Levine v. City of Bothell

• Decision Date: 24 October 2012
• Docket Number: Case No. C11–1280MJP.
• Citation: 904 F.Supp.2d 1124
• Parties: Eric Scott LEVINE, Plaintiff, v. CITY OF BOTHELL, a municipal corporation; A. Sean Ungvarsky, in his capacity as a police officer for the City of Bothell and as an individual; Snohomish County; and Snohomish County Public Utility District No. 1, Defendants.
• Court: U.S. District Court — Western District of Washington

904 F.Supp.2d 1124

Eric Scott LEVINE, Plaintiff,

v.CITY OF BOTHELL, a municipal corporation; A. Sean Ungvarsky, in his capacity as a police officer for the City of Bothell and as an individual; Snohomish County; and Snohomish County Public Utility District No. 1, Defendants.

Case No. C11–1280MJP.

United States District Court,

W.D. Washington,

at Seattle.

Oct. 24, 2012.

John Rolfing Muenster, Muenster & Koenig, Bainbridge Is., WA, for Plaintiff.

Amanda Gabrielle Butler, Richard B. Jolley, Keating Bucklin & McCormack, Seattle, WA, Sean D. Reay, Everett, WA, for Defendants.

ORDER ON CITY'S MOTION FOR SUMMARY JUDGMENT

MARSHA J. PECHMAN, District Judge.

This matter comes before the Court on the motion for summary judgment filed by Defendants the City of Bothell and Bothell Police Department Detective A. Sean Ungvarsky. (Dkt. No. 24.) Having reviewed the motion, Plaintiff's opposition (Dkt. No. 31), Defendants' reply (Dkt. No. 33), and all related filings (Dkt. Nos. 25, 26, 32), the Court GRANTS IN PART and DENIES IN PART Defendants' motion. The Court GRANTS summary judgment in favor of Defendant City of Bothell on Plaintiff's § 1983 claims because Plaintiff fails to allege his constitutional injuries resulted from municipal policy, practice, or custom. The Court also GRANTS Defendants' motion for summary judgment on Plaintiff's malicious prosecution claim, because no genuine issue of material fact exists with regard to that claim. The Court DENIES summary judgment on all other claims because Defendant Ungvarsky does not have qualified immunity and because genuine issues of material fact exist.

Background

This case is about what, if any, remedy is available when a police officer fails to comply with the Fourth Amendment requirement that an application for a search warrant be “supported by oath or affirmation.” U.S. Const. amend. IV. Defendant Ungvarsky submitted an affidavit for a search warrant of Plaintiff's home, but failed to make any oath or affirmation, either orally or in writing, in support of his application. (Dkt. No. 31 at 9–10.) Criminal charges against Plaintiff for manufacturing marijuana were dismissed in 2009 because of warrant defects, and Plaintiff now seeks damages for violation of his Fourth Amendment rights under 42 U.S.C. § 1983 from the individual officer who applied for the faulty search warrant, as well the municipal entities that executed the warrant. (Dkt. No. 32–2 at 3.) Plaintiff also seeks damages for trespass, conversion, and malicious prosecution against the municipal entities, but not the individual officer. (Dkt. No. 1 at 12–16.)

This case began on Aug. 4, 2008, when Bothell Police officers responded to a reported assault at Plaintiff's home. (Dkt. No. 25 at 2.) Officers identified the victim as Plaintiff's girlfriend, who told them she had been assaulted by Plaintiff. ( Id.) Plaintiff's girlfriend also told officers that Plaintiff had been growing about fifty large plants in his basement, and that he kept about thirty firearms in a locked safe in his living room. ( Id.)

Bothell police officers arrested Plaintiff for assault. (Dkt. No. 25 at 2.) While searching Plaintiff incident to the arrest, one of the officers detected the smell of fresh marijuana on Plaintiff's body. ( Id.) Later that day, officers again interviewed Plaintiff's girlfriend about the plants in Plaintiff's basement. ( Id.) A Bothell Police detective also made a public power usage request to the Snohomish County Public Utility District, which showed higher than normal power usage, consistent with an indoor marijuana growing operation. ( Id. at 4.)

The following day, Aug. 5, 2008, Bothell Police Department Detective A. Sean Ungvarsky authored a five-page search warrant affidavit and a one-page proposed search warrant. (Dkt. No. 25 at 4.) While Detective Ungvarsky says he believed he was making an affirmation under penalty of perjury, the affidavit contained no languagesaying it was sworn under penalty of perjury, and Detective Ungvarsky never made any formal oath or affirmation to anyone regarding his affidavit. (Dkt. No. 24 at 4.) The affidavit and proposed warrant were reviewed and approved by a Snohomish County deputy prosecuting attorney. ( Id.) Detective Ungvarsky called various Snohomish County District Courts to see if a judge was available, and learned that Cascade District Court Commissioner Paul Moon was available to review the search warrant application if it was sent by fax. (Dkt. No. 25 at 4–5.) Ungvarsky then faxed it to Moon. ( Id.)

