Nesby v. City of Berkeley, A116370 (Cal. App. 2/3/2009)

• Decision Date: 03 February 2009
• Docket Number: A116370
• Court: California Court of Appeals Court of Appeals
• Parties: STANCY NESBY, Plaintiff and Appellant, v. CITY OF BERKELEY et al., Defendants and Respondents.

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STANCY NESBY, Plaintiff and Appellant, v. CITY OF BERKELEY et al., Defendants and Respondents.

A116370

Court of Appeals of California, First Appellate District, Division Five

February 3, 2009

Not to be Published in Official Reports

Appeal from the Alameda County, Super. Ct. No. RG04177538.

DONDERO, J.^*

Plaintiff Stancy Nesby (plaintiff) appeals from a summary judgment in this action against the City of Berkeley (the City) and four individual police officers in connection with three investigatory detentions and two arrests on warrants erroneously issued in her name. We affirm the judgment, as we conclude that the officers had a reasonable suspicion to detain plaintiff and had no duty to look beyond these facially valid warrants. Moreover, as plaintiff has not produced evidence of racial motivation or excessive force, summary judgment also was proper on her remaining causes of action.

FACTUAL BACKGROUND

The Warrants

In 1999, an impostor identified herself using plaintiff's name and personal information, and no other alias, in connection with several felony drug arrests by the San Francisco Police Department (SFPD). The impostor sustained subsequent convictions on these charges. In 2001, when she violated her probation and absconded, two no-bail felony bench warrants were issued for her arrest in plaintiff's name and disseminated in law enforcement databases statewide. (See Nesby v. City and County of San Francisco, notice of appeal filed September 27, 2006, A115620 [plaintiff's related action arising out of SFPD's booking of the impostor and the issuance of warrants in her name].) Each bench warrant was for the arrest of Stancy Nesby, a Black female, with a date of birth of May 12, 1976. On April 30, 2002, the San Francisco criminal court determined that plaintiff was not the subject of the warrants, but ordered that one of the bench warrants remain outstanding.

The September 3, 2003 Incident

On September 3, 2003, plaintiff was stopped by Berkeley police officer Dustin Morillas (Officer Morillas) while driving in the City of Berkeley. Officer Morillas noticed while on routine patrol that the registration tab was expired on the vehicle in front of him, which plaintiff was driving. