Lucero v. Donovan

• Decision Date: 14 January 1966
• Docket Number: No. 19515.,19515.
• Citation: 354 F.2d 16
• Parties: Irene LUCERO, Appellant, v. Thomas W. DONOVAN et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

354 F.2d 16 (1965)

Irene LUCERO, Appellant, v. Thomas W. DONOVAN et al., Appellees.

No. 19515.

United States Court of Appeals Ninth Circuit.

November 23, 1965.

Rehearings Denied January 14, 1966.

Hillel Chodos, Glikbarg & Chodos, Beverly Hills, Cal., for appellant.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Wm. B. Burge, Deputy City Atty., Los Angeles, Cal., for appellees.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

ELY, Circuit Judge:

This appeal is from a judgment which followed a directed verdict in favor of defendants in the court below. Irene Lucero, the appellant, brought her suit under the provisions of the Civil Rights Act of 1871, Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983.¹ The defendants are two policewomen and two peace officers of the police department of the City of Los Angeles, California, Delia Florez Buczek, Madeline Cobb, Robert Conrad, and Richard Wells.² The transcript of testimony discloses the controlling facts, as follows:

On October 4, 1960, while defendant Conrad and another policeman, one Donahue, were patrolling in an automobile, they observed Frank Lucero, brother of the plaintiff.³ In his testimony, Conrad described Frank as a "male Mexican" and stated that his "eyes were in a fixed stare forward and he was shuffling along, dragging his feet, walking very slowly. And he appeared to be swaying from one side to the other as he was walking." Frank was stopped by the officers, who, being in plainclothes, identified themselves. They then questioned Frank, asking whether he was under the influence of narcotics and whether he used or possessed narcotics, all of which Frank denied. Conrad testified that Frank told him that he was on parole, that he had just that morning gotten out of jail, and that he lived at 1135 Irolo Street. Conrad testified that he then asked Frank, "You don't mind if we search your residence? And he Frank said no." Conrad, Donahue, and Frank then proceeded to 1135 Irolo Street which was, in fact, the residence of another sister, Mrs. Emily Ruiz. Conrad testified that Frank was not under arrest, although he stated that he was not certain that Frank could have simply walked away. When the police arrived at the Ruiz residence, Mrs. Ruiz denied that Frank lived there. Conrad testified that she said that Frank lived with his other sister, the plaintiff, on Fedora Street, but Mrs. Ruiz testified that she stated only that Frank lived "in Santa Monica." A special interrogatory, "Did Mr. and Mrs. Ruiz on the 4th of October, 1960 at their apartment state in substance to defendant Robert Conrad that Frank Bernard Lucero lived with his sister Irene Lucero at 1321 Fedora, in the City of Los Angeles?" was not answered, the jurors finding themselves in disagreement. There was a conflict in the testimony as to whether the Ruiz's apartment on Irolo Street had been searched.

After leaving the Ruiz's apartment, defendant Conrad, Donahue, and Frank proceeded to plaintiff's apartment on Fedora Street. Upon arriving there defendant Conrad and Donahue, with Frank, entered the apartment, and the officers commenced a search. Plaintiff was in the bathroom, bathing her two small children, when she looked around and discovered the presence of her brother Frank and a "strange" man (defendant Conrad). She testified that she spoke to Frank, who was instructed by Conrad to remain silent. She then noticed Donahue searching her bedroom. Her testimony was that she demanded a search warrant, asserting that she knew her rights, and that the only response was that of Conrad whose reply to plaintiff, a natural born citizen of this country, was, "go back to Mexico." Conrad admitted that plaintiff demanded the production of a search warrant, and he added that she "started hollering and cursing at us, calling us gestapo, Nazi gestapo, and so forth." At this point plaintiff was arrested and handcuffed, and the search of the dwelling continued.

In the course of the search, defendant Conrad and Donahue discovered a brown bottle in the kitchen cabinet. It was unmarked and contained pink tablets, white tablets, and, as determined by the jury in answer to a special interrogatory and as described by Conrad, blue and yellow capsules.⁴ Plaintiff testified that the bottle was found after she demanded the production of a search warrant. During the trial, Conrad testified that the bottle was found immediately upon his entering the apartment; however, in his deposition, taken prior to the trial, he indicated that the demand for a warrant was made before he entered the kitchen. After completing the search, Conrad and Donahue took plaintiff and Frank to the police station, bringing with them the bottle of pills. En route, the children had been taken to the home of Mr. and Mrs. Ruiz and left there. Conrad testified that his opinion was that the blue and yellow capsules found in the unlabeled bottle contained narcotics and that he formed this opinion because he recalled capsules of a similar description being displayed on a chart at the police station. Plaintiff insisted that the bottle contained vitamin tablets and nothing else. A subsequent police analysis verified that its contents were not prohibited drugs.

