Cordova v. Imperial County Narcotics Task Force et al
Filing
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ORDER: (1) Granting the Fontana Police Defendants' motion to dismiss Plaintiff's Complaint with prejudice. (2) Denying as moot Defendants' motion for leave to appear telephonically at hearing (ECF Nos. #12 , #14 , #15 , #16 , and 17 ]. All allegations against individual defendants in their official capacity are dismissed given Plaintiff has already sued the County of Imperial, making such allegations duplicative. All Doe Defendants are dismissed for want of prosecution pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Police Defendants Motion to Dismiss the Complaint is granted with prejudice. Signed by Judge Roger T. Benitez on 1/07/2022. (jpp)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JOSE MANUEL CORDOVA, an
individual,
Plaintiffs,
v.
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IMPERIAL COUNTY NARCOTICS
TASK FORCE, a California governmental
entity; COUNTY OF IMPERIAL, a
California governmental entity; MELANIE
MAGUE, individually and in her official
capacity; ALBERT VALENZUELA,
individually and in his official capacity;
IMPERIAL COUNTY DISTRICT
ATTORNEY, a California governmental
entity; GILBERT G. OTERO, individually
and in his official capacity; IMPERIAL
COUNTY SHERIFF’S OFFICE, a
California governmental entity;
RAYMOND LOERA, individually and in
his official capacity; FONTANA POLICE
DEPARTMENT, a California
governmental entity; CHRISTOPHER
MACIAS, individually and in his official
capacity; CARL GUTHRIE, individually
and in his official capacity; and DOES 1
through 10, inclusive,
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Defendants.
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Case No.: 3:21-cv-00445-BEN-DEB
ORDER:
(1) GRANTING THE FONTANA
POLICE DEFENDANTS’
MOTION TO DISMISS
PLAINTIFF’S COMPLAINT
WITH PREJUDICE
(2) DENYING AS MOOT
DEFENDANTS’ MOTION FOR
LEAVE TO APPEAR
TELEPHONICALLY AT
HEARING
[ECF Nos. 12, 14, 15, 16, and 17]
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I.
Plaintiff Jose Manuel Cordova, an individual (“Plaintiff” or “Mr. Cordova”) brings
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INTRODUCTION
this civil rights action against Defendants Imperial County Narcotics Task Force, a
California governmental entity (the “ICNTF”); the County of Imperial, a California
governmental entity (“Imperial County”); Melanie Mague (“Ms. Mague”), individually
and in her official capacity as a law enforcement officer working for the United States
Department of Justice, Drug Enforcement Agency (“DEA”)1; Albert Valenzuela (“Mr.
Valenzuela”), individually and in his official capacity as a law enforcement officer; the
Imperial County District Attorney, a California governmental entity (the “ICDA”); Gilbert
G. Otero, individually and in his official capacity as the District Attorney; the Imperial
County Sheriff’s Office, a California governmental entity (the “ICSO”); Raymond Loera,
individually and in his official capacity as Sheriff; the City of Fontana, erroneously sued
as the Fontana Police Department, a California governmental entity (the “FPD”);
Christopher Macias, individually and in his official capacity as a law enforcement officer
for FPD (“Mr. Macias”); Carl Guthrie, individually and in his official capacity as a law
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42 U.S.C. § 1983 (“Section 1983”) provides a means to sue individuals acting under
color of state law in their individual, but not official capacity. See, e.g., Vance v. County of
Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (providing that “persons” under
Section 1983 means only “state and local officials sued in their individual capacities,
private individuals and entities which act under color of state law, and/or the local
governmental entity itself”). Where a plaintiff pleads a separate claim against a county,
allegations against individuals in their official capacity become duplicative. Larez v. City
of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Here, Plaintiff has already pled a
separate claim against the County of Imperial, making the official capacity allegations
against all individual defendants duplicative. See Cavanaugh v. Cty. of San Diego, No.
3:18-CV-02557-BEN-LL, 2020 WL 6703592, at *25 (S.D. Cal. Nov. 12, 2020), judgment
entered, No. 18-CV-02557-BEN-LL, 2020 WL 6702029 (S.D. Cal. Nov. 13, 2020)
(dismissing all defendants to the extent they were sued in their official capacity, leaving
only the allegations against them in their individual capacity where all individual
defendants were sued in their individual and official capacity), affirmed by No. 20-56311,
2021 WL 6103115, at *1 (9th Cir. Dec. 22, 2021). Such individuals are dismissed in their
official capacity by the Court with prejudice.
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enforcement officer for FPD (“Mr. Guthrie”) (collectively, “Defendants”2); and Does 1
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through 103, inclusive. Complaint, ECF No. 1 (“Compl.”) at 2-6, ¶¶ 3-14.
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Before the Court are the Motions of Police Defendants (1) to Dismiss Plaintiff’s
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Complaint for Failure to State a Claim, ECF No. 12 (the “Motion”), and (2) for Leave to
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Appear Telephonically or by Videoconference During the COVID-19 Public Emergency,
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ECF No. 15. The Motions were submitted on the papers without oral argument pursuant
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to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure
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(“FRCP”), thereby mooting Defendants’ Motion for Leave to Telephonically Appear at the
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Hearing on the Motion. ECF No. 17; see also Tur v. YouTube, Inc., 562 F.3d 1212, 1214
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(9th Cir. 2009) (“[A]n issue is moot when deciding it would have no effect within the
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confines of the case itself.”).
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documentation, and applicable law, the Court (1) GRANTS Defendants’ Motion to
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Dismiss the Amended Complaint without leave to amend and (2) DENIES Defendants’
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Motion for Leave to Telephonically Appear at the Hearing on the Motion.
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II.
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After considering the papers submitted, supporting
BACKGROUND
A.
Statement of Facts4
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For ease of distinguishing which allegations are pled against which defendants
throughout this order, the ICNTF, Imperial County, Ms. Mague, Mr. Valenzuela, the
ICDA, Mr. Otero, the ICSO, and Mr. Loera shall be referred to as the “Investigative
Defendants,” while the FPD, Mr. Macias, and Mr. Guthrie shall be referred to as the Police
Defendants.
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Unlike California’s code pleading standards, the Federal Rules of Civil Procedure
do not permit doe defendants. Cavanaugh, 2020 WL 6703592, at *25. In the case of
actions brought pursuant to Section 1983, like the present case, courts will permit doe
defendants so long as the plaintiff makes specific allegations as to how each doe defendant
violated the plaintiff’s rights. See id. (dismissing Does 1 through 50 after noting “sua
sponte, that the SAC also includes allegations against Does 1 through 50,” which is
improper”). Here, there are no specific allegations against the individual doe defendants
detailing how he or she contributed to a violation of Plaintiff’s constitutional rights. The
doe defendants have also not been served. Thus, they are dismissed without prejudice.
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The majority of the facts set forth are taken from the operative complaint, and for
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Plaintiff alleges that between September 20, 2013 and October 3, 2013, the
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Investigative Defendants conducted a wiretap on the telephones of two individuals,
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Raphael Martinez and Jonathan Vizcaino, pursuant to an order issued pursuant to Search
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Warrant 2013-185 (“SW-2013-185”) allowing them to wiretap for the purpose of listening
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for drug-related activity. Compl. at 7, ¶ 19; see also Defendants’ Motion, ECF No. 12-1
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(“Mot.”) at 6 10-11. During calls on September 20, 24, 26, 30, 2013 and October 1, 2, 3,
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2013, the Investigative Defendants intercepted statements using the wiretap that led them
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to believe that a kidnapping was going to take place in the City of Fontana. Id. at 7, ¶ 20;
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see also Mot. at 6:15-16. Moving Parties state that Imperial County asked for the FPD’s
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help in preventing the kidnapping. Mot. at 6:16-17.
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On October 3, 2013, both the Investigative Defendants and Police Defendants,
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relying on the intercepted communications obtained via the wiretap performed pursuant to
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Search Warrant 2013-185, obtained a separate search warrant5; stopped Plaintiff and two
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purposes of ruling on Defendants’ Motion, the Court assumes the truth of the allegations
pled and liberally construes all allegations in favor of the non-moving party. Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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Plaintiff pleads that this search took place “relying on nothing more than the
intercepted communications obtained via wiretap,” Compl. at 7, ¶ 21, while in their Motion
to Dismiss, Police Defendants state that “the Imperial County Defendants and City
obtained a search warrant, stopped Plaintiff’s vehicle, and searched Plaintiff and his
property,” Mot. at 6:16-20 (citing Compl. at 7, ¶ 21). Because the Court, when ruling on
a motion to dismiss, must limit itself to the four corners of the complaint while assuming
the truth of the plaintiff’s allegations, Van Buskirk v. Cable News Network, Inc., 284 F.3d
977, 980 (9th Cir. 2002); Manzarek, 519 F.3d at 1031, it would normally disregard
Defendants’ claim that they had a warrant for the search and seizure. However, in
Plaintiff’s Opposition brief, he argues that he “can allege additional facts establishing that
the [Police] Defendants had no other basis to stop the vehicle Mr. Cordova was in, that
they should have reasonably known the warrant was invalid, and that they executed the
same in any event.” Oppo. at 5:14-17. Because the Police Defendants were not alleged to
be involved in executing the wiretap, see Compl. at 7, ¶ 19, if the Police Defendants were
“execut[ing] a warrant,” it must have been a different warrant. Thus, the Court construes
Plaintiff’s argument as conceding that the search of Plaintiff’s vehicle and hotel room and
subsequent arrest was performed after obtaining a search warrant. See, e.g., FED. R. CIV.
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other men; searched their vehicles, property, and hotel rooms; and arrested them. Id. at 7,
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¶ 21; Mot. at 6:17-20.
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Approximately one year and a half later, on April 14, 2015, a first amended
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information was filed in the Imperial County Superior Court, Count I of which alleged that
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Plaintiff conspired to commit the crime of kidnapping for ransom in violation of California
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Penal Code, §§ 182(a)(1), 209(a). Compl. at 8, ¶ 26(a); see also California v. Jose Manuel
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Cordova, Imperial County Superior Court Case No. JCF31827 (the “Criminal Case”). This
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charge arose out of the wiretap investigation that included wiretap interception order SW-
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2013-185, issued on or about September 20, 2013. Id.
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On May 12, 2015, after using the wiretap communications as “the sole evidence”
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used to establish Plaintiff’s alleged involvement with the kidnapping, a jury found Plaintiff
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guilty on Count I. Compl. at 7, ¶ 22, 8, ¶ 26(b); but see CAL. PENAL CODE § 1054.1
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(requiring a prosecuting attorney to disclose to a defendant or his counsel any exculpatory
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evidence in the prosecutor’s possession, or that the prosecutor knows to be in the
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possession of any investigating agencies). At the time of his conviction, Plaintiff alleges
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that he was unaware that the ICDA had failed to obtain an order from the court stating that
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the intercepted communications that went beyond the scope of the wiretap order could be
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admitted in Court, as is required by California Penal Code, § 629.50 et seq.6 Id. at 7, ¶ 25.
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P. 10(C) (explaining that “[a] statement in a pleading may be adopted by reference … in
any other pleading or motion”); see also Camara de Mercadeo, Industria y Distribucion
de Alimentos, Inc. v. Emanuelli-Hernandez (D.P.R. Nov. 30, 2021) (noting that courts may
consider concessions in a plaintiff’s opposition brief when determining “whether a
complaint has stated a plausible, non-speculative claim for relief”) (citing Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir. 2012) (same). The Court
finds that the search of Defendant’s vehicle and hotel room was performed pursuant to a
warrant.
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“[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S.
83, 87 (1963). Here, the failure to disclose the judicial authorization had been obtained,
whether intentional or unintentional, does not qualify as a Brady violation because no
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On June 17, 2016, Plaintiff was sentenced to 1,136 days in jail (which he had already
served) and probation. Compl. at 7, ¶ 23, 8, ¶ 26(c).
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On or about June 17, 2019, Plaintiff’s probation was terminated. Compl. at 7, ¶ 24.
