654 F.3d 892 (9th Cir. 2011), 09-56395, Dougherty v. City of Covina

Docket Nº:09-56395.
Citation:654 F.3d 892
Opinion Judge:N.R. SMITH, Circuit Judge:
Party Name:Bruce DOUGHERTY and Jonathan Dougherty, Plaintiffs-Appellants, v. CITY OF COVINA; Robert Bobkiewicz; Kim Raney, Defendants-Appellees.
Attorney:Danielle L. Casselman and Gary S. Casselman (argued), Law Offices of Gary S. Casselman, Los Angeles, CA, for the plaintiff-appellant. Mary A. Pendergrass, Christopher M. Pisano (argued), and George Roscoe Trindle, III, Best Best & Krieger, Los Angeles, CA, for the defendants-appellees.
Judge Panel:Before: BETTY B. FLETCHER and N. RANDY SMITH, Circuit Judges, and RUDI M. BREWSTER, District Judge.[*] Opinion by Judge N.R. SMITH; Concurrence by Judge BREWSTER.
Case Date:August 16, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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654 F.3d 892 (9th Cir. 2011)

Bruce DOUGHERTY and Jonathan Dougherty, Plaintiffs-Appellants,

v.

CITY OF COVINA; Robert Bobkiewicz; Kim Raney, Defendants-Appellees.

No. 09-56395.

United States Court of Appeals, Ninth Circuit.

August 16, 2011

Argued and Submitted June 9, 2011.

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Danielle L. Casselman and Gary S. Casselman (argued), Law Offices of Gary S. Casselman, Los Angeles, CA, for the plaintiff-appellant.

Mary A. Pendergrass, Christopher M. Pisano (argued), and George Roscoe Trindle, III, Best Best & Krieger, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Percy Anderson, District Judge, Presiding. D.C. No. 2:08-cv-07114-PA-CT.

Before: BETTY B. FLETCHER and N. RANDY SMITH, Circuit Judges, and RUDI M. BREWSTER, District Judge.[*]

Opinion by Judge N.R. SMITH; Concurrence by Judge BREWSTER.

OPINION

N.R. SMITH, Circuit Judge:

Under the totality of the circumstances, a search warrant issued to search a suspect's home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics use by the suspect; and (3) the only evidence linking the suspect's attempted child molestation to possession of child pornography is the experience of the requesting police officer, with no further explanation. Our circuit, however, has not previously addressed this question. Therefore, the officers involved in the search are entitled to qualified immunity.

BACKGROUND

On October 12, 2006, Officer Robert Bobkiewicz, of the City of Covina Police Department, and four other police officers (three from the City of Covina and one from the City of Glendora) searched Appellant Bruce Dougherty's 1 home pursuant to a warrant issued by a magistrate on October 11, 2006. 2 The search warrant authorized the officers to search for child

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pornography on Dougherty's computer and electronic media.

To obtain the search warrant, Officer Bobkiewicz submitted an affidavit reciting that he was involved in the investigation of Dougherty's inappropriate touching of one of his sixth grade students at Royal Oak Elementary School. The student reported that Dougherty had lifted her up in front of the class after she told him that she had won a cross-country meet. She reported that Dougherty's hands were touching her breasts when he lifted her up to a level where he could look at her buttocks. The student told Bobkiewicz that she had seen Dougherty look up the skirts and down the tops of other girls in the class. In interviews, other students confirmed the lifting incident to Bobkiewicz and also reported that Dougherty looked up the skirts and down the shirts of girls in the class. Officer Bobkiewicz also discussed the investigation with the Assistant Superintendent for the School District, Gloria Cortez. Cortez told Officer Bobkiewicz that she had conducted an investigation after the incident with the student described above. Her investigation turned up multiple reports of Dougherty touching girls' backs and appearing to search for bra straps with his hands (this information was corroborated by the former vice-principal at Royal Oak). Cortez's investigation also turned up a 2003 report of a student, who said that Dougherty pulled her shirt down to her waist while they were alone in the classroom. The investigation of that incident was not pursued, after it was determined the student made inconsistent statements. The mother of the student in that incident, however, later believed she made a mistake not believing her daughter. When police contacted that student (then in high school) to discuss the previous allegation, she recounted that Dougherty touched her bare breast and told her she was " a special girl."

