Garcia v. City of Merced et al

Filing 89

MEMORANDUM DECISION and ORDER re Defendant Alfredo Cardwood's Motion for Summary Judgment or Partial Adjudication 58 , signed by Judge Oliver W. Wanger on 9/25/2009. (Verduzco, M)

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 8 v. 9 10 11 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. CITY OF MERCED, CITY OF MERCED POLICE DEPARTMENT, BUREAU OF NARCOTICS ENFORCEMENT SPECIAL AGENT SUPERVISOR ALFREDO CARDWOOD, et al., JOHN GARCIA, Plaintiff, No. 1:07-CV-00867-OWW-DLB MEMORANDUM DECISION RE DEFENDANT ALFREDO CARDWOOD'S MOTION FOR SUMMARY JUDGMENT OR PARTIAL ADJUDICATION (Doc. 58)

Plaintiff John Garcia, an attorney, brings this action under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. His

suit arises from, but is not limited to, a warrant that was executed on February 6, 2006 for the search of his law office in Merced, California. The warrant culminated the Merced Multi-Agency Narcotic Task Force's investigation into allegations that John Garcia was smuggling narcotics into the Merced County Jail. Based

on information from Robert Plunkett, an inmate at Merced County Jail, the Task Force conducted a "reverse sting" operation whereby Task Force Agents observed Plaintiff receive, inspect, and

transport approximately fourteen grams of methamphetamine Plunkett offered to Plaintiff. Following the sting, Task Force Agents

obtained a warrant to search 655 West Nineteenth Street, Merced, California, the law offices of John Garcia. The warrant was based

on the oral affidavit of Deputy Sheriff John Taylor and Special

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Agent Alfredo Cardwood and was authorized by Judge Frank Dougherty of the Merced Superior Court. On March 13, 2007, Plaintiff filed a Complaint against

Defendants City of Merced; City of Merced Police Department;1 California Bureau of Narcotics Enforcement Special Agent Alfredo Cardwood ("Cardwood"); County of Merced; Merced County Sheriff's Department; Merced County Deputy Sheriff John Taylor ("Taylor"); Merced County District Attorney's Office; and Merced County

District Attorney Gordon Spencer ("Spencer").

Agent Cardwood and The County

Deputy Taylor are sued in their individual capacities.

of Merced is sued as a municipal entity that acts by and through its individual deputies. The First Cause of Action alleges assault against all

Defendants; the Second Cause of Action alleges battery against all Defendants; the Third Cause of Action alleges false arrest and imprisonment with a warrant against all Defendants; the Fourth Cause of Action alleges defamation by slander against Cardwood;2 the Fifth Cause of Action alleges a violation of Title 42, United States Code, Section 1983 against all Defendants.3 Before the court for decision is Cardwood's motion for summary
1

City of Merced and City of Merced Police Department were dismissed pursuant to stipulation (F.R.C.P. 41(a)) on June 17, 2009. (Doc. 70.) Plaintiff's claim for defamation against previously dismissed. (Doc. 73, 2:6-2:9.)
3 2

Cardwood

was

The motion for summary judgment filed by Defendants County of Merced; Merced County Sheriff's Department; Merced County Deputy Sheriff John Taylor; Merced County District Attorney's Office; and Merced County District Attorney Gordon Spencer is resolved by separate Memorandum Decision. 2

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judgment or, in the alternative, summary adjudication. Cardwood is a Special Agent for the California Department of Justice, Bureau of Narcotic Enforcement.

II.

FACTUAL BACKGROUND.4 For

Plaintiff is an experienced criminal defense attorney.

the past twenty years, Plaintiff represented criminal defendants in Merced County, including Alfonso Robledo, an inmate at Merced County Jail in early 2006. Defendant Alfredo Cardwood is a special agent with the State of California Department The of BNE Justice, has nine Bureau regional throughout of Narcotics and

Enforcement numerous

("BNE"). task

offices

regional

forces

located

California, Special

including the Merced Multi-Agency Narcotic Task Force.

Agent Cardwood was the supervising agent in charge of the Merced Multi-Agency Narcotic Task Force. (Cardwood Dec. ¶ 4.)

Defendant County of Merced is a public entity organized under California law. Merced County Sheriff's Department is a department of the County of Merced, with the responsibility to maintain and administer law enforcement in Merced County. Defendant John Taylor is a deputy with the Merced County Sheriff's Department, who acted as the Task Force's primary case agent. Defendant
4

Merced

County

District

Attorney's

Office

was

Unless otherwise noted, the facts herein are undisputed. (See Def.'s Stmt. of Undisp. Facts in Supp. of Summ. J. ("SUF"), Doc. 58-5, filed May 5, 2009). Plaintiff filed objections to certain items of Defendant's evidence. Except where otherwise noted, such evidence is immaterial to the court's analysis of Defendant's motion or the objections are without merit. 3

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established Government

by Code

the

Constitution 26500,

of to

the

State

of

California, and

Section

provide

prosecution

enforcement services in adult and juvenile criminal matters for Merced County. At all relevant times, Gordon Spencer was the

District Attorney for Merced County. In early 2006, Doug Jensen, Commander of the Merced County Sheriff's Department, contacted Deputy Taylor with information about a contraband smuggling operation at the County Jail. (Taylor Dep. 11:12-11:22.) Jensen told Taylor that an inmate named Robert

Plunkett ("Plunkett"), told one of his Sergeants, Sergeant Pace, that a local attorney was smuggling contraband into the jail. (Id. at 11:23-11:25.) Plunkett told Sergeant Pace that the smuggling (Id.)

operation involved an attorney named "John Garcia."

Deputy Taylor began a formal investigation into the smuggling operation, without apprising Garcia of the events and occurrences related to his investigation. (Cardwood Dec. 4.) Deputy Taylor

interviewed Plunkett multiple times in late January and early February. Plunkett informed Taylor that Alfonso Robledo

("Robledo"), a fellow inmate at Merced County Jail, told him that he obtained drugs through his attorney, John Garcia. According to

Plunkett (via Robledo), Garcia would bring the drugs to their attorney-client meetings, disguised in a Bugler cigarette package. Garcia would give the Bugler package containing the drugs to Robledo, who would return to his cell with the Bugler package. According to Taylor, Plaintiff's versions of the smuggling ring were consistent. Taylor met with Plunkett between three and ten additional times over the next twenty days. Plunkett provided further details 4

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of

the

alleged

smuggling,

including

that

certain

nonviolent

offenders smuggled contraband into the Jail while on a "pass" from the facility. (SUF 14.) These individuals would obtain the

contraband and either place it in one of their body cavities and/or hand it off to Garcia, who would bring it into the Jail at a later date. (SUF 14.) Plunkett also told Taylor that the alleged

members of the smuggling ring included Robledo, Garcia, Sylvia Brown, a friend of Robledo's, and two private investigators working for Garcia, Augustine Provencio and Greg Hassen. Deputy Taylor sought corroboration for Plunkett's statements concerning the smuggling ring, including the identities of the alleged participants and the basis for Plunkett's knowledge.

