Estate of Kevin Brown et al v. City of San Diego et al

Filing 88

Amended ORDER: (1) Granting in Part and Denying in Part Defendants' Motion for Summary Judgment and (2) Granting in Part and Denying in Part Plaintiffs' Motion for Partial Summary Judgment. Specifically, the Court grants Defendants' motion on Plaintiffs' fourth claim for relief, grants Plaintiffs' motion on the third claim for relief and denies the remainder of the motions. Signed by Judge Dana M. Sabraw on 6/23/2017.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE ESTATE OF KEVIN BROWN by
its successor in interest Rebecca Brown,
and REBECCA BROWN, an individual,

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Case No.: 15-cv-1583-DMS (WVG)
AMENDED ORDER (1) GRANTING
IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND (2)
GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR PARTIAL
SUMMARY JUDGMENT

Plaintiffs,
v.
MICHAEL LAMBERT, an individual,
MAURA MEKENAS-PARGA, an
individual, and DOES 2-50,
Defendants.

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This case stems from the 1984 murder of 14 year old Claire Hough. Claire’s body

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was found in the early morning hours at Torrey Pines State Beach. She had been brutally

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beaten, strangled to death, and mutilated with a knife. The case was reopened after having

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gone unsolved for decades. Through advancement in DNA technology the San Diego

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Police Department (“SDPD”) Crime Lab was able to perform further tests in 2012. DNA

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from a convicted rapist, Ronald Tatro, was found in blood from the victim’s clothing. In

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addition, a combined sperm fraction taken from a vaginal swab from the victim’s body

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revealed trace amounts of semen from a second individual, Kevin Brown, who was a

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former longtime employee of the Crime Lab and employed by the Lab at the time of

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Claire’s murder.

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Plaintiffs claim Brown’s DNA was present through an obvious case of cross

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contamination, likely due to now-outdated standards used in the Lab in the 1980s when

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swabs were air dried in the open and DNA science was not developed. Plaintiffs point

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out that it was common practice at that time for Lab employees to use their own semen

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samples or samples from their coworkers for testing reagents in the Lab and, as a result,

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several Lab employees believed the positive hit on Brown’s DNA was due to cross

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contamination. Plaintiffs contend Defendant Michael Lambert obtained a warrant to

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search Brown’s residence by misrepresenting and omitting these and other material facts

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in an affidavit submitted to a state judge in support of the application for a search warrant.

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Plaintiffs allege that after Defendants obtained the warrant, they engaged in a dragnet

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search of Brown’s home and put extreme pressure on an emotionally fragile Brown,

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ultimately resulting in a number of constitutional violations and Brown’s death by suicide.

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Before the Court are Defendants’ motion for summary judgment and Plaintiffs’

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motion for partial summary judgment. Defendants seek summary judgment on each of

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Plaintiffs’ claims, while Plaintiffs seek partial summary judgment on two of their claims.

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The motions came on for hearing on April 21, 2017. Eugene Iredale appeared and argued

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for Plaintiffs, and Catherine Richardson appeared and argued for Defendants.1

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The Court issued its original Order on the parties’ motions on May 25, 2017. In

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that Order, the Court denied Defendants’ motion and granted in part and denied in part

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Plaintiffs’ motion. Specifically, the Court granted Plaintiffs’ motion on their third claim

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for unlawful seizure beyond the scope of the warrant and denied the motion on Plaintiffs’

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fourth claim.

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After the motion was submitted, Defendants filed a Notice of Supplemental Authority
in support of their motion, which the Court has considered. (See Docket No. 71.)
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Twelve days after the Order was issued, Defendants filed a Notice of Interlocutory

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Appeal. The following day, June 7, 2017, Plaintiffs filed an ex parte motion to certify the

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appeal as frivolous. The Court held a hearing on that motion on June 9, 2017, and at that

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hearing set a further briefing schedule on the motion. After those further briefs were

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submitted, the Court held another hearing during which Defendants agreed to withdraw

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their Notice of Appeal to allow the Court to address the important issues raised in the

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parties’ supplemental briefs and discussed at the hearings. This order addresses those

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issues.

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I.

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BACKGROUND

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Following the discovery of Claire’s body, an autopsy was conducted by a

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pathologist from the San Diego County Coroner’s Office. The pathologist concluded the

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cause of death was manual strangulation, and noted a deep laceration to Claire’s throat,

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blunt force injuries to her face, and stab wounds to her chest and genitalia. Her entire left

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breast had been amputated, and her mouth was filled with sand. Numerous items of

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evidence were collected from the scene, many of which were stained with blood. (Pls.’

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Opp’n to Defs.’ Mot., Ex. 15, Evidence Screen at 3-4, 6-9.2) Other items of evidence

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were swabbed to detect the presence of semen. (Id. at 3, 6.) Vaginal, anal and oral swabs

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were also taken from the victim.3 (Id. at 1.) The autopsy, which was performed the day

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after Claire’s body was discovered, found “[n]o spermatozoa” on the oral, anal and

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vaginal smears taken from the victim. (Pls.’ Opp’n to Defs.’ Mot., Ex. 12 at 4.)

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Following the initial investigation, no eyewitnesses were identified, few leads were

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developed, and Claire’s case went cold for nearly two decades. The case was revisited

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several times by the SDPD Cold Case Team. Finally, in 2012 a Detective from the Cold

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The page number cited refers to the page number of the exhibit.
There is a dispute about the number of vaginal swabs that were taken from the victim.
In one report, Evidence Technician Randy Gibson reported receiving only one swab, but
other reports document the presence of “swabs.”
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Case Team submitted a lab request to reexamine the physical evidence in the case with

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the hope that new DNA technology would yield positive results.

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specifically requested the SDPD Crime Lab reexamine the vaginal swabs, a towel

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recovered from the scene and Claire’s clothing.

The Detective

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Criminalist David Cornacchia conducted the DNA analysis of this evidence, along

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with other items of evidence from the case. (Pls.’ Opp’n to Defs.’ Mot, Ex. 25.) Non-

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sperm fractions of blood stains on Claire’s jeans identified Tatro as a match. (Id. at 4.)

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Tatro was also identified as a possible contributor to non-sperm fraction stains on Claire’s

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underwear. (Id. at 6.) In addition, DNA analysis of a sperm fraction of the combined

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vaginal swab extracts returned a hit to Brown.4

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At the time of Claire’s murder, Brown was thirty-two (32) years old, single, and

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worked as a criminalist in the SDPD Crime Lab. At that time, it was common practice

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for male criminalists working in the Lab to use their own semen samples or samples from

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their male coworkers to test the reliability of reagents used in detecting the presence of

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acid phosphatase, an enzyme present at high levels in sperm, and in microscopic

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examinations to identify sperm. (Pls.’ Opp’n to Defs.’ Mot., Ex. 14 at 27; Ex. 18 at 15;

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Ex. 19 at 19; Ex. 20 at 14.)

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Around the time Cornacchia reported the results of his DNA analysis, Defendant

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Lambert, a detective with the SDPD, began investigating Claire’s murder. In the course

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of that investigation, Lambert read Claire’s case file and discussed the case with numerous

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witnesses, including Cornacchia, John Simms, James Stam, Jennifer Shen and a number

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of other individuals who previously worked with Brown in the Crime Lab. Brown left

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the Crime Lab in 2002, after many years of service. (Defs.’ Mot., Ex. T at 24.)

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A third individual, Mark Wilkinson, also was identified from a sperm fraction on
Claire’s underwear. Wilkinson was Claire’s boyfriend but was eliminated as a suspect as
he was not in San Diego at the time of the murder. He lived in Rhode Island. Claire also
lived in Rhode Island, and was visiting her grandparents in San Diego at the time of her
murder.
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Simms tested some of the evidence from Claire’s case shortly after the murder. At

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his deposition in this case, Simms testified he told Defendant Lambert there was a

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possibility he “could have done” something while “working on the evidence that might

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have resulted in possible contamination” of the evidence with Brown’s semen sample,

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“that there was a possibility.” (Pls.’ Opp’n to Defs.’ Mot., Ex. 14 at 76.) (See also id. at

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87 (stating Simms told Lambert he had “concerns about a breach of protocol that [he]

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may have committed that might have led to possible contamination.”))

