208 F.3d 226 (10th Cir. 1999), 98-4119, Molina v. Spanos

Docket Nº:98-4119.
Citation:208 F.3d 226
Party Name:Ronald R. MOLINA, Plaintiff-Appellant, v. Mike SPANOS, Robert J. Lucking, Perry Rose, Ken Van Wagoner, and Wasatch County Sheriff'S Department, Defendants-Appellees.
Case Date:August 18, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 226

208 F.3d 226 (10th Cir. 1999)

Ronald R. MOLINA, Plaintiff-Appellant,

v.

Mike SPANOS, Robert J. Lucking, Perry Rose, Ken Van Wagoner, and Wasatch County Sheriff'S Department, Defendants-Appellees.

No. 98-4119.

United States Court of Appeals, Tenth Circuit

August 18, 1999

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

Before BRORBY, EBEL, and BRISCOE, Circuit Judges.

ORDER AND JUDGMENT [*]

BRISCOE.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument.

This action arose out of a drug investigation of plaintiff Robert R. Molina and Clifford Molina, plaintiff's brother. The investigation led to their subsequent arrest, a search of plaintiff's property, the seizure of plaintiff's home, the initiation of criminal drug charges, and the filing of a forfeiture proceeding. Plaintiff appeals from the district court's entry of summary judgment in favor of defendants Mike Spanos, the sheriff of Wasatch County, Utah; Robert J. Lucking, Perry Rose, and Ken Van Wagoner, law enforcement officers working with the Wasatch Area Drug Enforcement Network (a multi-jurisdictional drug task force known as WADEN); the Wasatch County Sheriff's Department; and John Does 1 through 10, on his federal claims under 42 U.S.C. §§ 1982 and 1983 that defendants violated his constitutional rights and his state claims of false arrest, false imprisonment, intentional infliction of emotional distress, defamation, conversion, and violation of property rights under the Utah Constitution. He also appeals the district court's orders refusing to compel production of requested discovery, excluding certain evidence, and denying his motion for partial summary judgment. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

In 1990, plaintiff, who is of Hispanic descent, moved to Heber City, Utah, from Miami, Florida. As a self-employed certified public accountant, writer, and real estate finance expert, he conducted his business from his home. Shortly after relocating, plaintiff began to suspect that his house was under police surveillance. In 1992, when plaintiff was visiting in another state, his teenaged son called the police for assistance in removing two acquaintances from the house. Upon responding to the call, defendant Rose, a Heber City police officer, arrested the son, along with the other two individuals, for use and possession of a controlled substance. Subsequently, police obtained a search warrant and returned to the Molina home to search it. The son eventually pleaded guilty to attempted use of a controlled substance. Somewhat later, plaintiff's brother Clifford Molina, who "has a serious drug problem," Appellant's App., Vol. 1 at 460 (plaintiff's deposition), moved into plaintiff's home.

A. The Investigation

In 1994, the owner of a bar in Heber City expressed to defendant Lucking, a deputy with the Wasatch County sheriff's office and the WADEN coordinator, and defendant Van Wagoner, also a deputy sheriff and the former coordinator, her suspicions that plaintiff and Clifford Molina were involved in drug activity. She indicated that plaintiff "flashes money" and "buys girls gifts" and, possibly, that she had observed Clifford Molina participate in a drug transaction. Addendum to Brief of Appellees Spanos, Lucking, Van Wagoner and Wasatch County Sheriff's Dept. (Addendum), Tab 2 (Lucking deposition at 64). Based on this information, Lucking launched a WADEN investigation. He placed Barbara McClure, a confidential informant employed by WADEN, in the bar as a part-time employee and instructed her to become acquainted with the Molinas.

McClure followed instructions and became friendly with plaintiff and his brother. Soon, however, McClure came to believe that Clifford, not plaintiff, "was doing the buying and the selling [of drugs] .... and was the dealer." Appellant's App., Vol. 1 at 309 (McClure deposition). When she told Lucking of her conclusion, he began to distrust her, thinking that she was getting "[p]ersonally involved" and "too close to Ron Molina." Id. at 368 (Lucking deposition). He added another confidential informant, James McDaniel, to the investigation.

Rose was assigned to monitor the informants' activities. Before planned buys, Rose and other WADEN team members generally conducted searches of the informants and wired them with transmission devices. During the transactions, WADEN maintained visual and audio contact. Afterwards, they searched and debriefed the informants. To document their observations, Rose and Lucking wrote incident reports. See Addendum at tabs 10-12.

The informants involved the Molinas in the purchase of cocaine on three occasions, August 26 and 27, and September 4, 1994. In all instances, McClure provided WADEN money for an eighth of an ounce of cocaine, or an "eight ball," id., and McDaniel drove Clifford Molina, in Clifford's car, to Salt Lake City to make a purchase. Upon their return, McClure obtained WADEN's share of the drugs. Plaintiff's alleged involvement, however, varied. WADEN reports state that, in connection with the August 26 buy, plaintiff delivered the cocaine to McClure's home. The next day, he allegedly participated in dividing up the purchased cocaine in his home, discussed its characteristics, and ingested some. Although McClure attempted to give the money for WADEN's share to plaintiff, he insisted that she pay his brother instead. For the final transaction, plaintiff allegedly watched silently while his brother, McClure, and McDaniel exchanged the drugs.

B. The arrest and search

On September 6, 1994, Lucking decided to execute a warrant for the arrest of plaintiff and Clifford Molina. Magistrate Fern Spanos, who is married to defendant Spanos, issued the warrant. Lucking gathered teams of officers to serve the warrants, and also conscripted defendant Van Wagoner, a neighbor of the Molinas, to "keep an eye on [the Molinas'] home to let us know if they were indeed there." Addendum, tab 2 (Lucking deposition at 202). When McClure learned that the arrest warrants had been issued, she continued to dispute Lucking's conclusion that plaintiff was involved in drug transactions.

That afternoon, the arresting officers knocked, announced their presence, and entered plaintiff's residence, causing considerable damage to the door. They found plaintiff in his upstairs bedroom and Clifford Molina in the shower. After both were handcuffed and taken out to the front yard, Lucking and Rose conducted protective sweeps of the residence.

The officers then turned their attention to plaintiff's property. Lucking directed that plaintiff's car, which was parked on the street, be impounded and held for safekeeping while plaintiff was under arrest. The residence was secured until a warrant to search the residence could be obtained.

Rose signed the affidavit in support of the warrant request. In it, he cited to the transactions of August 26, 27 and September 4, and added that during his protective sweep he saw "a beer can formed into a pipe of the type normally used to smoke 'rock' cocaine or marijuana" and "a white power residue on a glass top...

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