Deputy Taylor researched jail records and confirmed that inmate Robledo was in custody at the Merced County Jail on various drugrelated offenses and that Robledo and Plunkett shared a housing unit. (SUF 18-19.) Deputy Taylor also checked John Garcia's

criminal record, confirming that Garcia had a history of drugrelated violations. (SUF 20.)

Deputy Taylor checked for Plunkett's name in a computer database of unreliable informants, maintained by narcotics officers who were given unreliable tips. database. Plunkett's name was not in the

Deputy Taylor also discovered Sylvia Brown's phone

number in one of Robledo's previous bookings. According to Taylor, Plunkett's information was credible. Agent Cardwood was familiar (Cardwood

with the steps Deputy Taylor took to build the case. Dec. ¶ 4.)

The Task Force then planned a reverse-sting operation to confirm Plunkett's statements and determine whether or not Garcia 5

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was smuggling contraband into the Jail. Agent Taylor obtained methamphetamine

In early February 2006, from the Merced County

evidence department for the reverse-sting operation.

After the

Court granted the order to obtain the methamphetamine, it was placed in a Bugler brand cigarette package. (Cardwood Dec. ¶ 5.)

According to Taylor and Cardwood, the methamphetamine was clearly visible upon opening the Bugler package. (Cardwood Dec. ¶ 5.)

On February 6, 2006, Agent Taylor and another Task Force Agent met with Plunkett, searched his person for illegal contraband or narcotics, and upon finding none, the officers gave Plunkett the methamphetamine. digital recorder. Plunkett was fitted with both a "wire" and a The sting operation required Plaintiff to

contact John Garcia at the Merced County Superior Courthouse, giving him the Bugler tobacco pouch. Plunkett would tell Garcia

that he was on a "pass" from Sandy Mush Correctional Facility and that the package was for Robledo. Agent Cardwood personally

monitored the wire during the reverse-sting operation.5 (SUF 32.) In addition to audio surveillance, Agent Cardwood was stationed in a vehicle near Plaintiff's office and had a clear view to monitor the interaction between Plaintiff and Plunkett. (Cardwood Dec. ¶ 6.) Plunkett proceeded to the Merced County Superior Court and approached John Garcia in one of the courtrooms. Plunkett told him that he was a friend of one of Garcia's clients, Alfredo Robledo. Plaintiff gave Plunkett a business card and told him to contact his

According to Cardwood, the transmission was of poor-quality, making it difficult to hear the parties. (Cardwood Dec. ¶ 6.) 6

5

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office.

Plunkett then left the courtroom. one hour later, Plunkett approached Garcia

Approximately

outside the courtroom and told him he had a package for Garcia. Plaintiff instructed Pluckett to drop it off at his office. Garcia then went back inside the courtroom. A short time later, Pluckett

approached Garcia outside the courthouse, telling him that he could not locate his office. As they walked toward Garcia's office,

Plunkett told Garcia that he was on an afternoon pass from Sandy Mush and knew Robledo. Plunkett then produced the Bugler tobacco

pouch containing the methamphetamine and handed it to Garcia. (SUF 31.) Garcia took the Bugler tobacco pouch from Pluckett and (SUF 31, 33, 37.) Plaintiff

continued walking to his office.

possessed the Bugler package containing the methamphetamine when he entered his office building. (SUF 38.)

The record reflects considerable dispute over whether Garcia opened the Bugler package while he and Pluckett were walking to Garcia's office. Agent Cardwood maintains that Plaintiff opened

the Bugler package, looked inside, closed the package, and walked to his office. (SUF 34, 35.) Cardwood declares that the

methamphetamine was directly underneath the flap, clearly visible to anyone who opened it. (SUF 36;) Agent Carlisle and Plunkett

also observed Garcia look inside the tobacco pouch during the exchange. (Taylor Dec. ¶ 22.)

According to Plaintiff, he told Pluckett that, "if there's anything in here besides tobacco, you take it back to Sylvia or wherever you got it." Plaintiff maintains that he did not open the

tobacco pouch during the exchange nor did he open it while walking to his office. 7

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When Plaintiff and Plunkett arrived at the office, Plaintiff placed the Bulger package on his secretary's desk. Plaintiff's Plunkett He

investigator, Provencio, was present in the office.

stayed in the office only a few moments before leaving.

contacted Agent Taylor and told him that Plaintiff took the Bugler pouch into the office and handed it to his secretary. ¶ 21.) Plaintiff's other investigator, Hassen, arrived shortly after Plunkett left. Garcia and his investigators opened the tobacco Garcia then instructed Provencio (Taylor Dec.

pouch, discovering the methamphetamine.

Provencio to flush the methamphetamine down the toilet.

did so and then discarded the bag into the bathroom trash can. Garcia then left his office in a black Volvo. After driving one mile, Garcia's Volvo was stopped by a City of Merced Police patrol vehicle. (SUF 39.) A total of three

officers, including Cardwood, were present when Plaintiff was stopped leaving his office. (Cardwood Dec. ¶ 10.) Agent Cardwood

approached Garcia's stopped vehicle, directing him to exit the vehicle and proceed to the sidewalk. (Cardwood Dec. ¶ 10.) Plaintiff was (SUF 41.)

Plaintiff was handcuffed and searched. (SUF 40.)

then transported back to his office for questioning.

Plaintiff's office was "frozen" pending the issuance of a search warrant, ensuring that no one entered or exited the building. Garcia was not threatened during the vehicle stop and there was no physical contact other than the brief search. At no time The

did the Task Force Agents tell Plaintiff he was under arrest. entire stop took less than half an hour.

While Plaintiff was transported back to his office, Agent 8

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Cardwood and Deputy Taylor sought a search warrant from Superior Court Judge Frank Dougherty. (SUF 41-42.) In a verbal search

warrant application, under penalty of perjury, Cardwood and Agent Taylor testified to the investigation and their observations during the reverse-sting operation. (Id.) Judge Dougherty found probable cause to issue the search warrant based on the fact that Plaintiff had taken possession of the methamphetamine. (Id.) The search

warrant authorized a search of Plaintiff, Plaintiff's vehicle and Plaintiff's office to (Id.) allow, in part, the recovery of the

methamphetamine.