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Stam, one of Brown’s former supervisors in the Crime Lab, also testified in his

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deposition in this case that he told Defendant Lambert he believed “contamination” was

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a more likely explanation as to why Brown’s DNA was found on the evidence from the

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Hough case. (Pls.’ Opp’n to Defs.’ Mot., Ex 18 at 26.) He tried “to convince Detective

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Lambert that you need to look at the contamination first. That needs to be the No. 1 thing.

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You need to eliminate that 100 percent and then maybe go on with the rest of it.” (Id. at

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30.)

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It is unclear when Defendant Lambert had these conversations with Simms and

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Stam. However, Cornacchia testified at his deposition in this case that he informed

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Lambert about the male criminologists’ practice of using their own semen samples no

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later than November 2013, before Lambert applied for the search warrant in this case.

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(Pls.’ Opp’n to Defs.’ Mot., Ex. 24 at 59) (stating no later than November 2013,

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Cornacchia “discussed with Detective Lambert issues concerning the presence of semen

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samples from analysts in the lab being something that happens.”)

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On January 3, 2014, Defendant Lambert applied for a search warrant for Brown’s

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home, which Brown then shared with his wife Rebecca Brown and Rebecca’s mother and

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brother. In the search warrant affidavit, Lambert recounted the facts surrounding Claire’s

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murder and the initial investigation. (Defs.’ Mot., Ex. C.) He also recounted the cold

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case investigations that began in 1996. He also went over DNA evidence and analysis,

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in general. Absent from the affidavit, however, was any discussion of the now-outdated

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lab practices in 1984, which were considerably different from 2012 practices when the

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DNA analysis in this case was conducted.

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The affidavit then turned to the DNA analysis of the evidence in Claire’s case, and

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explained that through that analysis, two suspects were identified. The first was Tatro.

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Lambert set out Tatro’s criminal history prior to Claire’s murder, which included

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convictions for rape and battery, and stated after Claire’s murder, Tatro was also

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convicted of the attempted rape of a teenage girl in La Mesa, California. Tatro was also

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a person of interest in the February 1984 murder of prostitute Carol Defleice.5 The second

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suspect identified through the DNA analysis was Brown. As noted, Brown was identified

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through analysis of a combined sperm fraction (where DNA is extracted from sperm cells)

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from the vaginal swab taken from the victim.

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In the affidavit, Lambert stated Brown was a former employee of the SDPD Crime

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Lab, but he failed to inform the judge of the male lab employees’ practice of using their

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own semen samples or samples from their coworkers in testing reagents in the Lab.

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Rather than raising the possibility that the vaginal swab may have been contaminated in

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the Lab by Brown’s semen sample, Lambert stated Jennifer Shen, then the manager of the

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Lab, stated, “BROWN had no access to the evidence in the HOUGH murder” and “that

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cross contamination is not possible.” (Defs.’ Mot., Ex. C at 17.) This statement was

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made despite numerous documented instances of contamination in the Crime Lab. (Pls.’

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There is no dispute about Tatro’s criminal history, and it reflects a longstanding
campaign of brutal violence against women. The 1974 rape involved Tatro luring a young
woman into his car, placing her in the trunk and then raping her at knifepoint while
threatening to kill her. (Pls.’ Opp’n to Defs.’ Mot., Ex. 26 at LAMBERT 004532-34.)
The incident in La Mesa involved Mr. Tatro offering to help a 16 year old girl who was
having car trouble, and once she was in his car, using a stun gun or some other electrical
device to shock her. (Id. at LAMBERT 004310-11.) When Tatro was apprehended for
that crime, (he was found naked in the back of his van with his wrists slit), the officers
confiscated a pornographic magazine depicting photos, stories and devices relating to
bondage and sadomasochism as well as a blood stained paring-type knife. (Id. at
LAMBERT 004321.)
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Opp’n to Defs.’ Mot. at 19-22) (listing twenty (20) instances of cross contamination)).

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Lambert also failed to disclose to the judge that the autopsy analysis of the vaginal swab

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in 1984 was negative for sperm.

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Defendant Lambert then recounted in the affidavit his investigation into Brown,

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which revealed that prior to getting married and while working in the Lab, Brown talked

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about going to strip clubs. Lambert also recounted Brown’s nickname in the Lab was

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“Kinky,” and other lurid stories about Brown from his coworkers.

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concluded, based on the 2012 DNA analysis of the vaginal swab, that “Kevin BROWN

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had sexual intercourse with 14 year old Claire HOUGH.” (Id. at 29.) Despite failing to

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find any evidence linking Tatro and Brown, the affidavit identified Brown as a suspect in

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Claire’s murder, together with Tatro.6 Lambert stated, “I believe the sexual intercourse

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Brown had with Claire [] was not consensual and appears to be contemporaneous to the

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murder.”

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perpetrators, acting in concert, in the commission of the sexual assault, mutilation, and

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murder of Claire HOUGH,” (id. at 4), and stated the search warrant was an “attempt to

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obtain information to link” Brown and Tatro. (Id.) Lambert also sought the warrant “to

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find evidence that Kevin Brown is following this case, and another similar 1978 murder

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of a teenage girl Barbara NANTAIS.” (Id. at 3.)

(Id. at 30-31).

Lambert then

Lambert’s theory was that Brown and Tatro were “the

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The search warrant affidavit requested permission to seize ten (10) categories of

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evidence, including: (1) "Newspaper clippings or any other print news relating to the

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murders of Claire HOUGH and/or Barbara NANTAIS[,]" (2) "Address books,

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diaries/journals, hand written in nature[,]" (3) "San Diego Police Department Crime Case

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Reports and/or Arrest Reports relating to Sexual Assaults[,]" (4) "Magazine, videos, …

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books photographs or other written or photographic evidence depicting or related to

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teenage or preteen pornography, rape, bondage, and sadomasochism[,]" (5) "Receipts for

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storage facilities including offsite storage, safety deposit boxes and 'cloud' storage[,]" and

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Tatro died in 2011, leaving Brown as the only suspect.
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(6) "Photographs, disposable cameras, negatives, photographic film that relate to Claire

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HOUGH, Ronald TATRO, James ALT, or Barbara NANTAIS." (Id. at 2-3.) Lambert

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also requested permission to seize "Papers, documents and effects tending to show

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dominion and control" over the premises, (id. at 2), though it was well known the Browns

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lived in the home. (Pls.’ Opp’n to Defs.’ Mot., Ex. 27 at 91.) Lambert presented his

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affidavit in support of the warrant to a district attorney, who reviewed it and did not offer

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any changes or corrections. (Defs.' Mot., Ex. G at 117.) Based on Lambert's affidavit,

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the judge issued the warrant.

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The warrant was executed six days later on January 9, 2014. On that day, prior to

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executing the warrant, the officers scheduled to participate in the search attended a

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meeting at police headquarters. (Pls.’ Opp’n to Defs.’ Mot., Ex. 27 at 95.) During that

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meeting, Lambert conducted a search warrant briefing during which he told the detectives

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he wanted them to seize every videotape in the house. (Pls.' Mot., Ex. 5 at 96.)

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It is unclear what time the search began and what time it ended. It is also unclear

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how many officers were involved in the search.7

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Defendant Lambert participated in the search as did Defendant Maura Mekenas-Parga,

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another SDPD Detective, (Pls.’ Opp’n to Defs.’ Mot., Ex. 27 at 95), and that they both

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made decisions about what items would be seized. (Pls.’ Opp’n to Defs.’ Mot., Ex. 29 at

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44-45.) Defendant Mekenas-Parga testified at her deposition in this case that it was her

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understanding the warrant allowed for the seizure of all photographs the officers deemed

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as "possible evidence." (Id. at 53.) She also testified the warrant allowed the officers to

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seize "all VCR tapes." (Pls.' Mot., Ex. 4 at 78-79.) Mekenas-Parga testified her reading

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of the warrant allowed for seizure of "anything recording." (Id. at 80.) According to

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Mekenas-Parga, "any cell phone in the house could be seized," "any thumb drive in the

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house could be seized." (Id. at 84.) Mekenas-Parga also testified "any newspaper article,

However, the evidence reflects

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At oral argument, Plaintiffs’ counsel represented thirteen (13) officers may have
participated in the execution of the warrant, but there is no evidence to that effect.
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regardless of what it said or the date … was legitimately subject to seizure[.]" (Id. at 113.)

