I. Background
On April 6, 2011, Honolulu police obtained a search
warrant to open a suspicious package that had been
intercepted at the UPS Honolulu facility. The package
contained 500 packets of substances labeled “bath salts”
and “Spike Max.” Initial testing indicated, but did not
confirm, that the packets contained a drug called
methylenedioxypyrovalerone (MDPV), which was illegal in
Hawaii at that time.
Six days later, on Tuesday, April 12, the police made a
controlled delivery to Smith’s home. At 1:40 p.m., after
taking delivery of the package, Smith was arrested without a
warrant for knowing possession of a dangerous drug. A few

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hours after Smith’s arrest, the police effected controlled buys
of MDPV at two stores owned by Smith. The police seized
evidence from the house and the stores under Hawaii’s
forfeiture statute, Haw. Rev. Stat. § 712A.
Later that day, a police officer completed a sworn
application for a judicial determination of probable cause. A
Hawaii state judge later signed a Judicial Determination of
Probable Cause for the Extended Restraint of Warrantless
Arrestee pertaining to Smith, based on the application. As
the determination itself stated, however, that document was
not signed until 8:07 a.m. on Thursday, April 14, the second
day following the arrest. Ordinarily those documents are
submitted to the court and reviewed by a judge by the next
morning. The police officer who testified on this subject at
trial did not know why the probable cause determination for
Smith was delayed an extra day.
Later that morning, the police received a lab report that
confirmed that the substances were MDPV and conducted
interviews with two of Smith’s employees. At 12:25 p.m.,
the police informed Smith of his rights. Smith invoked his
right to an attorney and did not provide a statement. Smith
was released at 12:45 p.m. pending further investigation.
Smith was never prosecuted on charges related to his arrest.
Smith filed this action in federal district court. In addition
to the Fourth Amendment claim under § 1983, Smith also
asserted various state law claims. Those state law claims
were dismissed by the trial court on the grounds of state law
conditional privilege, a decision that has not been appealed.
The case proceeded to trial on Smith’s § 1983 claim.

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During jury deliberations, the court received an
emergency phone call indicating that one juror, the
foreperson, had physically threatened another juror and yelled
at a second. Thereafter the court interviewed jurors
individually, in the presence of counsel. Smith’s lawyer
participated in questioning the jurors. The court counted
three jurors who stated that they could not continue to
deliberate with the foreperson and a fourth who said she
would require security in the room. Smith’s attorney agreed
with this summary and stipulated, along with the attorney for
the City, to the dismissal of the juror in question. The court
then dismissed the juror, and the jury began deliberations
anew with six, instead of seven, jurors.
After the juror was dismissed, the jury deliberated for
another four hours before returning a verdict in favor of the
City. As expressed in a special verdict form, the jury
concluded that Smith had not proven by a preponderance of
the evidence that he was unreasonably detained by the police.
After the trial, Smith’s counsel contacted the dismissed
juror. The juror purportedly “stated that he was not surprised
by the jury’s verdict, that jurors had already made up their
minds ten minutes after arriving at the jury room, and that
those other jurors stated that because Plaintiff was a bad guy,
they weren’t going to rule for him.” Smith submitted this
information to the court in a declaration signed by Smith’s
counsel presented in support of his motion for judgment as a
matter of law or a new trial. In his motion, Smith argued that
the jury’s verdict was against the clear weight of the evidence
and that misconduct by defense counsel and witnesses
improperly painted Smith as a “bad guy.” The court denied
the motion. This appeal followed.

