Grant v. City of Long Beach

Decision Date16 December 2002
Docket NumberNo. 01-56046.,01-56046.
Citation315 F.3d 1081
PartiesJeffrey Allen GRANT, Plaintiff-Appellee, v. CITY OF LONG BEACH; Long Beach Police Department; Denise Slavin, esa Dennis Slavin; Unknown Hafkenshied, Defendants, and Katherine Watson; Joe Bahash, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Timothy T. Coates, Greines, Martin, Stein & Richland, Los Angeles, CA, for the defendants-appellants.

Susan S. Lerner, Kutner, Rubinoff, Bush & Lerner, Miami, FL, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-99-09886 SVW.

Before BRIGHT*, GOODWIN, and TASHIMA, Circuit Judges.

OPINION

GOODWIN, Circuit Judge.

Two city police officers appeal a judgment for damages following a jury verdict in a 42 U.S.C. § 1983 action brought against the city and the individual officers. We affirm.

I. Introduction and Procedural History

Jeffrey Allen Grant was arrested and charged with a series of highly publicized rapes and related felonies (the "Belmont Shores rapes") that occurred over eighteen months in the City of Long Beach. When forensic evidence found at several crime scenes failed to match Grant's DNA, the prosecutor dropped all charges and released Grant from jail, where he had been sitting for over three months awaiting trial. Grant then sued the City of Long Beach, the Long Beach Police Department, and the two police officers that spearheaded the investigation under 42 U.S.C. § 1983 for false arrest and false imprisonment. He alleged, inter alia, that defendants' conduct violated his Fourth Amendment protection from arrest without probable cause and his Fourteenth Amendment right to due process.

The district court bifurcated the trial, separating Grant's claim against the individual officers from his claim against the City and Police Department. The trial proceeded against the officers (Joseph Bahash and Katherine Watson) first and culminated in a jury award of $1.75 million in compensatory and punitive damages in favor of Grant. The officers assign error to the district court's denial of two motions for judgment as a matter of law, first on probable cause and then on qualified immunity. They also challenge the exclusion of proffered testimony.

We reject the officers' arguments on all three issues. The district court properly submitted the case to the jury because material issues of fact existed as to the knowledge the officers had at the time of Grant's arrest and the reasonableness of their actions. The jury was properly instructed and there was no error in excluding testimony of questionable relevance.

II. Facts

During the late night hours of September 18, 1998, Carolyn Ronlov was raped by a man she described as white with an ethnic accent. From a scent pad created at the crime scene, a police bloodhound attempted to track the assailant. The dog, named Tinkerbelle, eventually led the officers to a twenty unit apartment building almost two miles away from the crime scene. Tinkerbelle went directly to the second floor of the building, attempted to track the scent for ten more minutes, and then gave up after failing to identify any particular unit or individual. At the time, Grant lived in a unit on the first floor. Tinkerbelle did not show any interest in Grant's unit or in the first floor at any point.

The officers sought to gather more information by questioning residents awakened by the commotion. Officer Bahash focused his attention on Grant's particular unit because inside lights appeared to be on but no one answered when he knocked. With Bahash's permission, two other officers picked the locks on Grant's apartment door with the intention of drawing the occupant outside. When the door did not open, the police testified that they grew even more suspicious and left with Grant as a possible suspect in their minds. Officer Bahash then obtained a copy of Grant's photograph from the DMV and placed it in a six-person photograph array (also known as a "six-pack") for possible identification by two earlier victims. Of the nine victims identified at that point, only Jennifer Haines and Amyjo Dale felt confident enough to make a positive identification from the photo spread.

