431 F.3d 633 (9th Cir. 2005), 02-55627, Moreno v. Baca

Docket Nº:02-55627.
Citation:431 F.3d 633
Party Name:R. MORENO, in his individual capacity and in his capacity as representative of the classes described fully herein, Plaintiff-Appellee, v. Leroy BACA; Michael Antonovich; Yvonne Burke; Donald Knabe; Gloria Molina; Zev Yaroslavsky, Defendants, and Banks, Deputy Sheriff # 403862; Garcia, Deputy Sheriff # 412525, Defendants-Appellants, State of Califor
Case Date:March 07, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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431 F.3d 633 (9th Cir. 2005)

R. MORENO, in his individual capacity and in his capacity as representative of the classes described fully herein, Plaintiff-Appellee,


Leroy BACA; Michael Antonovich; Yvonne Burke; Donald Knabe; Gloria Molina; Zev Yaroslavsky, Defendants,


Banks, Deputy Sheriff # 403862; Garcia, Deputy Sheriff # 412525, Defendants-Appellants,

State of California, Intervenor-on-Appeal.

No. 02-55627.

United States Court of Appeals, Ninth Circuit.

March 7, 2005

Argued and Submitted April 9, 2003

Submission Withdrawn October 8, 2003

Resubmitted February 16, 2005

Opinion Withdrawn and Amended Opinion Filed Dec. 9, 2005.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Central District of California, D.C. No. CV 00-07149 ABC, Audrey B. Collins, District Judge, Presiding


Devallis Rutledge, Manning & Marder Kass, Ellrod, Ramirez, Irvine, California, for defendants-appellants.

Kathryn S. Bloomfield, Yagman & Yagman & Reichmann & Bloomfield, Venice Beach, California, for plaintiff-appellee.

Before: Harry Pregerson, A. Wallace Tashima, and Richard R. Clifton, Circuit Judges.

TASHIMA, Circuit Judge:


The Opinion and separate Opinion concurring in the judgment filed on March 7, 2005, slip op. 2657 and 2687, and reported at 400 F.3d 1152 and 1169, are withdrawn and replaced by the Amended Opinion filed concurrently with this order.

The foregoing action renders defendants-appellants' petition for rehearing and petition for rehearing en banc, and intervenor-on-appeal State of California's petition for rehearing and/or petition for rehearing en banc moot. Subsequent petitions for panel rehearing and/or petitions for rehearing en banc may be filed with respect to the Amended Opinion in accordance

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with the requirements of Fed. R.App. P. 40 and 35.


Los Angeles County Deputy Sheriffs Sean Banks and Thomas Garcia ("Appellants") appeal from the district court's denial of their motion for summary judgment asserting qualified immunity in a § 1983 action brought by plaintiff Richard Moreno. Moreno alleges that Appellants, acting under color of state law, deprived him of his constitutional rights when they arrested and searched him without cause.

Factual Background

One evening in January 2000, Richard Moreno and his companion Joe Rodriguez were on their way to a meeting at St. Lucy's Church in the City Terrace area of Los Angeles. After their car broke down, Moreno and Rodriguez proceeded toward the meeting on foot. At approximately 7 p.m., a marked Los Angeles County Sheriff patrol car passed them as they walked down the street, made a U-turn, and pulled the car onto the curb in their path. Two deputies got out of the car. Deputy Banks, who was riding in the passenger seat, ordered Moreno and Rodriguez to approach. Banks interrogated both men as to their business in the area, patted them down for weapons, emptied the contents of their pockets onto the hood of the patrol car, and locked them into the back seat. While Moreno and Rodriguez sat in the back seat of the car, Deputy Banks entered their names into a computer inside the patrol car and asked the men whether they were on parole. Moreno admitted that he was.

Meanwhile, Deputy Garcia, the driver of the patrol car, walked down the sidewalk in the direction from which Rodriguez and Moreno had approached, shining his flashlight on the sidewalk and into nearby yards as he went. When Garcia returned to the patrol car he had a discussion with Banks, reached into the glove compartment to retrieve a ziploc bag, and then put the bag back into the glove compartment and closed the door. Moreno heard one of the deputies tell the other that Rodriguez was "clean" but that Moreno was on parole. At that point, Garcia opened the rear door of the car and told Rodriguez that he was free to leave, which he did. Moreno was handcuffed and told that he was under arrest for violating his parole. When Moreno asked the deputies what he had done to violate his parole, one of them told him that he was caught in possession of rock cocaine.

Deputies Banks and Garcia gave a somewhat different account of the incident. According to their incident report, Banks noticed that Moreno was "startled" when he saw the patrol car. As the deputies approached, Moreno turned around, reached into his right front pants pocket, and discarded something on the front steps of a nearby residence. Because the deputies were on patrol in a high crime area, and because they were aware that drugs were sold in several houses nearby, they decided to investigate. They detained Moreno and placed him in the patrol car. Banks walked to the area in which he had seen Moreno discard the object and recovered an object he recognized as rock cocaine. One of the deputies did a warrant check on the patrol car's MDT terminal, which revealed an outstanding arrest warrant with $10,000 bail for Moreno.1 The MDT search also revealed that Moreno was on

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parole, a fact which Moreno orally confirmed. Both deputies declared under oath that they were aware from their training and experience that a standard term of parole was that parolees were subject to warrantless searches by any peace officer. Moreno was placed under arrest, both for possession of cocaine and under the authority of the outstanding arrest warrant, and a parole hold was placed on him. Although the incident report makes no reference to Rodriguez or any other person, both Banks and Garcia refer to "another man" in their sworn declarations describing the encounter.

At the time of the detention, Moreno was indeed a parolee under the supervision of the California Department of Corrections. He had been released from prison more than two years earlier, subject to the following condition: "You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." As it turns out, Moreno also had an outstanding arrest warrant, which was issued when Moreno failed to make an appearance in state court in 1999. It is undisputed, however, that the deputies learned that Moreno was on parole and that he had an outstanding arrest warrant only after searching and detaining him.

Moreno was subsequently charged in state court with possession of a controlled substance. Deputies Banks and Garcia testified against him at trial and Rodriguez testified for the defense. Moreno was acquitted by a jury in 2002.

Moreno then brought this action under 42 U.S.C. § 1983, contending that Banks and Garcia violated his Fourth Amendment right to be free from unreasonable searches and seizures when they arrested and searched him without cause. Banks and Garcia responded that Moreno had no right to be free from suspicionless arrests and searches because of the outstanding bench warrant and the parole condition. Even if reasonable suspicion were required to detain Moreno, the officers contended, they had the requisite level of suspicion because of Moreno's nervous behavior and the fact that he was walking in a "high crime" area.

The district court sided with Moreno, reasoning that under Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), and United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), "at least reasonable suspicion is required to justify the search, and subsequent seizure, of Moreno." The court further...

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