Stimmell, et al. v. Harris, et al.

Filing 68

ORDER TO DENY NEW TRIAL 63 signed by District Judge Lawrence J. O'Neill on October 30, 2013. Motion Hearing currently set for 11/5/2013 is VACATED. (Munoz, I)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALAN STIMMELL, et al.,

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CASE NO. CV F 12-0155 LJO BAM

Plaintiffs,

ORDER TO DENY NEW TRIAL
(Doc. 63.)

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vs.

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JUAN MORALES, et al.,

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Defendants.

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______________________________/
INTRODUCTION

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Plaintiffs Alan Stimmell ("Mr. Stimmell") and Pamela Stimmell ("Ms. Stimmell") seek

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a new trial on their unreasonable search and detention claims in that the defense jury verdict

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was materially affected by false testimony and against the clear weight of evidence.

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Defendants1 respond that the "record contains substantial evidence supporting the jury's

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verdict" and that Mr. and Ms. Stimmell (collectively the "Stimmells") "offer no evidence" that

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defendant agents falsely testified. This Court considered the Stimmells' F.R.Civ.P. 59(a)

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motion for new trial on the record and VACATES the November 5, 2013 hearing, pursuant to

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Local Rule 230(g). For the reasons discussed below, this Court DENIES the Stimmells a new

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trial.

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Defendants are Juan Morales ("Agent Morales"), Frank Navarro ("Agent Navarro") and Luke
Powell ("Agent Powell"), at relevant times were law enforcement agents with the California Department of Justice
("DOJ"), and will be referred to collectively as "defendant agents."

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BACKGROUND

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Factual Summary

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The Stimmells are married and reside in Clovis, California. Defendant agents were

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assigned to locate and confiscate illegally possessed firearms. Pursuant to 42 U.S.C. § 1983

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("section 1983"), the Stimmells pursue unreasonable search and detention claims arising from

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defendant agents' seizure from the Stimmells' residence firearms belonging to their nephew

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Wayne Wells ("Mr. Wells").

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On March 15, 2011, Agent Morales reviewed an armed prohibition person system case

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file on Mr. Wells and identified Mr. Wells as being prohibited from possessing firearms.

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Defendant agents contacted Mr. Wells at his residence, Mr. Wells gave voluntary consent for a

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search of his residence, and no firearms were located.
Mr. Wells advised defendant agents that his firearms were located at the Stimmells'

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residence. Mr. Wells provided defendant agents the Stimmells' residential address.

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Defendant agents contacted Mr. Stimmell who confirmed that the firearms registered to

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Mr. Wells were inside his residence. Defendant agents secured Mr. Stimmells' residence,

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detained Mr. Stimmell, and remained on standby at the Stimmells' residence pending issuance

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of a warrant to search the Stimmells' residence.

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Defendant agents obtained a search warrant for the Stimmells' residence, a copy of

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which was provided to Mr. Stimmell and his attorney Frank Nunez ("Mr. Nunez"), who was at

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the residence at the time. In the presence of Mr. Nunez, Mr. Stimmell informed defendant

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agents where guns belonging to Mr. Wells would be located. Defendant agents seized the

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handguns, ammunition and rifles after Mr. Stimmell advised that they belonged to Mr. Wells.

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Defendant agents left Mr. Stimmell's residence at approximately 12:20 a.m. on March 16,

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2011.

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Neither the Stimmells nor Mr. Wells have been charged with a crime relating to the
events of March 15-16, 2011.
Trial And Defense Verdict
On December 23, 2011, the Stimmells filed their action to pursue unreasonable search
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and detention claims against defendant agents. In late August and early September 2013, this

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Court conducted a jury trial on the Stimmells' claims. The jury's verdict found that defendant

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agents did not unreasonably seize the Stimmells and did not unreasonably search their home.

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Judgment in favor of defendant agents and against the Stimmells was entered on September 4,

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2013.

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DISCUSSION

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New Trial Standards

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The Stimmells seek a new trial in that the clear weight of evidence demonstrated no

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exigent circumstances to secure the Stimmells' residence or to detain them and that the Agent

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Navarro's affidavit ("affidavit") for the warrant to search the Stimmells' home was misleading

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and omitted exculpatory facts to render the search warrant invalid as overbroad and lacking

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probable cause. The Stimmells further claim that the verdict was based on perjured and

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intentionally misleading testimony of defendant agents.

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F.R.Civ.P. 59(a)(1)(A) authorizes granting a “new trial on all or some of the issues –

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and to any party . . . after a jury trial, for any reason for which a new trial has heretofore been

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granted in an action at law in federal court.” Grounds for a F.R.Civ.P. 59(a) motion include

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the “verdict is against the weight of the evidence” and “for other reasons, the trial was not fair

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to the party moving.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189

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(1940). Furthermore, a court may grant a new trial if the verdict "is based upon false or

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perjurious evidence, or to prevent a miscarriage of justice.” Passantino v. Johnson & Johnson

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Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir.2000).

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A "stringent standard applies when the motion is based on insufficiency of the

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evidence." Venegas v. Wagner, 831 F.2d 1514, 1519 (9th Cir. 1987). A new trial may be

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granted based on insufficiency of evidence only if the verdict is against the “great weight” of

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the evidence or “it is quite clear that the jury has reached a seriously erroneous result.”

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Digidyne Corp. v. Data General Corp., 734 F.2d 1336, 1347 (9th Cir.1984), cert. denied, 473

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U.S. 908, 105 S.Ct. 3534 (1985).

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The grant of a new trial is “confided almost entirely to the exercise of discretion on the
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part of the trial court.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188,

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191 (1980). “The trial court’s decision, therefore, will not be reversed absent a showing of

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abuse of discretion.” Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir. 1990); see

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Hard v. Burlington N.R.R., 812 F.2d 482, 483 (9th Cir. 1987).

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On a new trial motion, a district court has the right and duty “to weigh the evidence as

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he saw it . . .” Murphy, 914 F.2d at 187 (quoting Moist Cold Refrigerator Co. v. Lou Johnson

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Co., 249 F.2d 246, 256 (9th Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008 (1958)). “The

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judge can weigh the evidence and assess the credibility of witnesses, and need not view the

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evidence from the perspective most favorable to the prevailing party.” Landes Const. Co., Inc.

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v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987). “If, having given full respect to

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the jury's findings, the judge on the entire evidence is left with the definite and firm conviction

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that a mistake has been committed, it is to be expected that he will grant a new trial.” Landes

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Const., 833 F.2d at 1371-1372.

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With these standards in mind, this Court turns to the Stimmells' challenges to the
verdict.
Seizure Of Ms. Stimmell

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The Stimmells challenge the jury's finding that Ms. Stimmell was unreasonably seized.

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Defendant agents point to an absence of evidence to support their section 1983 liability in

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connection with a seizure of Ms. Stimmell.

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Direct Participation

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“Section 1983 creates a cause of action based on personal liability and predicated upon

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fault; thus, liability does not attach unless the individual defendant caused or participated in a

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constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520

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U.S. 1230, 117 S.Ct. 1822 (1997); see Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

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(“Liability under section 1983 arises only upon a showing of personal participation by the

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defendant.”) “The inquiry into causation must be individualized and focus on the duties and

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responsibilities of each individual defendant whose acts or omissions are alleged to have

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caused the constitutional deprivation.” Leer, 844 F.2d at 633. Section 1983 requires that there
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be an actual connection or link between the defendant’s actions and the deprivation allegedly

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suffered. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978);

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Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976).

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A plaintiff cannot hold an officer liable “because of his membership in a group without

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a showing of individual participation in the unlawful conduct.” Jones v. Williams, 297 F.3d

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930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). A

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plaintiff must “establish the ‘integral participation’ of the officers in the alleged constitutional

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violation.” Jones, 297 F.3d at 935. “‘[I]ntegral participation’ does not require that each

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officer’s actions themselves rise to the level of a constitutional violation.” Boyd v. Benton

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County, 374 F.3d 773, 780 (9th Cir. 2004). Integral participation requires “some fundamental

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involvement in the conduct that allegedly caused the violation.”