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During post-trial proceedings in the case involving Plaintiff’s co-defendant, Raphael
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Martinez (Case No. EHC000180), the government discovered that judicial authorization
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had not been obtained pursuant to California Penal Code, section 629.82(a) to allow use of
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evidence of crimes not specified in SW-2013-185. Id. at 8, ¶ 26(d). Penal Code sections
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182(a)(1) and 209(a), the statutes under which Plaintiff was convicted, were not specified
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in wiretap interception order SW-2013-185. Id. On December 23, 2019, “Plaintiff filed a
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letter to the court in his criminal action … in which he references the outcome of the habeas
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corpus petition filed by his co-defendant Rafael Martinez wherein it was discovered that
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there were authorization issues with SW-2013-185.” Answer, ECF No. 11 (“Ans.”) at 6,
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¶ 27.
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On or about June 3, 2020, based on a stipulation submitted to the Superior Court for
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the County of Imperial, the court entered a Stipulation and Order to Vacate Conviction as
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to Count 1 in Plaintiff’s Criminal Case. Compl. at 8, ¶ 26(e). Defendants “admit that
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judicial authorization was not obtained pursuant to Penal Code section 629.82(a) to allow
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use of evidence of crimes not specified in SW-2013-185.” Ans. at 6, ¶ 25. Plaintiff alleges
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he did not learn that the scope of the wiretap warrant had been exceeded until he was served
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with a copy of the June 3, 2020 Stipulation and Order.7 He further pleads that his “delay
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evidence was suppressed, and the evidence used (i.e., wiretap recordings of Plaintiff
planning a kidnapping was not exculpatory and was, in fact, very inculpatory). Rather, the
procedure for using such inculpatory evidence was not followed.
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Plaintiff alleges in his complaint that the Stipulation and Order invalidated the
wiretap order. Compl. at 9, ¶ 27. The court “[m]ay take judicial notice on its own,” or sua
sponte, FED. R. EVID. 201(c)(1), including of district court records on the docket, see, e.g.,
United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (providing that “a court may
take judicial notice of its own records in other cases, as well as the records of an inferior
court in other cases”). The Court requested and obtained a copy of the Stipulation and
Order from the Imperial County Superior Court and takes judicial notice of that order as a
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in learning about the invalidity of the wiretap order and the use of the intercepted
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communications was reasonable as the matter required years of litigation to determine,
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with the District Attorney refusing to produce the wiretap orders and affidavits.” Compl.
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at ¶ 28.
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At this time the Court vacated his conviction, Plaintiff had already served his time
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in jail, and his probation had terminated. Thus, the Court’s decision vacating the conviction
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only had the effect of removing the conviction from his record.
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B.
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On March 12, 2021, Plaintiff filed this lawsuit against Defendants, alleging a single
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cause of action for violation of his civil rights pursuant to 42 U.S.C. § 1983 against all
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Defendants. See Compl. at 9-10.
Procedural History
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By March 18, 2021, Plaintiff had served the ICDA, Imperial County, the FPD, the
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ICSO, and ICNTF. ECF Nos. 3, 6, 7, 8, 9, 10. However, to date, no proof of service has
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been filed for Ms. Mague, Mr. Valenzuela, Mr. Otero, Mr. Loera, Mr. Macias, and Mr.
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Guthrie.8
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On April 7, 2021, Defendants Imperial County, ICDA, ICSO, Mr. Otero, and Mr.
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public record. That order in no way invalidated any search warrants involved in this case.
Rather, after Plaintiff had been released from incarceration, the parties agreed to vacate his
conviction, and the judge presiding over the case vacated the judgment for the conviction,
pursuant to the parties’ stipulation. See Stipulation and Order to Vacate Conviction, People
v. Jose Cordova, Imperial County Superior Court Case No. JCF31827 (Jun. 3, 2020).
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Nonetheless, on May 11, 2021, a Notice of Appearance was filed on behalf of the
FPD, Mr. Macias, and Mr. Guthrie. ECF No. 13. On June 9, 2021, a Notice of Appearance
was also filed on behalf of Mr. Otero and Mr. Loera. See ECF Nos. 18 and 20. Thus, Ms.
Mague and Mr. Valenzuela remain unserved and have not yet appeared. But see FED. R.
CIV. P. 4(m) (providing that “[i]f a defendant is not served within 90 days after the
complaint is filed,” or in this case, by June 10, 2021, “the court—on motion or on its own
after notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time”); see also S.D. Cal. Civ.
R. 41.1(a) (providing that “[a]ctions or proceedings which have been pending for more
than six months, without any proceeding or discovery having been taken therein during
such period, may, after notice, be dismissed by the court for want of prosecution”).
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Loera filed an Answer to Plaintiff’s Complaint. ECF No. 11. That same day, Police
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Defendants filed the instant Motion. See Motion, ECF No. 12-1 (“Mot.”). On May 24,
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2021, Plaintiff opposed. Opposition, ECF No. 14 (“Oppo.”). On May 28, 2021, Moving
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Parties replied. Reply, ECF No. 16 (“Reply”).
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III.
LEGAL STANDARD
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Under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”), a
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complaint must be dismissed when a plaintiff’s allegations fail to set forth a set of facts
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which, if true, would entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be
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facially plausible to survive a motion to dismiss). The pleadings must raise the right to
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relief beyond the speculative level; a plaintiff must provide “more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
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Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a
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motion to dismiss, a court accepts as true a plaintiff’s well-pleaded factual allegations and
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construes all factual inferences in the light most favorable to the plaintiff. See Manzarek
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v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A court is not
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required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S.
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at 678.
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“Generally, unless the court converts the Rule 12(b)(6) motion into a summary
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judgment motion, it cannot consider material outside the complaint (e.g., facts presented
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in briefs, affidavits or discovery materials).” Phillips & Stevenson, California Practice
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Guide: Federal Civil Procedure Before Trial § 9:211 (The Rutter Group April 2020).
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Thus, in evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of
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the complaint and material properly submitted with it. Van Buskirk v. Cable News
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Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner
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& Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation by
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reference doctrine, the court may also consider documents “whose contents are alleged in
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a complaint and whose authenticity no party questions, but which are not physically
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attached to the pleading” without converting a motion to dismiss to a motion for summary
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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds
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by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002). The court may
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treat such a document as “part of the complaint, and thus may assume that its contents are
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true for purposes of a motion to dismiss under Rule 12(b)(6).” United States v. Ritchie,
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342 F.3d 903, 908 (9th Cir. 2003). “Plaintiffs may plead themselves out of court by
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attaching exhibits inconsistent with their claims because the court may disregard
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contradictory allegations.” Phillips, § 9:212a; Johnson v. Fed. Home Loan Mortg. Corp.,
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793 F.3d 1005, 1007–08 (9th Cir. 2015) (noting that courts “need not accept as true
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allegations contradicting documents that are referenced in the complaint”).
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also consider any statements made in a pleading or motion, including concessions made in
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plaintiff’s response to the motion to dismiss as well as in response to any other pleading or
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motion. FED. R. CIV. P. 10(C).
Courts may
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When a motion to dismiss is granted, the court must decide whether to grant leave
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to amend. The Ninth Circuit has a liberal policy favoring amendments, and thus, leave to
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amend should be freely granted. DeSoto v. Yellow Freight System, Inc., 957 F.2d 655, 658
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(9th Cir. 1992). However, a court need not grant leave to amend when permitting a plaintiff
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to amend would be an exercise in futility. See, e.g., Rutman Wine Co. v. E. & J. Gallo
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Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“Denial of leave to amend is not an abuse of
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discretion where the pleadings before the court demonstrate that further amendment would
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be futile.”).
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IV.
DISCUSSION
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Police Defendants move to dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6)
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by arguing that Plaintiff’s claim is barred by the statute of limitations, and even if the claim
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was not barred, Plaintiff fails to plead sufficient facts to state a claim. Mot. at 6:27-7:2.
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They also argue that Plaintiff has failed to plead sufficient facts to establish liability against
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the City of Fontana under Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). Id. at 7:2-
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3.
This Court agrees that the statute of limitations has run on Plaintiff’s claims.
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Alternatively, Plaintiff has not made out a plausible claim for relief. Plaintiff has pled the
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bare elements of a claim for relief under Section 1983. The problem lies in the fact that
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since the Supreme Court’s decision in Twombly in 2007, a plaintiff must provide “more
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than . . . a formulaic recitation of the elements of a cause of action.” 550 U.S. at 555.
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Here, Plaintiff’s Complaint fails because his own inconsistent and unclear allegations make
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the constitutional violations he alleges implausible. Sprewell v. Golden State Warriors,
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266 F.3d 979, 988-89 (9th Cir.), opinion amended on denial of reh'g, 275 F.3d 1187 (9th
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Cir. 2001) (“We have held that a plaintiff can—as Sprewell has done here—plead himself
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out of a claim by including unnecessary details contrary to his claims.”); see also Steckman
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v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998) (“[W]e are not required to
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accept as true conclusory allegations which are contradicted by documents referred to in
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the complaint.”).
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In sum, this Court GRANTS Police Defendants’ Motion to dismiss the complaint
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because, as analyzed below, as pled, Plaintiffs’ claims fail as a matter of law. Because the
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facts of this case indicate that Plaintiffs’ legal theories fail as matter of law and cannot be
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cured by amendment, the Court also denies leave to amend.
A.
Plaintiff’s Claims Are Untimely
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“A claim may be dismissed as untimely under Rule 12(b)(6) if the running of
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the statute of limitations is apparent on the face of the complaint.” Bryan v. City of
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Carlsbad, 297 F. Supp. 3d 1107, 1121 (S.D. Cal. 2018) (citing Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)). With respect to lawsuits
filed pursuant to Section 1983, federal courts look to state law to determine the applicable
statute of limitations but federal law to examine accrual. Wallace v. Kato, 549 U.S. 384,
387-88 (2007). In California, personal injury actions must be filed within two years from
the date of injury.9 CAL. CODE CIV. P. §§ 335.1; see also Oppo. at 4:23-25 (agreeing that
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As discussed below, Plaintiff alleges violations of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (the “OCCSSA”) and Preseley-FelandoEaves Wiretap Act of 1988, CAL. PENAL CODE §§ 629.50 et seq. (the “PFEWA”). Compl.
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the statute of limitations under section 335.1 is two years); Mills v. City of Covina, 921
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F.3d 1161, 1166 (9th Cir.), cert. denied sub nom. Mills v. City of Covina, California, 140
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S. Ct. 388 (2019) (applying California’s two year statute of limitations to the plaintiff’s
4
Section 1983 claims for, inter alia, an unlawful stop and detention). “Accrual is the date
5
on which the statute of limitations begins to run; under federal law, a claim accrues ‘when
6
the plaintiff knows or has reason to know of the injury which is the basis of the
7
action.’” Lukovsky v. City & Cty. of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008).
8
In a traditional Fourth Amendment case, such as this one, the claim begins accruing
9
at the time of the search and seizure. Belanus v. Clark, 796 F.3d 1021, 1025-27 (9th Cir.
10
2015); Mills, 921 F.3d at 1166 (“Mills had complete and present causes of action for all
11
but his malicious prosecution and Monell liability claims when he was subjected to
12
a search in violation of the Fourth Amendment and was arrested; therefore, those
13
claims accrued at that time.”). Meanwhile, “§ 1983 claims relating to pending charges do
14
not accrue until the charges are dismissed if a judgment in favor of the plaintiff would
15
necessarily imply the invalidity of any sentence that might result from prosecution of
16
pending charges.” Womack v. Cty. of Amador, 551 F. Supp. 2d 1017, 1025 (E.D. Cal.
17
18
19
20
21
22
23
24
25
26
27
28
at 9, ¶ 30. The OCCSSA requires a civil action for violation of its provisions to be
commenced within “two years after the date upon which the claimant first has a reasonable
opportunity to discover the violation,” 18 U.S.C. § 2520(e), but there were no federal actors
alleged to have been involved and the PFEWA is more restrictive than the OCCSSA. The
PFEWA, on the other hand, does not set out a specific statute of limitations. CAL. PENAL
CODE § 629.84; see also Guerrero v. Hestrin, 56 Cal. App. 5th 172, 192, n.11 (2020)
(noting that “[a]lthough [it was] not aware of any case discussing the statute of limitations
for a section 629.86 action and [did] not rule on the issue, … (1) the statute does not state
a limitations period, (2) the general ‘catch-all’ limitations period is four years where the
Code of Civil Procedure does not provide otherwise (Code Civ. Proc., § 343), and (3) if
the catchall provision governs, then the limitations period may have already run for many
of those whose calls were intercepted at least five years ago”). Here, even if the Court
construed Plaintiff’s claim as a claim for violations of section 629.86 of the California
Penal Code, rather than a Section 1983 tort claim, applying California’s “catchall” statute
of limitations of four years but using the date the calls were intercepted (i.e., sometime in
September or October 2013), Plaintiff’s claims would still be time barred. See id.
