531 F.3d 726 (9th Cir. 2008), 06-15403, Cuevas v. De Roco

Docket Nº:06-15403.
Citation:531 F.3d 726
Party Name:Armando CUEVAS; Heather Burlette, Plaintiffs-Appellants, v. Jon DE ROCO; The El Dorado County Sheriff's Office; Jeff Neves; Richard Horn; Michael Cook; Christopher Starr; Brian Golmitz, Defendants-Appellees, and Rick Rimmer; Sharon Jackson, and The Von Housen Automotive Group, doing business as Mercedes Benz of El Dorado Hills, Defendants.
Case Date:June 27, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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531 F.3d 726 (9th Cir. 2008)

Armando CUEVAS; Heather Burlette, Plaintiffs-Appellants,


Jon DE ROCO; The El Dorado County Sheriff's Office; Jeff Neves; Richard Horn; Michael Cook; Christopher Starr; Brian Golmitz, Defendants-Appellees,

and Rick Rimmer; Sharon Jackson, and The Von Housen Automotive Group, doing business as Mercedes Benz of El Dorado Hills, Defendants.

No. 06-15403.

United States Court of Appeals, Ninth Circuit.

June 27, 2008

Argued and Submitted Dec. 3, 2007.

Submission Vacated Dec. 5, 2007.

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[Copyrighted Material Omitted]

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Mark A. Miller (argued), of the El Dorado Hills Law Group, for the plaintiffs-appellants.

James E. Flynn (argued), David A. Carrasco , Frances T. Grunder, James M. Humes , and Bill Lockyer , of the office of the Attorney General of the State of California, for the state defendant-appellee.

Franklin G. Gumpert (argued), of Barkett & Gumpert, for the county defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Morrison C. England , District Judge, Presiding. D.C. No. CV-04-02092-MCE/GGH.



Plaintiffs Armando Cuevas and Heather Burlette appeal the district court's grant of summary judgment against them on their civil rights action brought pursuant to 42 U.S.C. § 1983 .1 Although Plaintiffs alleged a variety of constitutional violations in the district court, they press on appeal only their claim that a warrantless entry into their residence on February 25, 2004, was unlawful under the Fourth Amendment to the Constitution.

Viewing the facts in the light most favorable to Plaintiffs, as we must, we conclude that Deputy Sheriff Christopher Starr violated Plaintiffs' Fourth Amendment rights and is not entitled to qualified immunity. We therefore reverse the district court's grant of summary judgment to Starr. However, we conclude that Deputy Sheriffs Richard Horn and Michael Cook did not violate Plaintiffs' Fourth Amendment rights, and we therefore affirm as to them. Plaintiffs do not argue on appeal that their Fourth Amendment rights were violated by Sheriff Jeff Neves, Sergeant Brian Golmitz, or the County of El Dorado. Accordingly, we affirm as to those Defendants as well.2

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I. Statement of Facts

This case arises out of a botched attempt by law enforcement to locate a parolee in Plaintiffs' residence. On September 19, 1999, the parolee, Randy Witmore, was arrested in Diamond Springs, California, for possession of explosive devices, apparently after he was stopped for driving under the influence. On the arrest form, Witmore's residence is listed as 464 Capella Drive in Diamond Springs (“the Diamond Springs address" ).

However, from 1990 to May 2003, that address belonged to the family of Lori Rodrigues, a friend of Witmore's. While it is not clear whether Witmore also may have lived at the Diamond Springs address around the time of his 1999 arrest, Rodrigues declared that Witmore did not live at the Diamond Springs address between September 2001 and May 2003. In December 2001, when Witmore's parole officer telephoned the Diamond Springs address to ask how Witmore was doing, Rodrigues informed the parole officer that Witmore did not live there and that there was an order in place requiring Witmore to stay away from her.