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Orange, 485 F.3d 463, 481, n. 12 (9th Cir. 2007).

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deprivation of a constitutional right, within the meaning of section 1983, if he does an

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affirmative act, participates in another's affirmative acts, or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Blankenhorn v. City of

“A person ‘subjects’ another to the

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"Under Section 1983, supervisory officials are not liable for actions of subordinates on

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any theory of vicarious liability." Hansen v. Black, 885 F.2d 642, 645-646 (9th Cir. 1989).

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"[E]ach Government official, his or her title notwithstanding, is only liable for his or her own

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misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937 (2009).

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The Stimmells point to Ms. Stimmell's testimony that she arrived at the Stimmells'

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residence after 5 p.m. on March 15, 2011 with attorney Mr. Nunez "right behind" her. Ms.

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Stimmell approached her husband's truck where a DOJ agent stood nearby. The DOJ agent

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asked Ms. Stimmell who she was, and Ms. Stimmell identified herself and stated that she lives
at the residence. Ms. Stimmell attributes the DOJ agent to have told her: "'If you enter the
house, you are going to have to sit on the couch by your husband and you can't talk, and you
are going to have to be patted down, and we are going to be here five or six hours." Ms.
Stimmell further attributed the DOJ agent to have stated: "'Once you go in, you cannot leave.'"
Ms. Stimmell asked about getting her dog, which was inside the Stimmells' residence.
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She testified that she was told: "'You can walk straight back to the back yard. Get your dog,

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go straight back out to the front. Do not look at your husband and do not talk to your husband,'

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so I did exactly what they asked me." Ms. Stimmell was escorted.

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Defendant agents point to Ms. Stimmell's testimony that she did not know if she had
talked to Agent Navarro and does not remember if she talked to Agent Powell. Ms. Stimmell
spoke to Agent Morales by telephone and confirmed that Mr. Wells' firearms where at the
Stimmells' home.
Defendant agents point to the absence of evidence that any defendant agent:
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Physically detained Ms. Stimmell;

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Directed other agents to detain Ms. Stimmell;

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Told Ms. Stimmell that she was not free to leave the Stimmells' residence; or

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Told Ms. Stimmell that if she entered the Stimmells' residence, she could not

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exit until the search was completed.

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When asked to identify the agent who told her she would be frisked, searched, need to remain

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in the Stimmells' residence, and could not leave, Ms. Stimmell responded: "I don't think it is
anybody here."
The Stimmells point to no evidence that any defendant agent directly participated in
Ms. Stimmells' detention or any other conduct to support section 1983 liability. Ms. Stimmell
attributes an unidentified agent to have told her she would be required to remain in the
Stimmells' residence if she chose to enter other than to retrieve her dog. In their reply papers,

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the Stimmells assert that Agent Powell "set forth the procedure" for securing the Stimmells'

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residence to create a reasonable inference that Agent Navarro and Morales "knew about

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Powell's policy and procedure regarding Pamela Stimmell and other family members, and

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clearly acquiesced."

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inference of purported acquiescence of Agents Morales and Navarro fail to overcome the direct

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evidence that Ms. Stimmell could not identify any defendant agent as a purported wrongdoer to

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The Stimmells assertion as to Agent Powell's leadership role and

support defendant agents' section 1983 liability. The trial evidence was insufficient to support
acquiescence in constitutional deprivations or failure to perform legally required acts as to Ms.
Stimmell. The Stimmells point to no error as to the jury verdict in connection with Ms.
Stimmell. The clear weight of evidence reveals an absence of conduct to subject defendant
agents to section 1983 liability as to Ms. Stimmell.
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Warrantless Intrusion And Detention Of Mr. Stimmell

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The Stimmells contend that defendant agents' testimony demonstrated the absence of

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exigent circumstances and in turn the need to detain Mr. Stimmell, to conduct a protective

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sweep of the Stimmells' home, and to occupy it for five hours to obtain a search warrant.

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Defendant agents respond that the Stimmells failed to convince the jury of the absence of

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exigent circumstances.

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Warrantless Search And Seizure Principles

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The "securing of a residence is a seizure subject to fourth amendment protection. . . .

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Without a warrant, a search and seizure by the government is per se unreasonable under the

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fourth amendment unless the circumstances fall within the parameters of a specifically

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established exception." U.S. v. Howard, 828 F.2d 552, 554 (9th Cir. 1987). "It is a 'basic

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principle of Fourth Amendment law' that searches and seizures inside a home without a

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warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct.

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1371 (1980).

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Exigent circumstances support a warrantless search and seizure and are defined as

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“those circumstances that would cause a reasonable person to believe that entry . . . was

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necessary to prevent physical harm to the officers or other persons, the destruction of relevant

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evidence, the escape of the suspect, or some other consequence improperly frustrating

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legitimate law enforcement efforts.” United States v. McConney, 728 F.2d 1195, 1199 (9th

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Cir.)(en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101 (1984). "The exigent circumstances

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doctrine applies only when the inevitable delay incident to obtaining a warrant must give way

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to an urgent need for immediate action." U.S. v. Satterfield, 743 F.2d 827, 844 (11th Cir.

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1984).

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Law enforcement must demonstrate support for warrantless intrusion:

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[t]he government bears a heavy burden of demonstrating that exceptional circumstances
justified departure from the warrant requirement. The burden cannot be satisfied by
speculation about what may or might have happened. There must exist “specific and
articulable facts which, taken together with rational inferences . . ., support the
warrantless intrusion. The exigencies must be viewed from the totality of circumstances
known to the officers at the time of the warrantless intrusion.

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U.S. v. Licata, 761 F.2d 537, 543 (1985) (citations and internal quotations omitted).

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"Entry into a person's home is so intrusive that such searches always require probable

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cause regardless of whether some exception would excuse the warrant requirement." Howard,

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828 F.2d at 555; see Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 1154 (1987). To support

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warrantless search and seizure based on exigent circumstances, the government must show (1)

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"probable cause to secure the residence," and (2) "the existence of exigent circumstances to

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excuse the lack of a warrant." Howard, 828 F.2d at 555.

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"In addition, the government must show that a warrant could not have been obtained in

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time." U.S. v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir.1986); U.S. v. Good, 780 F.2d 773,

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775 (9th Cir.), cert. denied, 475 U.S. 1111, 106 S.Ct. 1523 (1986). “Exigent circumstances

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alone . . . are insufficient as the government must also show that a warrant could not have been

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obtained in time.” Good, 780 F.2d at 775. "Inclusive in this mandate, the government must

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also be prepared to show that a telephonic warrant was unavailable or impractical." Echegoyen,

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799 F.2d at 1279.

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With these principles in mind, this Court turns to the evidence as to defendant agents'

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detention of Mr. Stimmell, protective sweep of the Stimmells' home, and its occupation for five

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hours to obtain a search warrant.

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Defendant Agents' Knowledge Prior To Arrival At The Stimmells' Residence

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Agent Morales

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Agent Morales testified that Mr. Wells had told him that Mr. Wells had sold the

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firearms under investigation to Mr. Stimmell for $1,200 because a court order prohibited Mr.

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Wells to possess the firearms and that the transaction occurred after the court order's issuance.

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Agent Morales testified that prior to arriving at the Stimmells' residence, Ms. Stimmell had

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informed Agent Morales that Mr. Wells' guns were located in the attic of the Stimmells'

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residence, that the guns were not registered in Mr. Stimmells' name, and that Mr. Stimmell

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required more than a few minutes to retrieve them. Agent Morales knew based on information

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from Mr. Wells that Mr. Stimmell possessed two of Mr. Wells' firearms.

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Agent Powell

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Agent Powell testified that he understood from Mr. Wells that Mr. Wells had provided

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handguns and rifles as collateral to Mr. Stimmell for $1,200. Agent Powell attributes Mr.

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Wells to have said: "Well, I'm going to get them back as soon as the restraining order is over."

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Agent Powell learned that Ms. Stimmell confirmed: "We have Jeremy's guns."

