Chism v. Washington

Citation2011 Daily Journal D.A.R. 16290,661 F.3d 380
Decision Date07 November 2011
Docket NumberNo. 10–35085.,10–35085.
PartiesTodd M. CHISM, individually and as husband and wife; Nicole C. Chism, individually and as wife and husband, Plaintiffs–Appellants, v. WASHINGTON STATE; Washington State Patrol; Rachel Gardner, individually; John Sager, individually, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

OPINION TEXT STARTS HERE

Robert A. Dunn and Susan C. Nelson, Dunn & Black, P.S., Spokane, WA, for plaintiff-appellants Todd M. Chism and Nicole C. Chism.

Robert M. McKenna, Attorney General, and Catherine Hendricks, Senior Counsel, Seattle, WA, for defendants-appellees Rachel E. Gardner and John Sager.

Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, Chief District Judge, Presiding. D.C. No. 2:09–cv–00025–LRS.

Before: BETTY B. FLETCHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge PAEZ; Dissent by Judge IKUTA.

ORDER

The opinion filed on August 25, 2011 is amended as follows.

Footnote one, appearing on page 16313 of the Slip Opinion, is deleted, and is replaced with the following text.

Todd Chism's home and place of business stated that probable cause existed for violations of Revised Code of Washington §§ 9.68A.050, 9.68A.060, and 9.68A.070. Section 9.68A.050 prohibits “dealing in depictions of a minor engaged in sexually explicit conduct.” Section 9.68A.060 prohibits “sending or bringing into the state depictions of a minor engaged in sexually explicit conduct.” Section 9.68A.070 prohibits “possessi[ng] depictions of a minor engaged in sexually explicit conduct.” The arrest warrant stated that probable cause existed to support the arrest and detention of Todd Chism for violations of Revised Code of Washington §§ 9.68A.060 and 9.68A.070, omitting any reference to § 9.68A.050. The reason for this discrepancy, if any, is unclear. Our analysis of the Chisms' Fourth Amendment judicial deception claim, however, relates to all three statutes.>>

An amended opinion is filed concurrently with this order.

With this amendment Judges B. Fletcher and Paez vote to DENY the petition for panel rehearing. Judge Ikuta votes to grant the petition for panel rehearing. The petition for panel rehearing is DENIED.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED.

No further petitions for rehearing or rehearing en banc may be filed in response to the amended opinion.

PlaintiffsAppellants' request for attorneys' fees under 42 U.S.C. § 1988 is DENIED without prejudice to file a separate motion pursuant to Ninth Circuit Rule 39–1.6.

OPINION

PAEZ, Circuit Judge:

This civil rights action under 42 U.S.C. § 1983 arises from an internet child pornography investigation by Washington State Police (WSP) Officers Rachel Gardner and John Sager (“the officers”). As a result of information the officers acquired, Todd Chism became the focus of their investigation. Gardner prepared an affidavit in support of a search warrant application, which Sager reviewed. On the basis of that affidavit, a magistrate judge issued a broad search warrant to search Todd Chism's home and business office. Relying on the same information contained in Gardner's affidavit, Deputy Prosecuting Attorney Christian Peters obtained from the same magistrate judge a warrant to arrest Todd for violating Washington's child pornography laws.1 A few days later, several WSP officers executed the search and arrest warrants.2 A WSP detective eventually conducted forensic examinations of the Chisms' home computer and computers from the Spokane Fire Department, where Todd Chism worked as a firefighter. The investigation did not reveal any evidence of child pornography, and charges were never filed against Todd Chism.

Several months later, Todd and his wife, Nicole Chism, filed this § 1983 action against the State of Washington, the WSP, Detective Gardner, and Sergeant Sager, alleging—among other things not relevant to this appeal—that the officers violated their Fourth and Fourteenth Amendment rights by securing the search and arrest warrants with an affidavit that deliberately or recklessly contained material omissions and false statements.3 The Chisms and the officers filed cross motions for summary judgment on the issue of qualified immunity as to the constitutional claim. The district court granted the officers' motion, concluding that the officers' conduct did not violate a clearly established constitutional right of which a reasonable officer would have known. The Chisms timely appealed.