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2008) (citing Harvey v. Waldron, 210 F.3d 1008, 1014-16 (9th Cir.2000) (“hold[ing] that
2
a § 1983 action alleging illegal search and seizure of evidence upon which criminal charges
3
are based does not accrue until the criminal charges have been dismissed or the conviction
4
has been overturned.”)).
5
State law governs the application of tolling doctrines. California Government Code
6
section 945.3 provides that the statute of limitations is tolled while criminal charges are
7
pending. CAL. GOV’T CODE § 945.3 (“No person charged ... [with] a criminal offense may
8
bring a civil action ... against a peace officer or the public entity employing a peace officer
9
based upon conduct of the peace officer relating to the offense ... while the charges against
10
the accused are pending before a superior court.”). The purpose behind the tolling
11
provision is to prohibit plaintiffs from using civil complaints as “bargaining chip[s] in plea
12
negotiations” or “discovery tools to probe the prosecution’s case.” McAdams v. El Dorado
13
Cty., No. 2:20cv1290-KJM-KJN, 2021 WL 6052277, at *2 (E.D. Cal. Dec. 21, 2021)
14
(citing Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728, 758 (2007)). Tolling ends
15
when the criminal charges are disposed. Id. In Plaintiff’s case, the criminal charges were
16
disposed on May 12, 2015, which is the day a jury found Plaintiff guilty of kidnapping.
17
Thus, the statute of limitations began running again in May 2015, and ran out two years
18
later in May 2017. Consequently, this action was filed four years too late.
19
Plaintiff disagrees arguing that his “[S]ection 1983 action’s statute of limitations was
20
subject to the Heck bar[ ] and did not accrue until the invalidation of his conviction on June
21
3, 2020.” Oppo. at 2:10, 3:11-13. In 1994, in Heck v. Humphrey, the Supreme Court
22
established what is known as the “Heck bar,” which prevents a person from filing a Section
23
1983 action to challenge a criminal conviction before the conviction is reversed, expunged,
24
declared invalid, or called into question in some fashion, resulting in a plaintiff being
25
“barred” from filing suit before that occurs. 512 U.S. 477, 478-80 (1994). Plaintiff
26
contends that under Heck, he had until June 3, 2022 to file this case, and by filing on March
27
12, 2021, he filed suit “a mere 9 months after his conviction was invalidated” and well
28
within the statute of limitations. Id. at 4:26-28.
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1
a.
History of the Heck Bar
2
Heck involved a challenge by a prisoner to the constitutionality of his conviction via
3
a suit for damages under Section 1983. 512 U.S. at 478. Roy Heck had been convicted of
4
voluntary manslaughter for the killing of his wife and was serving a fifteen-year sentence.
5
Id. While the appeal of his conviction was pending in state court, he filed his Section 1983
6
action in the district court against various defendants, including prosecutors and state police
7
employees, alleging they unlawfully and knowingly destroyed exculpatory evidence. Id.
8
at 478-79. Both the district court and Seventh Circuit, however, dismissed the Section
9
1983 complaint because the complaint “directly implicate[d] the legality of [the]
10
petitioner’s confinement,” which was still on appeal. Id. at 479.
11
The Supreme Court affirmed both lower courts, holding that “[j]ust as a cause of
12
action for malicious prosecution does not accrue until the criminal proceedings have
13
terminated in the plaintiff’s favor, so also a § 1983 cause of action for damages attributable
14
to an unconstitutional conviction or sentence does not accrue until the conviction or
15
sentence has been invalidated.” Id. at 489-90 (internal citations omitted). Consequently,
16
“when a state prisoner seeks damages in a § 1983 suit, the district court must consider
17
whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his
18
conviction or sentence.” Id. at 487. “[I]f it would, the complaint must be dismissed unless
19
the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”
20
Id. at 487. However, “if the district court determines that the plaintiff’s action, even if
21
successful, will not demonstrate the invalidity of any outstanding criminal judgment
22
against the plaintiff, the action should be allowed to proceed, in the absence of some other
23
bar to the suit.” Id.
24
Here, Plaintiff does not plead his case as one for an unlawful conviction or sentence;
25
rather, he frames the case as one for violation of the Fourth Amendment. See Compl. at 7,
26
¶ 25, 9, ¶ 30; see also Oppo. at 4:1-6 (“Mr. Cordova is not making such a section 1983
27
[false arrest] claim but is making a section 1983 claim based solely unlawful search and
28
seizure.”) (citing Compl. at 4, ¶ 30). The difference is important.
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1
Plaintiff argues that in Harvey v. Waldron, 210 F.3d 1008, 1015-16 (9th Cir. 2000),
2
the Ninth Circuit held that the Heck bar extends to Section 1983 claims alleging damages
3
attributable to an alleged illegal search and seizure under the Fourth Amendment. Oppo.
4
at 3:1-3. However, Harvey’s reasoning was overruled seven years later by the Supreme
5
Court in Wallace v. Kato, when the Court explained that applying the Heck bar to permit a
6
Fourth Amendment attack later, after the statute of limitations had run, would be “a bizarre
7
extension of Heck.” 549 U.S. at 393-94. Instead, as described more fully below, Wallace
8
suggested that a § 1983 plaintiff timely file his claim, and then, a court could stay the civil
9
15
case until the criminal proceedings had reached a conclusion:
If a plaintiff files a false-arrest claim before he has been
convicted (or files any other claim related to rulings that will
likely be made in a pending or anticipated criminal trial), it is
within the power of the district court, and in accord with common
practice, to stay the civil action until the criminal case or the
likelihood of a criminal case is ended. If the plaintiff is
ultimately convicted, and if the stayed civil suit would impugn
that conviction, Heck will require dismissal; otherwise, the civil
action will proceed, absent some other bar to suit.
16
Id. at 393-94 (citations omitted).
10
11
12
13
14
17
18
b.
Heck Bar false arrest claims accrue when the defendant is bound
over for trial
19
Although Plaintiff disavows basing his Section 1983 on an alleged false arrest claim,
20
see Oppo. at 4:1-6, because the Court dismisses this case with prejudice, it analyzes
21
whether Plaintiff’s claims could be plausibly be construed as a false arrest claim to save it
22
from the statute of limitations.
23
In Wallace, the Supreme Court held that the Heck bar does not extend to Fourth
24
Amendment claims filed before a conviction has occurred, overruling in part, some of the
25
holdings in Harvey. 549 U.S. at 386. The Wallace plaintiff filed suit under Section 1983,
26
seeking damages for an arrest that violated his Fourth Amendment rights. 549 U.S. at 386.
27
The defendant, Andre Wallace, had been taken to a police station one evening in January
28
1994, for questioning two days after an individual was shot to death in Chicago, Illinois.
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1
Id. After interrogations lasting into the early morning, the defendant agreed to confess to
2
the murder and signed a statement and Miranda waiver. Id. Before trial, the defendant
3
unsuccessfully attempted to suppress his station house confession as the product of an
4
unlawful arrest. Id. The defendant was convicted of first-degree murder and sentenced to
5
26 years in prison. Id. In 1998 and 2001, the Appellate Court of Illinois, however,
6
remanded the case for a new trial after concluding that (1) even assuming the defendant
7
willingly accompanied the police to the station, his presence escalated into an involuntary
8
seizure prior to his formal arrest, and (2) the effect of his arrest had not been sufficiently
9
attenuated to render his statements admissible. Id. at 386-87. Eventually, on April 10,
10
2002, the prosecution dropped the charges against the defendant. Id. at 387. On April 2,
11
2003, the defendant filed a lawsuit against the City of Chicago and several police officers,
12
seeking damage for his unlawful arrest. Id. at 387. The district court granted summary
13
judgment, which the Seventh Circuit Court of Appeals affirmed, on the basis that the
14
Section 1983 suit was time barred because his cause of action accrued at the time of his
15
arrest rather than when his convictions was later set aside. Id. at 387.
16
The Supreme Court affirmed, holding that “the statute of limitations upon a § 1983
17
claim seeking damages for a false arrest in violation of the Fourth Amendment, where the
18
arrest is followed by criminal proceedings, begins to run at the time the claimant becomes
19
detained pursuant to legal process.” Id. at 397. More specifically, the Court concluded
20
that the claim commences when the defendant appears “before the examining magistrate
21
and [is] bound over for trial.” Id. at 391-92. Because in Wallace, “this occurred (with
22
appropriate tolling for the plaintiff’s minority) more than two years before the complaint
23
was filed, the suit was out of time.” Id. at 397. The Court reasoned that no justification
24
for deferred accrual or tolling existed because the plaintiff could file suit after his arrest,
25
and the district court could stay a Section 1983 case until the criminal case ends to afford
26
adequate protection to the plaintiff’s rights. Id. at 394. It also expressly rejected any
27
argument that failing to equitably toll the statute of limitations would require the defendant
28
“to divide his attention between criminal and civil cases,” asking “when has it been the law
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1
that a criminal defendant, or a potential criminal defendant, is absolved from all other
2
responsibilities that the law would otherwise place upon him?” Id. at 396. In sum, Wallace
3
considered and expressly declined to adopt a tolling rule while the defendant is
4
incarcerated. Id.
5
Plaintiff argues that Wallace is distinguishable because it arose out of a claim for
6
false imprisonment, which Plaintiff contends “is subject to a distinctive rule” and accrues
7
when the plaintiff appears before the examining magistrate and is bound over for trial.
8
Oppo. at 3:17-21. Plaintiff contends that instead, like the Heck plaintiff, the product of the
9
illegal search and seizure (i.e., the wiretap used to convict him) “was ‘an essential element’
10
of the crimes for which [he] was charged and would necessarily imply the invalidity of
11
[his] criminal conviction.”
12
unpersuasive given the communications regarding the nontargeted offenses were obtained
13
by performing a lawful—as opposed to illegal—search (i.e., the wiretap).
14
c.
15
Id. at 3:7-8.
However, the Court finds this argument
Falsified or fabricated evidence claims begin to run on the date
of acquittal
16
More recently, in Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 914-15 (2017), the
17
Supreme Court expanded on Wallace, holding that a defendant “may [immediately]
18
challenge his pretrial detention on the ground that it violated the Fourth Amendment.
19
Unlike a Fourth Amendment claim, the statute of limitations period in a Section 1983 case
20
premised on fabricated evidence does not begin to run until the defendant’s acquittal.
21
McDonough v. Smith, 139 S. Ct. 2149, 2153 (2019).
22
involve claims of fabricated evidence leading to a Section 1983 claim for unlawful
23
confinement. 139 S. Ct. at 2153; 903 F.2d at 670. This case involves neither fabricated
24
evidence nor a claim for unlawful confinement.
25
d.
Both Manuel and McDonough
Heck Bar does not apply to excessive force cases
26
In Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en banc), the Ninth
27
Circuit held that the plaintiff, who had been convicted of resisting arrest, could bring a
28
Section 1983 claim without it being “barred by Heck because the excessive force may have
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1
been employed against him subsequent to the time he engaged in the conduct that
2
constituted the basis for his conviction.” In such a case, even if he succeeded on the Section
3
1983 claim, it would not necessarily invalidate his conviction. Id. Similarly, in this case,
4
the alleged unlawful acts—whether those are the use of the nontargeted offense
5
communications at trial or the search of his person based on overhearing the nontargeted
6
offense communications—took place after Plaintiff began conspiring to kidnap someone,
7
so even if he succeeded on his Section 1983 claim, it would not necessarily invalidate his
8
conviction. Thus, even though this case does not involve excessive force, applying the
9
excessive force cases to Plaintiff’s claims suggest the Heck Bar would not bar them.
10
In sum, the statute of limitations for a § 1983 claim based on the Fourth Amendment
11
is not extended by virtue of the Heck bar. Based on the face of the Complaint, Plaintiff’s
12
claim accrued in 2013 when the search and seizure took place. The statute of limitations
13
was then tolled by California Government Code § 945.3 until the criminal proceedings
14
came to an end on May 12, 2015 when the jury found Plaintiff guilty of the kidnapping
15
charges. However, the statute of limitations ran out two years later in May 2017, well
16
before Plaintiff filed suit in this case. Thus, the § 1983 claim for violations of the Fourth
17
Amendment is barred by the statute of limitations. Alternatively, Plaintiff fails to state a
18
19
claim for relief.
B.
Plaintiff Has Failed to Plead Sufficient Facts to State a Section 1983
Claim
20
“Every person who, under color of any statute … of any State … subjects, or causes
21
to be subjected, any citizen of the United States … to the deprivation of any rights,
22
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
23
injured in an action at law.” 42 U.S.C. § 1983. Thus, to state a claim under Section 1983,
24
a plaintiff must allege (1) the violation of a right secured by the Constitution and laws of
25
the United States and (2) that the alleged deprivation was committed by a person acting
26
under color of state law. Id.; see also West v. Atkins, 487 U.S. 42, 48 (1988); Belgau v.
27
Inslee, 975 F.3d 940 (9th Cir. 2020). “Section 1983 ‘is not itself a source of substantive
28
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’”
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1
Albright v. Oliver, 510 U.S. 266, 271 (1994).
2
Plaintiff’s Complaint alleges a violation of the Fourth Amendment of the United
3
States Constitution; the OCCSSA; and the PFEWA. Compl. at 9, ¶ 30. Although the Court
4
finds Plaintiff has adequately pled action taken under color of state law, Plaintiff’s claims
5
are not plausible. The alleged actions in this case do not amount to a violation of Plaintiff’s
6
Fourth Amendment rights, meaning he cannot state sufficient facts to plead the second
7
element of a Section 1983 claim: deprivation of a constitutional right.
1.
State Action
8
9
Action under color of state law is a jurisdictional prerequisite to a Section 1983
10
action because the Eleventh Amendment prohibits United States citizens from suing states.
11
U.S. CONST., AMENDMENT XI; West, 487 U.S. at 46. As such, “[n]either a state nor state
12
officials acting in their official capacities are ‘persons’ amenable to suit for damages under
13
42 U.S.C. § 1983.” Munoz v. Kolender, 208 F. Supp. 2d 1125, 1150-51 (S.D. Cal. 2002).
14
“The traditional definition of acting under color of state law requires that the defendant in
15
a § 1983 action have exercised power possessed by virtue of state law and made possible
16
only because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at
17
49. Essentially, the acts of the defendant in a Section 1983 action that are at issue must
18
have been done while abusing power given to the defendant by the State. Id.
19
As to the second prong, Plaintiff alleges Defendants acted under color of state law.
20
See, e.g., Compl. at 3-6, ¶¶ 4-14 (alleging that each defendant “acted under color of” his,
21
her, or its “authority as such, and under color of the states, regulations, customs, and usages
22
of the . . . State of California”). As such, Plaintiff has alleged state action. That being said,
23
Plaintiff also alleges a violation of the OCCSSA. However, “[b]ecause the Defendants are
24
local rather than federal officials and municipalities, and because the two wiretapping
25
statutes regulate the same sphere of conduct, the operative directive in our case is the
26
California Wiretapping Statute and not the Federal Wiretapping Statute, unless of course,
27
the federal statute preempts that of the state.” Whitaker v. Garcetti, 291 F. Supp. 2d 1132,
28
1141-42 (C.D. Cal. 2003), aff’d in part, vacated in part on other grounds, rev'd in part on
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1
other grounds, 486 F.3d 572 (9th Cir. 2007) (citing Pac. Gas & Elec. Co. v. State Energy
2
Res. Conserv. and Dev. Comm’n, 461 U.S. 190, 212-213 (1983); Florida Lime & Avocado
3
Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963)) (noting that because “California’s
4
statute imposes more restrictive rules than its federal equivalent,” it is not preempted).
5
“Because of the absence of preemption and because Defendants are local officials who
6
obtained the wiretap order from a local Superior Court Judge, Defendants were only bound
7
by California’s Wiretapping Statute.” Id. at 1142.
8
In sum, even though Plaintiff’s complaint raises violations of the OCCSSA, see
9
Compl. at 9, ¶ 30, Plaintiff is “therefore barred from recovering under § 1983 for an
10
underlying violation of federal statutory law.” Whitaker, 291 F. Supp. 2d at 1141-42
11
(holding that the where the plaintiffs’ theory was that the defendants’ failure to adhere to
12
the Federal Wiretapping Statute rendered them liable to the plaintiffs under Section 1983,
13
the claim was misguided as the wiretapping activities in the case were governed by the
14
California statue, not the federal equivalent). “Thus, in order to succeed under § 1983,
15
Plaintiff must establish an underlying constitutional violation.” Id. at 1142. However, as
16
outlined below, the Court finds Plaintiff cannot establish one as a matter of law.
2.
Deprivation of a Constitutional Right
17
18
The next “step in any such [1983] claim is to identify the specific constitutional right
19
allegedly infringed.” Albright, 510 U.S. at 271. As applied to the present case, in order to
20
prevail on his unlawful search and seizure claim arising under 42 U.S.C. § 1983, Plaintiff
21
must establish that Defendants, deprived him of his Fourth Amendment right to be free
22
from unreasonable searches and seizures, while acting under color of state law. See Soldal
23
v. Cook Cnty., Ill., 506 U.S. 56, 60-63, n.6 (1992).
24
Plaintiff appears to allege both an unlawful search and seizure. See Compl. at 9, ¶
25
30. “A search occurs for Fourth Amendment purposes when the government physically
26
intrudes upon one of these enumerated areas, or invades a protected privacy interest, for
27
the purpose of obtaining information.” Patel v. City of Los Angeles, 738 F.3d 1058, 1061
28
(9th Cir. 2013), aff’d sub nom. City of Los Angeles, Calif. v. Patel, 576 U.S. 409 (2015)
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1
(citing United States v. Jones, 565 U.S. 400, 407 (2012); Katz v. United States, 389 U.S.
2
347, 360–61 (1967) (Harlan, J., concurring)). A seizure of the person “occurs when a law
3
enforcement officer, through coercion, physical force[,] or a show of authority, in some
4
way… communicated to a reasonable person that he was not at liberty to ignore the police
5
presence to go about his business.” Hopkins v. Bonvicino, 573 F.3d 752, 773 (9th Cir.
6
2009) (internal citations and quotation marks omitted). An arrest is the “the ‘quintessential
7
“seizure of the person” under … Fourth Amendment jurisprudence.’” Torres v. Madrid,
8
141 S. Ct. 989, 995 (2021) (quoting California v. Hodari D., 499 U.S. 621, 624 (1991)).
9
“A seizure,” or arrest, “conducted pursuant to a warrant obtained by judicial deception
10
violates the Fourth Amendment.” Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007).
11
Here, a search of Plaintiff’s hotel room and vehicle took place while an arrest, or seizure
12
of his person, also took place. If Plaintiff’s arrest resulted from a warrant obtained by
13
judicial deception, a Fourth Amendment violation would arise.
14
Police Defendants argue that Plaintiff’s Complaint fails to plead sufficient facts “to
15
show that the City violated Plaintiff’s Fourth Amendment Rights” because it “fails to allege
16
any facts to indicate that the City was involved in obtaining the wiretap warrant,
17
participating in listening in on the phone calls, or knew or had reasons to know that the
18
wiretap warrant had been exceeded.” Mot. at 13:21-14:2. Rather, the City and FPD acted
19
on information obtained from the Investigatory Defendants and had no knowledge that the
20
scope of the wiretap had been exceeded. Id. Police Defendants point out “according to
21
Plaintiff’s Complaint, Defendants Macias and Guthrie were not involved in obtaining or
22
conducting the wiretaps, but instead were involved only in arresting Plaintiff and searching
23
his vehicle and hotel room.” Reply at 4:23-5:2 (citing Compl. at ¶¶ 20-22). Indeed, while
24
the Complaint alleges that the Investigative Defendants were involved in intercepting the
25
calls, Compl. at 7, ¶ 20, it alleges that all Defendants (i.e., the Investigative Defendants
26
plus the Police Defendants) stopped Plaintiff and two other men, searched their vehicles
27
and hotel rooms, and arrested them, id. at 7, ¶ 21. Thus, to the extent Plaintiff’s Fourth
28
Amendment rights were violated “because the warrants used to search and seize him were
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1
based on allegedly illegally obtained information,” Mot. at 13:22-25 (citing Compl. at 7-9,
2
¶¶ 19-21, 25-26, 30), Plaintiff has not pled sufficient facts to show that the Police
3
Defendants or City had anything to do with the behavior that allegedly violated his
4
constitutional rights.
5
unambiguously states that Plaintiff’s conviction was based solely on the wiretap intercepts
6
and not on evidence obtained as a result of the allegedly unconstitutional search and seizure
7
conducted by Defendants Macias and Guthrie.” Reply at 2:10-13 (citing Compl. at ¶ 22).
8
Thus, if Plaintiff pleads the conviction was based on the wiretap evidence but
9
simultaneously pleads that Police Defendants were not involved in the wiretap intercepts,
10
it is implausible that they would be involved in any constitutional wrongs alleged in the
11
complaint. Reply at 2:13-16. As set forth below, the Court agrees.
Moreover, Police Defendants state that the “Complaint
12
Plaintiff conclusorily argues that his “allegations certainly are sufficient to allege
13
that (1) a federal right has been violated and (2) the right was clearly established at the time
14
of the violation.” Oppo. at 5:11-14 (citing Horton by Horton City of Santa Maria, 915
15
F.3d 592, 599 (9th Cir. 2019)). First, Plaintiff cites to Paragraph 21 of the Complaint to
16
say his allegations are sufficient. Oppo. at 5:5-10 (citing Compl. at ¶ 21). However, Police
17
Defendants aptly reply that “the only facts alleged in Plaintiff’s Complaint are that
18
Defendants Macias and Guthrie searched Plaintiff’s vehicle and hotel room and arrested
19
him.” Id. at 6:17-19 (citing Compl. at ¶ 21). Second, Plaintiff states that if the Court finds
20
his allegations are insufficient, he “can allege additional facts establishing that the [Police]
21
Defendants had no other basis to stop the vehicle [he] was in, that they should have
22
reasonably known the warrant was invalid, and that they executed the same in any event.”
23
Id. at 5:14-17. Police Defendants reply that “Plaintiff essentially concedes that his
24
Complaint fails to satisfy the Iqbal/Twombly pleading standard.” Reply at 6:13-14. They
25
point out that even though Plaintiff alleges “that the basis of the search and seizure was
26
information gleaned from the wiretap, he fails to allege any plausible facts showing that
27
Defendants Macias and Guthrie were involved in the wiretap or had any reason to believe
28
that the wiretap was conducted in an illegal manner.” Id. at 6:20-23. Instead, “the face of
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1
Plaintiff’s Complaint fails to state any plausible facts showing that Defendants Macias and
2
Guthrie had no reason to believe they were acting pursuant to exigent circumstances—i.e.,
3
preventing an imminent kidnapping—when they conducted the search and seizure.” Id. at
4
6:23-7:2 (citing Mincey v. Arizona, 437 U.S. 385, 394 (1978) (noting that an exception
5
applies to the Fourth Amendment when “the exigencies of the situation make the needs of
6
law enforcement so compelling that [a] warrantless search is objectively reasonable under
7
the Fourth Amendment.”)).
8
As outlined below, Plaintiff does not clearly allege what specific acts violated his
9
constitutional rights beyond conclusorily alleging an unlawful search and seizure. Police
10
Defendants argue that Plaintiff’s basis for his Section 1983 claim is that the October 3,
11
2013 search and seizure was based entirely on information obtained during an earlier
12
wiretap of his phone, where Defendants exceeded the scope of the wiretap warrant. Mot.
13
at 12:3-6. The Court finds Plaintiff’s complaint, which admittedly fails to articulate his
14
claims well, indicates a different basis for his Section 1983 claim: Plaintiff alleges that
15
“Defendants, and each of them, deprived [him] of his rights against unlawful searches and
16
seizures and against the deprivation of life, liberty, and property as required by the Fourth
17
Amendment of the United States Constitution, 18 U.S.C. § 2510 et seq., and California
18
Penal Code, § 629.50 et seq.” Compl. at 9, ¶ 28. He elaborates that “[u]nknown to [him],
19
not only was the wiretap order invalid, but the district attorney’s office had failed to obtain
20
an order from the court that the intercepted communications beyond the scope of the
21
wiretap order—namely, drug related—were admissible in Court as required by the Fourth
22
Amendment of the United States Constitution, 18 U.S.C. § 2510 et seq., and California
23
Penal Code, § 629.50 et seq.” Id. at 7, ¶ 25.