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Agent Navarro

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Agent Navarro testified that he learned from Agent Powell that Mr. Wells initially said

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he had sold the firearms, that Mr. Wells mentioned additional rifles, and that Mr. Stimmell "is

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just holding them until the restraining order expires."

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Initial Detention Of Mr. Stimmell In Front Of Residence

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Defendant agents contend that they were entitled to conduct a brief Terry stop of Mr.

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Stimmell for investigatory purposes given "reasonable suspicion" of criminal activity. See

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Terry v. Ohio, 392 U.S. 1, 23-27 (1968). They attribute their reasonable suspicion to the

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"multiple different accounts . . . about when and how the firearms were transferred." At trial,

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Agent Navarro pointed to Mr. Wells' inconsistencies that Mr. Wells had sold the firearms "six

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or seven years prior," then "after the restraining order," and finally that Mr. Stimmell held the

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firearms until expiration of the domestic violence restraining order. Defendant agents further

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point to the suspiciousness of the firearms hidden behind sheetrock.

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Agent Navarro

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Agents Navarro and Powell testified that defendant agents investigated two potential

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"felony violations" of illegal transfer of handguns under former California Penal Code section

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12082(d) given the absence of a licensed dealer.

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investigated "the possible conspiracy to assist [Mr. Wells] or aid him in violating the Court's

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order to surrender his firearms." Agent Navarro continued that defendant agents investigated a

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"possible conspiracy to violate the Court order" and "the possible unlawful transfer of those

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firearms. We were interviewing Mr. Stimmell about those violations specifically."

Agent Navarro further testified they

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The Stimmells note that defendant agents had no original intention to arrest Mr.

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Stimmell. Agent Navarro testified: "Our intention was just to continue to follow up on the
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investigative information that we had at that time, so we weren't going to arrest him per se. We

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were going to follow up on the information that we have and ultimately try to secure firearms."

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When Agent Navarro arrived at the Stimmells' residence, he observed Agent Powell

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explaining to Mr. Stimmell that defendant agents needed "to secure these firearms today," that

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defendant agents could not leave and return the next day, and that without Mr. Stimmells'

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consent to search the residence, defendant agents needed a warrant.

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characterized Mr. Stimmell as "standoffish" and to have exhibited frustration but was neither

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confrontational nor posed a threat.

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Agent Navarro

Agent Morales

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Agent Morales testified that shortly after he arrived at the Stimmells' residence, Mr.

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Stimmell indicated that Mr. Stimmell possessed two firearms registered to Mr. Wells and "they

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were in the attic or behind the wall." Mr. Stimmell further indicated that he had taken Mr.

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Wells' firearms as collateral for a $3,000 loan made six or seven years ago. Agent Morales had
no reason to believe that Mr. Stimmell was untruthful or to disbelieve that Mr. Stimmell would
produce the firearms the next day as he requested.
After Agent Morales confirmed that Mr. Stimmell possessed two firearms registered to
Mr. Wells, Agent Morales "tried to have him give them to me by asking him if I could see the
guns. And that's when he proceeded to tell me, 'Well, I can't get them.'" Agent Morales hoped

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to avoid a confrontation with Mr. Stimmell: "I was hoping he would produce the guns to me,

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not knowing that I was going to seize those guns. That's why I didn't tell him I was there to

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seize them."

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Agent Morales characterized his conversation with Mr. Stimmell as "normal tone," not
heated, with no shouting.
Agent Powell
Agent Powell testified that prior to arriving at the Stimmells' residence, Agent Powell
had learned that Mr. Stimmell had no automated criminal history generated from DOJ's
computer base. After arriving at the Stimmells' residence, Agent Powell overheard Agent
Morales state to Mr. Stimmell that defendant agents had been informed that Mr. Stimmell
possessed firearms registered to Mr. Wells. Mr. Stimmell confirmed that he possessed the
firearms which were in the attic and "not easily accessible" to require "significant time to
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recover." Agent Powell testified that he "could not trust everything that Mr. Stimmell was

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saying" based on conflicting information whether Mr. Wells' firearms were sold or held as

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collateral and whether the dollar amount was $1,200, $3,000 or $4,000-$4,500.

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The trial record reveals sufficient evidence to support defendant agents' investigatory
stop of Mr. Stimmell in front of his residence. The trial record supports that defendant agents
were unclear as to the transfer of Mr. Wells' firearms given Mr. Wells' inconsistencies as to the
details of how Mr. Stimmell came into possession of Mr. Wells' firearms. The Stimmells had
confirmed the firearms' hidden location at the Stimmells' residence to raise further uncertainty
and suspicion. The jury committed no error by accepting defendant agents' explanations for
the need to detain Mr. Stimmell in front of his home to investigate the firearms' transfer and
related details.

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Garage Entry And Detention
The Stimmells challenge defendant agents' testimony that defendant agents were
entitled to enter the Stimmells' garage and detain Mr. Stimmell.
Defendant agents contend there was probable cause that Mr. Stimmell had committed
an offense to warrant their entry into the Stimmells' garage and detention of Mr. Stimmell in
the garage.
Probable cause exists when “'the facts and circumstances within [the officers']
knowledge and of which they had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the [plaintiff] had committed or was committing an

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offense.’” Bailey v. Newland, 263 F.3d 1022, 1031 (9th Cir.2001) (quoting Beck v. Ohio, 379

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U.S. 89, 91, 85 S.Ct. 223 (1964)). Police must only show that, “‘under the totality of the

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circumstances,’” “‘a prudent person would have concluded that there was a fair probability that

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[the suspect] had committed a crime.’” United States v. Valencia Amezcua, 278 F.3d 901, 906

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(9th Cir.2002) (quoting United States v. Garza, 980 F.2d 546, 550 (9th Cir.1992)).

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"Law enforcement officers are generally entitled to rely on information obtained from
fellow law enforcement officers." Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005).
Under the “collective knowledge doctrine,” probable cause may be based on “the collective
knowledge of all the officers involved in the investigation and all of the reasonable inferences
that may be drawn therefrom.” United States v. Jensen, 425 F.3d 698, 705 (9th Cir. 2005)
(internal quotation marks omitted). An officer is “entitled to rely on the observations and
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knowledge of the others, even though some of the critical information had not been

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communicated to him.” Jensen, 425 F.3d at 705 (brackets and internal quotation marks

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omitted).
Agent Navarro

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Agent Navarro testified that he characterized Mr. Stimmells' initial comments to
defendant agents as an admission that Mr. Wells' firearms were in the Stimmells' residence.
Agent Navarro identified "probable cause to believe that there was some sort of transfer,
whether it was a sale, a loan, or a holding as collateral, a transfer occurred. And he had those
guns for eight years." Agent Navarro further testified: "So we were investigating that crime.
And based on my understanding that he was aware he [Mr. Wells] couldn't have them, that he
would also be aware of the circumstances surrounding why he couldn't have them."

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Agent Navarro testified that in response to Mr. Stimmells' request that defendant agents

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leave and return in a couple of hours, Agent Navarro explained "our bureau's protocol was we

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couldn't leave and come back in a few hours." As Agent Navarro spoke to Mr. Stimmell, a

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telephone in the Stimmells' garage rang and Mr. Stimmell said he was going to answer the call,

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walked briskly into the garage, pointed to the garage's threshold and instructed: "Don't cross

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here." Agent Navarro characterized Mr. Stimmell to have continued "deeper into the garage."

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When Mr. Stimmell said he was "getting that," Agent Navarro did not assume that Mr.
Stimmell referred to the ringing telephone. Agent Navarro testified:

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I'm not going to assume anything at that point. You know, we just can't let a
subject run from us and retreat into an unknown area, particularly when they have told
us there are firearms in the home. Sure, they have told us they were in the attic, but we
had been receiving conflicting statements so at that point, we don't know, so.

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Agent Powell caught up with Mr. Stimmell in the area near the telephone and

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handcuffed Mr. Stimmell "right then." Agent Navarro explained the rationale to handcuff Mr.