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Notably, Mekenas-Parga did not "review any of the items in” certain boxes “to see if they

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could be removed and left because they had nothing to do with anything permitted to be

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seized in the warrant[.]" (Id. at 89.) She also did not review any of the photo albums

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before they were removed from the house. (Id. at 91.)

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In all, the officers seized fourteen (14) boxes from the Browns’ home. (Defs.' Mot.,

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Ex. O.) The items seized included: (1) "Papers Christmas Letter w/cabin info folder[,]"

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(2) "Binder 'chemical imbalance' mental health problems[,]" (3) Kevin Brown's SDPD

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badge, (4) seven boxes of photos, journals, books, photo albums, paperwork, (5) other

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loose photos and photo albums, (6) a "callback roster from June 1998 for" SDPD, (7)

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handwritten cards, (8) notebooks, (9) a drama program from Mater Dei dated March 1,

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2013,8 (10) a file folder titled, "Apple Products," (11) a file folder titled, "Business

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Folder," and (12) a file folder titled "Divorce Annulments[.]" (Defs.' Mot., Ex. E.) (See

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also Decl. of Rebecca Brown in Supp. of Pls.’ Mot., Exs. A-B.)

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Detective Lambert testified he completed his review of the evidence seized from

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the Browns’ home approximately three months after the seizure, or in April 2014. (Defs.’

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Mot., Ex. G at 127.) None of the evidence he reviewed “had any probative value to prove

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that Kevin Brown had committed the” murder of Claire Hough. (Id.) Nevertheless,

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Lambert did not return the property to the Browns at that time. (Id.) Instead, Rebecca

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Brown began inquiring of Lambert about the return of their property. She specifically

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asked about her computer, which was returned to her two weeks thereafter. (Defs.’ Mot.,

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Ex. H at 126.) Approximately three months after that, she inquired of Lambert when the

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rest of their property would be returned. (Id. at 127.) Lambert’s response was, “it’s all

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coming back soon[.]” (Id.)

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After another month passed without the return of their property, Rebecca Brown

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again phoned Defendant Lambert to inquire. (Pls.’ Opp’n to Defs.’ Mot., Ex. 32 at 73.)

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Rebecca Brown is a high school teacher at Mater Dei High School.
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As before, Lambert told her they would “be getting it all back soon.” (Id.) The Browns

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believed that once their property was returned, “that it would be over.” (Id. at 75.) Kevin

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Brown, in particular, was “fixated on the issue of the return of the property.” (Id.) “He

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started putting a calendar in his closet in June when the detective said, it’s coming back

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soon. So he would mark off each date until it was going to happen.” (Id. at 76.)

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After the search was conducted, and while the Browns were waiting for the return

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of their property, Kevin Brown began experiencing increased anxiety. (Id. at 43.) Brown

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first began suffering from anxiety disorder in high school. (Id. at 36.) His insomnia

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worsened. (Id.) Rebecca Brown testified that her husband was depressed. (Id. at 46.)

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“He had difficulty getting out of bed. He lost 25 pounds. His hands started shaking. He

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started looking older. He had me take him to Urgent Care a couple of times because he

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was anxious.” (Id.) On September 26, 2014, Rebecca Brown came home from work and

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found her husband in bed. (Id. at 62.) She said he “was groggy. There was a bullet on

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the floor next to the bed, and he said he’d written me a letter.” (Id. at 62-63.)

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After the September 26, 2014 incident, Rebecca Brown’s brother John Blakely

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removed all the guns from the Brown household because “it was clear to [him] that

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something bad was happening” with them. (Defs.’ Mot., Ex. Q at 16.) That was the

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second time Mr. Blakely removed the guns from the house after the search warrant was

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executed. (Id.) Mr. Blakely informed Defendant Lambert he had removed the guns from

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the house, and did so again after the incident on September 26, 2014. (Id.) Later that

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week, Lambert went to Rebecca Brown’s workplace to conduct a welfare check on her.

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Brown testified that during that meeting, she told Lambert her husband “might kill

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himself.” (Id. at 107.) Lambert denies Rebecca Brown shared that concern with him.

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(Defs.’ Mot., Ex. G at 148.) Less than one month later, Kevin Brown committed suicide

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by hanging himself from a tree at Cuyamaca State Park. (Third Am. Compl. (“TAC”) ¶

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244.)

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On July 16, 2015, Rebecca Brown filed the present case on behalf of herself and

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Kevin Brown’s Estate. A Second Amended Complaint (“SAC”) filed on October 5, 2015,
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named only Lambert as a Defendant, and alleged claims for (1) execution of a warrant

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obtained in violation of Franks v. Delaware, (2) execution of an overbroad warrant, (3)

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seizure of property beyond the scope of the warrant, (4) wrongful detention of, and refusal

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to return, seized property, (5) wrongful death under 42 U.S.C. § 1983, and (6) deprivation

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of right of familial association. On June 8, 2016, Plaintiffs filed the TAC, which realleges

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the claims in the SAC and adds Maura Mekenas-Parga as a Defendant.

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II.

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DISCUSSION

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As stated above, both sides move for summary judgment in this case. Plaintiffs

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move for partial summary judgment on claims three and four only, and Defendants move

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for summary judgment on all of Plaintiffs’ claims.

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A.

Legal Standard

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Summary judgment is appropriate if there is no genuine issue as to any material

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fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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The moving party has the initial burden of demonstrating that summary judgment is

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proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must

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identify the pleadings, depositions, affidavits, or other evidence that it "believes

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demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the

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litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C.

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v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

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The burden then shifts to the opposing party to show that summary judgment is not

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appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed,

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and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party

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cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th

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Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for

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trial. Id. See also Butler v. San Diego District Attorney's Office, 370 F.3d 956, 958 (9th
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Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go

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beyond pleadings, plaintiff must counter by producing evidence of his own). More than

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a "metaphysical doubt" is required to establish a genuine issue of material fact.

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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B.

Franks Claim

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In their first claim, Plaintiffs allege Defendant Lambert violated their Fourth

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Amendment rights when he obtained the search warrant for the Brown home through the

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use of “false statements, and deliberate material omissions.” (Third Am. Compl. ¶ 249.)

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This claim is based on Franks v. Delaware, 438 U.S. 154 (1978), wherein the Court

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“established a criminal defendant’s right to an evidentiary hearing when he made a

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showing of deliberate or reckless disregard for the truth in a search warrant affidavit and

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demonstrated that but for the dishonesty, the affidavit would not support a finding of

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probable cause.” Liston v. County of Riverside, 120 F.3d 965, 972 (9th Cir. 1997).

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Although this standard was established in a criminal context, it “‘also defines the scope

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of qualified immunity in civil rights actions.’” Id. (quoting Branch v. Tunnell, 937 F.2d

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1382, 1387 (9th Cir. 1991)) (quotation marks omitted). To survive summary judgment

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on a Franks claim of judicial deception, a Section 1983 plaintiff must “(1) establish that

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the warrant affidavit contained misrepresentations or omissions material to the finding of

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probable cause, and (2) make a ‘substantial showing’ that the misrepresentations or

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omissions were made intentionally or with reckless disregard for the truth.” Bravo v. City

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of Santa Maria, 665 F.3d 1076, 1087 (9th Cir. 2011). “If these two requirements are met,

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the matter must go to trial.” Id. (citing Liston, 120 F.3d at 973). See also Hervey v. Estes,

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65 F.3d 784, 788-789 (9th Cir. 1995) (stating to survive motion for summary judgment

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on the ground of qualified immunity plaintiff must make a substantial showing of

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deliberate falsehood or reckless disregard for the truth and establish that, “but for the

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dishonesty, the challenged action would not have occurred.”). Defendants argue these

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elements are not met here, therefore they are entitled to summary judgment.