24
The problem in this case is that Plaintiff’s “assertions that the [wiretap] violated [his]
25
rights or was unreasonable or illegal are almost entirely conclusory.” Bryan v. City of
26
Carlsbad, 297 F. Supp. 3d 1107, 1120 (S.D. Cal. 2018) (Burns, J.) (granting a motion a
27
motion to dismiss a Section 1983 claim for an unlawful search and Monell claim while
28
noting that “[a] few factual details [alleging how the search violated her rights or was
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1
unreasonable] might support a Fourth Amendment claim … in some other context,” such
2
as where the officers did not have a warrant). Based on the applicable law, despite Plaintiff
3
pleading the wiretap order was invalid, he provides no factual allegations to support this,
4
and his other allegations—namely that Investigative Defendants conducted the wiretap
5
pursuant to SW-2013-185, which allowed them to intercept communications—make it
6
implausible that the wiretap order itself was invalid. Compl. at 7, ¶ 19. Thus, the only
7
remaining plausible alleged wrong is that the district attorney’s office did not obtain a court
8
order allowing them to use communications related to nontargeted offenses in Court
9
against Plaintiff at his trial. See id. at 7, ¶ 25. However, even though Defendants admit
10
they failed to get judicial authorization to use the nontargeted offenses, see Answer at 6, ¶
11
25, it has no impact on his criminal case, which has already been vacated. Either way, the
12
Court analyzes the only three potential unlawful acts—the interception of the
13
communications, the search based on the nontargeted offenses, and the use of the
14
statements regarding the nontargeted offenses—below. However, it finds that Plaintiff’s
15
allegations, even liberally construing his Complaint to examine every feasible Fourth
16
Amendment violation, do not state a claim for violation of the Fourth Amendment.
17
18
19
a.
Even if Plaintiff alleges an unlawful search via intercepting
statements regarding nontargeted offenses, such allegations do
not state a Fourth Amendment violation.
For a search to comply with the Fourth Amendment, government officials must
20
either obtain consent, possess a warrant, or demonstrate exigent circumstances before
21
executing the search. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). The probable cause
22
requirement of the Fourth Amendment requires the state to show probable cause to believe
23
that a “specific crime has been or is being committed” before invading constitutionally
24
protected areas. See Berger v. New York, 388 U.S. 41, 59 (1967). However, the elements
25
a search warrant must specify only directly relate to the suspected offense:
The Fourth Amendment requires specification of “the place to be
searched, and the persons or things to be seized.” In the wiretap
context, those requirements are satisfied by identification of the
telephone line to be tapped and the particular conversations to be
26
27
28
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4
seized. It is not a constitutional requirement that all those likely
to be overheard engaging in incriminating conversations be
named. Specification of this sort “identif(ies) the person whose
constitutionally protected area is to be invaded rather than
‘particularly describing’ the communications, conversations, or
discussions to be seized.”
5
United States v. Donovan, 429 U.S. 413, 427 n.15 (1977) (citing Berger, 388 U.S. at 59).
1
2
3
6
Where the police conduct a search with a warrant or demonstrate exigent
7
circumstances, “and the officer has a lawful right of access … no additional Fourth
8
Amendment interest is furthered by requiring that the discovery of evidence be
9
inadvertent.” Horton v. California, 496 U.S. 128, 140, 142 (1990). For example, in
10
Horton, the Supreme Court affirmed the California Supreme Court’s decision upholding a
11
defendant’s armed robbery conviction, rejecting his efforts to suppress the evidence against
12
him. Id. The Horton affidavit for a search warrant referred to police reports describing
13
weapons as well as the proceeds of a robbery. Id. at 130-31. However, the warrant issued
14
by the magistrate only authorized a search for the robbery proceeds. Id. at 131. The police
15
testified that while they executed the search of the defendant’s home pursuant to the
16
warrant, they did not find the proceeds of the robbery but did see the weapons in plain view
17
and seized them. Id. Although the defendant argued the weapons had been unlawfully
18
seized in violation of his Fourth Amendment rights, the Supreme Court held that “the items
19
seized from petitioner’s home were discovered during a lawful search authorized by a valid
20
warrant.” Id. at 142. “When they were discovered, it was immediately apparent to the
21
officer that they constituted incriminating evidence.” Id. “He had probable cause, not only
22
to obtain a warrant to search for the stolen property, but also to believe that the weapons
23
and handguns had been used in the crime he was investigating.” Id. “The search was
24
authorized by the warrant; the seizure was authorized by the ‘plain-view’ doctrine.” Id.
25
Like the warrant in Horton, which only authorized the officers to search for the
26
proceeds of the robbery but not weapons, in this case, the wiretap warrant that issued only
27
authorized law enforcement officers to intercept communications related to drug related
28
offenses. 496 U.S. at 130-31. However, just as the officers in Horton, discovered other
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1
evidence (i.e., weapons) outside the scope of the warrant, the officers in this case overheard
2
conversations outside the scope of the targeted drug offenses in the wiretap warrant (i.e.,
3
relating to kidnapping). See id. To this Court, the nontargeted communications are akin
4
to the weapons found in plain view in Horton, which the Supreme Court held did not need
5
to be excluded. Id. Just as the search in Horton was authorized by the warrant, while the
6
seizure was authorized by the plain view doctrine, the search in this case—to the extent it
7
was the wiretapping of Plaintiff’s conversations rather than the search of his person—was
8
authorized by SW-2013-185. The seizure of his communications related to nontargeted
9
offenses would be in “plain view” while the officers listened in on the lawful wiretap. Id.
10
Further, the Ninth Circuit has held that “[a]lthough the conversations to be intercepted by
11
electronic surveillance are necessarily identified partly in terms of the suspected offenses
12
to which they will relate, the content of the communications to be intercepted cannot be
13
known in advance, and the authorizing order need not describe every aspect of the criminal
14
activity expected to be revealed by the surveillance.” United States v. Licavoli, 604 F.2d
15
613, 620 (9th Cir. 1979) (“It was not required in this case that the orders specify the
16
conversations to be seized in the detailed and restrictive manner urged by Licavoli; the
17
reference in the orders to stolen goods generally, rather than stolen diamonds, was
18
sufficient to satisfy the mandates of the Fourth Amendment.”). Rather, “[t]he order must
19
be broad enough to allow interception of any statements concerning a specified pattern of
20
crime.” Id. With that being said, the Court acknowledges that there was a procedure for
21
using those nontargeted communications, and that procedure was not followed in this case.
22
The OCCSSA allows for wiretap authorizations.10 See United States v. Rivera, 527
23
24
25
26
27
28
“A ‘wiretap order’ is an order giving law enforcement authorities judicial approval
to conduct a wiretap.” Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1135-36, n.3 (C.D. Cal.
2003), aff’d in part, vacated in part, rev’d in part, 486 F.3d 572 (9th Cir. 2007).
Essentially, it is the “equivalent of a search warrant but, due to its high potential for abuse,
has more rigorous minimal standards than the typical search warrant.” Id. (citing CAL.
PENAL CODE § 629.50 (1999) (listing the numerous and detailed specifications to be
included in an application for a wiretap order); see also CAL. PENAL CODE § 629.52 (1999)
10
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1
F.3d 891, 897 (9th Cir. 2008). “To obtain a wiretap, the government must overcome the
2
statutory presumption against this intrusive investigative method by proving necessity.”
3
Id. The OCCSSA also “authorizes the states to enact their own wiretap laws only if the
4
provisions of those laws are at least as restrictive as the federal requirements for a wiretap
5
set out in Title III.” People v. Jackson, 129 Cal. App. 4th 129, 146 (2005), as modified on
6
denial of reh’g (June 7, 2005). The federal act “in effect, establishes minimum standards
7
for the admissibility of evidence procured through electronic surveillance; state law cannot
8
be less protective of privacy than the federal Act.” Id. at 146-47. California, in turn, has
9
enacted its own wiretapping law, the PFEWA. Several courts have held that the OCCSSA
10
does not preempt the PFEWA. Leong v. Carrier IQ Inc., No. cv-12-01562-GAF-MRWX,
11
2012 WL 1463313, at *3 (C.D. Cal. Apr. 27, 2012).
12
Plaintiff refers throughout his Complaint to the “invalid wiretap.” See Compl. at 9,
13
¶¶ 27-28. At the same time, both the law and his own complaint indicate the wiretap was
14
not, in fact, invalid. The Complaint clearly alleges the wiretap itself was lawfully
15
conducted pursuant to a warrant. See Compl. at 6, ¶ 19 (alleging that between September
16
20, 2013 and October 3, 2013, Defendants “conducted a wiretap on the telephones of two
17
individuals, Raphael Martinez and Jonathan Vizcaino pursuant to an order (SW-2013-185)
18
allowing them to wiretap for the sole purpose of listening for drug-related activity”); see
19
also Mot. at 6 10-11. In other words, the act of intercepting communications, by Plaintiff’s
20
own allegations, was both authorized and lawful.11 However, because the wiretap only
21
22
23
24
25
26
27
28
(listing the many findings that a court is required to make before it issues a wiretap order,
including but not limited to a finding of various different forms of probable cause)).
11
The Complaint, when quoting from the Imperial County Superior Court’s Order
Vacating Plaintiff’s Conviction, does not refer to the wiretap as invalid but notes the
problem with the evidence used against Plaintiff: “During post-trial proceedings in codefendant Martinez’s case (EHC000180) the People discovered that judicial authorization
was not obtained pursuant to Penal Code section 629.82(a) to allow use of evidence of
crimes not specified in SW-2013-185” because “Penal Code section 182(a)(1)/209(a) was
not specified in wiretap interception order SW-2013-185.” Compl. at 8, ¶ 26(d) (citing the
Order Vacating Plaintiff’s Conviction). In other words, contrary to Plaintiff’s allegations
that the order invalidated the wiretap, it did not.
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1
authorized Defendants to listen for drug related activity, and kidnapping was outside of
2
that scope (i.e., kidnapping was a nontargeted offense), in order to act on that information
3
outside the scope of SW-2013-185, Defendants only needed to apply to a judge for
4
authorization or approval. 18 U.S.C. § 2517(5); CAL. PENAL CODE § 629.82. The
5
government did not do this, and this is where the problem lies. However, based on the
6
allegations of the Complaint, the act of simply overhearing Plaintiff discuss the kidnapping
7
during the wiretap was lawful. See Compl. at 7, ¶ 19.
8
California Penal Code section 629.82(a) (“Section 629.82(a)”), which the Imperial
9
County Superior Court referenced in its order, allows officers who intercept
10
“communications relating to crimes other than those specified in the order of authorization,
11
but are enumerated in subdivision (a) of Section 629.52 . . . or a violent felony as defined
12
in subdivision (c) of Section 667.5,” to use or disclose the contents of those
13
communications or evidence derived from them by applying to a judge and showing “the
14
contents were otherwise intercepted in accordance with the provisions of this chapter.” See
15
also 18 U.S.C. § 2517(5) (providing for a similar judicial authorization process for
16
nontargeted communications under the OCCSSA). In layman’s terms, under Section
17
629.82(a), when law enforcement listens in on a lawful wiretap and hears communications
18
relating to “non-targeted communications,” but those communications relate to crimes
19
described in, inter alia, California Penal Code sections 629.52 or 667.5, law enforcement
20
can apply to a judge to use those communications or evidence derived from those
21
communications by showing the communications were heard while listening in on a lawful
22
23
24
25
26
27
28
wiretap. See also CAL. PENAL CODE § 667.5(c)(14) (defining a “violent felony” to include
kidnapping).
California Penal Code section 629.52, in turn, provides that “[u]pon application
made under Section 629.50, the judge may enter an ex parte order … authorizing
interception of wire … communications initially intercepted … if the judge” finds probable
cause exists “to believe that an individual is committing, has committed, or is about to
commit,” inter alia, (1) a violation of Section 209” or (2) “[a]n attempt or conspiracy to
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1
commit any of the above-mentioned crimes.” California Penal Code section 209 prohibits
2
kidnapping, providing that “[a]ny person who … kidnaps or carries away another person
3
by any means whatsoever with intent to hold or detain … that person for ransom, reward
4
or to commit extortion or to exact from another person any money or valuable thing, … is
5
guilty of a felony.” California Penal Code section 182(a)(1), in turn, provides that where
6
“two or more persons conspire” together to commit any crime, they will be punished “in
7
the same manner and to the same extent as is provided for the punishment of that felony.”