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Stimmell:

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We were in a garage area. We don't know, there is [sic] a lot of things in garage
that could be potential threats to us. We don't try to make any judgments based on age.
You know, he was very able-bodied and he was upset.
And at that time when we are in the garage area, we are not sure what a person
has immediate access to. We always, for our own personal safety, we will detain them
initially in handcuffs just to secure the scene for our safety.
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Agent Navarro further explained: "We have a responsibility to the public safety, to our safety,

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to not allow him to retreat into an area that's unknown to us, where we already know there is

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[sic] firearms in that area."

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To justify a warrantless detention, Agent Navarro claimed:
To detain him, pending further investigation for those allegations, the unlawful
transfer and the potential conspiracy to violate the Court order.
...
It is lawful for us to continue that – the pursuit of him into his garage to make
that detention. When he turns and runs from us, it is another violation, it is delaying the
investigation. We have the authority to detain him on those charges regardless of if he
crosses the threshold or not.
Agent Navarro corrected that Mr. Stimmell walked "briskly."

11

Agent Navarro characterized Mr. Stimmell's detention in the garage as "more like" a

12

Terry investigatory stop "than entering under exigent circumstances." Agent Navarro denied

13

that entry into the garage was incident to a lawful arrest or that Agent Navarro was concerned

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that Mr. Stimmell might destroy evidence. Agent Navarro was concerned that Mr. Stimmell
might seek a weapon although Agent Navarro saw none: "We didn't look to see if there was
[sic] any firearms. I guess a lot of things could be used as weapons. There was [sic] tools and
things around, but I didn't see any firearms." Agent Navarro denied that he had information
that Mr. Stimmell looked for a weapon when Mr. Stimmell picked up the telephone.
Nonetheless, Agent Navarro feared for his safety despite the presence of six armed DOJ agents
in the garage area.
Agent Morales

21

Agent Morales testified that he had no intent to arrest Mr. Stimmell at any point during

22

defendant agents' encounter with Mr. Stimmell. Agent Morales characterized Mr. Stimmell as

23

uncooperative "because he didn't want to answer no [sic] questions, which you explained and

24

went over." When asked whether Mr. Stimmell was entitled to answer the telephone ringing in

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the garage, Agent Morales responded: "He didn't have the right to break away from the
investigation. He had a right to go answer the phone if he was allowed."
Agent Morales characterized Mr. Stimmell as "detained the second he broke away and
refused to stop when he was commanded to." Agent Morales reasoned: "There was still a factfinding mission going on to determine whether or not he was involved in criminal activity. So
13

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the fact that he then decided to break away and go towards his house is then, yes, it became

2

where he could be detained, prevent him from gaining access to the house."

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Agent Morales denied seeing Mr. Stimmell "do any gestures whatsoever that would
lead me to believe he was pulling weapons or anything out of his pockets." Agent Morales
"wasn't even thinking about" Mr. Stimmell retrieving a weapon.
To identify the exigent circumstance at issue, Agent Morales testified:
The reason in this particular case would have been that he left during an
investigation that has not been completed. He was suspected of maybe being involved
in a criminal act, and he left prior to a decision being made whether or not he was going
to be arrested, detained or what was going to happen.

9
Agent Morales concluded that probable cause existed "to hold" Mr. Stimmell to "determine
10
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whether or not guns were in his house, whether or not we were going to obtain them freely and
voluntarily, whether or not a search warrant would eventually have to be written as he
requested. There is a lot of different things that could happen."
Agent Morales "was not fearful" prior to the handcuffing of Mr. Stimmell and
concluded there was sufficient time to obtain a search warrant.

15

Agent Morales noted the difference between detention and being in custody "depends

16

on the length of the detention," and that "if I detain somebody for six hours, it would be

17

because they are in custody."

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Agent Powell
Agent Powell characterized the telephone ringing as the "catalyst" for Mr. Stimmell to
turn toward the garage. Agent Powell testified: "I ordered him to stop." According to Agent

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21

Powell, Mr. Stimmell "was given a direct order to stop and he did not follow that order and
went to this house." Agent Powell characterized Mr. Stimmell to have "motioned to us like

22

'stay back'" and to have walked "briskly" from defendant agents. Agent Powell noted that after

23

several directions for Mr. Stimmell to stop, Mr. Stimmell "looked at me and pointed down to

24

the threshold of the garage and said, 'Don't cross this line.'" When asked whether Agent

25

Powell considered whether the telephone ringing prompted Mr. Stimmell to enter the garage,

26

Agent Powell testified that "was a possibility" as well the possibility that Mr. Stimmell

27

attempted to flee. Agent Powell also considered Mr. Stimmell's entry into the garage a safety

28

problem: "You act like he is incapable of inflicting harm on someone. I have arrested people
14

1

older than him that hurt people."

2

Agent Powell characterized Mr. Stimmell as "under legal detention at the point in time

3

where he turned and walked away from our investigation. . . . I told Alan to stop. 'Do not go in

4
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7
8

the garage and do not answer the telephone.'" To order Mr. Stimmell to stop, Agent Powell
relied on California Penal Code section 148(a)(1), which prohibits obstruction, resistance or
delay of an officer. Agent Powell noted that Mr. Stimmell was not entitled to proceed into the
garage: "If he were to turn and walk away not towards the house, he could have walked away.
. . . And I explained that to him numerous times."
Agent Powell followed Mr. Stimmell into the garage "[t]o secure the premises, officer

9

safety, public safety, and to prevent him from going any farther into the house." Agent Powell

10

justified the need to handcuff Mr. Stimmell based on the nature of the investigation

11

("inherently dangerous" firearms), presence of nearby vehicles, and not knowing if anyone or

12

who was in the Stimmells' residence. Agent Powell testified as to his rationale to preclude Mr.

13

Stimmell to enter the residence and retrieve the firearms:

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16

In my opinion, it is for safety reasons, for his safety and mine. I don't want an
individual going into an unknown, which in this case was his own residence, retrieving
an unknown number of firearms in unknown condition, and then bringing them out to
us.

18

Whether he had the potential to injure us with those firearms or maybe his lack
of knowledge of firearms is itself putting himself in risk. Him [sic] picking up a loaded
firearm, walking down the steps, dropping it, and the gun goes off.

19

Defendant agents argue that the evidence justified their entry into the Stimmells' garage

17

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and detention of Mr. Stimmell in the garage in that:
1.

Mr. Stimmell headed to the garage of the house with confirmed firearms

therein, disobeyed an order to stop, and continued briskly into the garage;
2.

Agent Powell reasoned that Mr. Stimmell's conduct constituted a California

Penal Code section 148(a)(1) violation to justify entry into the garage and handcuffing Mr.
Stimmell; and
3.

Defendant agents investigated several potential firearm felonies.

The Stimmells point to the varying testimony as to the safety of defendant agents and
others. The tenor of the testimony is that Mr. Stimmell's entry into the garage to respond to a
telephone posed no identifiable safety threat. Defendant agents testified consistently as to the
15

1

absence of firearms in plain sight in the garage. Despite doubts as to the safety threat level,

2

there was sufficient evidence that Mr. Stimmell broke off a legitimate ongoing investigation

3

into the transfer of firearms from Mr. Wells to Mr. Stimmell. No evidence challenges the

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legitimacy of the investigation given the varying versions of how Mr. Stimmell acquired the
firearms, the firearm's suspicious, hidden location, and the Stimmells' confirmation that they
possessed the firearms. Moreover, there is no dispute that Mr. Stimmell no less than resisted
defendant agents' investigation, and there are inferences that Mr. Stimmell used the ringing
telephone to obstruct or delay investigation. Given the vagueness of the circumstances and Mr.
Stimmell's conduct, this Court is not in a position to second guess the jury's treatment of the
evidence regarding defendant agents' entry into the garage and detention of Mr. Stimmell in the
garage.
Protective Sweep Of Stimmells' Residence
Defendant agents contend that a protective sweep of the Stimmells' residence was
reasonable to ensure DOJ agents' safety.
"The Fourth Amendment permits a properly limited protective sweep in conjunction
with an in-home arrest when the searching officer possesses a reasonable belief based on
specific and articulable facts that the area to be swept harbors an individual posing a danger to
those on the arrest scene." Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093 (1990). A
protective sweep "may extend only to a cursory inspection of those spaces where a person may
be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of

19

danger and in any event no longer than it takes to complete the arrest and depart the premises."