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II. Discussion
Smith challenges the denial of his post-trial motion and
the rejection of three proposed jury instructions. He also
alleges purported misconduct by defense counsel, defense
witnesses, and the jury.
A. Smith’s Post-Trial Motion
Following the jury verdict, Smith filed a motion entitled
“Motion for Judgment as a Matter of Law or, in the
Alternative, Motion for a New Trial and/or an Evidentiary
Hearing.” The motion seeking judgment as a matter of law
was brought pursuant to Federal Rule of Civil Procedure
50(b) and the motion for new trial under Rules 59 and 60.
Smith did not file a motion for judgment as a matter of
law before the case was submitted to the jury. The City filed
such a motion, and Smith submitted an opposition to the
City’s Rule 50(a) motion in which Smith asked the court to
“grant Plaintiff’s request for directed verdict.” The district
court concluded that it could not construe this request as a
motion under Rule 50(a) and that, as a result, Smith’s posttrial Rule 50(b) motion was precluded because he had not
filed a timely Rule 50(a) motion. Before this court, Smith
does not assert that the trial court erred by refusing to
construe his request as a Rule 50(a) motion. Thus, although
he argues generally on appeal that the district court’s order
denying his motion for judgment and/or new trial should be
reversed, Smith has waived any argument that the district
court erred in denying his Rule 50 motion for judgment as a
matter of law. See Arpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 919 (9th Cir. 2001).

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Similarly, Smith does not assert any arguments on appeal
in reference to Rule 60. Accordingly, the district court’s
ruling as to Rule 60 is not before this court. We therefore
limit our review to the district court’s denial of Smith’s Rule
59 motion for a new trial.
B. Denial of the Motion for New Trial
Smith based his argument for a new trial on the
contention that the evidence was insufficient to support the
jury’s determination that the length of his detention was
reasonable. We review for abuse of discretion a district
court’s denial of a Rule 59 motion for a new trial. Molski v.
M.J. Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007). In
reviewing for abuse of discretion, we first look to whether the
trial court identified and applied the correct legal rule to the
relief requested. United States v. Hinkson, 585 F.3d 1247,
1263 (9th Cir. 2009) (en banc). Second, we look to whether
the trial court’s resolution resulted from a factual finding that
was illogical, implausible, or without support in inferences
that may be drawn from the facts in the record. Id.
When a suspect is arrested without a warrant, “a
policeman’s on-the-scene assessment of probable cause
provides legal justification for arresting a person suspected of
crime, and for a brief period of detention to take the
administrative steps incident to arrest.” Gerstein v. Pugh,
420 U.S. 103, 113–14 (1975). In order to hold a suspect
beyond the brief period required for administrative steps, “the
Fourth Amendment requires a judicial determination of
probable cause.” Id. at 114.
The “Fourth Amendment permits a reasonable
postponement of a probable cause determination while the

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police cope with the everyday problems of processing
suspects through an overly burdened criminal justice system.”
Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 55 (1991). A
“jurisdiction that provides judicial determinations of probable
cause within 48 hours of arrest will, as a general matter,
comply with the promptness requirement.” Id. at 56. Thus,
when the police obtain a probable cause determination within
the 48-hour window, the burden is on the plaintiff to prove
that the determination was delayed unreasonably. Id.
“Examples of unreasonable delay are delays for the purpose
of gathering additional evidence to justify the arrest, a delay
motivated by ill will against the arrested individual, or delay
for delay’s sake.” Id.
While it is unreasonable to delay a probable cause
determination to gather evidence justifying the arrest, the
Fourth Amendment “does not prohibit the police from
investigating a suspect while the suspect is legally detained.”
Kanekoa v. City & Cnty. of Honolulu, 879 F.2d 607, 612 (9th
Cir. 1989). The key distinction is whether the investigation
is meant to gather probable cause to justify the arrest. “[I]t is
inimical to the fourth amendment for the police to arrest now,
and investigate later for probable cause.” Id.
Smith was detained nearly 43 hours before the police
obtained a judicial determination of probable cause. He was
released after 47 hours of total detention. Because the police
obtained a probable cause determination within 48 hours
following his arrest, Smith bore the burden at trial to prove
that his detention was unreasonable. McLaughlin, 500 U.S.
at 56.
The jury concluded that Smith was not unreasonably
detained. The jury might have concluded differently, but it