8
Plaintiff was charged with and convicted of violating both California Penal Code
9
section 182(a)(1) as well as section 209, Compl. at 8, ¶ 26(a), meaning that California Penal
10
Code section 629.52 expressly authorized the judge who issued the wiretap to issue an
11
order authorizing interception of those non-targeted offenses (i.e., kidnapping and
12
conspiracy to kidnap). Thus, the government could have lawfully used the evidence it
13
intercepted regarding the “nontargeted communications” pertaining to the kidnapping
14
against Plaintiff, especially because the crimes of which he was convicted were specifically
15
enumerated as crimes warranting authorization, but it needed to get a judge’s approval first.
16
The government never did this.
17
Under the PFEWA, any person whose wire communications are intercepted in
18
violation of its provision, may (1) file “a civil cause of action against any person who
19
intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, the
20
communications,” and (2) recover (a) “[a]ctual damages but not less than liquidated
21
damages computed at the rate of one hundred dollars ($100) a day for each day of violation
22
or one thousand dollars ($1,000), whichever is greater,” (b) punitive damages, and (c)
23
“[r]easonable attorney’s fees and other litigation costs reasonably incurred.” CAL. PENAL
24
CODE § 629.86. However, the PFEWA also allows for a good faith defense by providing
25
that “[a] good faith reliance on a court order,” such as the subsequent search warrant in this
26
case, “is a complete defense to any civil or criminal action brought under this chapter …
27
any other law.” CAL. PENAL CODE § 629.86; see also 18 U.S.C. § 2520(d) (also providing
28
a good faith defense when relying on a court warrant or order). Thus, Defendants might
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1
have a defense to such a civil action to the extent that Plaintiff’s arrest was done in reliance
2
on a search warrant.
3
nontargeted offenses in and of itself did not violate Plaintiff’s Fourth Amendment rights.
4
More importantly, the wiretap order was valid and was in no way invalidated by the
5
Imperial County Superior Court’s Order Vacating Plaintiff’s Conviction.
However, the act of intercepting communications related to
6
The Court has concluded that Investigative Defendants lawfully intercepted the
7
nontargeted offenses obtained via listening in on a lawful wiretap obtained pursuant to SW
8
2013-185, and that a process exists to authorize use of those identified nontargeted offense
9
communications that was not followed here. However, it must also conclude whether the
10
government’s use of the information obtained on the wiretap pertaining to the nontargeted
11
offenses, to obtain a subsequent search warrant to search Plaintiff and his property violated
12
his constitutional rights where use of that information could have been authorized but was
13
not. Next, the Court must address whether the arrest of Plaintiff, pursuant to a search
14
warrant based on probable cause violated his constitutional rights because the probable
15
cause supporting the warrant for his arrest was based on information outside the scope of
16
the warrant authorizing the wiretap. Finally, the Court must conclude whether use of the
19
nontargeted offense communications at trial violated Plaintiff’s constitutional rights.
b.
Plaintiff’s Complaint also does not plead any facts sufficient to
allow the Court to plausibly infer the invalidity of the second
search warrant.
20
Plaintiff argues that the Police Defendants (1) had no basis to stop the vehicle
21
Plaintiff was in; (2) should have known that the second search warrant was invalid (because
22
the District Attorney’s office failed to obtain an order allowing use of intercepted
23
communications beyond the scope of the wiretap order); and (3) executed the search
24
warrant despite knowing it was invalid. Oppo. at 5:14-17. However, as noted, at least as
25
to the Police Defendants, Plaintiff does not allege that the Police Defendants were involved
26
in the wiretap; as a result, it is not plausible for him to allege that they had any reason to
27
know that the second search warrant—or even a search without a warrant based upon the
28
exigent circumstances of a suspected kidnapping—was invalid. Reply at 6:17-23. Thus,
17
18
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1
Plaintiff’s above arguments are rejected. Those arguments are legal conclusions. While a
2
court is required to draw all reasonable inferences in favor of the plaintiff when the
3
defendant moves to dismiss the complaint, it is not required to accept Plaintiff’s position
4
as to legal conclusions. See, e.g., Parents for Priv. v. Barr, 949 F.3d 1210, 1221 (9th Cir.
5
2020), cert. denied, No. 20-62, 2020 WL 7132263 (U.S. Dec. 7, 2020) (noting that courts
6
“are not required to accept as true legal conclusions couched as factual allegations”).
7
On the one hand, the Court acknowledges the problem with a warrant being secured
8
based on information outside the scope of the wiretap warrant. On the other hand, it is not
9
clear to this Court that use of the information overheard while on a lawful wiretap would
10
not fall within the analogous scenario of the plain view doctrine, creating probable cause
11
to secure the second warrant at issue. See, e.g., Horton, 496 U.S. at 140, 142 (holding that
12
where a police officer saw weapons while executing a valid search warrant to search for
13
stolen property, “[t]he search was authorized by the warrant; the seizure [of the weapons]
14
was authorized by the ‘plain-view’ doctrine”); see also Minnesota v. Dickerson, 508 U.S.
15
366, 375 (1993) (applying the plain view doctrine to other senses by stating that it “has an
16
obvious application by analogy to cases in which an officer discovers contraband through
17
the sense of touch during an otherwise lawful search”). However, as outlined below, the
18
Court concludes that use of the nontargeted offense communications to search Plaintiff and
19
arrest him or as evidence against him at trial did not violate his Fourth Amendment rights.
21
The use of the communications concerning nontargeted offenses
at trial, although not authorized, was harmless error and also
does not state a claim for a Fourth Amendment violation.
22
As for whether using the nontargeted offenses at trial without judicial authorization
23
violates Plaintiff’s Fourth Amendment rights, the Court finds People v. Roberts, 184 Cal.
24
App. 4th 1149, 1159 (2010) insightful. In Roberts, the defendant, like Plaintiff here,
25
contended that his conviction needed to be reversed because the evidence against him was
26
obtained as a result of an illegal wiretap under the Presley-Felando-Eaves Wiretap Act of
27
1988, CAL. PENAL CODE § 629.50, et seq. and in violation of his Fourth Amendment rights.
28
184 Cal. App. 4th at 1159. He also argued the court erred when it denied his motion to
20
c.
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1
suppress evidence obtained by the wiretaps. Id. The California Court of Appeal, however,
2
concluded “that the wiretaps were obtained legally and minimized in accordance with the
3
relevant statutes.” Id. It found that “the court erred when it did not require the state to
4
provide timely reports to the court under section 629.60 and to file an application to use
5
nontargeted intercepted communications as soon as practicable as required by section
6
629.82, subdivision (a)(1).” Id. However, it determined the error was harmless, and as
7
such, affirmed the judgment against the defendant. Id. at 1160.
8
Like this case, Roberts involved a lawful wiretap warrant issued based on a finding
9
of probable cause that the defendant and his associates were committing or about to commit
10
offenses related to drug trafficking. 184 Cal. App. 4th at 1169. Thus, the San Diego
11
Superior Court judge issued an order authorizing interception of communications
12
concerning such drug trafficking offenses. Id. In Roberts, however, the wiretap order later
13
expanded its scope to include a finding of probable cause to believe the defendant and other
14
Crips members were also participating in a criminal street gang. Id. at 1170. Later, a task
15
force instructed officers to use any pretext to pull the defendant over, and one officer, after
16
noticing dark tinted side windows, pulled the defendant and his companion over, informing
17
them he stopped the car because of the tinted front side windows.12 Id. at 1164. During
18
the stop, the officer smelled alcohol and saw a plastic cup in the center console, which the
19
passenger admitted contained alcohol. Id. at 1164-65. The officer asked the defendant and
20
his passenger to step out of the vehicle, and after they did so, the officer found a loaded
21
semiautomatic handgun under the front passenger seat. Id. at 1165. The officers arrested
22
the defendant and his passenger. Id. Following their arrest, the police also executed search
23
warrants on the homes of the defendant and his passenger, seizing a number of photographs
24
evidencing their membership in the Crips gang. Id.
25
Almost eight months after the defendant was arrested, and as a result, the wiretap
26
27
28
12
California Vehicle Code section 26708.5(a) prohibits individuals from installing
“any transparent material upon the . . . side windows . . . of any motor vehicle if the material
alters the color or reduces the light transmittance.”
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1
expired—as wiretaps expire when the objective is accomplished, the prosecution filed an
2
application to use nontargeted, statutorily-authorized communications as evidence at trial,
3
pursuant to California Penal Code, sections 629.82(a)(2), 629.78. Roberts, 184 Cal. App.
4
4th at 1170. The application concerned eleven telephone calls intercepted before the court
5
authorized the task force to intercept communications pertaining to criminal street gang
6
activity. Id. Because the court denied the defendant’s motion to suppress evidence
7
obtained via the wiretaps, it did not rule on the prosecutor’s application to use the
8
nontargeted intercepted communications. Id. at 1171. Thus, at trial, the prosecution
9
introduced evidence of all intercepted telephone conversations between the defendant, his
10
passenger, and others in which they discussed a plan to shoot leaders of their rival gang,
11
the Bloods. Roberts, 184 Cal. App. 4th 1170. The court also admitted the photographs
12
and evidence obtained as a result of the vehicle stop, including the gun found under the
13
defendant’s seat. Id.
14
On appeal, the court determined that even though the officer had a subjective intent
15
or ulterior motive for stopping the defendant’s vehicle, which led to the discovery of
16
evidence leading to the defendant’s arrest, “[i]t is well settled in California officers can
17
make arrests based on information and probable cause furnished by other officers.”
18
Roberts, 184 Cal. App. 4th at 1189-91 (citing People v. Ramirez, 59 Cal. App. 4th 1548,
19
1553 (1997) (Ramirez)). Thus, not only was “the officers’ ‘collective knowledge’ of
20
Roberts’s involvement in the planned shooting … valid and reasonable,” but there was also
21
“substantial evidence to support the court’s finding that Officer Norton’s belief the
22
vehicle’s tinted windows violated Vehicle Code section 26708.5, subdivision (a), was
23
sufficient to establish probable cause for the stop.” Id at 1191. “Just as ‘stopping
24
defendant’s vehicle for a seatbelt violation, even if done as a pretext for the narcotics
25
investigation, was entirely legal,’ so too was this stop.” Id. Consequently, “the vehicle
26
stop did not violate constitutional safeguards against unreasonable search and seizure.” Id.
27
Similarly, here, at least as to the Police Defendants, they searched Plaintiff’s hotel room
28
and vehicle based on probable cause from the Investigative Defendants that a kidnapping
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1
was about to take place. Thus, their search of Plaintiff’s vehicle and hotel room, based on
2
probable cause furnished by other officers, was lawful. Roberts, 184 Cal. App. 4th at 1191.
3
In ruling on the wiretap evidence, the Roberts court acknowledged that “before the
4
contents of any statutorily-authorized, nontargeted communications, and any evidence
5
derived from those communications, may be used in a criminal court proceeding, the state
6
must apply to a judge for authorization.” 184 Cal. App. 4th at 1188 (citing CAL. PENAL
7
CODE §§ 629.78, 629.82(a)). Even though the superior court did not rule on the application
8
to use the nontargeted communications, “[h]ad the trial court considered the application
9
under section 629.82, subdivision (a)(2), [it did] not believe the court would have denied
10
the prosecution the use of the nontargeted, statutorily-authorized communications at trial,”
11
even if the application was untimely. Id. The court noted that (1) “the evidence clearly
12
supports the conclusion the 11 calls ‘were otherwise intercepted in accordance with the
13
provisions of this chapter,’” pursuant to California Penal Code, section 629.82; (2) “[t]he
14
11 calls related to criminal street gang activity and conspiracy to commit murder, which
15
are enumerated crimes under section 629.52, subdivision (a)”; and (3) “[t]he task force
16
legally intercepted both targeted and statutorily-authorized communications” as well as the
17
nontargeted communications. Id. at 1188. Thus, “[b]ecause the material was legally
18
intercepted, … the errors did not contravene the Fourth Amendment and, with respect to
19
the statutory violations, the purposes of the provision were achieved despite the errors.”