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In support of this argument, Defendants address a number of alleged omissions and

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misrepresentations in Lambert’s affidavit in support of the warrant. As for omissions,

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Defendants admit Lambert omitted that the autopsy report concluded “No spermatazoa

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noted” in the oral, anal and vaginal smears taken from the victim. (Pls.’ Opp’n to Defs.’

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Mot., Ex. 12 at 4.) Defendants also do not deny Lambert failed to disclose that a few days

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after the autopsy, Simms analyzed vaginal swabs taken from the victim and, consistent

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with the autopsy results, found no evidence of sperm. (Pls.’ Opp’n to Defs.’ Mot, Ex. 14

8

at 44-52.) Lambert also failed to disclose that the pathologist performing the autopsy did

9

not find any physical trauma consistent with rape, or make any findings that Claire was

10

raped or engaged in sexual intercourse before her death. Defendants also do not deny that

11

Lambert failed to disclose the information he received from Cornacchia that male analysts

12

working in the SDPD crime lab, like Brown, used their own semen samples when testing

13

reagents for acid phosphatase. (Pls.’ Opp’n to Defs.’ Mot., Ex. 24 at 59.) Lambert also

14

failed to disclose that Stam, Brown’s former supervisor, told Lambert he believed

15

“contamination” was a “more likely explanation” as to why Brown’s DNA was found on

16

the victim’s vaginal swab. (Pls.’ Opp’n to Defs.’ Mot., Ex. 18 at 26.)9

17

Defendants admit Lambert omitted that despite a lengthy investigation, there was no

18

evidence of any connection between Brown and Tatro.

Finally,

19

On the issue of misrepresentations, Defendants deny Lambert made any, but for

20

the purpose of the present motion, the Court must construe the evidence in the light most

21

favorable to Plaintiffs, and as so construed, there are at least three misrepresentations in

22

the affidavit. The first is Lambert’s statement that cross contamination was not possible.

23
24
25
9

26
27
28

As mentioned above, there is a dispute about when Lambert had this conversation with
Stam, namely whether the conversation occurred before or after Lambert submitted the
application for the search warrant. Construing the facts in the light most favorable to
Plaintiffs, the Court assumes this conversation took place before Lambert submitted his
affidavit.
13
15-cv-1583-DMS (WVG)

1

The second is the statement that Brown had no access to the evidence in the Hough case.

2

The third is the statement that Brown had sexual intercourse with the victim.

3

In the affidavit, Lambert stated that SDPD Lab Manager Jennifer Shen informed

4

him “that cross DNA contamination is not possible.” (Defs.’ Mot., Ex. C at 17) (emphasis

5

in original). Despite this unequivocal statement, Shen testified she did not use “those

6

words[,]” i.e., say that cross contamination is not possible. (Pls.’ Opp’n to Defs.’ Mot.,

7

Ex. 22 at 136.) And contrary to the statement, Plaintiffs presented evidence of several

8

documented instances of cross contamination by the Crime Lab. The statement that cross

9

contamination is not possible is demonstrably false.

10

Next, Lambert’s statement that Brown had no access to the evidence in this case

11

created the impression that cross contamination was not possible.

12

statement is misleading given the evidence that lab employees’ semen was present in the

13

Lab and available for testing reagents even if the employee was not otherwise involved

14

or participating in the particular investigation.

However, that

15

Finally, the statement that “Kevin BROWN had sexual intercourse with 14 year

16

old Claire HOUGH[,]” (Defs.’ Mot., Ex. C at 29), is a possible misrepresentation. The

17

problem with the statement is that it is couched in absolute terms when the evidentiary

18

foundation for the statement is questionable. The autopsy report, which was not disclosed

19

in the affidavit and “did not make any findings as to whether Hough was raped or engaged

20

in sexual intercourse before her death[,]” (Defs.’ Mot., Ex. I at 3), contradicted that

21

statement. Moreover, cross contamination had yet to be ruled out. The categorical

22

statement that Brown had sex with the victim, combined with the statements from

23

Brown’s prior co-workers that he used to frequent strip clubs and his nickname was

24

“Kinky,” painted a picture of Brown as sexually deviant. The statement is misleading

25

because it failed to inform the magistrate about the possibility that Brown’s DNA was

26

linked to the case due to cross contamination.

27

Construing these omissions and misrepresentations in Plaintiffs’ favor, Plaintiffs

28

have made “a substantial showing of a deliberate falsehood or reckless disregard” for the
14
15-cv-1583-DMS (WVG)

1

truth. Hervey, 65 F.3d at 789. As discussed, the warrant affidavit states that “Brown had

2

no access to the evidence in the [underlying case] and [] that cross DNA contamination is

3

not possible.”

4

contamination have been documented by the Crime Lab, and the possibility (and reality)

5

of cross contamination in crime labs is well known. The categorical statement that cross

6

contamination is not possible is therefore obviously false and a reasonable magistrate

7

viewing the affidavit would know that cross contamination can and does occur. But by

8

stating Brown had no access to the evidence, the impression was created that cross

9

contamination in this particular case was not possible. The affidavit does state that

10

“Cornacchia told [Lambert] San Diego Crime Lab employee’s [sic] DNA profiles are

11

uploaded into CODIS to identify potential cross contamination issues[,]” (id. at 17), but

12

it omits critical information about how employee DNA samples, including semen and

13

semen from Brown himself, were provided and present in the Lab for testing reagents

14

even if the employee was not otherwise involved or participating in the particular

15

investigation. Some facts are “required to [be presented in an affidavit] to prevent

16

technically true statements in the affidavit from being misleading.” Liston, 120 F.3d at

17

973. Such is the case with the statement that “Brown had no access to the evidence[,]” as

18

that created a false impression that contamination was not possible. Similarly, the

19

affidavit detailed how trace amounts of semen from Brown could be reconciled with

20

rape—e.g., failure to achieve full ejaculation, or low sperm count, (Defs.’ Mot., Ex. C at

21

17), but the affidavit did not inform the magistrate about the possibility of trace amounts

22

of Brown’s semen being present due—not to sexual assault—but to cross contamination

23

stemming from the presence of small amounts of semen in samples from Lab employees

24

like Brown.10

(Defs.’ Mot., Ex. C at 17.)

However, several instances of cross

25
26
27
28

10

Plaintiffs presented evidence of a significant discrepancy in the miniscule number of
sperm cells found in the combined sperm fractions that resulted in the identification of
Brown relative to a typical male ejaculate. According to Plaintiffs’ expert, those fractions
“would be roughly equivalent to 158 sperm cells, [when] … [t]he average number of
15
15-cv-1583-DMS (WVG)

1

In addition, several facts were omitted from the affidavit, all of which have to do

2

directly or indirectly with the possibility of cross contamination: Lab employees,

3

including Brown, provided their own semen samples at that time; Lab practices were

4

relatively lax and more prone to contamination given the undeveloped state of DNA

5

science at that time; several Lab employees believed cross contamination was “more

6

likely” than the possibility that Brown was complicit in murder; trace amounts of Brown’s

7

semen was consistent with cross contamination due the presence of his semen sample in

8

the Lab; the pathologist who performed the autopsy did not find semen, nor did Simms,

9

who analyzed a vaginal swab at the same time; the pathologist performing the autopsy

10

did not note any physical trauma consistent with rape, or make any findings that the victim

11

was raped or engaged in sexual intercourse before her death; and, there was no evidence

12

linking Tatro and Brown. All of the evidence that was omitted from the affidavit tended

13

to negate Lambert’s theory that Brown was involved in Claire’s murder. And all of the

14

omitted facts were consistent with an innocent explanation for the DNA hit: cross

15

contamination.

16

The omissions of these facts make the representations in the affidavit discussed

17

above misleading by “selectively included information bolstering probable cause, while

18

omitting information that did not.” United States v. Jenkins, 850 F.3d 1109, 1117 (9th

19

Cir. 2017). Plaintiffs need not establish specific intent to deceive the issuing court.

