Gabbert v. Conn

• Decision Date: 08 December 1997
• Docket Number: No. 95-56610,95-56610
• Citation: 131 F.3d 793
• Parties: , 97 Cal. Daily Op. Serv. 9130 Paul L. GABBERT, Plaintiff-Appellant, v. David CONN; Carol Najera; Leslie Zoeller; Elliot Oppenheim, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 793

131 F.3d 793

67 USLW 3479, 97 Cal. Daily Op. Serv. 9130

Paul L. GABBERT, Plaintiff-Appellant, v. David CONN; Carol Najera; Leslie Zoeller; Elliot Oppenheim, Defendants-Appellees.

No. 95-56610.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 11, 1997.

Decided Dec. 8, 1997

Michael J. Lightfoot, Talcott, Lightfoot, Vandevelde & Sadowsky, Los Angeles, CA, for plaintiff-appellant.

Robert S. Wolfe and Steven J. Renick, Manning, Marder & Wolfe, Los Angeles, CA, for defendants-appellees David Conn and Carol Najera.

Scott D. MacLatchie and Priscilla F. Slocum, Franscell, Strickland, Roberts & Lawrence, Pasadena, CA, for defendants-appellees Leslie Zoeller and Elliot Oppenheim.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-94-04227-RSWL.

Before: PREGERSON and HAWKINS, Circuit Judges, and WEINER, ^* District Judge.

MICHAEL DALY HAWKINS, Circuit Judge.

The prosecution and defense of criminal allegations produce ample opportunity for adversarial conflict. Without even looking for trouble, the interests of prosecution and defense can collide. This appeal demonstrates what can happen when one side steers those forces into direct and obvious conflict. Here, the prosecution's desire to gather evidence for the re-trial of a high-profile murder case runs directly into a defense attorney's right to consult with his client. The result is not a pretty picture. It is made all the worse because it appears to have been an entirely avoidable collision.

The case comes to us in the form of a civil rights damage action. Attorney Paul L. Gabbert ("Gabbert") wishes to pursue the action against two deputy district attorneys, a police officer, and a court-appointed special master. He alleges violations of his Fourth and Fourteenth Amendment rights arising out of a search of his person and effects executed just moments before his client entered a grand jury room. The district court dismissed Gabbert's Fourth Amendment claim and granted summary judgment for the defendants on his Fourteenth Amendment claims. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We hold that Gabbert had a clearly established right to pursue his profession without undue and unreasonable governmental interference and that no reasonable prosecutor or police officer could have believed that the worst of this conduct was lawful. We also hold that a second search of Gabbert, which violated both state law and the face of the warrant, amounted to a warrantless and therefore unreasonable search.

I. FACTS

Gabbert represented Traci Baker ("Baker"), a defense witness in the first murder trial of Lyle and Erik Menendez. ¹ After the close of evidence in that trial, Los Angeles County Deputy District Attorneys David Conn ("Conn") and Carol Najera ("Najera") learned that Lyle Menendez had written a letter to Baker in which he allegedly instructed her to testify falsely.

Armed with this information, Conn obtained a subpoena directing Baker to testify before a grand jury and produce any correspondence that she had received from Lyle Menendez. Beverly Hills Police Department Detective Leslie Zoeller ("Zoeller"), an investigating officer in the Menendez case, served that subpoena on Baker at Gabbert's law office.

The next day, Gabbert sought to file a motion to quash that portion of the subpoena requiring Baker to produce correspondence from Menendez. A Los Angeles Superior Court Judge declined to accept Gabbert's motion for filing and also denied his application for an order shortening time for the hearing on the motion to quash.

At about this same time, Conn, Najera, and Zoeller obtained a warrant to search Baker's apartment for any Menendez correspondence. When presented with the warrant, Baker informed Detective Zoeller that she had given any correspondence from Lyle Menendez to Gabbert. Zoeller relayed this information to Conn and Najera.

Three days later, Gabbert accompanied Baker to her scheduled grand jury appearance. As Gabbert and Baker walked into the building where the appearance was to take place, Conn approached Gabbert and asked him if he had brought the "documents" with him. Conn was referring to the Menendez correspondence, but Gabbert thought Conn was referring to Gabbert's motion to quash and accompanying documents.

Based on Gabbert's response, Conn decided to obtain a warrant to search Gabbert and directed Detective Zoeller to secure it. Under California law, the search of an attorney or law office must be conducted by a court-appointed special master. In this instance, Elliot Oppenheim ("Oppenheim"), a retired lawyer, was authorized to search Gabbert and his effects.

