Morgan v. U.S.

• Decision Date: 18 March 2003
• Docket Number: No. 01-55471.,01-55471.
• Parties: Greg Allan MORGAN, Plaintiff-Appellant, v. UNITED STATES of America; William Cohen, Former Secretary of Defense; United States Air Force; Richard Reynolds, General; Edward De Iulio, Colonel; Neil Rader, Colonel; C. Eric Broughton, Master Sergeant; Kenneth Erichsen, Master Sergeant; Eric Goodson, Airman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

323 F.3d 776

Greg Allan MORGAN, Plaintiff-Appellant, v. UNITED STATES of America; William Cohen, Former Secretary of Defense; United States Air Force; Richard Reynolds, General; Edward De Iulio, Colonel; Neil Rader, Colonel; C. Eric Broughton, Master Sergeant; Kenneth Erichsen, Master Sergeant; Eric Goodson, Airman, Defendants-Appellees.

No. 01-55471.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2002.

Filed March 18, 2003.

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Melbourne B. Weddle and Sue Ann Howard, Law Offices of Melbourne B. Weddle, Santa Barbara, CA, for the appellant.

Leon W. Weidman, John E. Nordin II, and Sara R. Robinson, United States Attorney's Office, for the appellee.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-00-5221-RSWL.

Before T.G. NELSON, PAEZ, and TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge.

As a matter of first impression in this Circuit, we must decide when a search conducted at the entry gate to a military base is reasonable. Because such installations often warn of the possibility of search as a condition to entry, a warrantless search of a person seeking to enter a military base may be deemed reasonable based on the implied consent of the person searched. We remand to the district court to allow the development of a more complete factual record to determine whether implied consent was present here.

Greg Morgan was a civilian air traffic controller employed by the Federal Aviation Administration ("FAA") on Edwards Air Force Base (the "Base") in Kern County, California. Morgan alleges that on May 16, 1999, federal officers violated Morgan's Fourth Amendment rights when they conducted a suspicionless search of his vehicle at the entry gate to the Base. Morgan brought a Bivens claim, which the district court dismissed pursuant to Fed.R.Civ.P. 12(b)(6). The district court based its dismissal on the closed nature of the active military Base,¹ but Morgan's Complaint contains no allegations as to the status of the installation. We hold that the district court could not dismiss Morgan's Bivens claim on the record then before it. We remand Morgan's claim so that the trial court may properly consider on a fully developed factual record whether he impliedly consented to the search. We affirm in a separately filed memorandum disposition the district court's rulings dismissing all other claims brought by Morgan.²

I

Morgan's Complaint alleges the following facts, which we regard as true making all reasonable inferences in favor of Morgan. See Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). Morgan is a civilian employed by the FAA at the Base. He drove his wife's 1998 Jeep Cherokee to work on the morning of May 16, 1999. As was occasionally required, Morgan displayed his FAA identification badge at the entry gate to the Base. Instead of allowing Morgan to continue through the entry gate, however, Airman Eric Goodson, a Base security officer, instructed Morgan to stop his car on the side of the road. Morgan complied. Reading from a script on a clipboard, Goodson informed Morgan that he wished to search Morgan's vehicle and asked Morgan if he would consent to a vehicle search. Morgan refused, explaining that he did not want to be late for work.

Two other officers, Master Sergeants C. Eric Broughton and Kenneth Erichsen, then conferred with Goodson at the rear of Morgan's car. Broughton asked for Morgan's vehicle registration, driver's license, and insurance papers. All three officers then returned to the rear of the vehicle. Morgan concluded that he was going to be late for work. He got out of his car and walked toward the guard shack to telephone his employer. Broughton ordered Morgan to get back in his vehicle. Morgan asked if he was under arrest, to which Broughton responded, "No." Broughton then yelled, "Cover me." Erichsen and Goodson grasped the handles of their firearms, and Broughton handcuffed Morgan.

Broughton informed Morgan that he was not free to leave the location or move about freely. Broughton searched Morgan's person and emptied the contents of Morgan's pockets. The three officers subsequently searched Morgan's Jeep and discovered an unloaded nine-millimeter semi-automatic pistol. Morgan was placed in a small locked room until the Kern County Sheriff's Department transported him to a local jail.