We reverse the district court's judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers' deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms' right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.

I. BACKGROUND

On July 3, 2007, Washington's Missing and Exploited Children Task Force (MECTF) received a tip from the National Center for Missing and Exploited Children (NCMEC). The tip advised MECTF that roughly one week earlier, the web-hosting company Yahoo! had archived images of child pornography that were contained on the website http:// foelonipwin- cmezixecvom. us/ (the “foel website”). The tip listed Yahoo! user account qek 9 pj 8 z 9 ec@ yahoo. com (the “first user account”) as the “suspect.” The tip stated that Internet Protocol (IP) address 68.113.11.49 4 was used to open the first user account on May 11, 2007. The tip did not provide the time or date that the child pornographic images were uploaded to the foel website, nor did it provide the IP address from which the child pornographic images were uploaded. Detective Gardner was assigned to investigate this tip.

On July 17, 2007, MECTF received another tip from NCMEC. Similar to the first tip, the July 17 tip indicated that two weeks earlier, Yahoo! archived images of child pornography that were contained on the website http:// qemtudawyow nufiseip. com (the “qem website”). The tip listed Yahoo! user account qaagwcy I 9 ab@ yahoo. com (the “second user account”) as the “suspect.” The tip stated that IP address 67.160.71.115 was used to open the second user account on June 19, 2007. The tip did not provide the time or date that the child pornographic images were uploaded, nor did it provide the IP address from which the child pornographic images were uploaded. WSP Detective Vic Mauro was assigned to investigate this tip.

The detectives began their investigations by obtaining warrants to search Yahoo! records associated with the first and second user accounts. 5 In agreement with the first NCMEC tip, the Yahoo! records indicated that the foel website was created on May 11, 2007. The information for the first user account listed the name Mr. Nicole Chism with birthday May 20, 1966. The information indicated that Mr. Nicole Chism lived in Chile and used zip code “ucc16.” The Yahoo! records also showed that the first user logged in to the account on June 18, 2007 from IP address 69.147.83.181, a different IP address than the one used to create the foel website. The billing information associated with the first user account listed Nicole Chism's name and contained the Chisms' correct residential address, phone number, and credit card number, which ended in 6907. Finally, the Yahoo! records showed that two months of “domain service” for the foel website had been paid with the Chisms' credit card.6 The Chisms' credit card statements confirm that they were twice charged a monthly fee for domain service for the foel website.

The information that Yahoo! provided about the second user account was similar in character. In agreement with the second NCMEC tip, the Yahoo! records indicated that the qem website was created on June 19, 2007. The information for the second user account listed the name Mr. Nicole Chism with a birthday of March 11, 1977; indicated that Mr. Nicole Chism was from Bolivia; and used zip code “nf897.” The Yahoo! records also showed that the second user logged in twice since opening the account. On July 3, 2007, the second user logged in twice: once from IP address 69.147.83.181(the IP address from which the first user logged in on June 18, 2007), and once from a different IP address. Yahoo! did not provide any billing information for the second user account, but the Chisms' credit card statements showed that Yahoo! charged them one hosting fee for the qem website on June 22, 2007.

Detectives Gardner and Mauro also independently obtained warrants to trace the IP addresses used to create the two user accounts and websites. Detective Gardner learned that the IP address used to open the first user account and to create the foel website was traced to Cheryl Corn of Walla Walla, Washington. The IP address used to open the second user account and to create the qem website was traced to Vitina Pleasant of Federal Way, Washington. It appears that neither Gardner nor Mauro traced IP address 69.147.83.181—the IP address from which the first user logged in on June 18, 2007 and the second user logged in on July 3, 2007.

A few months later, Mauro's assignment was transferred to WSP Detective Shelby Wilcox. After reviewing the information from Yahoo!, Gardner and Wilcox noticed that both user accounts used the name Mr. Nicole Chism and both websites had at some point been accessed from the IP address 69.147.83.181. Gardner and Wilcox concluded that the tips might be...

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