Plaintiff and Frank were interviewed, separately, by Sergeant Loeber, the supervisory officer in charge of the Narcotics Division of the Los Angeles Police Department, who also examined the pills and compared them with those shown on the display chart in the Narcotics office. According to him, the comparison revealed a resemblance to a nonnarcotic drug. Frank was released, but Loeber advised Conrad that plaintiff should be booked for a felony violation of the Narcotics Act, even though it was his opinion that the blue and yellow capsules did not contain any narcotic substance. It was his opinion that plaintiff was probably guilty of a violation of § 4230 of the Business and Professions Code of California (possession of a dangerous drug), a misdemeanor, but pursuant to that which he described as a "policy" of the Los Angeles Police Department, plaintiff should be booked on a felony charge.

Plaintiff was then taken to the Lincoln Heights Receiving Hospital and treated for injuries received while resisting arrest. No search of her person was made by medical personnel who may have attended her there. Thereafter, she was taken to the fifth floor of the Lincoln Heights Jail, the Women's Booking Section. While she was being booked by defendant Wells, she was "frisked" by defendant Buczek. Policewoman Buczek testified that the "frisk" consisted of her looking in plaintiff's brassiere for concealed weapons and, with her hands, quickly going over the plaintiff's body and between her legs to make sure that she had no obvious weapon concealed about her body. Then defendant policewomen Cobb and Buczek led plaintiff to an area in the back of the interview room. They asked plaintiff to remove her clothing and submit to a visual search by defendants Buczek and Cobb of her bodily cavities. Plaintiff refused to submit to this requested search. Defendant Buczek testified,

"And I advised Miss Lucero, went through the same procedure, advising her she would have to remove her clothing, that after she removed her clothing she was going to have to squat down a number of times, after she squated sic down then she was going to then have to give her back to us and from the waist down to bend forward with her legs spread apart and she was going to have to bring her hands from behind and open up her buttocks so we could make a visual observation."

Plaintiff remained unpersuaded by defendant Buczek and forcefully resisted the policewomen's attempts to undress her. Defendants Wells and Conrad and police officer Donahue were then summoned by one of the policewomen to assist. Wells entered the room first. There is a conflict in the testimony as to what next occurred. Defendant Buczek testified that she informed plaintiff that if she would remove her clothing, Wells, the male police officer, would leave the room. Plaintiff testified that she had removed her shoes and capri pants herself and that she refused to undress further, protesting that she was unwilling to submit to a visual search of her privates because she was having her monthly period. A doctor is on duty at all times at the police station, and plaintiff testified that she had expressed willingness to submit to examination by a doctor. She further testified that when the male officers entered the room she then offered to remove the rest of her clothes herself if only the male officers would leave. Defendants could recall no such statement. They insisted that plaintiff removed none of her clothing herself and that the clothing was removed by the policewomen while plaintiff was being held by the neck and arms by the male defendants Conrad and Wells. Defendants testified that the male officers left immediately after plaintiff's clothes were removed. Plaintiff testified that the policewomen and Wells left the room but that Conrad and Donahue remained for a short time and made deprecating remarks about plaintiff's nude body as she lay, weeping, on the floor. Plaintiff was released from jail the next morning. No charges were filed.

Generally expressed, "The only elements which need to be present in order to establish a claim for damages under the Civil Rights Act are that the conduct complained of was engaged in under color of state law, and that such conduct subjected the plaintiff to the deprivation of rights, privileges, or immunities secured by the Constitution of the United States." Marshall v. Sawyer, 301 F.2d 639, 646 (9th Cir. 1962). Here, it cannot be denied that defendants were acting under "color of state law." The issue is whether there was "deprivation of rights, privileges, or immunities secured by the Constitution or laws of the United States."

Plaintiff alleged that her constitutional rights were infringed by: (a) the search of her...