20

Buie, 494 U.S. at 335-336, 110 S.Ct. 1093; see U.S. v. Garcia, 997 F.2d 1273, 1282 ("The

21

officers needed to find out for their own safety whether other people were in the apartment. It

22

was reasonable for the officers to restrain [plaintiff] while they determined this.")

23

Agent Powell testified that he ordered a protective sweep because:

24

There was a threat of the unknown, what was inside the house. I had no idea
who was in the house. Mr. Stimmell wasn't forthcoming with information.

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26
27

Again, there was [sic] the three cars in the driveway. There is – in my belief,
there is the possibility of two other people being inside the house, being that there are
three cars there. So I was concerned someone was inside the house and may pose a
threat to us.

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16

1

Agent Powell testified that a neighborhood's appearance does not mitigate a threat:

2

"You don't know what risk people pose. Just because they appear a certain way doesn't mean

3

they really are. Based on age alone, I could not determine someone as being incapable of

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8
9

injuring me or anybody else."

Agent Powell further testified that "a nice middle class

neighborhood . . . doesn't mean there is no risk or threats there."
Agent Navarro testified that after conducting a protective sweep of the Stimmell
residence taking a couple of minutes, Agent Navarro determined there was no threat to the
DOJ agents on the scene.
Defendant agents justify the protective sweep given:
1.

The conflicting information from Mr. Wells and Mr. Stimmell regarding how

10

Mr. Stimmell came into possession of Mr. Wells' firearms (sale, collateral, holding until

11

domestic violence restraining order expired, differing dollar amounts and dates of transfer);

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2.

Defendants agents had been informed that Mr. Stimmell possessed multiple

firearms, including handguns and rifles which are inherently dangerous;
3.

Mr. Stimmell's resistance to cooperate with a search;

4.

Distrust of Mr. Stimmell's statements regarding Mr. Wells' firearms;

5.

Mr. Stimmell's walking away from defendant agents into the Stimmells' garage

during the investigatory stop of Mr. Stimmell;
6.

Mr. Stimmell's directing defendant agents not to enter the garage; and

7.

Defendant agents' lack of knowledge of whether anyone was in the Stimmells'

19

residence.

20

Defendant agents argue that they reasonably feared "a threat of violence from Mr. Stimmell

21

who may have kept guns in his garage or may have been passing through the garage to access

22

guns." Defendant contend that they "could not assess the threat level based on plaintiffs'

23

appearance and neighborhood."

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The Stimmells offer no meaningful challenge to the reasonableness of the protective
sweep despite the non-threatening appearance of Mr. Stimmell and the Stimmells'
neighborhood. Reasonableness of a protective sweep is supported by undisputed evidence as
to defendant agents' absence of knowledge of whom occupied the Stimmells' residence, the
presence of multiple vehicles at that Stimmells' residence, Mr. Stimmells' resistance to assist
defendant agents, Mr. Stimmell's sudden entry into the garage, and conflicting information as
17

1

to how Mr. Stimmell came into possession of multiple firearms. No evidence reveals that the

2

protective sweep was excessive in duration or scope. The evidence supports no less than an

3

inference that defendant agents had legitimate concerns to conduct a protective sweep and in

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6
7
8

turn reasonableness of the protective sweep. There is no showing of serious error as to the
protective sweep.
Detention To Await Search Warrant
Defendant agents contend the evidence supports reasonableness of the length and
circumstances of Mr. Stimmell's pre-search detention in that Mr. Stimmell knew about the
potential wait before he required defendant agents to obtain a search warrant.

9

The Stimmells assert that defendant agents "could have easily guarded the Stimmell

10

home from the outside" and could have allowed the Stimmells "to go about their way" when

11

defendant agents awaited the search warrant.
Agent Powell

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Agent Powell acknowledged that Mr. Stimmell had lawful rights to deny consent to a
search of the Stimmells' residence and to require a search warrant. Agent Powell testified that
he explained to Mr. Stimmell that the options were a consent search or search pursuant to a
warrant in that defendant agents "can't leave tonight without these firearms." As for a consent
search, Agent Powell explained that "we go inside the house with you. You show us where the
firearms are at. We will then retrieve the firearms for our safety and his safety." Agent Powell
further explained a search warrant would require six or eight hours to obtain. Agent Powell

19

testified as to the need to secure the residence prior to the search warrant execution: "[W]e

20

would secure his house. We would not allow anybody to come in or out of his house,

21

including himself or his family members. They would be stuck out of the house for the time it

22

took us to get the search warrant." Agent Powell attributed Mr. Stimmell to insist: "You are

23

not searching my house."

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Agent Powell gave Mr. Stimmell options to wait inside the Stimmells' residence or
garage or outside with DOJ agents. Mr. Stimmell chose to wait inside his residence.
Agent Powell testified that several times Mr. Stimmell, when and after he was
handcuffed, indicated that he consented to a search. Agent Powell opined defendant agents
could not accept the consent given potential that is was coerced or given under duress
"[b]ecause now the only reason why he is signing it [consent form] is to get us out of his
18

1

house." Agent Powell explained that "once I physically had to follow him and order him to

2

stop and then physically grab onto his arm and put him in handcuffs, he now no longer can

3

provide consent without duress." Agent Powell further noted: "We have now restricted his

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7

movements. He is not free to come and go anymore. He is being legally detained."
Agent Powell feared that evidence seized without a warrant and with questionable
consent would be subject to suppression. Agent Powell rejected a search with conditions
placed by attorney Mr. Nunez as to search locations and that Mr. Stimmell would not be
charged.

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Agent Navarro
Agent Navarro testified that defendant agents decided to obtain a search warrant to
address concerns that consent for a search had been coerced. Around 9 p.m. on March 15,
2011, Agents Navarro and Morales arrived at Court Commissioner Don Penner's ("Judge
Penner's") residence, where Agent Navarro gave Judge Penner "a brief summary or the case"
and an hour was required to finalize the search warrant with input from Judge Penner, who
signed it.
Agent Navarro characterized Mr. Stimmell as uncooperative "[n]ot because he

16

exercised his rights. It is just uncommon. Most people, when they understand, they want us

17

out of there as soon as possible, and they understand we are there for lawful reasons." Agent

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Navarro described Mr. Stimmell as pleasant although he did not consent to a search.

19

Defendant agents contend that Mr. Stimmell's pre-search warrant detention, although

20

lengthy, "was minimally intrusive" in that Mr. Stimmell waited in his living room with two

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attorneys. Defendant agents argue that keeping Mr. Stimmell in his home during search
warrant retrieval was reasonable given the conflicting statements provided my Mr. Wells and
Mr. Stimmell "as well as the number of weapons and the fact the recovery was based on a
Domestic Violence Restraining Order."
The Stimmells argue that defendant agents had sufficient time to obtain a warrant to
negate exigent circumstances to support a warrantless intrusion and detention. The Stimmells

26

point to Agent Navarro's acknowledgement that insufficient time to obtain a warrant is an

27

"important factor" to support exigent circumstances and that before Agent Navarro had left Mr.

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Wells' residence, Ms. Stimmell had confirmed for Agent Morales that the guns were at the
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Stimmells' residence. Agent Navarro conceded that "you could have sought a warrant at that

2

time" but:

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We were hoping for consent. Most of the time, we go over and explain the
situation, and there is no need for the warrant. I mean warrants are – it is difficult on
everybody. It is more work on us. It is inconvenient to them. So we usually try to
explain the situation and hopefully, we don't have to go to that, to get the warrant.
...
We could have – Agent Morales is the case agent. He could have sought a
warrant at that time or one of the supervisors have made that call.
...
. . . That decision wasn't made to get a warrant at that time.
Agent Morales agreed that "there would have been enough time to obtain a warrant" but
it would have "lacked probable cause."

13

The Stimmells argue that if defendant agents "had probable cause at all, they had it

14

before they left the Wells residence, and both Morales and Navarro stated that they had time to

15

get the warrant."