In the affidavit, Officer Bobkiewicz also recounts that he had fourteen years of experience on the police force and had worked as a School Resource Officer. He had over 100 hours of training involving juvenile and sex crimes, had conducted hundreds of investigations related to sexual assaults and juveniles, and was the designated " Sex Crimes/Juvenile Detective" for the police department. The affidavit concludes with Officer Bobkiewicz stating that " based upon my training and experience ... I know subjects involved in this type of criminal behavior have in their possession child pornography...." The affidavit then requests the ability to seize Dougherty's computer, cameras, and electronic media and have them searched for child pornography. A magistrate signed the warrant on October 11, 2006.

When officers arrived at Dougherty's house, he allowed the officers to enter and search. However, when Dougherty asked to see a warrant, Officer Bobkiewicz stated that he had forgotten it at the police station. During the search, the officers entered and moved about the house with their guns drawn. They awakened Dougherty's adult son, Jonathan, at gun point and gave him the option of leaving the house or sitting on the couch in the living room during the search. Jonathan chose to remain on the couch. The officers seized computers and " related items" from Dougherty's home. The computers and other items were not returned until December 27, 2007. No charges were filed against Dougherty.

After the search of Dougherty's house, Dougherty sued Officer Bobkiewicz, the City of Covina, and Kim Raney, the Chief of Police, for violating his constitutional rights.3 Dougherty claimed (1) the City

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and the officers violated his and his son's Fourth Amendment right to be free from unreasonable search and seizure, (2) the City inadequately trained and inadequately investigated complaints about its officers (a Monell claim 4), and (3) the City, Raney, and Bobkiewicz inadequately supervised and trained their subordinates with respect to the incidents alleged.

The district court dismissed Dougherty's complaint with prejudice on August 4, 2009. The court reviewed the complaint, the search warrant, and the affidavit. The court found the warrant was supported by probable cause, and that the detention of Dougherty and his son was reasonable. The district court further held Bobkiewicz was entitled to qualified immunity. Finally, the court dismissed the Monell claim on the ground that Monell liability cannot be found if no constitutional violations occurred.

STANDARD OF REVIEW

Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002). The facts alleged in a complaint are to be taken as true and must " plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Mere legal conclusions " are not entitled to the assumption of truth." Id. The complaint must contain more than " a formulaic recitation of the elements of a cause of action." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). It must plead " enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955.

Denial of leave to amend is reviewed for an abuse of discretion. Bowles v. Reade, 198 F.3d 752, 757 (9th Cir.1999).

DISCUSSION

I. Probable Cause

" Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). When an affidavit moves " beyond the ‘ bare bones,’ " however, a " totality of the circumstances test" is employed. Id. at 238-39, 103 S.Ct. 2317. Under the totality of the circumstances test, a neutral magistrate must " make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘ veracity’ and ‘ basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. 2317. The magistrate is free to draw " reasonable inferences ... from the material supplied to him by applicants for a warrant." Id. at 240, 103 S.Ct. 2317.

The " standards for determining probable cause for a search warrant" apply to a search for child pornography on a computer. United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir.2007). Neither " certainty nor a preponderance of the evidence is required," but rather a " fair probability" that the evidence will be found. Id. The magistrate's determination of probable cause " should be paid great

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deference." Id. (internal citation and quotation marks omitted). " ‘ Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, resolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded to warrants.’ " Id. at 1050-51 (quoting Gates, 462 U.S. at 237 n. 10, 103 S.Ct. 2317) (alteration omitted).

Although there does not need to be direct evidence of solicitation of child pornography to create probable cause, Kelley, 482 F.3d at 1051-52, the reviewing court must make certain there was a " substantial basis" for the finding, United States v. Weber, 923 F.2d 1338, 1343 (9th Cir.1990) (citing Gates, 462 U.S. at 238, 103 S.Ct. 2317). In Weber, we held that probable cause did not exist to search a house for child pornography when an affidavit recited only that a suspect had two years previously received a catalog of child pornography and had ordered four images of possible child pornography. 5 Id. at 1345. The affidavit in Weber included a...

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