639 F.3d 1206 (9th Cir. 2011), 09-17188, Garcia v. County of Merced

Docket Nº:09-17188, 09-17189.
Citation:639 F.3d 1206
Opinion Judge:TROTT, Circuit Judge:
Party Name:John GARCIA, Plaintiff-Appellee, v. COUNTY OF MERCED; John Taylor, Merced County Deputy Sheriff, Defendants-Appellants, and Merced County Sheriff's Department; Merced County District Attorney's Office; Gordon Spencer, District Attorney; Alfredo Cardwood, Bureau of Narcotics Enforcement Special Agent Supervisor, Defendants. John Garcia, Plaintiff-Ap
Attorney:Michael Woods and Christina C. Tillman, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP, Fresno, CA; Roger Matzkind, Chief Civil Litigator, County of Merced, Merced, CA, for the defendant-appellants. John Garcia, Law Office of John Garcia, Merced, CA; Norman Newhouse, Redwood City, CA, for the...
Judge Panel:Before: JOHN T. NOONAN, DIARMUID F. O'SCANNLAIN, and STEPHEN S. TROTT, Circuit Judges.
Case Date:May 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1206

639 F.3d 1206 (9th Cir. 2011)

John GARCIA, Plaintiff-Appellee,

v.

COUNTY OF MERCED; John Taylor, Merced County Deputy Sheriff, Defendants-Appellants,

and

Merced County Sheriff's Department; Merced County District Attorney's Office; Gordon Spencer, District Attorney; Alfredo Cardwood, Bureau of Narcotics Enforcement Special Agent Supervisor, Defendants.

John Garcia, Plaintiff-Appellee,

v.

County of Merced; John Taylor, Merced County Deputy Sheriff; Merced County Sheriff's Department; Merced County District Attorney's Office; Gordon Spencer, District Attorney, Defendants,

and

Alfredo Cardwood, Bureau of Narcotics Enforcement Special Agent Supervisor, Defendant-Appellant.

Nos. 09-17188, 09-17189.

United States Court of Appeals, Ninth Circuit.

May 5, 2011

Argued and Submitted Feb. 15, 2011.

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[Copyrighted Material Omitted]

Page 1208

Michael Woods and Christina C. Tillman, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP, Fresno, CA; Roger Matzkind, Chief Civil Litigator, County of Merced, Merced, CA, for the defendant-appellants.

John Garcia, Law Office of John Garcia, Merced, CA; Norman Newhouse, Redwood City, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, Senior District Judge, Presiding. D.C. No. 1:07-cv-00867-OWW-DLB.

Before: JOHN T. NOONAN, DIARMUID F. O'SCANNLAIN, and STEPHEN S. TROTT, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Defendants Alfredo Cardwood and John Taylor (the " Officers" ) interlocutorily appeal the district court's denial of qualified immunity from John Garcia's 42 U.S.C. § 1983 Fourth Amendment claims against them. Garcia's Fourth Amendment claims and his state law false imprisonment claim arose out of his arrest on suspicion of smuggling methamphetamine into the Merced County Jail to one of his clients, Alfonso Robledo, and from a subsequent search, supported by a search warrant, of his office.1 We reverse and remand for entry of judgment in favor of the Officers.

A. Standard of Review

We review de novo a grant of summary judgment on the basis of qualified immunity. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). In determining whether summary judgment is appropriate, we must view the evidence in the light most favorable to the non-moving party. Huppert v. City of Pittsburg, 574 F.3d 696, 701 (9th Cir.2009). " When a police officer asserts qualified immunity, we apply a two-part analysis...." Torres v. City of Los Angeles, 548 F.3d 1197, 1210 (9th Cir.2008). The first question is whether " the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The second question is whether the right was " clearly established." Id. at 202, 121 S.Ct. 2151. In determining whether a right was " clearly established," the court considers whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id.

