Conner v. City of Santa Ana

• Decision Date: 01 March 1990
• Docket Number: Nos. 87-6683,88-5510,s. 87-6683
• Citation: 897 F.2d 1487
• Parties: Dale CONNER; Linda Conner, Plaintiffs-Appellants/Cross-Appellees, v. CITY OF SANTA ANA; Robert C. Bobb; Edward J. Cooper; Raymond C. Davis; C.R. Miller, et al., Defendants-Appellees/Cross-Appellants. to 88-5512 and 88-5536.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1487

897 F.2d 1487

58 USLW 2554

Dale CONNER; Linda Conner, Plaintiffs-Appellants/Cross-Appellees, v. CITY OF SANTA ANA; Robert C. Bobb; Edward J. Cooper Raymond C. Davis; C.R. Miller, et al Defendants-Appellees/Cross-Appellants.

Nos. 87-6683, 88-5510 to 88-5512 and 88-5536.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1989.

Decided March 1, 1990.

William A. Snyder, Mission Viejo, Cal., for plaintiffs-appellants/cross-appellees.

Gayle K. Tonon, Kinkle, Rodiger & Spriggs, Santa Ana, Cal., and Brian M. Brown, Tustin, Cal., for defendants-appellees/cross-appellants.

Appeal from the United States District Court for the Central District of California.

Before POOLE, BEEZER and TROTT, Circuit Judges.

BEEZER, Circuit Judge:

These consolidated appeals stem from the City of Santa Ana's removal of automobiles from the Conners' private property after the Santa Ana City Council determined that the automobiles constituted a public nuisance. The parties appeal and cross-appeal from the judgment, grants of summary judgment, the granting of permanent injunctive relief, and from the award of attorneys fees. We affirm in part and reverse in part.

City of Santa Ana police were advised that the Conners were storing several old and seemingly inoperable automobiles on their property. Believing that the automobiles may have constituted a public nuisance under the Santa Ana County municipal code, ¹ the police investigated on July 1, 1983. Without a warrant and without the Conners' permission, the police scaled the fence on the Conner property and inspected the automobiles. The police inspected the vehicles and recorded the Vehicle Identification Numbers (VIN) and license plate numbers from the automobiles. That same day the City mailed to the Conners notice of its intention to abate and remove the automobiles. Pursuant to Sec. 16-118 of the municipal code, the Conners asked for and received a hearing from the police department. The police department hearing officer found that the automobiles constituted a public nuisance, and that they should be abated. Pursuant to Sec. 16-120 of the municipal code, the Conners appealed this determination to the Santa Ana City Council. The City Council appointed a hearing officer to receive evidence and statements and to file a recommendation. The hearing officer upheld the reasonableness of the police actions but recommended a thirty-day extension of time in which the Conners could prove the automobiles were operable. On February 19, 1985, the City Council adopted the hearing officer's recommendation, except that it rejected the recommended thirty-day extension of time.

On June 7, 1985, the police called defendants California Towing and A & P Towing ² to the Conners' property. City officials, again without a warrant, broke down the fence surrounding the Conner property and removed two of the vehicles from the property. The vehicles were hauled away and later destroyed.

The Conners brought this suit under 42 U.S.C. Sec. 1983 ³ against all persons involved in the searches, seizures, and the towing of their automobiles. The Conners' claims were based upon the warrantless searches and seizures and on the denial of due process. The district court granted summary judgment to the Conners against the City on the July 1, 1983, warrantless search and The grant or denial of summary judgment is a question of law reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

seizure. All non-municipal defendants were granted qualified immunity with regard to the claim based upon the July 1, 1983, entry. Summary judgment was granted to all defendants on the June 7, 1985, warrantless seizure. The district court granted summary judgment against the Conners on each of their due process claims. The question of damages for the City's unconstitutional July 1, 1983, warrantless search went to the jury and resulted in damages of $71,000.00. The district court also granted injunctive relief prohibiting further warrantless entries onto the Conner property. The Conners' attorney was awarded fees pursuant to 42 U.S.C. Sec. 1988. These appeals and cross-appeals followed.