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did not. In denying the motion for new trial, the district court
observed that “there was ample evidence that could go either
way” on the issue. We agree with that assessment and agree
that the jury’s verdict was not against the clear weight of the
evidence.
The City provided evidence to the jury regarding the
delay in obtaining the judicial determination of probable
cause to support Smith’s arrest and detention, though it did
not pin down the specific cause. As noted above, a police
officer completed the probable cause application the day
Smith was arrested, but it was not signed by a judge until the
morning of the second day after the arrest. A major in the
police department testified that it was unknown what caused
the delay in processing this application. He explained that the
application would go from the officer to the police desk to the
sheriff’s office to the court clerk to the judge and back, and
that “it could have got[ten] lost anywhere along that line.”
No more specific evidence on the subject was presented to the
jury. An unknown administrative delay is not per se
unreasonable. See McLaughlin, 500 U.S. at 55 (“[T]he
Fourth Amendment permits a reasonable postponement of a
probable cause determination while the police cope with the
everyday problems of processing suspects through an overly
burdened criminal justice system.”).
Smith focused his argument on the fact that the police
continued to investigate him during the nearly 48 hours he
remained in custody. But the police may investigate a
suspect who is legally detained as long as the investigation is
not meant to gather probable cause to justify the arrest. See
Kanekoa, 879 F.2d at 612. The City argued that the probable
cause application that was submitted for Smith only stated
facts that the police knew when they arrested him. That

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application was signed and sworn to on the day of Smith’s
arrest, and it was not altered or supplemented with additional
evidence gathered following the arrest.1
Smith also contended, to the district court and to us, that
the delay was unreasonable because it was due to ill will or
animus on the part of police officers toward Smith. The jury
was not persuaded, and the district court rejected this
argument when offered to support the motion for a new trial.
The court did not abuse its discretion in doing so. The
evidence in the record to support the claim of animus was
skimpy at best. Smith did not dispute that the police had
obtained a warrant based on probable cause to search the
suspicious package that became the subject of the controlled
delivery. Nor did he dispute the judicial determination of
probable cause made by the state court judge based on
information the police had at the time of Smith’s arrest. The
fact that police officers investigated suspected criminal
activity is not powerful evidence of ill will. It was not an
abuse of discretion for the district court to deny the motion
for a new trial.
C. Jury Instructions
Smith challenges the district court’s rulings rejecting
three of his proposed jury instructions. “We review a district
court’s formulation of civil jury instructions for an abuse of

1

The parties argue about whether the investigation qualified as being
among “administrative steps incident to arrest” permitted by Gerstein. See
420 U.S. at 113–14. But that is not the right question. Given that the
investigation did not delay the probable cause determination, it does not
matter whether the investigation could be categorized as an
“administrative step.”

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discretion, but we consider de novo whether the challenged
instruction correctly states the law.” Wilkerson v. Wheeler,
772 F.3d 834, 838 (9th Cir. 2014). “We do not reverse the
judgment if the alleged error in the jury instructions is
harmless.” Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079,
1087 (9th Cir. 2005).
First, Smith argues that the district court erred by refusing
his proposed instruction asserting a claim for an unreasonable
seizure of property. The court determined that Smith had not
presented such a claim in his complaint. A pleading must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A
complaint guides the parties’ discovery, putting the defendant
on notice of the evidence it needs to adduce in order to defend
against the plaintiff’s allegations.” Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1292 (9th Cir. 2000). A defendant
suffers prejudice if a plaintiff is allowed to proceed with a
new theory of recovery after close of discovery. Id.
Smith’s complaint contained only one constitutional cause
of action, entitled “42 U.S.C. § 1983.” The paragraphs
contained in that cause of action focused on the length of
Smith’s detention and the allegedly improper “48-hour rule.”
While Smith’s property was mentioned in some paragraphs
in the complaint, the references were not enough to put the
City on notice that Smith was bringing a claim for an
unreasonable seizure of property. Further, the complaint did
not raise any argument as to why the application of Hawaii’s
forfeiture statute, Haw. Rev. Stat. § 712A, violated Smith’s
federal constitutional rights. Accordingly, the district court
did not abuse its discretion in rejecting this instruction.