Moreover, as the Supreme Court elaborated in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), " it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials— like other officials who act in ways they reasonably believe to be lawful— should not be held personally liable." Id. at 641, 107 S.Ct. 3034 (citing Malley v. Briggs, 475 U.S. 335, 344-345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). To subject such officials to the " fear of

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personal monetary liability and harassing litigation" carries with it the " substantial social costs" of unduly inhibiting them in the discharge of their official duties. Anderson, 483 U.S. at 638, 107 S.Ct. 3034.

B. Probable Cause to Arrest

Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). For information to amount to probable cause, it does not have to be conclusive of guilt, and it does not have to exclude the possibility of innocence, a distinction which the district court overlooked. United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007). As we said in Lopez, police are not required " to believe to an absolute certainty, or by clear and convincing evidence, or even by a preponderance of the available evidence" that a suspect has committed a crime. Id. at 1078. All that is required is a " fair probability," given the totality of the evidence, that such is the case. Id. Considering the facts in the light most favorable to Garcia, we conclude that Officers Cardwood and Taylor reasonably concluded that there existed sufficient probable cause to arrest Garcia.

C. The Investigation

Robert Plunkett, a jailhouse informant incarcerated on charges of theft, described in detail to law enforcement an elaborate method of smuggling methamphetamine into the Merced County Jail. According to the informant, one of his fellow inmates, Alfonso Robledo, told him he had an attorney, identified as Garcia, who was prepared to accept drugs from the informant for delivery to Robledo in jail. The drugs were to be concealed in a Bugler tobacco pouch.

Before acting on Plunkett's information, the Officers took steps to corroborate and to verify what he had told them. During this process, they confirmed from jail records and elsewhere the following:

1) Plunkett indeed had an in-custody relationship with Robledo.

2) Robledo was in jail on drug charges.

3) Garcia was Robledo's attorney.

4) Garcia's investigator, Augie Provencio,2 had in fact been in the jail on business during the time of the discussions under investigation, as claimed by Plunkett.

5) Plunkett was not in a computer database of unreliable informants.

In addition, Plunkett named a " Sylvia Brown" as Garcia's usual source of methamphetamine, information he had received from Robledo. At Officer Taylor's request, Plunkett called Sylvia Brown on the telephone and told her he had gotten some drugs for Robledo, half of which were for Garcia, and the other half he would keep for himself. Sylvia Brown's response was to the effect that this arrangement was alright. Officer Taylor personally monitored the call.

Every fact and detail given by Plunkett checked out, and no misinformation or deception was discovered. As observed by the district court:

[A]s [to] the reliability of Mr. Plunkett, the court is well satisfied that there were at least seven to eight items of corroboration that confirm what his report was of the modus operandi, the people who were involved in it, how it was being conducted, and again, some of

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the circumstances of this case provide additional objective corroboration.

The district court's Memorandum Decision regarding the County Defendants' Motion for Summary Judgment or Partial Adjudication, dated September 28, 2008, states on page 5 as an undisputed fact, " SUF 20," that prior to Garcia's arrest, " Deputy Taylor also checked John Garcia's criminal record [before conducting the reverse sting], confirming that Garcia had a history of drug-related violations." The record does not support this statement. Although it is undisputed that Garcia served two prison terms in the 1960s and 1970s for drug-related offenses, one federal and one state, Garcia does dispute whether Deputy Taylor— or anybody else— examined his record before the search of Garcia's office. Taylor filed a declaration saying he did so check, but in his affidavit for the search warrant, he averred that Garcia's record was not available. Consequently, we decline the Officers' request to include Garcia's criminal record in our probable cause analysis.

Accordingly, after approval from the District Attorney's office, the Officers gave the informant (with permission from a judge) a Bugler tobacco pouch containing methamphetamine for delivery to Robledo via Garcia in what is called a " reverse sting." The methamphetamine was clearly visible to anyone opening the pouch. In surveillance mode, the Officers then saw Garcia accept the pouch from the informant and take it to his law office, which was later searched with a warrant supervised by a special master, as contemplated by Section 1524(c)(1) of the California Penal Code. The warrant was signed by the same judge who approved the release of the methamphetamine from...

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