Mills v. Graves
| Decision Date | 04 June 1991 |
| Docket Number | No. 90-35086,90-35086 |
| Citation | 930 F.2d 729 |
| Parties | Irene MILLS, dba Unicorn Leasing Co., Inc.; Clarence Mills, dba Unicorn Development Co., Inc., Plaintiffs-Appellants, v. R.J. GRAVES, Island County Sheriff; John J. Robertson; Jane Doe Robertson, and the marital community comprised thereof, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Scott A. Milburn, Preston, Thorgrimson, Shilder, Gates & Ellis, Seattle, Wash., for plaintiffs-appellants.
Stephen Powell Larson, Stafford, Frey, Cooper & Stewart, Seattle, Wash., for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before TANG, O'SCANNLAIN and LEAVY, Circuit Judges.
We must determine whether the district court properly dismissed, on a motion for summary judgment, appellants' section 1983 action against a police officer. The claimed civil rights violation was the seizure and forfeiture of construction equipment purportedly owned by the Millses. We conclude that the officer was protected from liability by qualified immunity, and thus we affirm.
Greg Mills, an employee and former officer with Unicorn Development, used equipment owned by Unicorn Equipment Company to excavate a trench which facilitated the burial of two marine dry cargo containers on the property of Ray Atkinson. Unicorn Development was owned by appellant Clarence Mills, Greg's father, and Unicorn Equipment was owned by appellant Irene Mills, Greg's mother. Atkinson subsequently used the buried containers to grow marijuana. All of the Millses contend that they were unwitting participants in Atkinson's scheme.
The construction work came to the attention of Detective John Robertson, of the Island County, Washington, Sheriff's Office, after an anonymous tipster and a concerned citizen telephoned him to report the burial of the containers. Based on these tips and his own investigation, Robertson obtained a search warrant for Atkinson's property. At the site, Robertson discovered the marijuana grow operation.
Robertson then obtained search warrants for the Mills residence. From the Mills residence, he obtained a telephonic search warrant to search an adjacent property.
On February 2, 1989, the construction equipment was seized. Notices were sent to the Millses, pursuant to state law, outlining procedures for a hearing to challenge the forfeiture. In March 1989, Irene and Clarence brought this suit against Sheriff Graves and Detective Robertson pursuant to 42 U.S.C. Sec. 1983 and Wash.Rev.Code Sec. 69.50.
Both parties moved for summary judgment. On November 9, 1989, the district court issued its order denying the Millses' motion for partial summary judgment and granting the officers' motion for summary judgment. The court noted that one of the Millses' causes of action had been abandoned and another failed to state a claim. All causes of action were dismissed as to Sheriff Graves. As to the other three causes of action, asserting federal constitutional violations (under the fourth, fifth, and fourteenth amendments) and violations of state law in the searches and seizure of property, the court dismissed the counts as to Robertson on the basis of qualified immunity and declined jurisdiction over the pendent state-law claim.
The Millses now appeal the dismissal of their section 1983 action. We have jurisdiction under 28 U.S.C. Sec. 1291.
The primary issue presented by this appeal is whether Officer Robertson's search of the Millses' property and seizure of the construction equipment is protected from a federal civil rights suit by qualified immunity. See Malley v. Briggs, 475 U.S. 335, 339-40, 343, 106 S.Ct. 1092, 1095-96, 1097, 89 L.Ed.2d 271 (1986). An immunity shield extends only so far as the officer's conduct is objectively reasonable. See Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In the context of a police officer obtaining a warrant, immunity will be lost only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable. Malley, 475 U.S. at 344-45, 106 S.Ct. at 1097-98 (). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341, 106 S.Ct. at 1096.
Officer Robertson bears the burden of establishing his qualified immunity defense, including the reasonableness of his belief that his conduct was constitutional. Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir.1988). We subject the district court's dismissal to de novo review, viewing the evidence in the light most favorable to the appellants. Hansen v. Black, 885 F.2d 642, 643 (9th Cir.1989).
The Millses contend that search warrants obtained by Officer Robertson and the affidavits in support suffered from a variety of defects, rendering Robertson's searches of their various properties and seizure of equipment and records violative of the fourth amendment. Their specific contentions are discussed in turn. 1
The search warrants issued for the Millses' property contained the boilerplate language that there was "probable cause to believe that controlled substances ... are being used, manufactured, ... or kept" on the searched property. However, the Millses correctly point out that Robertson's affidavit supporting the warrants contained no allegation remotely suggesting that narcotics would be found upon the searched premises. They contend that the inclusion of this language in the warrant rendered the issuing judge's finding of probable cause erroneous.
The Millses have not explained how the inaccurate language in the warrants has any impact on their validity. The warrants clearly described with particularity the place to be searched and the objects to be seized. See generally 2 W. LaFave, Search & Seizure Secs. 4.5-4.6 (2d ed. 1987). We know of no further requirement that the warrant articulate the foundation for the finding of probable cause. 2 Robertson's reliance upon the warrant could not have been unreasonable on this ground. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987) ().
The Millses contend that Judge Hancock (who issued the search warrants for the Millses' properties) lacked a substantial basis for concluding that Greg Mills or his equipment was involved in any wrongdoing. In particular, the Millses decry Officer Robertson's affidavit as being based entirely on uncorroborated hearsay 3 and observations of innocent activity. They also suggest that portions of the affidavit were knowingly false, entitling them to a Franks hearing.
Officer Robertson first obtained a warrant to search the Atkinson property. The supporting affidavit included the following information: An anonymous tipster described the marijuana grow operation, that Atkinson and Greg Mills frequented the property three years ago (when a grow operation was discovered there by the tipster), that Greg Mills now supplied the heavy equipment for this operation, and that he/she had not reported the earlier operation for fear of retribution from Atkinson and Mills. A concerned citizen described in detail the ongoing construction work, observing that the equipment was operated "at all hours into the night" and "that most of the reported, suspicious activity was accomplished at night under the cover of darkness." Neither informant had a criminal history or was a regular police informant. 4 The descriptions of this grow operation matched other grow operations. The heavy equipment owned by Greg Mills was at the Atkinson property for weeks at a time. Other police agencies reported on Mills' and Atkinson's past drug convictions and ongoing investigations. Robertson observed various equipment owned by Greg or Irene Mills on or near the Atkinson property. Robertson believed a drug grow laboratory was being constructed, noting his experience and that permits had not been obtained for most of the construction work.
The affidavit in support of the warrants to search the Millses' property, which is challenged here, included as an attachment the affidavit described above and essentially served as a report on Robertson's discoveries at the Atkinson property and a list of possible confederates. Additional evidence of the grow operation consisted of an extremely high power bill. Robertson's search uncovered the grow operation itself. A concerned citizen identified Greg Mills as the owner and operator of the heavy equipment at the property and was seen "participating in every phase of the aforementioned marijuana grow operation construction." Atkinson's wife identified Mills as a friend of her husband's who had been doing construction work for him.
The Millses argue that the statements concerning Greg Mills' purported criminal history in the affidavit were false and entitle them to a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). There is no "good faith" exception to the Franks doctrine: a warrant based upon knowing or recklessly made falsehoods in the affidavit will be invalid. Leon, 468 U.S. at 914, 104 S.Ct. at 3416. However, no Franks hearing need be held if there is sufficient content in the affidavit apart from the challenged material to support a finding of probable cause. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85. Thus, as the district court did, we must examine the affidavits to determine if they state a substantial basis for a finding of probable cause with the...
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