20

Bravo, 665 F.3d at 1083 (citation omitted). To survive summary judgment, Plaintiffs

21

“need only make a substantial showing of a deliberate or reckless omission, not ‘clear

22

proof.’” Id. at 1087 (quoting Liston, 120 F.3d at 974)). Drawing all inferences in

23

Plaintiffs’ favor, as the Court must at this stage of the proceedings, Plaintiffs have shown

24

the affidavit was crafted to state facts to create a strong impression of guilt (that Brown

25

acted in concert with Tatro to sexually assault, mutilate and murder the victim) by

26
27
28

sperm cells in a typical ejaculate, for comparison purposes, ranges from 200,000,000 –
600,000,000.” (Pls.’ Opp’n to Defs.’ Mot., Ex. 7 at 13.)
16
15-cv-1583-DMS (WVG)

1

misrepresenting and omitting important facts. Based on the record presently before the

2

Court, and construing the evidence in Plaintiffs’ favor, Plaintiffs have made a substantial

3

showing of deliberate falsehood or reckless disregard for the truth.

4

Having made that showing, it now falls to the Court to decide “whether the

5

affidavit, once corrected and supplemented, establishes probable cause.” Bravo, 665 F.3d

6

at 1084 (citing Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009)). See also

7

Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002) (“Materiality is for the court, state of

8

mind is for the jury.”) “If probable cause remains after amendment, then no constitutional

9

error has occurred.” Bravo, 665 F.3d at 1084.

10

The affidavit, once corrected and supplemented, lacks probable cause to search

11

Brown’s home. “Officers have probable cause for a search when ‘the known facts and

12

circumstances are sufficient to warrant a man of reasonable prudence in the belief that

13

contraband or evidence of a crime will be found.’” United States v. Henderson, 241 F.3d

14

638, 648 (9th Cir. 2000) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

15

Probable cause that Brown murdered the victim in concert with Tatro and that evidence

16

of the crime would be found in the home rested squarely on the theory that Brown had

17

sexual intercourse with, and raped, the victim. The affidavit declared as much, and did

18

so on the strength of the DNA evidence. But the evidentiary value of the DNA evidence

19

is highly suspect when all the facts are known. When, as here, lab employees themselves

20

suspect contamination and urge elimination of that possibility before proceeding, a DNA

21

“hit” quickly descends from extremely damning to highly questionable evidence, unless

22

and until contamination can be ruled out. Other than the DNA evidence the affidavit here

23

relies on lurid stories and a pejorative nickname to bolster probable cause. That, of

24

course, is not sufficient to warrant a reasonable person to believe that the suspect

25

committed rape and murder and that evidence of those crimes will be found in his

26

///

27

///

28

///
17
15-cv-1583-DMS (WVG)

1

residence. A reasonable magistrate presented with all of the information would not have

2

issued the warrant. Liston, 120 F.3d at 975.11

3

In light of these findings, Defendants are not entitled to summary judgment on

4

Plaintiffs’ first claim. At trial, Plaintiffs will have to convince a jury that Lambert

5

deliberately or recklessly omitted the foregoing facts and included the misleading

6

statements in the affidavit. See Hervey, 65 F.3d at 791. “That is a factual determination

7

for the trier of fact.” Id.

8

C.

Overbroad Warrant

9

Plaintiffs’ second claim alleges the search warrant was overbroad. In response to

10

Defendants’ motion, Plaintiffs identify Clauses 2, 5 and 7 as being overbroad. Clause 2

11

is the “dominion and control” clause, and it allowed for the seizure of “Papers, documents

12

and effects tending to show dominion and control over said premises ….” (Defs.’ Mot.,

13

Ex. C at 2.) Clause 5 allowed for the seizure of “Address books, diaries/journals, hand

14

written in nature.” (Id. at 3.) Clause 7 allowed for the seizure of “Magazines, videos,

15

electronic files, books, photographs or other written or photographic evidence depicting

16

or related to teenage or preteen pornography, rape, bondage, and sadomasochism.” (Id.)

17

Defendants assert the warrant was not overbroad, and even if it was, they are entitled to

18

qualified immunity.

19

“A warrant must particularly describe ‘the place to be searched, and the person or

20

things to be seized.’” Ewing v. City of Stockton, 588 F.3d 1218, 1228 (9th Cir. 2009)

21

(quoting U.S. Const. amend. IV). This particularity “requirement is designed ‘to prevent

22

a general, exploratory rummaging in a person’s belongings.’” Id. (quoting United States

23
24
25
26
27
28

11

Defendants point out that Brown made statements to law enforcement and others that
they considered incriminating, including that he may have had sex with a girl visiting
from out of town around the time of the murder who might have been named Claire.
(Defs.’ Mot., Ex. U at 3-6.) However, those statements were made after the warrant issued
and after the home was searched, and thus were not included in the warrant affidavit and
not considered by the magistrate.
18
15-cv-1583-DMS (WVG)

1

v. McClintock, 748 F.2d 1278, 1282 (9th Cir. 1984)) (internal quotation marks omitted).

2

The Ninth Circuit considers three factors in analyzing the breadth of a warrant:

3

(1) whether probable cause existed to seize all items of a category described
in the warrant; (2) whether the warrant set forth objective standards by which
executing officers could differentiate items subject to seizure from those
which were not; and (3) whether the government could have described the
items more particularly in light of the information available ....

4
5
6
7

United States v. Flores, 802 F.3d 1028, 1044 (9th Cir. 2015), cert. denied, 137 S.Ct. 36

8

(2016), (quoting United States v. Lei Shi, 525 F.3d 709, 731-32 (9th Cir. 2008)).

9

Here, Defendants assert the warrant was not overbroad, but they fail to show the

10

Clauses identified above, particularly the open-ended Clause 5, were not overbroad as a

11

matter of law. Indeed, they do not address these specific clauses at all, instead arguing

12

generally that “[t]he warrant was specific as to the places to be searched and the items to

13

be seized.” (Mem. of P. & A. in Supp. of Defs.’ Mot. at 17.) This generalized argument

14

does not show Defendants are entitled to summary judgment on the ground the warrant

15

was not overbroad.

16

Nor are Defendants entitled to summary judgment on the ground of qualified

17

immunity. On this issue, Defendants raise two arguments. First, they suggest Lambert is

18

entitled to qualified immunity because he presented his affidavit to his supervisor and a

19

district attorney, and a judge then issued the warrant. (Mem. of P. & A. in Supp. of Defs.’

20

Mot. at 16.) Given the Court’s discussion on Plaintiffs’ first claim, however, Lambert is

21

not entitled to qualified immunity on the claim that the warrant was overbroad. See Groh

22

v. Ramirez, 540 U.S. 551, 564 (2004) (“Moreover, because petitioner himself prepared

23

the invalid warrant, he may not argue that he reasonably relied on the Magistrate’s

24

assurance that the warrant contained an adequate description of the things to be seized

25

and was therefore valid.”)12

26
27
28

12

Defendants also raise this argument in support of their request for summary judgment
on Plaintiffs’ third claim for relief. For the reasons stated above, the Court rejects the
argument as against that claim, as well.
19
15-cv-1583-DMS (WVG)

1

Next, Defendants argue Defendant Mekenas-Parga is entitled to qualified

2

immunity because she did not personally participate in the efforts to obtain the warrant.

3

As an initial matter, this argument goes to Plaintiffs’ substantive claim, not to the issue of

4

qualified immunity. Nevertheless, the argument is not persuasive. There is no dispute

5

Mekenas-Parga did not assist in obtaining the warrant, but Plaintiffs’ claims against her

6

are not based on the request for and the subsequent issuance of the warrant. Rather, they

7

are based on her execution of the warrant, namely executing a warrant that was overbroad

8

on its face and seizing documents that went beyond the scope of the warrant. Defendants

9

have not shown Defendant Mekenas-Parga did not personally participate in those tasks.

10

On the contrary, the evidence reflects she was involved in the execution of the warrant

11

and made decisions about which items would be seized. (Pls.’ Opp’n to Defs.’ Mot., Ex.

12

27 at 95; Pls.’ Opp’n to Defs.’ Mot., Ex. 29 at 44-45.)

13

In their supplemental brief in opposition to Plaintiffs’ ex parte motion to certify the

14

appeal as frivolous, Defendants raise for the first time another argument in support of a

15

finding that Mekenas-Parga is entitled to qualified immunity, namely, that she, like

16

Lambert, was entitled to rely on the magistrate’s issuance of the warrant. (See Defs.’