Judge Dougherty appointed a Special

Master, Gerald Brunn, to be present during the search.6 Plaintiff's allegations focus on Agent Cardwood's and Deputy Taylor's alleged misrepresentations and omissions to Judge

Dougherty supporting Deputy Taylor's Oral Affidavit.

According to

Plaintiff, Agent Cardwood's observation that Garcia opened the bugler pouch is a total fabrication. Plaintiff maintains that

while he accepted the Bugler pouch from Plunkett, he did not open the flap. Plaintiff also accuses Deputy Taylor of misrepresenting

and omitting material facts, specifically, omitting Mr. Plunkett's extensive criminal history, bearing on his credibility. Agent

Cardwood and Deputy Taylor maintain that all of the information they provided to Judge Dougherty on February 6, 2006 was accurate and true. (Taylor Dec. ¶ 24; Cardwood Dec. ¶ 14.)

The search of Garcia's office revealed a plastic baggie containing a small amount of methamphetamine in the bathroom area

The search did not commence until Specal Master Brunn arrived. Defendants provided Garcia's staff with dinner while waiting for Special Master Brunn to arrive. 9

6

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and a small amount of methamphetamine residue in the main office. (SUF 45.) Six packages of "Bugler" brand tobacco and one ziplock

bag of tobacco were found in the top drawer of Garcia's desk. (SUF 45.) A one pound scale, similar to the kind used to weigh drugs, (SUF 45.)

was found on Garcia's desk.7

Following the search, Agent Cardwood and Deputy Taylor removed Garcia's handcuffs and advised him of his Miranda rights. 48.) hour.8 not (SUF

Cardwood and Taylor interviewed Garcia for approximately one (SUF 49.) Garcia was then released. or prosecuted in (SUF 49.) connection Garcia was with the

arrested,

charged,

criminal investigation.

(SUF 50-52.)

III. PROCEDURAL HISTORY. On March 13, 2007, Plaintiff filed a complaint in the Superior Court, County of Merced, against the County of Merced, Merced County Sheriff's Department, Deputy Taylor, District Attorney

Gordon Spencer, Special Agent Cardwood, City of Merced, and Merced City Police Department.9 under state law Plaintiff alleged defendants were liable of assault, abuse of process, and

theories

defamation by slander. Plaintiff filed his first amended complaint on March 21, 2007,

Plaintiff was detained in his office during the search, but was not arrested. He was permitted to use the restroom and was not threatened or mistreated during his detention. Plunkett consented to wearing a wire and recording the conversation. Defendants City of Merced and City of Merced Department were dismissed on June 17, 2009. (Doc. 70.) 10
9 8

7

Police

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

his second amended complaint on April 5, 2007, and his third amended complaint on May 23, 2007. Unlike his previous complaints, Garcia's third amended complaint included a cause of action for violation of federal civil rights pursuant to 42 U.S.C. 1983. June 15, 2007, the case was removed to federal court.10 On

(Doc 1.)

On August 20, 2007, Plaintiff filed a Fourth Amended Complaint against Defendants. Plaintiff alleged defendants were liable

under 42 U.S.C. 1983 for unreasonable search and seizure (Count V); under the California Constitution for unlawful search and seizure (Count VI); and state law claims for assault and battery, false arrest and imprisonment, abuse of process, and defamation by slander (Counts I-IV). Agent Cardwood and Deputy Taylor were sued

Plaintiff filed his original complaint in the Superior Court of Merced on March 13, 2007. Plaintiff then amended his complaint and filed his First Amended Complaint on March 21, 2007 to substitute real names for fictitious "Doe" defendants. Plaintiff filed yet another amended complaint, his Second Amended Complaint on April 5, 2007, pursuant to an ex parte application before Defendants Merced and Merced Police could file a demurrer on the first amended complaint, which they claim they were preparing. Defendants Merced, Merced Police and Merced County timely filed demurrers against the Second Amended Complaint, and a hearing was set for May 31, 2007. Plaintiff filed yet another amended complaint, a Third Amended Complaint on May 23, 2007. The Superior Court of Merced permitted the hearing on the demurrer to the Second Amended Complaint go forward despite the filing of the Third Amended Complaint. At the hearing the Court stated that it would allow the Third Amended Complaint but would allow no further amendments until Defendants have had the opportunity to test the sufficiency of the new complaint's allegations. The Third Amended Complaint contained a federal cause of action pursuant to 42 U.S.C § 1983 and, Defendants removed the action to Federal Court. Defendants then timely filed a motion to dismiss the Third Amended Complaint on June 19, 2007. Plaintiff filed his Fourth Amended Complaint on August 20, 2007. Defendants Merced and Merced Police then sought relief from the Court by their filing on August 28, 2007. 11

10

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in their individual capacities and the County of Merced was sued as a municipal entity that acts by and through its individual

deputies.

(Doc. 15.)

Defendants Merced County, Sheriff's Dept., Taylor and Spencer filed their supplemental brief on the motion to dismiss the Fourth Amended Complaint on September 4, 2007.11 (Doc. 19.) Defendant

Cardwood filed his supplemental briefing supporting the motion to dismiss on September 10, 2007. (Doc. 20.) Plaintiff filed his

opposition to Defendants' motions on October 2, 2007. (Doc. 23, 24.) Defendants' motions were granted, in part, on January 10, (Doc.

2008, although John Garcia was permitted leave to amend. 34.)

Plaintiff filed his Fifth Amended Complaint ("5thAC") on January 30, 2008. (Doc. 35.) The First Cause of Action alleges

assault against all Defendants; the Second Cause of Action alleges battery against all Defendants; the Third Cause of Action alleges false arrest and imprisonment with a warrant against all

Defendants; the Fourth Cause of Action alleges defamation by slander against Cardwood;12 the Fifth Cause of Action alleges a violation of Title 42, United States Code, Section 1983 against all Defendants.

A stipulation and order was entered by the Court and parties on August 31, 2007 setting the motion to dismiss hearing date on Plaintiff's previous complaints and permitting supplemental briefings to be filed to address any alleged remaining deficiencies in the Fourth Amended Complaint1 on the pending motions to dismiss. (Doc. 18.) Plaintiff's claim for defamation against Cardwood was previously dismissed. (Doc. 73, 2:6-2:9.) 12
12

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

Defendants Merced County, Sheriff's Dept., Taylor and Spencer filed their answer on February 19, 2008. (Doc. 36.) Defendant

Cardwood filed his answer on February 26, 2008.

(Doc. 37.)

Defendant Cardwood filed this motion for summary judgment, or in the alternative, summary adjudication on May 5, 2009. (Doc.