SEARCH AND SEIZURE

It is clear that the warrant requirement of the fourth amendment ⁴ applies to entries onto private land to search for and abate suspected nuisances. Michigan v. Tyler, 436 U.S. 499, 504-07, 98 S.Ct. 1942, 1947-49, 56 L.Ed.2d 486 (1978); Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). On the strength of those cases, the district court granted the Conners' summary judgment motion against the City of Santa Ana as to the July 1, 1983 warrantless entry. The City does not appeal from this grant of summary judgment.

The district court concluded, however, that the warrantless seizure of the automobiles on June 7, 1985, did not violate the fourth amendment. The court held that the second entry onto the Conners' property was reasonable and did not require a warrant because it was preceded by numerous hearings and appeals. The court stated: "it is surely not reasonable to require a warrant to abate every nuisance ... where the citizens involved have already had a full and fair procedure wherein they had the opportunity to contest the need and propriety of the abatement in their specific case." We disagree.

Entry to abate a known nuisance falls within the warrant requirement of the fourth amendment. In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the Supreme Court stated:

The decisions of this Court firmly establish that the Fourth Amendment extends beyond the paradigmatic entry into a private dwelling by a law enforcement officer in search of the fruits or instrumentalities of crime. As this Court stated in Camara v. Municipal Court, 387 U.S. 523, 528 [87 S.Ct. 1727, 1730, 18 L.Ed.2d 930], the "basic purpose of this Amendment ... is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." The officials may be health, fire, or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection. The privacy that is invaded may be sheltered by the walls of a warehouse or other commercial establishment not open to the public. See v. Seattle, 387 U.S. 541 [87 S.Ct. 1737, 18 L.Ed.2d 943]; Marshall v. Barlow's, Inc., [436 U.S. 307], at 311-313 [98 S.Ct. 1816, 1819-21, 56 L.Ed.2d 305]. These deviations from the typical police search are thus clearly within the protection of the Fourth Amendment.

436 U.S. at 504-05, 98 S.Ct. at 1947-48 (emphasis added). We do not agree that Tyler can be distinguished on the ground that it endorses a warrant requirement only for abatement of suspected nuisances. California courts have rejected, for purposes of the warrant requirement, any distinction between inspection and abatement of a declared public nuisance. In Gleaves v. Waters, 175 Cal.App.3d 413, 220 Cal.Rptr. 621 (1985), the court held that, absent exigent circumstances, "officials engaged in the abatement of a public nuisance must have a warrant" to enter an enclosed backyard; "it is the prospective invasion of constitutionally protected interests by an entry onto property and not the purpose of The City next argues that the second entry was reasonable and no warrant was required. The fourth amendment states:

                the entry which calls forth the warrant requirement."    220 Cal.Rptr. at 623, 625.    Furthermore, the Supreme Court has held in other contexts that a warrant is required for entry even after violation of a law is established.  In G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977), the Court held unequivocally that non-exigent, warrantless entry onto a taxpayer's private property to seize assets in satisfaction of assessed tax deficiencies violates the warrant requirement of the fourth amendment.  Id. at 354, 97 S.Ct. at 629
                

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Supreme Court has instructed that:

In construing this command [of reasonableness], there has been general agreement that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant."

Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973) (quoting Camara v. Municipal Court, 387 U.S. at 528-29, 87 S.Ct. at 1730-31). See also Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) ("Over and over again this Court has emphasized that the mandate of the [Fourth] Amendment requires [that] ... searches conducted outside the judicial process ... are per se unreasonable ... subject only to a few specifically established and well-defined exceptions.") (citation omitted). The City of Santa Ana does not contend that the June 7 search of the Conner property falls within any of the "carefully defined classes of cases" which permit warrantless searches or seizures. ⁵ Instead, the City argues that it afforded the Conners sufficient "process" to make proper under the fourth amendment the warrantless entry onto, and subsequent seizure of, the Conners' property.

We are unable to agree. Neither Tyler nor any case of which we are aware has created a "process" exception to the warrant requirement. The taxpayer in G.M. Leasing, for example, had numerous opportunities both before and after the taxes were assessed to rectify errors in the amount of the assessment, but the availability of such process to the taxpayer played no role in ...