20
Id. at 1188-89. Moreover, because the officers intercepted the material in accordance with
21
California’s wiretapping laws, and the defendants were not surprised by the proposed use
22
of the 11 calls at trial, any error in introducing the calls was harmless. Id. at 1189.
23
Just like the information in Roberts, which exceeded the scope of the wiretap
24
warrant, but was nonetheless used to justify a search of the defendant’s vehicle, leading to
25
a seizure of his person (arrest), the information in this case led police to seek a warrant to
26
search Plaintiff and his vehicle, which led to an arrest. Here, one of the only wrongs
27
Plaintiff could allege is that the second search warrant was invalid because Defendants
28
obtained it by using “nontargeted communications” regarding a crime, similar to those in
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1
Roberts, to search and arrest him. Compl. at 9, ¶ 27; see also Mot. at 6:21-24. This Court
2
suspects that even absent a judicial authorization, as was the case in Roberts (albeit at least
3
in that case, an application had been submitted, just not ruled on), the use of the
4
communications would be viewed as harmless error given the California wiretapping laws
5
expressly allow for their use. As in Roberts, (1) the evidence supports the conclusion the
6
calls were otherwise intercepted in accordance with the PFEWA; (2) the calls related to
7
enumerated crimes under Section 629.52; and (3) the Investigative Defendants intercepted
8
both targeted and nontargeted communications. 184 Cal. App. 4th at 1188. Thus, using
9
those communications to obtain the second search warrant as well as at trial did not
10
constitute a violation of Plaintiff’s constitutional rights. See, e.g., Roberts, 184 Cal. App.
11
4th at 1189-91 (“It is well settled in California officers can make arrests based on
12
information and probable cause furnished by other officers.”).
13
Thus, the use of the nontargeted offenses at trial was harmless error given the
14
prosecution, like the prosecution in Roberts which also lacked judicial authorization to use
15
nontargeted offenses at trial, could have easily secured judicial authorization and been able
16
to use the offenses.
18
Even if a Plaintiff alleged sufficient facts giving rise to a Fourth
Amendment violation, the Police Defendants would be protected
by the Good Faith Exception.
19
The exclusionary rule may exclude evidence that qualifies as “fruit of the poisonous
20
tree,” or in other words, derives from a violation of a defendant’s constitutional rights.
21
Wong Sun v. United States, 371 U.S. 471, 485 (1963); see also Utah v. Strieff, 136 S. Ct.
22
2056, 2059 (2016) (“To enforce the Fourth Amendment’s prohibition against
23
‘unreasonable searches and seizures,’ this Court has at times required courts to exclude
24
evidence obtained by unconstitutional police conduct.”). Although Plaintiff has not made
25
the argument, the implication is that if he had known about the lack of judicial
26
authorization, he would have moved to exclude the wiretap evidence submitted at trial
17
d.
27
28
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1
concerning the nontargeted offenses and may not have been convicted.13 However, if he
2
had done so, the prosecution could have remedied the mistake by securing the judicial
3
authorization, which would have allowed the evidence to be admitted. Further, “[t]here
4
are three exceptions to this exclusionary rule: (1) the independent source exception; (2) the
5
inevitable discovery exception; and (3) the attenuated basis exception.”14 United States v.
6
Plaintiff pleads that the District Attorney refused “to produce the wiretap orders and
affidavits,” which is why there was a delay in his “learning about the invalidity of the
wiretap order.” Compl. at 9, ¶ 28. The Imperial County Superior Court docket confirms
that Plaintiff did not file a motion to suppress the wiretap evidence in the underlying
criminal case. To the extent that he failed to file such a motion to suppress, he may have
waived any right to challenge the use of that evidence at trial, even in a civil action.
Compare Baskerville v. City of Harrisburg, No. 1:19-CV-420, 2019 U.S. Dist. LEXIS
139995, at *12 (M.D. Pa. Aug. 16, 2019) (finding in a pro se screening of the plaintiff’s
Section 1983 claim, that “[a]s a practical matter, Baskerville’s failure to
timely file a motion to suppress raising this Fourth Amendment claim may constitute
a waiver of that claim.”) (citing United States v. Rose, 538 F.3d 175, 182 (3d Cir. 2008))
with Linnen v. Armainis, 991 F.2d 1102, 1105 (3d Cir. 1993) (noting that “no issues
pertinent to his § 1983 action were ‘actually litigated’ in the state criminal case because
Linnen did not pursue his suppression motion in that proceeding,” meaning neither
collateral estoppel or res judicata barred the claim).
14
The Ninth Circuit has made clear that “the Fourth Amendment’s exclusionary rule
(and its fruit of the poisonous tree doctrine) does not apply in the context of civil suits
under § 1983.” Gammage v. City of San Francisco, No. 18-CV-05604-JCS, 2020 WL
1904498, at *10 (N.D. Cal. Apr. 17, 2020) (citing Lingo v. City of Salem, 832 F.3d 953,
959-60 (9th Cir. 2016)); see also Est. of Taylor v. Salt Lake City, 16 F.4th 744, 753 (10th
Cir. 2021) (same).
For example, in McCullars v. Crayton, the defendant in a Section 1983 case stopped
the plaintiff for speeding, approached the vehicle, smelled marijuana, and in the course of
issuing the speeding ticket, began questioning the passenger. No. 16-cv-0962 SMV/GBW,
2017 U.S. Dist. LEXIS 117832, at *3, 15-16 (D.N.M. July 27, 2017). After the plaintiff
signed a consent to search form, the defendant found marijuana and a locked safe in the
vehicle. Id. at *4. The defendant issued citations and released the plaintiff and her
companion, but before doing so, he removed the safe from the vehicle. Id. Afterwards,
the defendant sought and obtained a search warrant to open the safe. Id. Upon finding that
the safe contained drugs and drug paraphernalia, the defendant filed a criminal complaint
and an arrest warrant was issued. Id. at *5. The plaintiff then filed a motion to suppress
the evidence of the search on the grounds that it had been nonconsensual, which was
13
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1
Davis, 332 F.3d 1163, 1171 (9th Cir. 2003). In this case, even if a Fourth Amendment
2
violation had occurred, the attenuated basis exception would also potentially apply to
3
prevent exclusion of the wiretap evidence concerning the nontargeted offenses, resulting
4
in the same outcome (i.e., Plaintiff’s conviction).
5
With respect to the attenuation exception, “[i]n some cases, for example, the link
6
between the unconstitutional conduct and the discovery of the evidence is too attenuated
7
to justify suppression.” Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016). For example, “when
8
an officer makes an unconstitutional investigatory stop; learns during that stop that the
9
suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize
10
incriminating evidence during a search incident to that arrest,” any “evidence the officer
11
seized as part of the search incident to arrest is admissible because the officer’s discovery
12
of the arrest warrant attenuated the connection between the unlawful stop and the evidence
13
seized incident to arrest.” Under this exception, “at some point along the line, evidence
14
might be ‘fruit,’ yet nonetheless be admissible because it is no longer ‘tainted’ or
15
‘poisonous.’” United States v. Smith, 155 F.3d 1051, 1060 (9th Cir. 1998). “Whether
16
derivative evidence is admitted or excluded ‘will depend upon the precise role the illegal
17
seizure in fact played in the subsequent discovery.’” Id. (quoting United States v. Bacall,
18
443 F.2d 1050, 1057 (9th Cir. 1971)). However, “[e]vidence need not be suppressed
19
merely because it would not have come to light but for the illegal wiretap.” United States
20
21
22
23
24
25
26
27
28
granted. Id. In ruling on the plaintiff’s Section 1983 claims, the court held that “[b]ecause
the fruit of the poisonous tree doctrine does not apply in the § 1983 context, the information
obtained from the initial unconstitutional search and seizure [i.e., the lockbox containing
the drug paraphernalia leading to her arrest] does not taint these subsequent lawful events
[i.e., a search of the lockbox pursuant to a search warrant issued by a natural and detached
magistrate].” Id. at *15-16. Thus, “[t]he damages Plaintiff seeks—those relating to her
pretrial detention—arose from a second, lawful search and arrest,” and the plaintiff could
not recover those damages. Here, even though the exclusionary rule and good faith
exception do not apply to a Section 1983 claim, they are relevant to the Court’s analysis of
whether a Fourth Amendment violation took place, creating a basis for the Section 1983
claims. As in McCullars, the second search pursuant to a valid search warrant and leading
to Plaintiff’s arrest would not taint any unlawful events.
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1
v. Cales, 493 F.2d 1215, 1215 (9th Cir. 1974). If evidence resulting from an illegal wiretap
2
is admissible, it would appear evidence resulting from a legal wiretap, like the legal wiretap
3
in this case, would be admissible. See id.
4
At best, Plaintiff appears to argue the search warrant for Plaintiff’s vehicle and hotel
5
room represented a “tainted warrant,” or a warrant “where the information giving rise to
6
probable cause was obtained in violation of the defendant’s constitutional rights.” Kit
7
Kinports, Illegal Predicate Searches and Tainted Warrants After Heien and Strieff, 92 Tul.
8
L. Rev. 837, 838 (2018). However, “the information giving rise to the probable cause”
9
(i.e., Plaintiff’s statements concerning the kidnapping) was not obtained in violation of his
10
constitutional rights; rather, they were obtained during a lawful wiretap. Thus, although
11
procedure was not followed, no constitutional violation occurred causing a tainted warrant.
12
Moreover, applying Leon, the search of Plaintiff along with his subsequent arrest were
13
lawful if (1) a warrant was secured in this case; (2) the magistrate did not know that the
14
information contained within the warrant was fruit of a poisonous tree, and Plaintiff has
15
provided no information to suggest the judge who issued the second search warrant knew
16
judicial authorization to use the nontargeted offense communications had not been
17
obtained; and (3) the officers executing the warrant operated under a good faith belief
18
probable cause existed. The officers appear to have been operating in good faith given
19
Plaintiff alleges neither that the Police Defendants were involved in the wiretap nor that
20
they had any reason to know the scope of the wiretap had been exceeded. See Tercero v.
21
State, 963 So. 2d 878, 884 (Fla. Dist. Ct. App. 2007) (denying the defendant’s motion to
22
suppress while noting that “[e]xecution of the arrest warrant was an intervening
23
circumstance that was sufficiently distinguishable from the prior police misconduct so as
24
to dissipate the taint of that ‘primary illegality.’”).
25
The Supreme Court has expressly held that the Fourth Amendment exclusionary
26
does not “bar the use in the prosecution’s case in chief of evidence obtained by officers
27
acting in reasonable reliance on a search warrant issued by a detached and neutral
28
magistrate but ultimately found to be unsupported by probable cause.” United States v.
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1
Leon, 468 U.S. 897, 900-01, 923-24 (1984); see also Kinports, supra, 92 Tul. L. Rev. at
2
838 (noting “the good-faith exception to the exclusionary rule allows prosecutors to
3
introduce evidence obtained illegally pursuant to a search warrant that should never have
4
been issued because it was not supported by probable cause,” but it is unclear whether the
5
good faith exception insulates evidence uncovered by a tainted warrant from the
6
exclusionary rule). The PFEWA also allows for a good faith defense by providing that “[a]
7
good faith reliance on a court order is a complete defense to any civil or criminal action
8
brought under this chapter . . . any other law.” CAL. PENAL CODE § 629.86; see also 18
9
U.S.C. § 2520(d) (also providing a good faith defense when relying on a court warrant or
10
order). This means that even if the government violates the federal or state wiretapping
11
laws by using information outside the scope of the wiretap warrant to obtain a subsequent
12
warrant, as was the case here, the government’s good faith reliance on that lawfully
13
obtained warrant will not necessitate the exclusion of the evidence at issue. To the extent
14
Plaintiff’s issue is the introduction of the wiretap evidence at his trial, it appears that the
15
facts in his Complaint fail to show any basis existed for excluding the wiretap evidence
16
given the Court’s conclusion that failure to obtain judicial authorization is harmless error
17
that does not amount to a Fourth Amendment violation. Roberts, 184 Cal. App. 4th at 1188.