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Second, Smith argues that the court should have given a
jury instruction stating that the failure to admit a suspect to
bail constituted a violation of state law as well as the
suspect’s Fourteenth Amendment due process rights. The
court had previously granted summary judgment against
Smith on his state law claims on the grounds of state law
conditional privilege. Smith has not disputed that ruling on
appeal. Thus, the sole claim at trial was brought pursuant to
§ 1983. A “claim for violation of state law is not cognizable
under § 1983.” Cornejo v. Cnty. of San Diego, 504 F.3d 853,
855 n.3 (9th Cir. 2007) (citing Barry v. Fowler, 902 F.2d 770,
772 (9th Cir. 1990)). Thus, the court was correct to refuse the
instruction to the extent that it asserted a state law violation.
Although there was no available state law claim, state
laws can create liberty interests that are subject to protection
under the Fourteenth Amendment. Smith argues that Hawaii
law created such a protected liberty interest. See Oviatt By &
Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.
1992). Pursuant to the Hawaii Rules of Penal Procedure, an
arrested suspect is to be admitted to bail without unnecessary
delay. Haw. R. Penal P. 5; see also State v. Perez, 141 P.3d
1039, 1044 n.4 (Haw. 2006) (explaining that the
“unnecessary delay” standard applies to suspects arrested
with or without a warrant). Based upon this Rule, the
Supreme Court of Hawaii has held that misdemeanor suspects
have a right to release upon payment of bail. Perez, 141 P.3d
at 1042 (“[A] person arrested for a petty misdemeanor or
misdemeanor offense possesses not an absolute right to
release, but rather a right to release without unnecessary delay
upon payment of bail.” (quotation marks omitted)).
We have not found a case indicating that the right applies
equally to felony suspects. It could be argued that it does not

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apply equally to felony suspects because Hawaii law treats
felony suspects differently than misdemeanor suspects for
purposes of bail. See Haw. Rev. Stat. § 804-3(a), (b).
We do not need to construe Hawaii law on this issue,
however, because Smith was not harmed by the exclusion of
this instruction. The purported right was the right to be
admitted to bail “without unnecessary delay.” Perez,
141 P.3d at 1044 n.4 (2006). The jury concluded that Smith’s
detention was not unreasonably extended before the
determination of probable cause. We are not persuaded that
the jury could have found bail unnecessarily delayed after
having found that the determination of probable cause was
not unreasonably delayed. Accordingly, we would not
reverse the district court as to this instruction even if there
were an error. See Altera Corp., 424 F.3d at 1087 (explaining
that a harmless error in the jury instructions does not merit
reversal).
Third, Smith argues that the court should have instructed
the jury that it was not legally permissible to arrest him for
possessing MDPV without evidence that he had actual notice
that the drug was illegal. Smith was arrested for a suspected
violation of a Hawaii statute which made it a crime to
“knowingly” possess, distribute, or manufacture a dangerous
drug. Haw. Rev. Stat. § 712-1241. The knowledge
requirement in criminal statutes can generally be met by
knowing possession of an illegal drug, even if the defendant
did not know that the drug was listed in a criminal statute.
See, e.g., McFadden v. United States, 135 S. Ct. 2298, 2304
(2015). Hawaii law is consistent. “[M]ere ignorance of the
law constitutes no defense to its enforcement.” Office of
Disciplinary Counsel v. Au, 113 P.3d 203, 216 (Haw. 2005)
(citation omitted). Moreover, Smith’s arrest required

