Gallagher v. City of Winlock Washington, 071608 FED09, 06-35197

Docket Nº:06-35197
Party Name:DAVID GALLAGHER; et al., Plaintiffs - Appellants, v. CITY OF WINLOCK WASHINGTON; et al., Defendants - Appellees.
Judge Panel:Before: CUDAHY, REINHARDT and PAEZ, Circuit Judges.
Case Date:July 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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DAVID GALLAGHER; et al., Plaintiffs - Appellants,

v.

CITY OF WINLOCK WASHINGTON; et al., Defendants - Appellees.

No. 06-35197

United States Court of Appeals, Ninth Circuit

July 16, 2008

NOT FOR PUBLICATION

Argued and Submitted October 15, 2007 Seattle, Washington

Appeal from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding D.C. No. CV-05-05478-FDB

Before: CUDAHY, [**] REINHARDT and PAEZ, Circuit Judges.

MEMORANDUM[*]

Plaintiffs appeal from the district court’s grant of summary judgment in favor of defendants (“defendants” or “officers”) on the ground of qualified immunity. Our review is de novo, Bibeau v. Pac. Nw. Research Found. Inc., 188 F.3d 1105, 1113 (9th Cir. 1999), and we affirm in part, reverse in part, and remand for further proceedings.1

I. Qualified immunity

Under Saucier v. Katz, 533 U.S. 194 (2001), we must first determine, as to each claim, “whether the facts, taken in the light most favorable to the plaintiff, show the officer’s conduct violated a constitutional right.”2 Stevens v. Rose, 298 F.3d 880, 883 (9th Cir. 2002) (internal quotation marks omitted). “Second, if the officers violated a constitutional right, we inquire whether that right was ‘clearly established’ when viewed in the context of the case.” Ganwich v. Knapp, 319 F.3d 1115, 1119 (9th Cir. 2003). We review each of the plaintiffs’ claims in turn.

A. Fourth Amendment claims

1. Warrantless entry

There is no dispute that the police here lacked a warrant. The officers, 3 however, contend that their warrantless entry was justified by one of two exceptions to the normal requirement of probable cause and a warrant: (1) “probable cause plus exigent circumstances, ” Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam); or (2) consent, see Georgia v. Randolph, 547 U.S. 103, 109 (2006). The district court held that the officers did not violate plaintiffs’ constitutional rights because the warrantless entry was justified under both exceptions. Viewing the evidence in the light most favorable to plaintiffs, we disagree.

a. Probable cause

Probable cause exists where an officer possesses “knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007), cert. denied, 128 S.Ct. 335 (2007). Probable cause must be determined based on “the totality of the circumstances known to the officers at the time, ” United States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002) (internal quotation marks omitted), and is to be determined on a purely objective basis. Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

The officers contend that their warrantless entry was justified by probable cause to believe the plaintiffs were guilty of either (1) residential burglary (the crime for which the plaintiffs actually were arrested) or (2) minor-in-possession of alcohol. Minor-in-possession can quickly be eliminated as a candidate. The officers state that when they “opened the door, a large quantity of alcohol was in plain view.” However, taking the plaintiffs’ evidence as true, as we must, any beer cans were hidden away in the kitchen, not in “plain view” from the doorway entering the living room. Moreover, the warrantless entry itself was accomplished by the officers forcing open the door. Anything the police saw after that point is thus irrelevant to probable cause to enter . See Alaimalo, 313 F.3d at 1193. Finally, the need to preserve evidence of misdemeanor minor-in-possession could not have justified the warrantless entry in any event. See Brigham City, Utah v. Stuart, 547 U.S. 398, 405 (2006) (citing Welsh v. Wisconsin, 466 U.S. 740 (1984)).

Based on the summary judgment record, the officers also lacked probable cause to believe that the plaintiffs were committing residential burglary. Proof of residential burglary in Washington involves “two elements: (1) that [the suspect] entered or remained unlawfully in a dwelling, and (2) that he intended to commit a crime against a person or property therein.” State v. J.P., 125 P.3d 215, 217 (Wash.Ct.App. 2005); see also Wash. Rev. Code § 9A.52.025. Because burglary is a specific-intent crime, e.g., State v. Belieu, 773 P.2d 46, 54 (Wash. 1989), the officers were specifically required to have probable cause as to the intent element. Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994).

This case is not, as the officers argue, like Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995), abrogated in part as recognized by LaLonde v. County of Riverside, 204 F.3d 947, 957–58 & n.14 (9th Cir. 2000), or other “true” burglary cases. To the contrary, here, as in Frunz v. City of Tacoma, 468 F.3d 1141 (9th Cir. 2006), “[w]hile the information provided by the [witness] suggested that unauthorized people may be in the house, it also made clear that this was not a break-in by strangers.” Id. at 1144. Crediting the plaintiffs’ evidence, a jury could find that Officer Patrick’s encounter with Kirby on the afternoon of January 15, 2005—during which Kirby specifically told Patrick that he “pa[id] the rent” and offered to show him a lease—and the police interactions with Taylor had put the officers on notice that “they were dealing, at worst, with some sort of . . . property dispute.” Id. at 1146.

We have long held that probable cause is lacking where the police are on notice that the dispute they are investigating “is [merely] civil in nature.” Allen v. City of Portland, 73 F.3d 232, 238 (9th Cir. 1995); accord Stevens, 298 F.3d at 883 (“[G]ood intentions do not overcome the rule that civil disputes do not give officers probable cause to arrest . . . .”). These cases stand for the proposition that an arrest is not justified by probable cause if a jury could conclude that reasonable officers, privy to the information known to the defendant officers, would have perceived that the matter under investigation amounted to a mere civil dispute. Taking the evidence in the light most favorable to the plaintiffs, a jury in this case could reasonably conclude that the officers were aware of the following facts: (1) Doug Taylor, a “friend of the Winlock Chief of Police, ”4 claimed to be renting and attempting to renovate the Rock Castle; (2) Taylor was upset because persons he described asex-tenants had been entering the Rock Castle without his permission; and (3) the purported ex-tenants claimed to be the actual, current tenants of the...

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