Commissioner Moon reviewed the affidavit and signed it because he determined that the affidavit established probable cause to believe that Plaintiff had committed the crime of manufacturing marijuana under RCW 9A.50. (Dkt. No. 26 at 2.) Moon struck the language “subscribed before me” from the affidavit, because Detective Ungvarsky had not been sworn by him. ( Id.) In his declaration, Moon states that the Snohomish County prosecutor's office had recently sent a memo to police agencies with instructions to sign affidavits with the certification language in RCW 9A.72.085, and Moon believed Ungvarsky had followed these procedures. (Dkt. No. 26 at 2.) Moon states he believed the certification procedure in RCW 9A.72.085—which allows a written certification under penalty of perjury to satisfy prior requirements of a sworn statement—satisfied the “oath or affirmation requirement” of the Fourth Amendment. ( Id.) Detective Ungvarsky does not assert that he followed the procedures of RCW 9A.72.085. (Dkt. No. 25 at 5.)

Detective Ungvarsky received the signed search warrant about 90 minutes after he sent it to Commissioner Moon. ( Id.) The warrant had been assigned a warrant number, furthering Ungvarsky's belief that the warrant had been fully approved. ( Id.) Following approval, Ungvarsky went to see Plaintiff in the cell where he was being held, and advised Plaintiff that a search warrant had been obtained for his home. ( Id.) Another officer, Bothell Police Detective Chissus, “asked Mr. Levine whether or not he would like us to use his house keys in order to gain entry into his home.” ( Id.) Plaintiff provided written consent for another officer to pickup his keys from the Lynnwood City Jail, where they were being held. ( Id.)

The warrant was executed on Plaintiff's home at about 6:30 p.m. on Aug. 5, 2008, by members of the Bothell Police Department and the Snohomish County Narcotics Task Force. (Dkt. No. 25 at 5.) The officers recovered seventy live marijuana plants, four dried marijuana plants, packaging equipment, a digital scale, ziplock bags, and heat sealed bags. ( Id.) Police also found a safe containing thirty guns, including twenty-two rifles, five shotguns, and two handguns. ( Id. at 6.) All of the property was seized, including the firearms. ( Id.)

As a result of the search, Plaintiff was detained and then booked into jail. (Dkt. No. 31 at 4.) He was charged in Snohomish County Superior Court with growing marijuana plants, but those charges were later dismissed. ( Id. at 4–5.) In addition to the criminal case, Snohomish County and the Snohomish Regional Drug Task Force, of which Defendant City of Bothell was a member, filed a civil lawsuit seeking forfeiture of Plaintiff's real property, the subject of the search warrant. ( Id. at 5.) This case was dismissed on June 16, 2009, based on the same evidentiary issues related to the search warrant. ( Id. at 6.)

Plaintiff brings the present suit against Detective Ungvarsky in his individual capacity under 42 U.S.C. § 1983 for three alleged violations of the Fourth Amendment.(Dkt. No. 1 at 8–10.) Plaintiff seeks to recover for unreasonable seizure of himself and his property, entry and search of his home without a valid warrant, and arrest pursuant to an invalid warrant. ( Id.) Plaintiff also seeks to impose municipal liability under § 1983 for these alleged constitutional violations against the City of Bothell and Snohomish County. ( Id. at 10–12.) Plaintiff also brings tort claims for trespass, conversion, and malicious prosecution against the City and County under a theory of respondeat superior. (Dkt. No. 31 at 17–19.) Plaintiff initially included tort claims for negligence and invasion of privacy, but now withdraws these claims. ( Id.)

Defendants Detective Ungvarsky and the City of Bothell move for summary judgment on all Plaintiff's claims. (Dkt. No. 24.) They assert that they did not violate Plaintiff's Fourth Amendment rights because the warrant at issue satisfied the “oath or affirmation” requirement. ( Id. at 7.) Defendant City of Bothell argues it cannot be held liable for any alleged constitutional violations because Plaintiff cannot show they resulted from a municipal policy or a failure to train. ( Id. at 12–14.) Detective Ungvarsky claims he is entitled to qualified immunity because he relied on the warrant in reasonable good faith. ( Id. at 22.) Defendants also argue that Plaintiff fails to adequately allege the elements of trespass, conversion, and malicious prosecution. ( Id. at 14–17.)

Discussion

A. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the nonmoving party has the burden of proof at trial, the moving party need only point out that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. Once the moving party has met his burden, Rule 56 requires the nonmoving party to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.

In assessing whether a party has met its burden, the court vie...