58.) Defendant seeks judgment on the grounds that Plaintiff cannot 1) establish his federal constitutional claims, 2) overcome the defense of qualified immunity. Defendant also argues the state law claims should be dismissed because the deputies 3) acted lawfully, and 4) Plaintiff lacks evidence to create a genuine issue of material fact. Plaintiff filed his opposition to summary judgment or, in the alternative, summary adjudication on July 1, 2009. (Doc. 73.) Plaintiff opposes summary judgment on grounds that triable issues of material fact exist as to his constitutional claims and state law theories. Plaintiff argues that Cardwood unlawfully searched

and seized him in violation of is Fourth Amendment rights, relying on Agent Cardwood's and Deputy Taylor's alleged misrepresentations and omissions to Judge Dougherty. Plaintiff further contends that

neither the County of Merced nor the individual defendant deputies are entitled to qualified immunity or any protections under the California Government Code.

IV. LEGAL STANDARDS. Standard of Review. Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the 13

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movant is entitled to judgment as a matter of law." P. 56(c).

Fed. R. Civ.

A party moving for summary judgment "always bears the

initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Catrett, omitted). Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (noting that a party moving for summary judgment on claim as to which it will have the burden at trial "must establish beyond controversy every essential element" of the claim) (internal 477 U.S. 317, 323 (1986) (internal Celotex Corp. v. quotation marks

quotation marks omitted).

With respect to an issue as to which the

non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the

allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986)). "Conclusory, speculative testimony in affidavits 14

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and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Id.

To defeat a motion for summary judgment, the non-moving party must show there exists a genuine dispute (or issue) of material fact. suit A fact is "material" if it "might affect the outcome of the under the governing law." Anderson, 477 U.S. at 248.

"[S]ummary judgment will not lie if [a] dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. In ruling on a motion for summary judgment, the

district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor."

Id. at 255.

B.

Section 1983. Plaintiff brings this lawsuit under 42 U.S.C. § 1983, which

provides a cause of action "against any person acting under color of law who deprives another `of any rights, privileges, or

immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 "The rights guaranteed Id.

(9th Cir. 2003)(quoting 42 U.S.C. § 1983).

by section 1983 are `liberally and beneficently construed.'" (quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991).

To establish liability under 1983, a plaintiff must show 1) that he has been deprived of a right secured by the United States Constitution or a federal law, and 2) that the deprivation was effected "under color of state law." 1023, 1028 (9th Cir. 2003). 15 Broam v. Bogan, 320 F.3d

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

C.

Suits Against Government Officials: Official Capacity and Individual Capacity Suits. Suits against an official in her or his official capacity are

treated as suits against the entity on whose behalf that official acts. In such suits, the real party in interest becomes the entity Hafer v. Melo, 502 U.S. 21, 25 for monetary damages against an

for which the official works. (1991). A federal action

individual State official acting in his official capacity is barred by the Eleventh Amendment in the same way that an action against the State is barred. Doe v. Lawrence Livermore Nat'l Lab., 131

F.3d 836, 839 (9th Cir. 1997). In contrast, "[p]ersonal-capacity suits seek to impose

personal liability upon a government official for actions [taken] under color of state law." Dittman v. California, 191 F.3d 1020,

1027 (9th Cir. 1999)(citing Kentucky v. Graham, 473 U.S. 159, 165 (1985))(internal quotations omitted). To establish personal

liability in a § 1983 action, it is enough to show that the official, "acting under color of state law, caused the deprivation of a federal right." omitted). Hafer, 502 U.S. at 25 (internal quotations

Public officials sued in their personal capacity may

assert personal liability defenses, such as qualified immunity. Dittman, 191 F.3d at 1027. Here Plaintiff sues Agent Cardwood in

his individual and official capacities.

D.

Summary Judgment in the Qualified Immunity Context. In this case, Agent Cardwood asserts the defense of qualified

immunity.

Qualified immunity is based on the policy concern that

few individuals would enter public service if they risked personal 16

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liability for their official decisions. U.S. 800, 814 (1982).

Harlow v. Fitzgerald, 457

The immunity protects "all but the plainly Hunter v.

incompetent or those who knowingly violate the law,"

Bryant, 502 U.S. 224, 228 (1991), and "spare[s] a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232 (1991). Qualified immunity is not a

defense on the merits; it is an "entitlement not to stand trial or face the burdens of litigation" that may be overcome only by a showing that (1) a constitutional right was in fact violated and (2) no reasonable deputy could believe defendant's actions were lawful in the context of fact-specific, analogous precedents. Saucier v. Katz, 533 U.S. 194, 200-202 (2001).

V. A.

DISCUSSION.

Plaintiff's First and Second Causes of Action Plaintiff's First and Second Causes of Action allege that

Agent Cardwood committed assault and battery against Plaintiff on December 6, 2006. Cardwood seeks summary judgment as to these

causes of actions on grounds that there is no genuine issue of material fact to show that County Defendants assaulted or battered Plaintiff. Plaintiff does not oppose Defendants' motion,

abandoning both causes of action.

(See Plaintiff's Opposition Plaintiff states

("Pl.'s Opp."), 2:3-2:12, filed July 1, 2009.)

that "Cardwood's motion has `pierced' plaintiff's fifth amended complaint; and that he has developed no evidence to support his first and second causes of action for assault and battery." (Id.)

Plaintiff's Fifth Amended Complaint also contains allegations 17

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concerning a "conspiracy" against Plaintiff by Agent Cardwood. These allegations are not separately enumerated as a cause of action. Despite Agent Cardwood's motion for summary judgment as to the "conspiracy" claim, Plaintiff does not allege or discuss a conspiracy, nor does he provide any evidence to support Agent Cardwood's connection to the alleged conspiracy. Based on the lack of evidentiary support and Plaintiff's concession that "he has no evidence of a conspiracy," there is no issue of material fact on as to Plaintiff's allegations of a conspiracy.13 Accordingly, summary judgment is GRANTED in favor of Agent Cardwood as to Plaintiff's first cause of action for assault and his second cause of action for battery. Summary judgment is GRANTED in favor of Agent Cardwood as to the conspiracy allegations contained in Plaintiff's Fifth Amended Complaint.

B.

Fourth Amendment Claims (42 U.S.C. § 1983) Plaintiff raises a number of arguments in support of his

Fourth Amendment claims: (1) that Agent Cardwood violated his Fourth Amendment rights because he did not have probable cause to "plant the drugs" on Garcia; (2) Agent Cardwood misrepresented facts and omitted material information from the Oral Affidavit of Probable Cause, leading to an improper search of Plaintiff's office; and (3) there was no probable cause to detain Plaintiff
13

In his opposition to County Defendants motion for summary judgment, Plaintiff abandons any allegations of a conspiracy, conceding that he "has no evidence of a conspiracy." (Id. at 2:82-9.) For all intensive purposes, Plaintiff's opposition to the County's motion is identical his opposition to Cardwood's motion. 18

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following the reverse sting operation.14

1.