As Baker and Gabbert were waiting outside the grand jury room, Zoeller, at Conn's direction, served Gabbert with the search warrant. At Gabbert's request, the search took place in a private room adjacent to the grand jury room. Before he was actually searched, Gabbert gave Oppenheim two photocopied pages of a three-page letter from Lyle Menendez to Baker, informing Oppenheim that this was the only document on his person or in his effects that constituted correspondence between Menendez and Baker. Oppenheim proceeded to search Gabbert's files, including at least two files that clearly involved clients other than and unrelated to Baker. When Gabbert protested, Oppenheim proceeded to review the files anyway. Oppenheim also examined the contents of Gabbert's briefcase, including his calendar, wallet, dictaphone, eyeglass case, and notepad.

Within minutes of the search warrant was being executed on Gabbert, Najera, also acting at Conn's direction, called Baker before the grand jury and began to question her. In response to the first question, Baker asked to leave the grand jury room to consult with her attorney. Gabbert, of course, was being searched at this very moment.

Conn's secretary located Gabbert in the room where he was being searched and informed him that his client needed to speak with him. Gabbert, apparently unaware that his client was immediately outside the room, declined to leave. Instead he informed the secretary that the prosecution, which at least in his mind had created the problem, would have to simply delay questioning Baker further while the search was being carried out.

Baker then returned to the grand jury room and, reading off a card she had prepared in advance, asserted her Fifth Amendment privilege against self-incrimination on "the advice of counsel." In response to a second question from Najera, Baker again asked to speak with her attorney and left the room. Gabbert was nowhere to be seen. Baker waited in the hallway until a bailiff appeared, telling her to return to the grand jury room where she once again asserted her Fifth Amendment privilege.

Conn thereupon moved to hold Baker in contempt for failing to produce the documents subject to the subpoena, and the grand jury took a break. Conn, Najera, and Zoeller, with Baker in tow, then joined Oppenheim and Gabbert in the room where Oppenheim had just searched Gabbert. Oppenheim informed Conn that Gabbert did not possess the materials subject to the search warrant, but that Gabbert's effects did not contain privileged matters. Gabbert disputed this statement and informed Conn that he had files of other clients as well as privileged matters concerning Baker (e.g., Gabbert's notes of his interview with Baker). Conn thereupon informed Gabbert that Detective Zoeller would conduct a follow-up search of Gabbert's person and effects. Gabbert neither consented to nor resisted this search which was carried out by Zoeller with Conn and Najera looking on. Oppenheim took no part in this second search.

II. PROCEDURAL HISTORY

Gabbert contends his Fourth Amendment right to be free from unreasonable searches and seizures and his Fourteenth Amendment right to practice his profession without unreasonable governmental interference were both violated. The district court dismissed his Fourth Amendment claims, finding that Zoeller and Oppenheim had absolute immunity and Conn and Najera had qualified immunity. The district court found that Zoeller, as a public officer executing a court order, had quasi-judicial immunity and that Oppenheim was immune from suit as a judicial officer performing a judicial function. The district court declined to give the deputy district attorneys absolute immunity because it found they were acting as investigators, not advocates, during the search and grand jury proceeding. Finally, the district court denied the defendants' motion to dismiss Gabbert's Fourteenth Amendment claims.

The district court denied Gabbert's motion for leave to amend his complaint to include a state law claim under California Penal Code § 1524(c), the statute regulating the search of lawyers or law offices. The district court declined to exercise supplemental jurisdiction over a civil claim based on a violation of Cal.Penal Code § 1524, finding that it presented a novel question of state law which would substantially predominate over Gabbert's remaining Fourteenth Amendment claims.

The defendants moved for summary judgment on Gabbert's Fourteenth Amendment claims. The district court granted summary judgment for Conn and Najera based on qualified immunity and for Zoeller and Oppenheim based on absolute immunity.

III. STANDARD OF REVIEW

Both a dismissal for failure to state a claim and a grant of summary judgment on the basis of qualified immunity in a 42 U.S.C. § 1983 action are reviewed de novo. Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1043 (9th Cir.1996) (summary judgment); Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995) (Fed. R. Civ.Proc.12(b)(6)); Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir.1995) (qualified immunity in § 1983 action). These same authorities teach that we must determine, viewing the evidence in the light most favorable to the non-moving party,...