Morgan alleges that he was never informed of his constitutional rights or the charges against him, and was not provided with an attorney upon his request.

Ultimately, Morgan was charged under California Penal Code §§ 148(a) (resisting, delaying, or obstructing an officer), 12025(a) (carrying a concealed firearm), 12031(a) (carrying a loaded firearm), and California Vehicle Code § 14601.1(a) (driving when one's driving privilege is suspended or revoked). Although Morgan was prosecuted for the Penal Code violations, a Kern County Municipal Court commissioner later determined that there was no probable cause to search Morgan's vehicle or to initiate criminal proceedings against him. All state charges were subsequently dismissed.

Morgan then filed a civil rights action in the United States District Court for the Central District of California alleging twenty-five causes of action against the United States of America, the Department of Defense, the United States Air Force, Secretary of Defense William Cohen, Major General Richard Reynolds, Colonel Edward De Iulio, Lieutenant Colonel Neil Rader, Broughton, Erichsen, and Goodson.

The defendants moved to dismiss pursuant to Rule 12(b)(6). Facts not alleged in the Complaint were asserted in the motion papers, including an accompanying declaration from an Air Force officer. After the district court heard oral argument from both parties, it dismissed all claims with prejudice. Morgan subsequently moved for reconsideration, attaching his own lengthy declaration of the factual events. The district court denied Morgan's motion for reconsideration.

II

Morgan seeks damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), arguing that appellees violated his constitutional rights under the Fourth Amendment.³

Morgan claims the district court erred in dismissing his Bivens claim when it held that probable cause was not required to stop, search, and seize his vehicle on a closed military installation. We review the district court's dismissal of Morgan's action de novo. See Vestar Dev. II, LLC v. General Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001).

A

The United States, relying on Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991), maintains that a heightened pleading standard should be applied in this case because the government asserted the defense of qualified immunity before the district court. Branch required application of a heightened pleading standard for complaints in which subjective intent is an element of the constitutional tort. See Housley v. United States, 35 F.3d 400, 401 (9th Cir.1994). The government's argument is foreclosed by our recent decision in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002). In Galbraith, we overruled Branch on the basis of intervening Supreme Court precedent. Id. at 1125. Heightened pleading standards no longer apply to constitutional claims involving improper motives. The traditional Rule 12(b)(6) standards govern our analysis of Morgan's Complaint.

B

Morgan's Complaint sufficiently sets forth the elements of a Bivens claim by alleging a violation of his constitutional rights by agents acting under the color of federal law. Morgan alleges that his car was unreasonably searched in violation of the Fourth Amendment. Morgan also alleges that the defendants were acting under the color of federal law at the time of the search. Further, nothing in Morgan's Complaint admits of probable cause to conduct the search. Thus, dismissal under Rule 12(b)(6) was inappropriate.

C

But that does not end our inquiry. Because we are remanding this case to the district court for further development of the factual record to determine the propriety of dismissal, we consider under what circumstances the search of Morgan's car would satisfy the requirements of the Fourth Amendment. All of Morgan's Bivens claims depend upon the search's failure to comply with the Fourth Amendment.

The fundamental principle "of the Fourth Amendment⁴ is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (footnote inserted and internal citation omitted). A search "conducted without a warrant is `per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.'" United States v. Hawkins, 249 F.3d 867, 872(9th Cir.2001) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). And "[w]hile the Fourth Amendment generally prohibits warrantless searches without probable cause, it is subject to a few narrow" exceptions. United States v. Molina-Tarazon, 279 F.3d 709, 712 (9th Cir. 2002). However, even where an exception to the probable cause rule is appropriate, the "irreducible constitutional requirement of reasonableness" still applies. Id.

A search not supported by probable cause may still be reasonable if the subject of the search consents to it. Jimeno, 500 U.S. at 252, 111 S.Ct. 1801. Such consent may be express or implied. Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089(9th Cir.2002). Our sister circuits have applied the implied consent exception to the probable cause requirement in the context of searches on military bases. In United States v. Ellis, 547 F.2d 863 (5th Cir.1977), the Fifth Circuit considered a challenge to a search of a vehicle on a Naval...