Reverse Sting Operation

Plaintiff first alleges that Agent Cardwood violated his Fourth Amendment rights because he did not have probable cause to conduct a "reverse-sting" operation, transferring drugs to

Plaintiff in the process.

Plaintiff frames the relevant issue as

whether Cardwood had probable cause to plant the drugs on Garcia as a pretext to obtain a search warrant. This argument partially fails because Plaintiff does not provide any authority for the proposition that the Fourth Amendment requires probable cause to conduct an undercover investigation or, in this instance, a reverse sting operation. It is well-

established that being a target of a law enforcement investigation - absent some allegation of a constitutional violation such as the fabrication of evidence - is not in and of itself actionable under § 1983. See United States v. Mayer, 503 F.3d 740, 749-50 (9th Cir. 2007) (stating that "there is no requirement of probable cause when a law enforcement agency investigates an individual or group."); see also Shields v. Twiss, 389 F.3d 142, 150-51 (5th Cir. 2004) (dismissing allegations of "unreasonable investigation" because appellant "pointed to no legal basis for a § 1983 action of this sort, and the court knows of none."). The
14

Ninth

Circuit

recently

reaffirmed

this

principle

in

Although pled as a single cause of action, Plaintiff's Fifth Amended Complaint contains several non-enumerated claims for relief under the Fourth Amendment. For purposes of this motion, each subsidiary theory for relief under the Fourth Amendment is treated as its own separate and distinct claim. 19

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Sanders v. City and County of San Francisco, 226 F. App'x 687 (9th Cir. 2007). In Sanders, Plaintiffs, a former city police chief and former deputy police chief, brought a § 1983 action against the City, its former district attorney, and board of supervisors, alleging that these defendants violated their constitutional rights when they directed and participated in a criminal investigation against the chiefs without probable cause. that there is no requirement to have The Ninth Circuit held probable cause before

commencing a criminal investigation: The district court properly dismissed appellants' claim that Hallinan violated their constitutional rights when he directed and participated in a criminal investigation into Sanders's and Robinson's police department activities, despite lacking probable cause to do so. Appellants point to no case law that supports the proposition that probable cause must exist before an investigation can commence. That is not surprising, given that the impetus behind criminal investigations is to develop probable cause. (Id. at 689.) As Macon and Sanders demonstrate, Agent Cardwood did not violate Plaintiff's constitutional rights when he coordinated a sting operation which transferred methamphetamine from a

confidential informant to Plaintiff to test Plaintiff's willingness to knowingly transport narcotics into the jail. The sting

operation was a pre-indictment investigation into possible criminal behavior by the Plaintiff, which does not require a probable cause determination. See id; Mayer, 503 F.3d at 749-50. As the Ninth

Circuit stated in United States v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989), requiring "would be a search warrant to prerequisite a to an

investigation

tantamount

prohibiting

criminal

investigation in its entirety, because the information learned from 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

undercover government agents is often the basis for probable cause."15 Under the facts of this case, it is difficult to see how

such a criminal investigation violates any law, constitutional or otherwise. It is equally well-established that the protections of the Fourth Amendment are implicated only if there has been a search or seizure under Fourth Amendment. To the extent Plaintiff argues

that he has a reasonable expectation of privacy in being free from a sting operation conducted by government agents and their

informants on public property, his claim is foreclosed by Supreme Court and Ninth Circuit precedents.16

Under slightly different facts in United States v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989), the Ninth Circuit discussed undercover operations in the context of probable cause: "A search warrant requirement for undercover government agents to investigate an organization concededly engaging in protected first amendment activities indeed would prohibit law enforcement officials from using an indispensable method of criminal investigation appropriate in any other circumstance ... [i]n many cases, a search warrant prerequisite would be tantamount to prohibiting a criminal investigation in its entirety, because the information learned from undercover government agents is often the basis for probable cause. The Constitution does not impose this high cost in the present case." During oral argument, following a discussion of the relevant case authorities on point, Plaintiff continued to "disagree that there was probable cause for the sting operation in the first place." Plaintiff's arguments are misplaced. It is wellestablished that not every investigatory technique is a search for Fourth Amendment purposes. See Maryland v. Macon, 472 U.S. 463, 470 (1985) ("The use of undercover officers is essential to the enforcement of vice laws ... [a]n undercover officer does not violate the Fourth Amendment merely by accepting an offer to do business that is freely made to the public."); United States v. Mayer, 503 F.3d 740, 750 (9th Cir. 2007) (stating that "undercover operations, in which the agent is a so-called `invited informer,' are not `searches' under the Fourth Amendment."); United States v. 21
16

15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The relevant Fourth Amendment language provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The protections of the Fourth Amendment only apply

if there has been a search or seizure, making the threshold inquiry in every Fourth Amendment analysis whether a search or seizure has occurred. expectation A search is an intrusion on a person's "reasonable of privacy" and requires Garcia to show both a

subjective expectation of privacy and that the expectation is objectively reasonable. (9th Cir. 2000). There is no evidence to suggest that Plaintiff had a United States v. Sandoval, 200 F.3d 659

subjective expectation of privacy in any aspect of the reverse sting operation or that his privacy expectation, if established, was objectively reasonable. Viewing all the evidence in his favor, as required on a motion for summary judgment, Plaintiff cannot establish a subjective expectation of privacy in the sting

operation - or the courthouse where the sting operation took place - because Defendant Taylor never met with Task Force Agents in Plaintiff's office or on Plaintiff's property. No evidence

suggests that the parties ever crossed paths or shared a jail meeting room. Plaintiff did not own the physical property used in

Dovali-Avila, 895 F.2d 206, 207-08 (5th Cir. 1990) (use of a welltrained and reliable narcotics dog on vehicles passing through a fixed border patrol checkpoint does not violate Fourth Amendment rights); United States v. Hoffa, 437 F.2d 11, 14 (6th Cir. 1971) (taping of a conversation between an information and a person being investigated does not violate Fourth Amendment rights when the consent of the informant is given."). 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the sting; nor did he own the walkway adjacent to the courthouse. On the issue of objective reasonableness, Garcia did not have a possessory interest in the items used in the sting; Garcia could not exclude others from the courtroom or the sidewalk adjacent to the courthouse; Garcia took no precautions to maintain his privacy outside the courthouse, as he accepted the Bulger tobacco package from Pluckett on the courthouse steps, a public walkway. This

evidence cuts against Plaintiff's claims of an unreasonable search under the Fourth Amendment. See, e.g., United States v. McCaster,

193 F.3d 930, 933 (8th Cir. 1999); LaDuke v. Nelson, 762 F.2d 1318, 1326 n.11 (9th Cir. 1985). Plaintiff's allegations do not provide a basis for a Fourth Amendment privacy violation by coordinating the sting.17 To the

extent that Plaintiff argues that Defendant Taylor violated his Fourth Amendment rights because he did not have probable cause to conduct a "reverse-sting" operation, Plaintiff's claim is

foreclosed by well-established Ninth Circuit precedent. equally clear of that Plaintiff in a does not have a

It is

"reasonable operation

expectation

privacy"

pre-indictment

sting

conducted by trained law enforcement officers on public property.