16

The gist of defendant agents' testimony is that they preferred unqualified consent to

17

search the Stimmells' residence and that without it, they feared a challenge to items seized.

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19

The Stimmells offer nothing meaningful to challenge defendant agents' rationale to obtain a
warrant. The Stimmells instead assert that probable cause for a search warrant arose after
defendant agents had spoken with Mr. Wells and that defendant agents should have reasonably

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21

obtained a search warrant at that time rather than delay until their encounter with Mr. Stimmell.
Although a search warrant in advance may have been more convenient overall for the

22

Stimmells, the Stimmells point to no evidence to suggest that an attempt for a consent search

23

was unreasonable. Defendant agents explained their practice to obtain consent which Mr.

24

Stimmell rejected to place doubt on Mr. Stimmell's subsequent consents. Given the evidence,

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the jury was entitled to accept defendant agents' explanations for the need to obtain a search

26

warrant and resulting delay and detention after defendant agents attempted to obtain Mr.

27

Stimmell's consent to search the Stimmells' residence. There is no showing of serious jury

28

error in connection with detention during time to obtain the search warrant for the Stimmells'
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residence.
Minor Offense

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The Stimmells argue that defendant agents' warrantless entry into the Stimmells' garage
violated the Fourth Amendment in that a minor offense, if any, was at issue.
In Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091 (1984), the U.S. Supreme
Court addressed warrantless home entries to address minor offenses:
Our hesitation in finding exigent circumstances, especially when warrantless
arrests in the home are at issue, is particularly appropriate when the underlying offense
for which there is probable cause to arrest is relatively minor. Before agents of the
government may invade the sanctity of the home, the burden is on the government to
demonstrate exigent circumstances that overcome the presumption of unreasonableness
that attaches to all warrantless home entries. . . . When the government's interest is only
to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut,
and the government usually should be allowed to make such arrests only with a warrant
issued upon probable cause by a neutral and detached magistrate. (Citation omitted.)

12
An "important factor to be considered when determining whether any exigency exists is
13
14

the gravity of the underlying offense for which the arrest is being made." Welsh, 466 U.S. at
753, 104 S.Ct. 2091. "[A]pplication of the exigent-circumstances exception in the context of a

15

home entry should rarely be sanctioned when there is probable cause to believe that only a

16

minor offense, such as the kind at issue in this case, has been committed." Welsh, 466 U.S. at

17

753, 104 S.Ct. 2091; see McDonald v. United States, 335 U.S. 451, 459, 69 S.Ct. 191 (1948)

18

(Jackson, concurrence) ("It is to me a shocking proposition that private homes, even quarters in

19

a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer

20

engaged in following up offenses that involve no violence or threats of it.")

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22

The Stimmells note that defendant agents admitted they arrived at Mr. Wells' residence
to address his domestic violence restraining order and possession of two handguns and
intended to retrieve the weapons without an arrest. The Stimmells point to Agent Morales'

23
24

testimony and report that Mr. Wells indicated he had sold the firearms to Mr. Stimmell seven
years prior his encounter with defendant agents. The Stimmells note that such a sale would

25

have preceded the May 21, 2008 domestic violence restraining order to bar any prosecution for

26

its violation.

27

The Stimmells continue that Mr. Stimmell had confirmed possession of the firearms as

28

collateral for a $3,000 loan made to Mr. Wells six or seven years prior. The Stimmells point to
21

1

Agent Navarro's acknowledgement that holding firearms as collateral, as Mr. Stimmell

2

explained, arises to neither felony transfer of firearms, aiding and abetting an illegal transfer of

3

firearms, nor a conspiracy to commit a felony.

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8

The Stimmells conclude that in absence of probable cause to support Mr. Stimmell's
commission of a crime, defendant agents lacked probable cause for a search warrant and had
no right to detain the Stimmells and to search their residence. The Stimmells continue that
even if probable cause existed, an alleged crime was not serious enough to support defendant
agents' entry into the Stimmells' garage and home to render the search "per se unreasonable."
The Stimmells focus on isolated, purportedly uncontroverted evidence to conclude that

9

minor offenses were involved. The record reveals that defendant agents addressed conflicting

10

information as to how Mr. Stimmell came into possession of Mr. Wells' firearms. Agents

11

Navarro and Powell were concerned that they were investigating two potential "felony

12

violations" of illegal transfer of handguns given the absence of a licensed dealer. Agent

13

Navarro pondered "the possible conspiracy to assist [Mr. Wells] or aid him in violating the

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Court's order to surrender his firearms."

Agent Navarro testified that defendant agents

investigated a "possible conspiracy to violate the Court order" and the possible unlawful
transfer of those firearms.

We were interviewing Mr. Stimmell about those violations

specifically."
Although the Stimmells characterize the potential offenses as minor, there was
testimony that the potential offenses constituted felonies. The jury was required to analyze the

19

testimony, from which the jury found sufficient support to detain Mr. Stimmell and search the

20

Stimmells' residence. This Court is not in a position to second guess the jury's evaluation of

21

the offenses at issue given the uncertainty in defendant agents' minds as to the details

22

surrounding how Mr. Stimmell came into possession of Mr. Wells' firearms and in turn

23

potential criminal offenses.
Search Warrant Affidavit

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The Stimmells contend that the search warrant for their home lacked probable cause
because Agent Navarro's supporting affidavit included material misstatements and omitted
exculpatory facts.
Probable Cause
The Fourth Amendment establishes the right “to be secure in . . . persons, houses,
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papers, and effects, against unreasonable searches and seizures” and mandates issuance of

2

warrants with “probable cause, supported by Oath or affirmation, and particularly describing

3

the place to be searched, and the persons or things to be seized.” California Penal Code section

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6
7
8

1524(a)(4) authorizes a search warrant’s issuance when “the property or things to be seized
consist of any item or constitute any evidence that tends to show a felony has been committed,
or tends to show that a particular person has committed a felony.”
In making a probable cause determination, a court’s role is to ensure that the judge
issuing the search warrant had a “substantial basis” to conclude probable cause existed. Illinois
v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332 (1983); United States v. Hendricks, 743 F.2d 653,

9

654 (9th Cir. 1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362 (1985). “The task of the

10

issuing magistrate is simply to make a practical, common sense decision whether, given all the

11

circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of

12

knowledge’ of persons supplying hearsay information, there is a fair probability that

13

contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238,

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16
17
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103 S.Ct. 2317.

“[P]robable cause is a fluid concept – turning on the assessment of

probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set
of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. 2317. Probable cause depends on “whether
the facts contained in the affidavit are such as would lead a man of ordinary caution or
prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the
accused.” People v. Stout, 66 Cal.2d 184, 193, 57 Cal.Rptr. 152 (1967).

19

“[P]robable cause means a fair probability that contraband or evidence of a crime will

20

be found in a particular place, based on the totality of circumstances.” United States v. Diaz,

21

491 F.3d 1074, 1078 (9th Cir.2007) (internal quotation marks omitted). Probable cause exists

22

if the “evidence considered by the magistrate, viewed as a whole, would permit a reasonable

23

person to believe that a search of [premises] had a fair probability of revealing evidence” of

24

criminal activity. Dawson v. City of Seattle, 435 F.3d 1054, 1062 (9th Cir. 2006). “[I]t is clear

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that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of
probable cause.’” Gates, 462 U.S. at 235, 103 S.Ct. 2317 (quoting Spinelli v. United States,
393 U.S. 410, 419, 89 S.Ct. 584 (1969)). “The magistrate making the original determination of
probable cause is accorded significant deference by the reviewing court.” United States v.
Fulbright, 105 F.3d 443, 452 (9th Cir. 1996), cert. denied, 520 U.S. 1236, 117 S.Ct. 1836
23

1

(1997), overruled on other grounds, U.S. v. Heredia, 483 F.3d 913 (9th Cir. 2007).
Deliberate Or Reckless Disregard For Truth

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“There is, of course, a presumption of validity with respect to the [search warrant]
affidavit.” Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674 (1978). However, “judicial
deception may not be employed to obtain a search warrant.” KRL v. Moore, 384 F.3d 1105,
1117 (9th Cir. 2004).
A search warrant affidavit may be challenged by “a substantial preliminary showing
that a false statement knowingly and intentionally [made], or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is

9

necessary to the finding of probable cause.” Franks, 438 U.S. at 155-156, 98 S.Ct. 2674. A

10

Fourth Amendment violation occurs where “the affiant intentionally or recklessly omitted facts

11

required to prevent technically true statements in the affidavit from being misleading.” Liston

12

v. County of Riverside, 120 F.3d 965, 781 (9th Cir. 1997). “Allegations of negligence or

13

innocent mistake are insufficient.”

