Hervey v. Estes
| Decision Date | 05 December 1995 |
| Docket Number | No. 94-35445,94-35445 |
| Citation | 65 F.3d 784 |
| Parties | 95 Cal. Daily Op. Serv. 7196, 95 Daily Journal D.A.R. 12,293 Lynn HERVEY, individually and as guardian of Monica Hervey; Tim Hervey; Debbie Couch Emery, individually and as guardian of Ken Emery and Melissa Emery, Plaintiffs-Appellants, v. Coral ESTES; Tom Lind; Pierce County; Pierce County Sheriff's Department; Tahoma Narcotics Enforcement Team; et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Timothy K. Ford and Frederick L. Noland, MacDonald, Hoague & Bayless, Seattle, WA, for plaintiffs-appellants.
Loretta M. Lamb, Assistant Attorney General, Seattle, WA, for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before: BEEZER and HAWKINS, Circuit Judges, and TEVRIZIAN, District Judge. *
Law enforcement officers conducted a military-style raid to search for a methamphetamine laboratory on rural property in Pierce County, Washington. We decide whether a warrant affidavit procured in part through false statements contained sufficient untainted information to support the existence of probable cause. We also address whether plaintiffs may maintain a suit against an intergovernmental task force for its alleged use of excessive force in carrying out the raid, and against an individual officer for her alleged use of excessive force during the raid.
The district court granted summary judgment in favor of defendants on all claims. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse in part, affirm in part, and remand for further proceedings.
In May of 1990, Washington State Patrol Detective Coral Estes began an investigation into a suspected methamphetamine laboratory on the Hervey property in Pierce County. Estes was working in conjunction with the Tahoma Narcotics Enforcement Team ("TNET"), an intergovernmental task force made up of various local, county and state agencies with authority to investigate suspected drug operations. After completing various information gathering, including speaking to informants, flying over the suspect property, and talking to various officers who had visited the property, Estes signed an affidavit for a search warrant.
The warrant affidavit contained the following facts. Estes met with an anonymous citizen informant who relayed that a second anonymous informant knew of a person who was suspected of manufacturing controlled substances in a clandestine laboratory. The first informant described Michael Hervey's residence and relayed that the second informant had detected strong chemical odors "described as Acetone." Estes met with the second informant and confirmed these observations. The second informant also indicated to Estes that United Parcel Service made frequent deliveries to the residence, Hervey used vehicles to block the driveway, and Hervey possessed a firearm.
Estes flew over the subject property and observed three large drums. In her "experience and training" Estes knew that chemicals used in methamphetamine manufacturing were transported in large drums. Estes also observed vehicles parked in the driveway.
On July 20, Deputies Riehl and Maye of the Pierce County Sheriff's Office responded to a call from Hervey on an unrelated matter. When they arrived at the property, Deputy Riehl heard a portable generator running. Michael Hervey approached them with "white powder on his lips, in his nostral [sic] hairs, and on his hair." According to Estes' affidavit, Deputy Riehl "could smell an odor of cat urine or P2P (a precursor chemical to the manufacture of Methamphetamine) about [Hervey's] person." Deputy Riehl also "noticed an odor of acetone coming from one of the vehicles parked in the driveway." Finally, Deputy Riehl "recognized the odors that are consistent with the manufacturing of Methamphetamine based upon his training and experience."
Finally, Estes' warrant affidavit described Deputy Riehl's background in law enforcement. Deputy Riehl completed courses in "Narcotics and Dangerous Drug [sic] for Law Enforcement" and attended the "Clandestine Laboratory Safety Training." The affidavit also indicated that Deputy Riehl was "certified" as a Narcotics Investigator and in Clandestine Laboratory Investigation.
Estes presented the affidavit to Pierce County Superior Court Judge Buckner. On July 20, 1990, Judge Buckner issued a search warrant authorizing law enforcement officers to search the "residence of Michael W. Hervey" together with "outbuildings and vehicles located on said premises."
TNET prepared to execute the warrant on July 23, 1990. A surprise raid was planned largely because of the possible danger involved in executing warrants at clandestine drug laboratories. Deputy Sheriff Thomas Lind, one member of the entry team, described the "standard garb" worn by members of the team:
I had a 9mm sidearm in a holster, and a submachine gun with a suppressed muzzle to decrease the chance of an explosion if it were fired in the volatile atmosphere of a drug lab. I was wearing a black fire-retardant Nomex suit, boots, gloves and hood, and a heavy ballistic vest over that clothing. I was also wearing a full-face respirator mask which had a speaking diaphragm built into it.