Although somewhat unclear, it also appears Plaintiff raises arguments similar to those contained in a line of cases holding "where it is the government that initiates the alleged criminal activity and where the government either purchases or supplies the drugs, which party initiates the alleged crime is relevant and important in assessing the degree of government involvement in setting up the crime." See, e.g., Hampton v. United States, 425 U.S. 484, 491 (1976). Plaintiff's arguments in this regard are unpersuasive, as the Hampton line of cases involved criminal appeals. 23

17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff's attempt to expand the outer boundaries of Fourth Amendment constitute jurisprudence a search is unavailing. the Fourth The sting did This not law

under

Amendment.

enforcement conduct is not actionable. Agent Cardwood's motion for summary adjudication on

Plaintiff's Fourth Amendment claim for lack of probable cause to conduct a sting operation is GRANTED.

2.

Oral Affidavit of Probable Cause

The heart of Garcia's civil rights challenge is that Affiant Cardwood caused Garcia's office to be improperly searched without probable cause because Cardwood misrepresented facts and omitted material information from the Oral Affidavit of Probable Cause. A search made without probable cause violates the Fourth Amendment right to be free from unreasonable searches and can be the basis of a claim under 42 U.S.C. § 1983. An officer generally

has qualified immunity from a claim that he lacked probable cause, absent a showing that a reasonably well-trained officer in his position would have known that his warrant affidavit failed to establish probable cause. Where, as here, the Malley v. Briggs, 475 U.S. 335 (1986). officer is accused of deliberately

misrepresenting and omitting information from the affidavit making it materially false and misleading, and the officer claims

qualified immunity, the Ninth Circuit has tailored this inquiry. Specifically, in order to survive summary judgment, plaintiff must: (1) make a substantial showing that Deputy Taylor's warrant

application contained a false statement or omission that was deliberately false or made with reckless disregard for the truth; 24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and (2) establish that if the offending material is excised (and/or the omission is included), the information provided to the

Magistrate would be insufficient to establish probable cause. Lombardi v. City of El Cajon, 117 F.3d 1117, 1124-26 (9th Cir. 1997); Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995); see also Liston v. County of Riverside, 120 F.3d 965, 972-73 (9th Cir. 1997). Whether the statements were deliberately false is ultimately a factual issue for the jury, but the plaintiff must at least make a "substantial showing" on this issue to survive summary judgment. See Lombardi, 117 F.3d at 1126, n.6; Hervey, 65 F.3d at 790-91. Whether the alleged omissions are material is a question of law for the Court to decide. Hervey, 65 F.3d at 789. If the plaintiff can

satisfy both of the above requirements, then the officer is not entitled to qualified immunity and the claim proceeds to trial for the jury to determine whether the officer deliberately or

recklessly included false statements (or omitted information) in the affidavit. Id. at 791.

a. Mr. Pluckett's Reliability In order for Agent Cardwood framework, his to be liable under the

misrepresentation/omission admissible evidence

Plaintiff allegation

must that

submit Cardwood

supporting

deliberately or recklessly omitted information from his affidavit for a search warrant. Plaintiff alleges that Deputy Taylor misled

Judge Dougherty in his Oral Affidavit because he did not mention

25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Pluckett's criminal history.18

However, these allegations concern Although Agent Cardwood was

Deputy Taylor - not Agent Cardwood.

present during Deputy Taylor's recitation of his investigation, Plaintiff does not provide any evidence that Taylor's omissions and/or misrepresentations were known to or should have been known to Agent Cardwood, to create liability under the Fourth Amendment. Plaintiff has not cited any case law supporting his theory of a peace officer's "duty to correct," as there is no foundational evidence that Cardwood had any knowledge about Plunkett or Deputy Taylor's alleged misrepresentations and omissions, which are

Taylor's.19 Garcia relies heavily on a recent Ninth Circuit case, United States v. Stadnisky, 309 F. App'x 185 (9th Cir. 2009), to support his "omission" arguments, contending a minimum standard of required conduct (i.e., corroboration and disclosure) under the law

enforcement misrepresentation and/or omission analysis. Relying on Stadnisky, Plaintiff argues that "Taylor and Cardwood did not even take those most rudimentary steps ... they never investigated Plunkett's previous reliability and helpfulness as an informant." (Doc. 77, 12:11-12:14.) However, Plaintiff's reliance on Stadnisky Plaintiff also claims that nothing Plunkett said was against his penal interest. This is not entirely accurate. See United States v. Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004) (observing that exposure to legal sanction for providing false information increases reliability of tip). Plaintiff asserts that Taylor did not inform about Pluckett's specific criminal history and Plunkett's credibility in the affidavit by covering for helping with the investigation - avoidance of a 26
19 18

Judge Dougherty bolstered Mr. his true motive "third strike."

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

is misplaced for a number of reasons, most notably that the detectives in Stadnisky relied on information obtained from a confidential informant, not a known and disclosed informant such as Mr. Plunkett. Stadnisky does not support Plaintiff's litigation See Florida v. J.L.,

position. If anything, Stadnisky weakens it.

529 U.S. 266, 271 (2000) (stating that a known informant's tip is thought to be more reliable than an anonymous informant's tip because an anonymous informant typically cannot be questioned about the basis for knowing the information or motive for providing the tip, nor can the anonymous informant be held accountable for providing false information in violation of the law.). Assuming, arguendo, that Plaunkett was facing a third strike and that Agent Cardwood knew about it, Plaintiff's strongest argument is that the issuing judge was prevented from evaluating Plunkett's credibility and motive to misrepresent based on the withholding of Plunkett's specific criminal history.

b.

Did Garcia Open the Bugler Flap?