18
In sum, normally, the reasonableness of a search or seizures ordinarily represents a
19
question of fact appropriate for determination by a jury. See Howell v. Polk, 532 F.3d
20
1025, 1026 (9th Cir. 2008); see also Hydrick v. Hunter, 500 F.3d 978, 993 (9th Cir. 2007)
21
cert. granted, judgment vacated on other grounds, 556 U.S. 1256 (2009), 669 F.3d 937
22
(9th Cir. 2012) (“[t]he ‘reasonableness’ of a search or seizure is a fact-intensive inquiry
23
that cannot be determined at this stage”). In this case, however, the Court finds that the
24
parties do not dispute the facts, and those facts demonstrate no violation of constitutional
25
rights took place here as a matter of law.15
26
27
28
15
If Plaintiff had alleged that the search warrant for the search of his hotel and vehicle
had been obtained by judicial deception, that might state a claim for a constitutional
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1
C.
Plaintiff Has Failed to Plead Any Facts to Support a Claim Against the
City Under Monell
2
Defendant argues that (1) Plaintiff’s Complaint is devoid of any allegations to
3
establish Monell liability; (2) Plaintiff’s allegations “against Guthrie and Macias in their
4
official capacity are really claims against the City of Fontana and are duplicative,” and (3)
5
“[w]hen analyzing the allegations made in the Complaint, there are no allegations alleging
6
that the alleged constitutional harms were the result of a City of Fontana policy, practice,
7
or custom.” Mot. at 15:25-16:4 (citing Compl. at 9-10, ¶¶ 29-33). Plaintiff “acknowledges
8
that the Complaint is a little sparse on facts establishing the Monell claim.” Oppo. at 5:21-
9
22. He asks that “should the Court determine that the Complaint is insufficient, [he] can
10
amend the Complaint to allege sufficient facts.” Id. at 5:22-24. Police Defendants reply
11
that “Plaintiff fails to present any challenge to Defendants’ argument that dismissal of the
12
Monell claim against the City is warranted.” Reply at 7:15-16. Thus, they argue that
13
14
15
16
17
18
Plaintiff has abandoned this claim, so the Court should dismiss it. Id. at 7:18-23.
In Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court held a
municipality or local government may be held liable for constitutional violations under
Section 1983. “Monell is clear, however, that ‘a municipality cannot be held liable under
§ 1983 solely because it employs a tortfeasor—or, in other words, a municipality cannot
be held liable under § 1983 on a respondeat superior theory.’” Scalia v. Cty. of Kern, 308
19
20
21
22
23
24
25
26
27
28
violation under the Fourth Amendment. See, e.g., Benavidez v. Cty. of San Diego, 993 F.3d
1134, 1152 (9th Cir. 2021) (“A seizure conducted pursuant to a warrant obtained by judicial
deception violates the Fourth Amendment.”) (quoting Whitaker v. Garcetti, 486 F.3d 572,
581 (9th Cir. 2007)). However, Plaintiff alleges neither that the search warrant was not
issued by a neutral and detached magistrate nor that whatever entities applied for the
warrant deceived the magistrate into issuing the warrant. Further, so long as Police
Defendants merely executed the warrant but did not apply for it, then, even if Investigative
Defendants committed acts of judicial deception, Plaintiff would still fail to state a claim
for relief against Police Defendants who merely executed a search warrant issued by a
magistrate judge after having no involvement in the wiretap. See also State v. Mullens,
221 W. Va. 70, 73-74, 79 (2007) (affirming the circuit court’s finding that the Fourth
Amendment was not “violated by the failure of the police to obtain judicial authorization
to have an informant enter his home wearing an audio and video recording device”).
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1
F. Supp. 3d 1064, 1077-79 (E.D. Cal. 2018) (citing Monell, 436 U.S. at 691). “Instead, a
2
municipality can only be held liable for injuries caused by the execution of its policy or
3
custom or by those whose edicts or acts may fairly be said to represent official policy.”
4
Scalia, 308 F. Supp. 3d at 1078 (citing Monell, 436 U.S. at 694).
5
A plaintiff seeking to hold a municipality liable must show: (1) the plaintiff was
6
deprived of a constitutional right; (2) the defendant-municipality had a policy or custom;
7
(3) the defendant’s policy or custom amounted to deliberate indifference to the plaintiff’s
8
constitutional right; and (4) the policy or custom was the moving force behind the
9
constitutional violation. Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir.
10
2001); see also Estate of Wilson by & through Jackson v. Cty. of San Diego, No. 20-CV-
11
457-BAS-DEB, 2020 WL 3893046, at *5 (S.D. Cal. July 10, 2020) (quoting Anderson v.
12
Warner, 451 F.3d 1063, 1070 (9th Cir. 2006)). A “policy” is a “deliberate choice to follow
13
a course of action . . . made from among various alternatives by the official or officials
14
responsible for establishing final policy with respect to the subject matter in
15
question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008).
16
In Herd v. County of San Francisco, 311 F. Supp. 3d 1157, 1167 (C.D. Cal. 2018),
17
the court dismissed the child’s Monell claim finding that “[a]fter Iqbal, ‘[a]llegations of
18
Monell liability will be sufficient for purposes of Rule 12(b)(6) where they: (1) identify the
19
challenged policy/custom; (2) explain how the policy/custom is deficient; (3) explain how
20
the policy/custom caused the plaintiff harm; and (4) reflect how the policy/custom
21
amounted to deliberate indifference, i.e. show how the deficiency involved was obvious
22
and the constitutional injury was likely to occur.’” Id. (citing, inter alia, Young v. City of
23
Visalia, 687 F. Supp. 2d 1141, 1163 (E.D. Cal. 2009)). Because the Herd plaintiff “ha[d]
24
not identified any such policy or custom,” he “also ha[d] not explained how the policy or
25
custom is deficient, . . . caused him harm, and . . . amounted to deliberate indifference.”
26
Id. Thus, the court dismissed the plaintiffs’ claim for municipal liability. Id. at 1168.
27
Here, the Court finds Plaintiff’s claims do not plausibly plead the requirements for
28
a Monell claim. Plaintiff conclusorily alleges that his Fourth Amendment rights were
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1
violated, and that various defendants “acted under color of his authority as such, and under
2
color of the statutes, regulations, customs, and usages of the United States of America, the
3
State of California, and the County of Imperial.” Compl. at 3-6, ¶¶ 4-14. While he does
4
not have a separate claim for relief for his Monell claim, he alleges within his first claim
5
for violation of Section 1983 that “[b]y engaging in the acts and having the policies and
6
procedures described above, Defendants … deprived [Plaintiff] of his rights against
7
unlawful searches and seizures and against the deprivation of life, liberty, and property.”
8
Compl. at 9, ¶ 30. That is the extent of his allegations regarding the municipal defendants
9
having any policy or custom. He does not explain what custom or policy violated his
10
constitutional rights. Moreover, there are no allegations (much less facts to support them)
11
that a specific policy or custom maintained by Defendants (1) amounted to deliberate
12
indifference to Plaintiff’s constitutional rights and/or (2) was the moving forced behind the
13
constitutional violation. See Mabe, 237 F.3d at 1110-11.
14
Thus, like the deficient claim in Herd, Plaintiff’s claim fails to (1) identify the
15
policy/custom; (2) explain how that specific policy/custom is deficient; (3) explain how
16
that deficient policy/custom caused Plaintiff harm; and/or (4) “reflect how the
17
policy/custom amounted to deliberate indifference, i.e. show how the deficiency involved
18
was obvious and the constitutional injury was likely to occur.’” Herd, 311 F. Supp. 3d at
19
1167; see also Bryan, 297 F. Supp. 3d at 1120 (noting that the plaintiff’s allegations that
20
do “nothing more than allege, in very general terms, that the City had a policy of permitting
21
constitutional violations and abuses, and that it knew Rudinger was dishonest and corrupt”
22
did “not meet the pleading standard”). More importantly, there can be no Monell claim
23
where there is no violation of constitutional rights by any individuals employed by the city.
24
See Forrester v. City of San Diego, 25 F.3d 804, 808 (9th Cir. 1994).
25
Finally, the Court also notes that to the extent Plaintiff’s claims arise from the
26
execution of the wiretap warrant, Defendants are likely immune from liability. See CAL.
27
GOV’T. CODE §§ 815.2, 820.4. First, in addition to the Court concluding the officers did
28
not violate Plaintiff’s constitutional rights, the officers are also immune from liability for
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1
actions taken while executing a search warrant. See, e.g., County of Los Angeles v. Sup. Ct.,
2
181 Cal. App. 4th 218, 228 (2009) (officers immune from tort claims arising from
3
execution of warrant). Further, even to the extent any wrongfulness stems from statements
4
made to secure the second warrant to search Plaintiff’s vehicle and home, the officers
5
cannot be held liable for those statements either. Hansen v. Calif. Dept. of Corr. &
6
Rehabilitation, 171 Cal. App. 4th 1537, 1547 (2008) (public employees acting within the
7
scope of their employment for were immune from tort liability in connection with
8
statements made to secure a warrant). Finally, if the officers themselves cannot be held
9
liable, neither can the City Defendants. See, e.g., Bryan, 297 F. Supp. 3d at 1122 (noting
10
that to the extent the plaintiff’s Section 1983 claims arise from the search at issue, the city,
11
as the employer of the officers executing the warrant, was immune from liability). Thus,
12
the Court GRANTS the Motion to Dismiss the claims against the City of Fontana.
13
D.
14
Plaintiff asks the Court to grant him leave to amend if it finds his allegations
15
insufficient so he can “provide any additional facts necessary to make the complaint
16
compliant with the rules of pleading.” Oppo. at 6:3-5.
Leave to Amend
17
Courts have broad discretion to grant leave to amend a complaint. Nguyen v.
18
Endologix, Inc., 962 F.3d 405, 420 (9th Cir. 2020). This discretion includes the right to
19
deny leave to amend where amendment may prove to be an effort in futility. Moore v.
20
Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). In determining whether a
21
plaintiff should be granted leave to amend, courts consider “the presence or absence of
22
undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous
23
amendments, undue prejudice to the opposing party and futility of the proposed
24
amendment.” Moore, 885 F.2d at 538.
25
granted leave to amend and has subsequently failed to add the requisite particularity to its
26
claims, the district court’s discretion to deny leave to amend is particularly broad.”
27
Nguyen, 962 F.3d at 420 (holding that the district court did not err by denying leave to
28
amend “because it was clear that the plaintiff had made her best case and had been found
“[W]here the plaintiff has previously been
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1
wanting”) (internal quotations omitted). For example, in Parents for Privacy v. Barr, 949
2
F.3d 1210, 1239 (9th Cir. 2020), the Ninth Circuit affirmed the district court’s denial of
3
leave to amend because “[f]urther amendment would simply be a futile exercise.” In doing
4
so, the Court noted that “[t]he problem with Plaintiffs’ complaint, however, is not the
5
sufficiency of their factual allegations” but “[r]ather, as we have explained above,
6
Plaintiffs’ legal theories fail.” Id. There, “[a]mending the complaint will not change, for
7
example, the extent of the rights that are protected by the Fourteenth Amendment’s Due
8
Process Clause.” Id. Plaintiffs’ allegations suffer from the same deficiencies.
9
Similar to Barr, Plaintiff has failed to state a plausible claim for relief. Further,
10
Plaintiff fails to state how or why leave to amend would cure the inadequacies pointed out
11
by Defendants. Most importantly, no facts can cure the fact that “amending the complaint
12
will not change … the extent of the rights protected.” Barr, 949 F.3d at 1239. Thus, further
13
amendment would prove futile. Id. Accordingly, the Court exercises its broad discretion
14
to deny leave to amend. Nguyen, 962 F.3d at 420.
V.
CONCLUSION
15
16
For the above reasons, the Court ORDERS as follows:
17
1.
All allegations against individual defendants in their official capacity are
18
dismissed given Plaintiff has already sued the County of Imperial, making such allegations
19
duplicative.
20
21
22
23
24
25
2.
All Doe Defendants are dismissed for want of prosecution pursuant to Rule
4(m) of the Federal Rules of Civil Procedure.
3.
The Police Defendants’ Motion to Dismiss the Complaint is GRANTED with
prejudice.
IT IS SO ORDERED.
DATED:
January 7, 2022
HON. ROGER T. BENITEZ
United States District Judge
26
27
28
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3:21-cv-00445-BEN-DEB
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