17

Supp. Br. in Opp’n to Pls.’ Ex Parte Mot. to Certify Interlocutory Appeal as Frivolous at

18

9-10.) However, the Court agrees with Plaintiffs that officers who plan and lead a search,

19

like Mekenas-Parga did in this case, “‘must actually read the warrant and satisfy

20

themselves that they understand its scope and limitations, and that it is not defective in

21

some obvious way.’” KRL v. Estate of Moore, 512 F.3d 1184, 1190 (9th Cir. 2007)

22

(quoting Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027 (9th Cir. 2001)). Thus,

23

Defendants are not entitled to summary judgment on Plaintiffs’ second claim.

24

///

25

///

26

///

27

///

28

///
20
15-cv-1583-DMS (WVG)

1

D.

Unlawful Seizure of Property Beyond the Scope of the Warrant

2

Plaintiffs’ third claim alleges Defendants seized property beyond the scope of the

3

warrant in violation of the Fourth Amendment. 13 Both Plaintiffs and Defendants move

4

for summary judgment on this claim, with Plaintiffs arguing Defendants seized property

5

beyond the scope of the warrant, and Defendants arguing to the contrary.14

6

“Because ‘indiscriminate searches and seizures conducted under the authority of

7

‘general warrants’ were the immediate evils that motivated the framing and adopting of

8

the Fourth Amendment,’ that Amendment requires that the scope of every authorized

9

search be particularly described.” Walter v. United States, 447 U.S. 649, 657 (1980)

10

(internal citations omitted). “‘[I]f the scope of the search exceeds that permitted by the

11

terms of a validly issued warrant …, the subsequent seizure is unconstitutional without

12

more.’” Wilson v. Layne, 526 U.S. 603, 611 (1999) (quoting Horton v. California, 496

13

U.S. 128, 140 (1990)). See also United States v. Sedaghaty, 728 F.3d 885, 915 (9th Cir.

14

2014) (stating government’s seizure of items beyond terms of warrant violates Fourth

15

Amendment.)
The Supreme Court has emphasized that “there are grave dangers inherent
in executing a warrant authorizing a search and seizure of a person’s papers”
as opposed to physical objects, and that given the danger of coming across
papers that are not authorized to be seized, “responsible officials, including
judicial officials, must take care to assure that [searches] are conducted in a
manner that minimizes unwarranted intrusions upon privacy.”

16
17
18
19
20
21
22
23
24
25
26
27
28

At oral argument, Plaintiffs’ counsel clarified this claim applies only to the seizure of
physical items and objects, such as papers and photographs. It does not encompass the
seizure of computers, cell phones or other types of electronic media and devices.
14 As an initial matter, Defendants assert in conclusory fashion that Plaintiffs lack standing
to challenge the seizure and retention of items that did not belong to either Kevin or
Rebecca Brown. (See Mem. of P. & A. in Supp. of Defs.’ Mot. at 19, 20.) Plaintiffs
addressed this argument in their reply brief on their ex parte motion to certify Defendants’
appeal as frivolous, but Defendants have not had an opportunity to respond to that
argument. Absent further briefing from Defendants, the Court declines to resolve the
issue here. Defendants should be prepared to address the issue prior to trial, however.
13

21
15-cv-1583-DMS (WVG)

1

Sedaghaty, 728 F.3d at 914 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n.11

2

(1976)). See also United States v. Rettig, 589 F.2d 418, 422-23 (9th Cir. 1978) (“An

3

examination of the books, papers, and personal possessions in a suspect’s residence is an

4

especially sensitive matter, calling for careful exercise of the magistrate’s judicial

5

supervision and control.”)

6

Here, Defendants argue in their opposition to Plaintiffs’ motion that the seizure of

7

Plaintiffs’ property is subject to the test set out in Pacific Marine Center, Inc. v. Silva,

8

809 F.Supp.2d 1266 (E.D. Cal. 2011). That test states, “[w]hen considering ‘[w]hether a

9

search exceeds the scope of a search warrant,’ the court must engage in ‘an objective

10

assessment of the circumstances surrounding the issuance of the warrant, the contents of

11

the search warrant, and the circumstances of the search.’” Id. at 1280 (quoting United

12

States v. Hitchcock, 286 F.3d 1064, 1071 (9th Cir.), amended by 298 F.3d 1021 (9th Cir.

13

2001)). The claim in this case, however, is not addressed to the scope of the search.

14

Indeed, Plaintiffs do not appear to dispute that Defendants were authorized to search the

15

property that was ultimately seized in this case. Rather, the claim here concerns the actual

16

seizure of Plaintiffs’ property, and alleges the seizure went beyond the scope of the

17

warrant. The test set out in Pacific Marine, therefore, does not apply here.

18

The law applicable to the claim asserted here is found in United States v. Tamura,

19

694 F.2d 591 (9th Cir. 1982). In that case, as here, the defendants “challenge[d] only the

20

scope of the seizure.” Id. at 595. There, “[w]hen the agents seized all Marubeni’s records

21

for the relevant time periods, they took large quantities of documents that were not

22

described in the search warrant.” Id. In response to the defendant’s challenge to the

23

seizure, “[t]he Government argue[d] that the seizure was reasonable because the

24

documents were intermingled and it was difficult to separate the described documents

25

from the irrelevant ones.” Id. The Ninth Circuit was not persuaded. It stated: “It is

26

highly doubtful whether the wholesale seizure by the Government of documents not

27

mentioned in the warrant comported with the requirements of the fourth amendment. As

28

a general rule, in searches made pursuant to warrants only the specifically enumerated
22
15-cv-1583-DMS (WVG)

1

items may be seized.” Id. The court acknowledged “that all items in a set of files may

2

be inspected during a search, provided that sufficiently specific guidelines for identifying

3

the documents sought are provided in the search warrant and are followed by the officers

4

conducting the search.” Id. However, the court also stated, “the wholesale seizure for

5

later detailed examination of records not described in a warrant is significantly more

6

intrusive, and has been characterized as ‘the kind of investigatory dragnet that the fourth

7

amendment was designed to prevent.’” Id. (quoting United States v. Abrams, 615 F.2d

8

541, 543 (1st Cir. 1980)). The court went on to state:

9
10
11
12
13
14
15
16
17
18
19

In the comparatively rare instances where documents are so intermingled
that they cannot feasibly be sorted on site, we suggest that the Government
and law enforcement officials generally can avoid violating fourth
amendment rights by sealing and holding the documents pending approval
by a magistrate of a further search, in accordance with the procedures set
forth in the American Law Institute’s Model Code of Pre-Arraignment
Procedure. If the need for transporting the documents is known to the
officers prior to the search, they may apply for specific authorization for
large-scale removal of material, which should be granted by the magistrate
issuing the warrant only where on-site sorting is infeasible and no other
practical alternative exists. See United States v. Hillyard, 677 F.2d 1336,
1340 (9th Cir. 1982). The essential safeguard required is that wholesale
removal must be monitored by the judgment of a neutral, detached
magistrate. In the absence of an exercise of such judgment prior to the
seizure in the present case, it appears to us that the seizure, even though
convenient under the circumstances, was unreasonable.

20
21

Id. at 595-96.

22

Here, there is no dispute about what Defendants seized, namely 14 boxes of

23

documents, four large trash bags containing Plaintiffs’ property, and a suitcase. (Defs.’

24

Opp’n to Pls.’ Mot. at 9.)

25

photographs and other items, including but not limited to:

26

international driving permit, (2) a music folder for students, (3) Kevin Brown’s mother’s

27

tax return from 2000, (4) a note from Ronald and Nancy Reagan, (5) a coaster from the

28

Black Angus in Wiesbaden, Germany, (6) a copy of the Magna Carta, (7) a steamship

Within these boxes and trash bags were thousands of
(1) Rebecca Brown’s

23
15-cv-1583-DMS (WVG)

1

ticket from 1932, (8) Rebecca Brown’s report cards, (9) 45 singles of Perry Como, Bing

2

Crosby and Barbara Streisand and (10) a recipe for fudge. (Pls.’ Mot., Ex. 5 at 124-27.)

3

There is no dispute these items were not subject to seizure pursuant to the warrant. (Id.)