Plaintiff argues that the single most significant material misrepresentation to the judge in Agent Cardwood's oral affidavit is his misrepresentation that he observed Garcia open the Bugler pouch.20 Cardwood's Oral Affidavit stated that he observed Garcia

Cardwood stated in the Affidavit: "I think it's important to clarify, and that in, when during the surveillance, I saw Mister Garcia take possession of, when Mister Plunkett handed it to him." ("Verbal Search Warrant," Doc. 58-7, Exh. A, pg. 15.) There does not appear to any other mention of Garcia opening the Bugler pouch, other than Taylor stating: "Garcia took the package from him, which was a Bugler cigarette pack containing methamphetamine, which he had already looked at." (Id. at pg. 13.) However, it is undisputed 27

20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

open the flap, close it, and walk back to his office with the tobacco pouch in his hand. Plaintiff testifies that he never

opened the flap of the tobacco bag, but instead only accepted the Bugler tobacco pouch from Plunkett and took it to his office. Plaintiff also alleges that as Plunkett handed him the Bugler pouch, he stated, "if there's anything else in here besides It is

tobacco, you take it back to Sylvia or wherever you got it."

undisputed that Cardwood, who monitored the transaction via audio, did not include this statement in his Oral Affidavit. This is an

irreconcilable conflict in material facts bearing on Plaintiff's alleged knowledge that the pouch contained methamphetamine. Omitting, arguendo, the statement about Garcia opening the flap and adding Plaintiff's statements concerning the package's contents, does the affidavit still contain sufficient probable cause for a search warrant against Garcia and his law office? A

"totality of the circumstances test" applies to determine whether a search warrant is supported by probable cause. Gates, 462 U.S. 213 (1983). Illinois v.

This test requires "a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." 1053, 1055 (9th Cir. 1993). Here, the affidavit states that Deputy Taylor met with Mr. United States v. Feeney, 984 F.2d

that Agent Cardwood maintains that he saw Garcia open the lid of the Bugler pouch. (Doc. 58-8, Cardwood Dec. ¶ 7.) 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plunkett between three and ten times to investigate Plunkett's allegations concerning the jailhouse drug smuggling ring. Taylor

purportedly confirmed Plunkett's information (and his credibility) with outside sources. He then contacted Special Agent Cardwood and organized the reverse from sting the and obtained County fourteen ounces of

methamphetamine

Merced

Sheriff's

Department.

Deputy Taylor and Agent Cardwood placed the methamphetamine in a Bugler brand cigarette package, per the reported modus operandi. The methamphetamine was in plain view upon opening the Bugler package according to Taylor and Cardwood, which is categorically contradicted by Plaintiff.21 This fact can only be resolved by the

trier of fact, not the court. According to the affidavit, the "sting" operation required Plaintiff to contact John Garcia at the Merced County Superior Courthouse and give Garcia the Bugler tobacco pouch. Plunkett was

to tell Garcia that he was on a "pass" from Sandy Mush Correctional Facility and that the package was for Robledo. After two

unsuccessful attempts to give Garcia the Bugler pouch, Plunkett approached Garcia outside the courthouse. The two walked to

Garcia's office together, and Plunkett told Garcia he was on a

Plaintiff avers that Cardwood misled the judge when he stated the methamphetamine was "outside the bag" and "outside the pouch." (Doc. 73, 13:27-13:28.) Plaintiff essentially argues Cardwood's misrepresentation created an inference that the methamphetamine was in "plain view," leading the issuing judge to find probable cause for knowing possession of methamphetamine. (Id. at 1:27-1:28.) Drawing all inferences in Plaintiff's favor, coupled with the factual dispute about whether Plaintiff opened the Bugler pouch during his meeting with Plunkett, Cardwood's statement that the meth was "outside the bag," there is a material factual dispute as to Plaintiff's knowledge of a controlled substance. 29

21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"pass" from jail.

At this point, Plunkett produced the Bugler

tobacco pouch containing the methamphetamine and handed it to Garcia. Garcia took the Bugler tobacco pouch from Plunkett and

continued walking to his office. Other Task Force members observed the above events and confirmed that Plaintiff possessed the Bugler package containing the methamphetamine when he entered his office building. However, there is a total conflict in the evidence

whether Plaintiff had knowledge of the presence of the controlled substance, specifically whether the meth was in "plain view" and whether Plaintiff opened the Bugler flap. Although it is undisputed that the Bugler pouch contained fourteen grams of methamphetamine, Plaintiff took possession of the pouch, and continued on to his office, the dispute is whether Plaintiff opened the tobacco package flap to show knowledge of the presence of the controlled substance, which prevents the

establishment of an essential element of the crime existed to believe that Plaintiff would knowingly accept a Bulger tobacco package with meth for transport to Plaintiff's incarcerated client at the jail, which Plaintiff took to his office. The affidavit also includes communications between Officer Cardwood and Garcia's secretary. Cardwood called Garcia's

secretary following the pouch exchange and asked her if an unknown man (Plunkett) followed Garcia into the office. She replied in the affirmative. She also told Cardwood that when Garcia walked into

the office, he handed her the Bugler pouch and told her to "hold on to this." Cardwood then states that the secretary and Provencio Garcia said "look at what we have stated, 30 "I'll take care of this."

went into Garcia's office. here," to which Provencio

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Provencia then told the secretary it was methamphetamine and entered the bathroom. The secretary then heard the toilet flush.

To determine if "what remains [is] sufficient to justify the issuance of the warrant," the missing information must be added to, and the misrepresentations subtracted from, Agent Cardwood's

affidavit.

Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. Here, the surviving assertions do

2005); Liston, 120 F.3d at 973.

not as a matter of law support a finding that there was probable cause to believe that Garcia knowingly transported the

methamphetamine to his office or that some portion of it remained at the office at the time Taylor and Cardwood made their oral affidavits. The judge, if Plaintiff's facts are true, did not have cause to believe that a search of Garcia's office would lead to the recovery of the methamphetamine and other incriminating evidence related to a scheme to knowingly transport meth to the jail for prisoners.22

c.

Miscellaneous Allegations

Plaintiff also alleges that the warrant was "overbroad if their purpose was to recover the methamphetamine, this could have
22

As to evidence concerning bad faith or a deliberate motive to fabricate evidence, Cardwood testified in his declaration that he had only a few brief encounters with Garcia prior to the sting operation and that he "never felt animosity towards" him. (Cardwood Dec. ¶ 19.) Plunkett and Agent Carlisle also observed Garcia open the Bugler package, corroborating Cardwood's perceptions. This according to Plaintiff is false which, if believed, is direct evidence of bad faith and dishonesty. Based on the totality of the evidence, if believed, Plaintiff's facts could provide the inference Cardwood acted recklessly or in bad faith and that he intentionally and/or recklessly misrepresented these facts. 31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

been accomplished by arresting Garcia outside his office."

The

Task Force's purpose was to investigate the smuggling of contraband into the jail. Although recovery of the methamphetamine was a (Doc. 58-7,

priority, it was not the primary or sole objective. Exh. A, pgs. 2-3, 16-17.)