A. The Haines Identification

On the night of July 3, 1998, Jennifer Haines woke to the sound of someone trying to break into her home. She called 9-1-1 and described the individual as a 5'7" Hispanic man with dark skin tone and short hair. On July 22, approximately two weeks after the incident and before Grant was ever a suspect, Officer Bahash showed Haines a six-pack containing the photograph of a man (Hernandez) that police considered the possible assailant at the time. Haines tentatively identified Hernandez, stating "it looks like number 2, but I'm not real sure. But real close." A police forensic expert subsequently matched a latent fingerprint found at the Haines residence to one of Hernandez's rolled fingerprints. The police dropped Hernandez as a suspect shortly thereafter, although neither trial testimony nor the parties' briefs indicate a reason.

On September 26, almost three months after the attempted break-in, Officer Bahash asked Haines to view another six-pack, this time with a photograph of Grant. She selected Grant stating "It's number 3, if the hair were shorter. It's him." Officer Bahash never followed up by having Haines choose between the two photographs of Grant and Hernandez after she had identified both as her assailant.

B. The Dale Identification

On the night of May 25, 1998, Amyjo Dale woke to discover a man crawling on her bedroom floor. They struggled and the assailant succeeded in throwing a blanket over Dale's head. Just as he was leaving her bedroom, Dale removed the blanket and caught a glimpse of his face. He told her to look away and then fled the scene. She dialed 9-1-1 and described her assailant as a Caucasian male with olive toned skin, about five foot ten to six feet tall. On June 19, three weeks after her attack, Officer Watson showed Dale eight separate photographs. Dale made a tentative identification of an individual named Oliver, stating his features were very close to her assailant.

On September 30, almost four months after her attack, Officer Watson presented Dale with the array containing Grant's photograph created by Officer Bahash. At this point, both officers were coordinating their investigation efforts and sharing information. Upon viewing the array, Dale tentatively selected Grant and stated that she was "pretty sure," but would be more positive with a live identification. On that same day, the police arrested Grant without a warrant for all nine of the Belmont Shores rapes and related felonies.

III. Probable Cause

The officers' principal argument on appeal is that they had probable cause as a matter of law to arrest Grant without a warrant. This Court reviews de novo the denial of a motion for judgment as a matter of law (JMOL). See Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 886 (9th Cir.2002). "Judgment as a matter of law is appropriate when the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, which is contrary to the jury's verdict." Gilbrook v. City of Westminster, 177 F.3d 839, 864 (9th Cir.1999) (emphasis added). If, on the other hand, there is "such relevant evidence as reasonable minds might accept as adequate to support [the jury's] conclusion," then we must affirm the district court's denial of the officers' JMOL motion. Id.

Probable cause exists when "under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." United States v. Smith, 790 F.2d 789, 792 (9th Cir.1986). "A police officer has probable cause to effect an arrest if `at the moment the arrest was made ... the facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing' that the suspect had violated a criminal law." Orin v. Barclay, 272 F.3d 1207, 1218 (9th Cir.2001) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).

According to testimony presented at trial, Officers Bahash and Watson based their determination of probable cause on the following information: (1) A trained police dog proceeded from a crime scene to Grant's apartment building in pursuit of a scent trail; (2) Haines and Dale, the only two victims capable of identifying their assailant, selected Grant from a six person photo array; and (3) Grant resembled the general physical description provided by other victims of their assailant. As we discuss below, this evidence does not amount to probable cause at all, much less as a matter of law. The district court properly submitted this issue to the jury and entered judgment upon its verdict.

A. Canine Identification

This Circuit has yet to rule on the extent to which canine identification of an individual may serve as probable cause for an arrest. However, our cases on the use of canines in drug enforcement provide some guidance. For several decades, we have recognized the importance of canine noses to assist in narcotics investigations. See United States v. Solis, 536 F.2d 880, 882 (9th Cir.1976) ("The recent proliferation of crimes involving the transportation of drugs and explosives has led naturally to the training and use of dogs ... to detect the presence of such contraband."). Indeed, we have routinely held that a canine identification or `alert' of illegal narcotics provides probable cause for the issuance of a search warrant, so long as the dog's reliability is established. See United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir.1993); see also United States v. Spetz...

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