On March 5, 2002, Witmore was sent to prison after his probation was revoked, but, on July 29, 2003, he again was paroled. Witmore's parole form lists Witmore as “homeless," as living with “no one," and as having no telephone number. The parole form also notes that Witmore is “[t]rying to get into Ridgeview." The form does list Rodrigues at the Diamond Springs address, but only as an emergency contact.

Witmore's parole was again revoked when, on August 1, 2003, Witmore was arrested for battery. The Department of Corrections “charge sheet," dated August 11, 2003, lists Witmore's last known address as “2980 Coloma Rd., Placerville." Public telephone records reveal that this address belongs to a boarding house called Ridgeview Manor. Witmore was returned to prison on September 10, 2003.

On January 16, 2004, Witmore was once more released on parole. In February 2004, Parole Agent Jon de Roco was assigned to Witmore's case. Witmore's case file revealed that Witmore had failed to report to the parole unit as he had been instructed to do. Accordingly, de Roco and his supervisor decided that de Roco would prepare the paperwork necessary to seek a warrant for Witmore's arrest as an absconded parolee. De Roco and his supervisor further decided that, as part of the process of preparing the paperwork, de Roco would go to the emergency contact address listed on Witmore's July 2003 parole form-the Diamond Springs address-and attempt to obtain information about Witmore's whereabouts. If de Roco found Witmore there, he would take him into custody.

On February 25, 2004, de Roco contacted the El Dorado County Sheriff's Office and was placed in contact with Deputy Sheriffs Starr, Horn and Cook. De Roco informed the deputies that he intended to do a “knock and talk" at the Diamond Springs address, which is “where you knock on the door and talk to who opens it." 3 De Roco informed the deputies that “Witmore was wanted and if located would be taken into custody."

That evening, de Roco met with the deputies at a convenience store near Cuevas's residence. At the meeting, according

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to Deputy Horn's deposition, de Roco showed the deputies a “flyer" with a photo of Witmore and an address on it, which, the record suggests, was a “face sheet" from the Parole and Community Services Division of the California Department of Corrections. The “face sheet" lists Witmore's most recent address as “Self, Placerville" with a street address “to be determined." The “face sheet" further indicates that Witmore had lived in Placerville since December 2002. In addition to viewing the “flyer" or “face sheet," the deputies looked up Witmore in the ACIS local law enforcement database, which indicated that during three contacts with the Sheriff's Office in 2001 and 2002 Witmore had provided the Diamond Springs address. The deputies made no further inquiries into Witmore's current residence.

After the meeting, the deputies and de Roco headed to the Diamond Springs address. By that time, Rodrigues no longer lived there. She had sold the house in April 2003 and moved out in May 2003. Plaintiffs and their infant child had moved in. Plaintiff Cuevas may bear a general resemblance to Witmore, although their appearances are far from identical.

When the deputies and de Roco arrived at the Diamond Springs address they saw cars parked in the driveway and lights on inside the house. They did not run a check on the cars' license plates but instead approached the house and got into position. The deputies wore bullet-proof black vests with a cloth star on the left breast and the word “Sheriff" on the right breast as well as on the back. De Roco, too, wore a dark-colored bullet-proof vest, but his vest bore no insignia. Over his vest de Roco wore an open Hawaiian shirt with the tails tucked behind his “duty belt," on which were his holstered gun, his handcuff pouch, and his badge. De Roco also wore hiking boots and jeans.

Deputies Cook and Horn walked to the back of the house, through an open gate in the fence, and stood in the yard. De Roco and Deputy Starr walked up to the front door. It was dark outside, there was no porch light on, and curtains covered the front window, so the area was only slightly illuminated by ambient light from inside the home and from surrounding residences.

De Roco knocked on the door several times. Plaintiffs, who were working in their home office, heard the knocks, and Cuevas walked to the door. Cuevas looked out the window but, because of the darkness, could not see anything. Deputy Starr, looking through an opening in the curtains on the front window, saw someone by the door and said to de Roco, “He's right here." Next, de Roco heard Cuevas say...

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