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probable cause, not definitive proof of all elements of the
offense. Smith did not dispute that the original search warrant
for the package was based on probable cause, that Smith was
arrested after opening the package following the controlled
delivery, or that the Hawaii court entered a determination that
there was probable cause for his arrest based on the affidavit
submitted by the police officer. The district court was
therefore correct to reject the proposed instruction.
D. Attorney and Witness Statements
Smith challenges certain statements made by defense
counsel and witnesses during trial. Smith did not object to
those statements before the case went to the jury. We review
for plain error when a party fails timely to object to attorney
argument or witness testimony. See Bird v. Glacier Elec.
Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001). The plain
error doctrine authorizes us to correct “only particularly
egregious errors that seriously affect the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011) (alterations and
internal quotation marks omitted).
Smith fails to cite any improprieties that rise to the level
of plain error. First, City witnesses characterized Smith’s
house as a warehouse or a storage and distribution center for
drugs and testified that Smith was a major drug dealer with a
very elaborate drug distribution network. It was not plain
error for the court to allow this testimony absent objection.
Second, during closing argument, defense counsel referred to
a “tub of additional substances” found on Smith’s property,
a reference that was not supported by any evidence. The
district court acknowledged that the reference was improper,
but the court determined that it was unlikely to have swayed

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the jury. We agree and conclude that the reference was
harmless. Accordingly, it was not plain error for the court to
allow the reference absent objection.
E. Juror Dismissal
Smith argues that the district court erred by dismissing a
juror who had threatened another juror and yelled at a second
juror. We review a district court’s dismissal of a juror during
deliberations for abuse of discretion. United States v.
Symington, 195 F.3d 1080, 1085 (9th Cir. 1999). We also
review a district court’s denial of a motion for a new trial on
the asserted ground of juror misconduct for an abuse of
discretion. United States v. LaFleur, 971 F.2d 200, 206 (9th
Cir. 1992).
Smith supported his motion for new trial with a
declaration by his attorney reporting hearsay statements by
the dismissed juror. As an initial matter, when deciding
Smith’s motion for a new trial, the district court should not
have considered the hearsay declaration. Rule 606 of the
Federal Rules of Evidence establishes a no-impeachment rule,
prohibiting the use of a juror’s statement to attack the validity
of a verdict. Rule 606 provides that during an inquiry into the
validity of a jury verdict, “a juror may not testify about any
statement made or incident that occurred during the jury’s
deliberations.” Fed. R. Evid. 606(b)(1). “The court may not
receive . . . evidence of a juror’s statement on these matters.”
Id. None of the limited exceptions to the no-impeachment
rule apply in this case. See Fed. R. Evid. 606(b)(2); PenaRodriguez v. Colorado, 137 S. Ct. 855 (2017).
Even taking the hearsay statement into account, it was not
an abuse of discretion for the court to dismiss the juror, nor

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was it an abuse of discretion for the court to deny a new trial
on the basis of the juror’s dismissal. The “district court is in
the best position to evaluate the jury’s ability to deliberate.”
Symington, 195 F.3d at 1085 (alterations and quotation marks
omitted). The district court evaluated the statements and
demeanor of each juror. At the time, after hearing from the
jurors and participating in their questioning, Smith’s attorney
stipulated to the dismissal of the juror. Based on these
evaluations and the undisputed finding that one juror had
threatened another, it was not error for the court to exclude
the threatening juror.
Smith points to Symington, in which we held that “if the
record evidence discloses any reasonable possibility that the
impetus for a juror’s dismissal stems from the juror’s views
on the merits of the case, the court must not dismiss the
juror.” Symington, 195 F.3d at 1087 (emphasis in original).
The hearsay statement did suggest that the jurors had
different views on the merits of the case. But given that it
was undisputed that the dismissed juror had threatened
another juror and that the attorneys for both parties agreed
with the dismissal, there was ample support for the district
court’s conclusion that the juror was dismissed for the threat
of violence and not due to his views on the merits. That the
jury continued to deliberate for four hours after that juror was
dismissed also bolsters the conclusion that the charges against
the dismissed juror were not motivated by the desire of other
jurors to reach a verdict without him.
III.

Conclusion

The district court did not err in denying Smith’s post-trial
motion or in rejecting Smith’s proposed jury instructions.
Smith has not established plain error with regards to the

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purported attorney and witness misconduct. The district court
did not err in dismissing, with Smith’s agreement, a juror who
threatened another juror.
AFFIRMED.