4

Nevertheless, Defendants argue the seizure of any documents outside the scope of

5

the warrant was reasonable because it would have been too time-consuming for the

6

officers to “go through every paper, album, journal, videotape and photograph at the

7

home.” (Mem. of P. & A. in Supp. of Defs.’ Mot. at 18.) This argument is similar to that

8

made by the Government in Tamura, and like the Ninth Circuit in that case, this Court

9

rejects it. As indicated in Tamura and Hillyard, the instances in which documents are “so

10

intermingled that they cannot feasibly be sorted on site” are “comparatively rare” and

11

“exceptional.” Tamura, 694 F.2d at 595; Hillyard, 677 F.2d at 1340. Defendants have

12

not shown this is one of those cases.

13

Indeed, the only evidence offered in support of Defendants’ argument is the

14

testimony of Rebecca Brown, who when asked if she had “any idea how long it would

15

have taken someone to go through all those photos if they did it at the scene at your

16

house,” responded, “It would have taken hours.” (Defs.’ Mot., Ex. G at 119.) Notably,

17

Defendants fail to provide any evidence of how many officers were involved in executing

18

the warrant or how long it took those officers to execute the warrant. And contrary to

19

Defendants’ assertion that it would have been too time-consuming to conduct a search of

20

these documents prior to their seizure, it appears the officers executing the warrant did

21

not make that attempt. Rather, Defendant Mekenas-Parga testified that when the officers

22

came across a box of photographs, they did not “go through it.” (Pls.’ Opp’n to Defs.’

23

Mot., Ex. 29 at 52-53.) Her feeling was “that there was no requirement of any review of

24

anything before it was seized.” (Pls.’ Mot., Ex. 4 at 82.)

25

In this case, as in Tamura, the government agents responsible for the search “did

26

not minimize intrusions on privacy, … but instead seized papers and records beyond those

27

the warrant authorized.” Sedaghaty, 728 F.3d at 914-15. On the current record, the Court

28

concludes the seizure of the property described above, as well as other similar property,
24
15-cv-1583-DMS (WVG)

1

went beyond the scope of the warrant, and was therefore unreasonable and a violation of

2

Plaintiffs’ Fourth Amendment rights.

3

Notwithstanding this finding, Defendants argue they are still entitled to judgment

4

on this claim on the basis of qualified immunity. As with Plaintiffs’ second claim,

5

Defendants argue here they are entitled to qualified immunity because they did not

6

personally participate in the seizure. As stated above, that argument goes to the merits of

7

Plaintiffs’ claim, not whether Defendants are entitled to qualified immunity. In any case,

8

that argument is refuted by the evidence, which reflects both Lambert and Mekenas-Parga

9

participated in the execution of the warrant. (Defs.’ Mot., Ex. D at 8; Ex. G at 95.)

10

Contrary to Defendants’ argument, they are not entitled to qualified immunity from this

11

claim. See Shamaeizadeh v. Cunigan, 338 F.3d 535, 555 (6th Cir. 2003) (“The officers

12

violated a clearly established constitutional right of which reasonable persons would have

13

known—a right to be free of seizures beyond the scope of a warrant, in the absence of an

14

exception to the warrant requirement such as the plain view doctrine.”); Demuth v.

15

Fletcher, No. 08-5093 (JRT/LIB), 2011 U.S. Dist. LEXIS 34638, at *32-36 (D. Minn.

16

March 31, 2011) (denying qualified immunity on Fourth Amendment claim where “[t]he

17

most cursory review of the materials would have revealed the inappropriateness of seizing

18

them.

19

defendants went beyond their scope and seized materials that had not been enumerated,

20

which a reasonable officer would not have seized.”) Rather, in light of the above, the

21

Court grants Plaintiffs’ motion for summary judgment on this claim.

22

E.

A reasonable fact-finder could conclude that when executing the warrant,

Wrongful Detention of Seized Property

23

The next claim is that Defendant Lambert wrongfully detained Plaintiffs’ illegally

24

seized property in violation of the Fourth Amendment. As with the third claim for relief,

25

both Plaintiffs and Defendants move for summary judgment on this claim.

26

As an initial matter, Defendants request that the Court dismiss this claim because

27

it is not legally viable. (Defs.’ Opp’n to Pls.’ Mot. at 11.) They contend that to the extent

28

Defendant Lambert’s detention of Plaintiffs’ property was wrongful, Plaintiffs’ claim
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arises under the Due Process Clause rather than the Fourth Amendment. Although there

2

is case law to support Defendants’ argument, see Fox v. Van Oosterum, 176 F.3d 342,

3

351 (6th Cir. 1999) (“the Fourth Amendment protects an individual’s interest in retaining

4

possession of property but not the interest in regaining possession of property.”), there is

5

also case law from the Ninth Circuit to support Plaintiffs’ claim under the Fourth

6

Amendment. See Tamura, 694 F.2d at 597 (“The Government’s unnecessary delay in

7

returning the master volumes appears to be an unreasonable and therefore

8

unconstitutional manner of executing the warrant.”) See also Brewster v. Beck, No. 15-

9

55479, 2017 U.S. App. LEXIS 10971, at *6 (9th Cir. June 21, 2017) (internal citations

10

omitted) (“The Fourth Amendment doesn’t become irrelevant once an initial seizure has

11

run its course. A seizure is justified under the Fourth Amendment only to the extent that

12

the government’s justification holds force.”) Therefore, the Court declines Defendants’

13

invitation to dismiss this claim as improperly pleaded.

14

As this claim is pleaded under the Fourth Amendment, Plaintiffs can prevail on this

15

claim only if they show Defendant Lambert’s detention of Plaintiffs’ property was

16

reasonable. Neither Plaintiffs nor Defendants provide the Court with any guidance on

17

how that issue is to be determined, but it would appear to involve “a careful balancing of

18

the nature and quality of the intrusion on the individual’s Fourth Amendment interests

19

against the countervailing governmental interests at stake.” Forrester v. City of San

20

Diego, 25 F.3d 804, 806 (9th Cir. 1994). See also San Jose Charter of the Hells Angels

21

Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir. 2005) (quoting Berger v.

22

New York, 388 U.S. 41, 70 (1967) (Stewart, J., concurring)) (“‘the standard of

23

reasonableness embodied in the Fourth Amendment demands that the showing of

24

justification match the degree of intrusion.’”) If that balancing test weighed in Plaintiffs’

25

favor, then Plaintiffs will have shown a violation of the Fourth Amendment rights.

26

However, even if Plaintiffs made that showing, Defendants would be entitled to

27

qualified immunity on this claim. Even though Defendants did not raise this argument

28

initially, and despite Plaintiffs’ notice of supplemental authority, (see Docket No. 87),
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there was no precedent as of November 2014, when Plaintiffs’ property was returned to

2

Rebecca Brown, that put Lambert on “clear notice” that his continued detention of

3

Plaintiffs’ property under the circumstances was a violation of Plaintiffs’ Fourth

4

Amendment rights. S.B. v. County of San Diego, No. 15-56848, 2017 U.S. App. LEXIS

5

8452, at *15 (9th Cir. May 12, 2017). The cases Plaintiffs cite, Tamura, United States v.

6

Comprehensive Drug Testing, 621 F.3d 1162, (9th Cir. 2010) (en banc), and Brewster, are

7

factually distinguishable from this case, and thus not “sufficiently analogous” to give

8

Lambert “fair notice that it was objectively unreasonable” for him to continue to detain

9

Plaintiffs’ property while he waited for (a) the District Attorney’s office to review the

10

evidence and make a decision whether to file charges against Brown, or (b) Plaintiffs to

11

request an order from the court to release the property.15 S.B. v. County of San Diego,

12

2017 U.S. App. LEXIS 8452, at *16. Thus, Defendants are entitled to qualified immunity

13

on this claim.

14

F.