The participants lured Michael Hervey off the property and entered the property secretly, but the element of surprise quickly vanished. Two children on the property spotted the well-armed, strangely dressed team and began yelling. Deborah Couch, Tim Hervey's fiancee, stepped out of a trailer and also began screaming. Eventually, all occupants on the premises were "assist[ed] ... to the ground" by members of the TNET entry team. Lynn Hervey objected to the assistance provided to her, contending that Detective Estes used unreasonable force.
No methamphetamine laboratory was discovered on the property. The entry team did, however, discover a small marijuana growing operation. Michael Hervey was subsequently prosecuted for, and pleaded guilty to, possession of marijuana.
Michael Hervey's wife, Lynn Hervey, joined by the other plaintiffs, brought a section 1983 action against various individual police officers, Pierce County, the Pierce County Sheriff's Office, and TNET. Hervey alleged in her complaint that Estes obtained the search warrant through an affidavit containing false and misleading information. Among other factual inaccuracies, Hervey contended that Riehl had not told Estes that he smelled P2P or Acetone, and that Riehl was not certified in narcotics investigation or clandestine laboratory investigation. Hervey further alleged that the police officers and agencies involved used excessive force in the execution of the warrant, making the search an unreasonable one under the Fourth Amendment.
The district court initially granted partial summary judgment to various defendants, dismissing all claims against Pierce County, the Pierce County Sheriff's Office and TNET on grounds that these entities were The district court also dismissed Hervey's claim regarding the use of excessive force by all defendants in carrying out the search, concluding that "in the manner of conducting the search, all parties are protected by qualified immunity...." Hervey's claim against Estes for procuring the warrant through the use of false and misleading statements remained alive, albeit temporarily. 1
On February 23, 1994, the trial court asked all parties to produce redacted search warrant affidavits reflecting their version of what the facts at trial would show were the material facts known to Estes. Both sides submitted their versions of the affidavit.
On the day scheduled for trial, the district court orally dismissed Hervey's claim against Estes. The court reviewed the competing versions of the affidavit and concluded, "I think the defendants are much more accurate and reasonable than the plaintiffs." After discussing what the affidavit would contain without the improperly included material, the court stated, Finally, the district court concluded that "I think, in addition to [its conclusion that the redacted affidavit supported probable cause], after this study of the whole thing, that Officer Estes is protected on this issue by qualified immunity."
Hervey appeals the district court's rulings on all claims against Estes, and the claim against TNET.
We review de novo the district court's grant of summary judgment. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We also review de novo the application of qualified immunity. White by White v. Pierce County, 797 F.2d 812, 815 (9th Cir.1986).
Hervey argues that the district court erred by granting summary judgment in Estes' favor on the claim that Estes procured the search warrant through false statements. Hervey contends that she was erroneously denied her right to have a jury decide whether Estes made materially false or misleading statements in the search warrant affidavit, and that even if the issue was appropriately decided by the court, it erred in its determination that the redacted affidavit supported issuance of the warrant.
The parties vigorously dispute what law should be applied when false information is alleged to be...
To continue reading
Request your trial
-
Duncan v. City of San Diego
... ... Cnty. Of Riverside , 120 F.3d 965, 972 (9th Cir. 1997) ; and Hervey v. Estes , 65 F.3d 784, 788 (9th Cir. 1995) )); Butler v. Elle , 281 F.3d 1014, 1024 (9th Cir. 2002) ("[N]o reasonable officer could believe that ... ...
-
Hawkins v. San Diego Cnty.
... ... Cal. Oct. 15, 2013); Rodriguez v ... Cnty ... of Contra Costa , 2013 WL 5946112, at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v ... Estes , 65 F.3d 784, 791 (9th Cir. 1995)) (stating that "[a]lthough municipalities, such as cities and counties, are amenable to suit under ... ...
-
Castellanos v. United States, Case No.: 18cv2334 JM(AGS)
... ... at 396, 109 S.Ct. 1865 ). Generally, excessive force claims are questions of fact for the jury. Hervey v. Estes , 65 F.3d 784, 791 (9th Cir. 1995). See also Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) ("If the evidence, reviewed in ... ...
-
Harmon v. City of Pocatello
... ... Crowe v. Cty. of San Diego , 608 F.3d 406, 435 (9th Cir. 2010) (quoting Hervey v. Estes , 65 F.3d 784, 789 (9th Cir. 1995) ). In this case, Harmon alleges that the City of Pocatello created an unconstitutional policy within its ... ...
-
Search & seizure
...officer and determining if such an averment is merely fanciful. If so, consider a Franks challenge to the warrant. [ See Hervey v. Estes , 65 F.3d 784, 789-91 (9th Cir. 1995) (officer’s allegations about what his experience told him about the smell of a methamphetamine lab found to be false......