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16
17
18

Franks, 438 U.S. at 171, 98 S.Ct. 2674.

“Not all

information in the government’s possession need be included in the warrant affidavit.” United
States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992). Omitted facts rise to misrepresentation only
if omitted facts cast doubt on the existence of probable cause. Garza, 980 F.2d at 551.
If a search warrant challenger establishes by a preponderance of evidence an
“allegation of perjury or reckless disregard” and “with the affidavit's false material set to one
side, the affidavit's remaining content is insufficient to establish probable cause, the search

19

warrant must be voided and the fruits of the search excluded to the same extent as if probable

20

cause was lacking on the face of the affidavit.” Franks, 438 U.S. at 156, 98 S.Ct. 2674. A

21

search warrant challenger “must make specific allegations that indicate the portions of the

22

warrant claimed to be false.” United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983).

23

“[C]hallenged statements in the affidavit must be necessary to a finding of probable cause.”

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Kiser, 716 F.2d at 1271. “Put another way, the plaintiff must establish that the remaining

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information in the affidavit is insufficient to establish probable cause.” Hervey v. Estes, 65
F.3d 784, 789 (9th Cir. 1995). "If an officer submitted false statements, the court purges those
statements and determines whether what is left justifies issuance of the warrant." Ewing v. City
of Stockton, 558 F.3d 1218, 1224 (9th Cir. 2009).
To support a section 1983 claim of judicial deception to obtain a search warrant, a
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plaintiff “must show that the defendant deliberately or recklessly made false statements or

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omissions that were material to the finding of probable cause.” KRL, 384 F.3d at 1117. "If a

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party makes a substantial showing of deception, the court must determine the materiality of the

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allegedly false statements or omissions." Ewing, 588 F.3d at 1224; see KRL, 384 F.3d at 1117
(“The court determines the materiality of alleged false statements of omissions”). However, a
claim of judicial deception may not be based “on an officer's erroneous assumptions about the
evidence he has received.” Ewing, 588 F.3d at 1224. “Omissions or misstatements resulting
from negligence or good faith mistakes will not invalidate an affidavit which on its face

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establishes probable cause.” United States v. Smith, 588 F.2d 737, 740 (9th Cir.1978), cert.

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denied, 440 U.S. 939, 99 S.Ct. 1287 (1979).

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With these standards in mind, this Court turns to the Stimmells' affidavit challenges.

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Timing Of Mr. Stimmell's Receipt Of Mr. Wells' Firearms

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Agent Navarro's affidavit states:

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WELLS stated he had sold the firearms to his uncle Alan STIMMEL, after he
had been ordered by the court that he could not possess firearms. WELLS said he had
sold both of the above listed firearms about seven years ago, for $1,200. He stated he
was planning to buy back the firearms from STIMMELL after the prohibition
expiration date, 05/21/2011.

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The Stimmells fault the affidavit's omissions that:
1.

Mr. Stimmell took the firearms four years prior to the restraining order's

issuance and six or seven years prior to his encounter with defendant agents;

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2.

An unidentified statute of limitations had expired;

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3.

Mr. Wells had informed Agent Powell that firearms were collateral for a loan

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from Mr. Stimmell; and
4.

Mr. Stimmell was age 66 at the time with no criminal history.

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The Stimmells argue that omission of the timing of Mr. Stimmell's receipt of the firearms is

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material to whether there was an illegal transfer and whether Mr. Wells had violated the

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domestic violence restraining order since Mr. Stimmell's receipt preceded any incriminating
activity. The Stimmells characterize Mr. Stimmell's receipt of the firearms as "a totally
innocent transaction involving collateral for a loan that had nothing to do with a restraining
order" and note that "if any crime had been committed, the statute of limitations expired long
before the search."
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The Stimmells fail to substantiate clear jury error in its evaluation of the affidavit and in

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turn probable cause to the search the Stimmells' residence.

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affidavit's reference to the May 21, 2008 order to Mr. Wells "to surrender or sell to a license

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The Stimmells overlook the

[sic] dealer, any firearm in or subject to his immediate possession or control within 24 hours
from issuance of the order." The Stimmells attempt to devalue the effects of the differing
versions as to how Mr. Stimmell came into possession of Mr. Wells' firearms. As to differing
versions, Agent Navarro's affidavit points to Mr. Wells' statements that he sold the firearms to
Mr. Stimmell after issuance of the May 21, 2008 court order and that he had sold the firearms
to Mr. Stimmell seven years ago and planned to buy them back after the court order's

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prohibition expired. Agent Navarro's affidavit further states: "STIMMELL stated the firearms

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belonged to WELLS, but he had loaned WELLS $3,000 and he took the firearms as collateral.

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STIMMELL stated he had not purchased the guns, he was only holding the guns until WELLS

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could repay him for the loan."

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Mr. Navarro's affidavit included the differing versions of Mr. Stimmell's coming into
possession of the firearms, and the jury was in a position to conclude that the differing versions
themselves constituted in part the probable cause for the search warrant. Trial produced
sufficient evidence for the jury to conclude that Agent Navarro neither intentionally nor
recklessly omitted facts as to when Mr. Stimmell came into possession of the firearms to
mislead Judge Penner or that Agent Navarro's purported omissions or mistakes resulted from
negligence or good faith error.

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Mr. Stimmell's Lack Of Cooperation

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Agent Navarro's affidavit states:

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Your affiant continually asked STIMMELL if he would consent for agents to
enter his home to retrieve WELLS' firearms and he would not give agents consent.
STIMMELL refused to cooperate any further and refused to allow agents to enter his
home to retrieve WELLS' firearms. SA Powell informed STIMMELL that without his
consent, agents would have to seek a search warrant to retrieve the firearms and he
replied, "You're not going to search my house." STIMMELL was subsequently
detained and agents cleared the interior of the residence for safety purposes.

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The Stimmells characterize this portion of the affidavit to mislead that Mr. Stimmell
was belligerent in refusing a consent search. The Stimmells claim discrepancies in that:
1.

Agent Powell testified that Mr. Stimmell when in the garage told Agent Powell
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where Mr. Wells' firearms where located;
2.

After attorney Mr. Nunez arrived, Mr. Stimmell consented to a search on

conditions that Mr. Stimmell dictate search locations and that he would not be charged
criminally;
3.

Mr. Stimmell told Agent Powell they since defendant agents are in the home,

Mr. Stimmell consented to a search and "will give you the guns" but Agent Powell declined in
preference of a search warrant;
4.

Mr. Stimmell made the offer to consent to a search, using Agent Powell's words,

"numerous times throughout the evening," including after handcuffs had been removed from
Mr. Stimmell; and
5.

Mr. Stimmell had offered to produce Mr. Wells' firearms if defendant agents

returned in two or three hours.

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To further dispute that Mr. Stimmell was uncooperative, the Stimmells point to Agent

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Navarro's testimony that Mr. Stimmell was not uncooperative "because he exercised his rights.