Wrongful Death

15

The next claim is for wrongful death against Defendant Lambert. In the Third

16

Amended Complaint, Plaintiffs allege Lambert knew Brown “was deeply depressed and

17

in danger of committing suicide” after he was accused of being involved in the death of

18

Claire Hough. (TAC ¶¶ 288-91.) Plaintiffs allege Lambert “elected to increase” the stress

19

on Brown, and decided he would refuse to return the property seized from Plaintiffs’ home

20

“despite repeated requests to return the wrongfully seized items in order to create the

21

highest possible level of stress on Kevin Brown.” (Id. ¶ 299.) Plaintiffs allege “Lambert

22

acted with knowledge that his refusal to return the seized property …

23

///

24
25
California Penal Code § 1536 provides: “All property or things taken on a warrant
must be retained by the officer in his custody, subject to the order of the court to which
he is required to return the proceedings before him, or of any other court in which the
offense in respect to which the property of things taken is triable.” Cal. Penal Code §
1536.
15

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27
28

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created a high risk that Kevin Brown would commit suicide, and that Kevin’s suicide was

2

a foreseeable result of his continued refusal to return the seized property.” (Id. ¶ 300.)

3

Defendants are the only parties moving for summary judgment on this claim. They

4

argue Plaintiffs’ claim actually sounds in negligence, which is insufficient to support a

5

claim under § 1983.

6

constitutional rights, and even if there was, Plaintiffs cannot establish any alleged

7

violation caused Brown’s death. Finally, Defendants claim they are entitled to qualified

8

immunity.

They also assert there was no violation of Kevin Brown’s

9

Although causation is an element of Plaintiffs’ wrongful death claim, the claim is

10

clearly pleaded as a § 1983 claim, not a claim for negligence. Thus, Defendants’ first

11

argument does not warrant judgment in their favor.

12

Defendants’ second argument also fails to show Defendants are entitled to

13

judgment as a matter of law. This argument goes to the first element of Plaintiffs’

14

wrongful death claim, which requires Plaintiffs to prove there was a violation of their

15

constitutional rights. See Montano v. Orange Cnty., Tex., 842 F.3d 865, 882 (5th Cir.

16

2015) (quoting Phillips ex rel. Phillips v. Monroe Cty., Miss., 311 F.3d 369, 374 (5th Cir.

17

2002)) (“‘[A] plaintiff seeking to recover on a wrongful death claim under § 1983 must

18

prove both the alleged constitutional deprivation required by § 1983 and the causal link

19

between the defendant’s unconstitutional acts or omissions and the death of the victim, as

20

required by the state’s wrongful death statute.’”) Although Defendants argue there was

21

no violation of Plaintiffs’ constitutional rights, the above discussion with respect to

22

Plaintiffs’ third claim for seizure beyond the scope of the warrant refutes that argument.

23

The presence of genuine issues of material fact on the Franks claim and the second claim

24

for an overbroad warrant also leaves open the possibility that the jury will find other

25

constitutional violations. Thus, Defendants are not entitled to summary judgment on the

26

ground there was no constitutional violation here.

27

Defendants’ third argument focuses on the element of causation. “To meet this

28

causation requirement, the plaintiff must establish both causation-in-fact and proximate
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1

causation.”

2

Causation-in-fact is a factual determination, and proximate cause presents a mixed

3

question of law and fact. Id. n.13.

Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008)

4

Here, Defendants argue there is no evidence of proximate cause. (Mem. of P. &

5

A. in Supp. of Defs.’ Mot. at 23.) However, Rebecca Brown testified her husband was

6

not suicidal before he became a target of the investigation into Claire Hough’s murder.

7

(Pls.’ Opp’n to Defs.’ Mot., Ex. 32 at 62.) She also testified he became suicidal after that

8

time. (Id.) Rebecca Brown also testified she told Defendant Lambert she “was worried

9

that maybe her husband would kill himself” after she found him “groggy” in bed with a

10

bullet on the floor next to the bed and a handwritten note he had penned to her. (Id. at

11

62-63, 67-68.) Blakely, Rebecca’s brother, also testified he twice informed Defendant

12

Lambert he removed all the firearms from the Browns’ home because “it was clear to

13

[him] that something bad was happening” with Kevin and Rebecca Brown. (Defs.’ Mot.,

14

Ex. Q at 16.) Construed in Plaintiffs’ favor, this evidence raises a genuine issue of

15

material fact on the element of causation.

16

Defendants raise another argument on the element of causation, namely that

17

Brown’s suicide was an intervening, superseding cause of Plaintiffs’ injury such that

18

Defendant Lambert cannot be held liable for wrongful death. However, in Castro v.

19

County of Los Angeles, 797 F.3d 654 (9th Cir. 2015), cert. denied, 137 S.Ct. 831 (2017),

20

the Ninth Circuit stated “[a] corrections officer will be held legally responsible for an

21

inmate’s injuries if the officer’s actions are a ‘moving force’ behind a series of events that

22

ultimately lead to a foreseeable harm, even if other intervening causes contributed to the

23

harm.” Id. at 667 (citing Conn v. City of Reno, 591 F.3d 1081, 1100 (9th Cir. 2010))

24

(emphasis added). The court added, “[i]f reasonable persons could differ over the

25

question of foreseeability, that issue should be left to the jury.” Id. (citing Conn, 591 F.3d

26

at 1100). Here, there are numerous triable issues of material fact on the element of

27

causation, which preclude entry of summary judgment.

28
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15-cv-1583-DMS (WVG)

1

Defendant’s final argument on the wrongful death claim is Defendant Lambert is

2

entitled to qualified immunity. Specifically, Defendants argue the right allegedly violated

3

here was not clearly established. According to Defendants, that right was the “right to be

4

free from investigation[.]” (Mem. of P. & A. in Supp. of Defs.’ Mot. at 21.) However,

5

that misstates the issue. The rights at issue here do not include the “right to be free from

6

investigation.” Indeed, Plaintiffs agree there is no such right. Rather, the rights at issue

7

here are Plaintiffs’ rights under the Fourth Amendment, and with respect to those rights,

8

“[t]he law regarding the permissible scope of a search where items in a warrant have been

9

particularly described is hardly an uncertain and evolving area of the law.” Creamer v.

10

Porter, 754 F.2d 1311, 1319 (5th Cir. 1985). See also Ellertson v. City of Mesa, No. CV-

11

15-00765-PHX-GMS, 2016 U.S. Dist. LEXIS 2366, at *11-12 (D. Ariz. Jan. 8, 2016).

12

(“The scope of the right to search and seize property was defined by the warrant and

13

exceeding that scope violates the clearly established rights of the Plaintiffs. This principle

14

has been long established.”). The same may be said of the rights at issue in Plaintiffs’

15

first claim. Bettin v. Maricopa County, No. CIV 04-02980 PHX MEA, 2007 U.S. Dist.

16

LEXIS 42979, at *54 (D. Ariz. 2007) (“An officer who prepares a plainly invalid warrant

17

that a reasonably competent officer should know was deficient is not entitled to immunity,

18

despite the approval of the warrant by a magistrate.”) Thus, Defendants are not entitled

19

to qualified immunity from Plaintiffs’ wrongful death claim.16

20

III.

21

CONCLUSION

22

For these reasons, Defendants’ motion for summary judgment is granted in part

23

and denied in part and Plaintiffs’ motion for partial summary judgment is granted in part

24

and denied in part. Specifically, the Court grants Defendants’ motion on Plaintiffs’ fourth

25
26
27
28

Defendants’ request for summary judgment on Plaintiffs’ sixth claim for deprivation
of First and Fifth Amendment rights to intimate familial association is based on the same
arguments presented on Plaintiffs’ fifth claim. For the reasons set out above, the Court
rejects those arguments as against the sixth claim, as well.
16

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15-cv-1583-DMS (WVG)

1

claim for relief, grants Plaintiffs’ motion on the third claim for relief and denies the

2

remainder of the motions.17

3
4

IT IS SO ORDERED.
Dated: June 23, 2017

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The parties have fully briefed the issue of whether Defendants’ appeal of the Court’s
previous order is frivolous. Although this amended order changes the Court’s ruling on
Plaintiffs’ fourth claim and amends the analysis of Plaintiffs’ first claim, the Court expects
Defendants will appeal this order. Should they do so, and should Plaintiffs file another
motion to certify the appeal as frivolous, the Court would be inclined to deny that motion.
17

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15-cv-1583-DMS (WVG)