"Law enforcement officers are under no

constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause." See United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986) (citing United States v. Leon, 460 F.2d 299, 300 (9th Cir. 1972)); see also Hoffa v. United States, 385 U.S. 293, 310 (1966) (stating that "[t]here is no constitutional right to be arrested ... [t]he police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect.").

d.

Conclusion

For the reasons set forth above, Agent Cardwood's motion for summary adjudication based upon qualified immunity is DENIED. Agent Cardwood is found by the trier of fact to have If made

misrepresentations and omissions, when taken together, present an issue that they were material to the judge's determination of probable cause and if the statements were truthful and the

omissions added, probable cause would not have existed.

Probable

cause to search rested on Plaintiff's knowledge that the Bugler bag contained methamphetamine; the information allegedly falsified and omitted by Agent Cardwood goes directly to the existence of this requisite knowledge. A reasonable jury could determine that Agent Cardwood acted with at least recklessness in filling out the affidavit, given the 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

importance

of

Plaintiff's

knowledge

to

a

probable

cause

determination and the number of misstatements and omissions. Agent Cardwood is not entitled to qualified immunity on Plaintiff's judicial deception claim.

3.

Stop of Plaintiff's Vehicle a. Did Probable Cause Exist?

Plaintiff argues that there was no probable cause to stop and detain him following the reverse sting operation. He criticizes

the tactics used but does not squarely address the issue of probable cause for post-sting events. Agent Cardwood, invoking

qualified immunity, claims that probable cause was established by Plaintiff's knowledge of the methamphetamine during the exchange and that any inconsistencies in the affidavit "do not affect the outcome of this case." The analysis above, however, shows that the discrepancies were not minor, and that the record contains enough evidence, if believed, to support a finding that Agent Cardwood misrepresented these facts. Having already found that there was no probable cause to search Plaintiff's law office for evidence of the crime of knowing possession of a controlled substance, it follows that genuine issues of material fact remain as to whether Cardwood had probable cause to detain Plaintiff for that crime. A peace officer is entitled to qualified immunity in a civil rights action if the district court determines that, in light of clearly established law governing the conduct in question at the time of the challenged conduct, the officer could reasonably have believed that the conduct was lawful. U.S. ---, 129 S.Ct. 808 (2009). 33 Pearson v. Callahan, ---

The Supreme Court in Saucier v.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Katz,

533

U.S.

194

(2001),

outlined

a

two-step

approach

to

qualified immunity.

The first step requires the court to ask

whether "[t]aken in the light most favorable to the party asserting the injury, a do the facts alleged right?" show the officer's 533 U.S. conduct at 201;

violated

constitutional

Saucier,

Millender v. County of Los Angeles, 564 F.3d 1143, 1148 (9th Cir. 2009). "If the answer to the first inquiry is yes, the second

inquiry is whether the right was clearly established: in other words, 'whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Millender, In

564 F.3d 1143, 1148 (quoting Saucier, 533 U.S. at 201).

Pearson, the Supreme Court held that the court could exercise its discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first. Millender, 564 F.3d at 1149. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citing United States v. Watson, 423 U.S. 411, 417-24 (1976)). "Probable cause exists when, under the totality of the Id. at 818; see also

circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999) (quoting United States v. Garza, 980 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

F.2d 546, 550 (9th Cir. 1992)). overwhelmingly convincing

Probable cause does not require but only "reasonably

evidence,

trustworthy information." (2001).

Saucier v. Katz, 533 U.S. 194, 207

"Probable cause is an objective standard and the officer's subjective intention in exercising his discretion is immaterial in judging whether his actions were reasonable for Fourth Amendment purposes." John v. City of El Monte, 505 F.3d 907, 911 (9th Cir.

2007) (citing United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). "It is essential to avoid hindsight analysis, i.e., to

consider additional facts that became known only after the arrest was made." Cir. 1989)). The oral affidavit of probable cause to search, while not definitive on the issue of probable cause to make a warrantless arrest,23 provides a guide for determining the facts in Agent Cardwood's possession at the time of Garcia's stop. The Id. (citing Hansen v. Black, 885 F.2d 642, 645 (9th

declaration of probable cause to search Garcia's office and person sets forth: Garcia was the subject of a criminal investigation into his alleged role in an operation involving smuggling contraband into Merced County Jail. Task Force members claim to have

Although the parties frame their arguments in terms of an "arrest," there appears to be an argument that Plaintiff was merely detained while the agents obtained a search warrant. See INS v. Delgado, 466 U.S. 210, 216 (1984). Agent Cardwood acknowledges this argument, but gives it short notice. In his reply he states that "Plaintiff was never placed under arrest, only lawfully detained while a search warrant was sought and executed." (Def.'s Reply, 3:11-3:14.) He then assumes there was a warrantless arrest and proceeds into his "probable cause" analysis. 35

23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

confirmed Garcia's alleged role in the operation and organized a reverse sting whereby a confidential informant would transfer to Garcia a Bugler pouch containing fourteen grams of methamphetamine. On the afternoon of February 6, 2006, Garcia took possession of the tobacco pouch containing the methamphetamine and proceeded to his office. Garcia was in his office a few minutes, then left in his He was then stopped by an unmarked police vehicle, If the basis to establish

black Volvo.

searched, and placed in handcuffs.

Plaintiff's knowing possession was fabricated, all that follows is fruit from of the poisonous tree. See, e.g., United States v.

Patane, 542 U.S. 630, 637 (2004) (citing Wong Sun v. United States, 371 U.S. 471 (1963)). Plaintiff does not dispute that he met with the Plunkett and took the Bugler pouch - and the methamphetamine, ostensibly to deliver to Robledo. In essence, Plaintiff does not dispute he

possessed fourteen ounces of methamphetamine on the afternoon of February 6, 2006 or that he left his office minutes later.

Plaintiff does dispute his "knowledge" of the contents of the pouch, claiming was not aware the package contained

methamphetamine. Plaintiff argues that this forecloses any finding of probable cause to support a warrantless arrest. Knowing or intentional possession of methamphetamine is a public offense within the meaning of the statute. See Cal. Pen.

Code, § 15(2), (3) (defining "public offense" as violation of the law for which a person may be, inter alia, imprisoned or fined); Cal. Health & Safety Code, §§ 11377, 11378; 21 U.S.C. § 844(a). Although Agent Cardwood was not required to be completely accurate in his belief that Plaintiff 36 knowingly possessed the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

methamphetamine in order to make a warrantless arrest, he was required to have known whether the meth was immediately visible in the pouch to support a believed that Plaintiff knowingly possessed the methamphetamine in order to make a warrantless arrest. Here, Plaintiff claims that he did not open the Bugler package until he arrived at his office and therefore did not knowingly possess methamphetamine. record demonstrates (Garcia Dep. 88:14-17; 89:9-14.) Car