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It is just uncommon." Agent Navarro testified that "'uncooperative' is not the best word . . . he
wasn't cooperating at the level we are typically used to with people once we explain all the
details and what we are there to do." Agent Navarro admitted that his affidavit did not convey
Mr. Stimmell's lack of cooperation as his refusal to consent.
Defendant agents are correct Mr. Stimmell's level of cooperation is irrelevant to
probable cause to search in that Mr. Wells and the Stimmells had confirmed that Mr. Wells'

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firearms were in the Stimmells' home. The firearms' confirmed location in the Stimmells'

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residence and the differing versions of how Mr. Stimmell came into their possession support,

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as Agent Navarro averred, "probable cause to believe WELLS is currently maintaining

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ownership over his firearms and has been concealing them at STIMMELLS' residence to avoid

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surrendering them to law enforcement." Trial produced sufficient evidence for the jury to

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conclude that Agent Navarro had not mislead Judge Penner to believe that Mr. Stimmells' level

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of cooperation supported search warrant issuance. Moreover, the undisputed evidence was that
Mr. Stimmell resisted a consent search and attempted to impose search conditions to influence
defendant agents to obtain a search warrant to avoid or limit challenge to evidence seized.
Night Execution Of Search Warrant
Agent Navarro's affidavit states:
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Night service is being requested as it is your affiant's belief that failure to seize the
weapons this night would allow WELLS' an opportunity to conceal or move his
weapons to an unknown location. Failure to secure the firearms would pose a potential
public safety [sic] issue or threat to law enforcement officers who would attempt to
locate the firearms on another date.

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The Stimmells challenge this portion of the affidavit in that Agent Navarro lacked

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information that Mr. Wells had control over the firearms or that the Stimmells would allow Mr.

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Wells to retrieve the weapons. The Stimmells point to defendant agents' failure to testify that

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they were concerned that Mr. Stimmell would hide the firearms or allow Mr. Wells to remove
them.
Agent Navarro's affidavit further states:

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Your affiant knows from training and experience that subjects who become prohibited
from possessing firearms will often fail to surrender their weapons to law enforcement.
These subjects will often hide their firearms with people such as relatives, close friends
or girlfriends so they can maintain ownership or access for use in self-defense, quick
access for sale, or for assaulting any law enforcement official who may detect the
violation. These subjects will commonly keep, hide or store their firearms inside of
their residences, attics, basements, sheds, outbuildings and vehicles as well as many
other places within proximity of their residence that they feel is [sic] secure from the
detection of law enforcement. Your affiant knows that subjects who accumulate and
possess firearms place an intrinsic value on them and tend to keep them for long
periods of time, if not indefinitely.

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The Stimmells characterize this portion of the affidavit as misleading to support night
search warrant execution. The Stimmells point to affidavit omissions that:
1.

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Mr. Stimmell had received the firearms six or seven years prior to the affidavit

as collateral for a loan;
2.

Mr. Wells lacks access to the Stimmells' residence to retrieve the firearms;

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3.

The search of Mr. Wells' residence was limited to 10-15 minutes;

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4.

Mr. Wells' vehicle was not searched; and

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5.

Defendant agents had no intent to arrest Mr. Wells or Mr. Stimmell.

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The Stimmells note Agent Navarro's acknowledgment that "based on what I saw, I didn't have

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any indication of how much access [Mr. Wells] had to the [Stimmells'] home."

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The Stimmells fail to demonstrate error with the jury's evaluation whether Agent
Navarro falsely or recklessly requested night execution of the search warrant. Although the
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Stimmells claim Mr. Wells lacked access to his firearms, they point to no evidence to

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substantiate as much. From the trial evidence, the jury could infer that Mr. Wells knew of the

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firearms' location or that Mr. Stimmell might attempt to remove them given his resistance to

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turn them over to defendant agents. There is an inference that Mr. Stimmell did not want to
lose control over or give up his "collateral" given his initial resistance to defendant agents'
efforts to retrieve the guns and subsequent conditions for a search. The jury was entitled to
infer legitimacy for immediate retrieval of Mr. Wells' firearms due to the suspicious hidden
location of the firearms in the Stimmells' residence and conflicting details as to how Mr.
Stimmell came into possession of the firearms. This Court is not in a position to second guess
the jury's determination as to reasonableness of timing of the search warrant's execution.

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Probable Cause

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Agent Navarro's affidavit states:

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. . . there is probable cause to believe WELLS is currently maintaining
ownership over his firearms and has been concealing them at STIMMELLS' residence
to avoid surrendering them to law enforcement. In addition, your affiant believes
STIMMELL and WELLS have conspired to violate WELLS' restraining order
condition to surrender any and all of his firearms and/or have conspired to fail to
conduct a lawful transfer of the firearms through a Federal Firearms Licensed Dealer,
as set forth in CA Penal Code (PC) section 12072(d). Ownership/Possession of firearms
by WELLS is a violation of CA PC section 12021(g)(2).

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The Stimmells argue that Agent Navarro "had no probable cause to believe anything" in
this portion of his affidavit in that Agents Navarro's and Morales' testimony "obliterated" the

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affidavit. The Stimmells contend the search warrant was overbroad given Agent Navarro's

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acknowledgement that he had no specific knowledge that the Stimmells possessed silencers or

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explosive devices.

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dominion and control over firearms in the Stimmells' home because Agent Navarro

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acknowledged that Mr. Wells did not tell Agent Navarro that Mr. Wells had access to the

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Stimmells' home. Agent Navarro testified:

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The Stimmells fault Agent Navarro's evaluation that Mr. Wells had

If Mr. Wells had access to his home and he knew where these items were
located, then I would say he could have those under his control whenever he wanted.
...

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I assumed he knew specifically where these items were located, that maybe they
had a very close relationship and maybe it seemed reasonable that he would have
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access to those items if he knew exactly where they were located.

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Agent Navarro further testified that "based on what I saw, I didn't have any indication of how

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much access [Mr. Wells] had to the home."

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The Stimmells conclude the warrant was overbroad because defendant agents admitted

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that their limited reason to go to the Stimmells' residence was to retrieve Mr. Wells' firearms,

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not to search for other items included in the search warrant, such as, silencers, body armor,

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destructive devices, gun and ammunition purchase receipts, photographs, and financial

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documentation.
The Fourth Amendment “requires that a warrant be specific.” United States v. Towne,
997 F.2d 537, 544 (9th Cir. 1993). The Ninth Circuit Court of Appeals has explained warrant
“specificity”:
Specificity has two aspects: particularity and breadth. Particularity is
the requirement that the warrant must clearly state what is sought.
Breadth deals with the requirement that the scope of the warrant be
limited by the probable cause on which the warrant is based.
In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 856-857 (9th Cir. 1991).
A warrant that fails to conform to the particularity requirement of the Fourth
Amendment and a search conducted pursuant to such a warrant are unconstitutional.
Massachusetts v. Sheppard, 468 U.S. 981, 988, n. 5, 104 S.Ct. 3424 (1984). A warrant’s
specificity “varies depending on the circumstances of the case and the type of items involved.”
U.S. v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986).
The Stimmells' sweeping claims as to the search warrant's overbreadth fail to negate the
jury's conclusions as to probable cause. As noted above, the Stimmells point to no evidence to

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negate Mr. Wells' direct or indirect access to his firearms. The Stimmells fail to challenge the

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jury's potential reliance on Agent Navarro's evaluation as to Mr. Wells' potential access to his

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firearms and relationship with Mr. Stimmell. Although the search warrant mentions items

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other than firearms, the firearms were the thrust of the investigation, and the Stimmells point to

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nothing seized beyond the search warrant's scope, seized wrongfully, or used to prosecute the

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Stimmells. The trial record supports a reasonable conclusion that the search warrant satisfied

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the particularity and breadth requirements as to the circumstances at hand.
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CONCLUSION AND ORDER

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During August 27-30, 2013, this Court, along with the jury, heard all the evidence, the

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majority of which the Stimmells generated. The jury started deliberations on August 30, 2013,

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continued to deliberate the entire day of September 3, 2013, and concluded the next day with
its verdict that defendant agents did not unreasonably seize the Stimmells and did not
unreasonably search their residence. Based on the evidence, its inferences, and jury resolution
of factual disputes, the jury's verdict is not seriously erroneous. Despite the Stimmells' claims
as to false testimony and their evaluation of the evidence, this Court finds, after extensive
review, no jury mistake to warrant a new trial and DENIES the Stimmells a new trial.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

October 30, 2013

UNITED STATES DISTRICT JUDGE

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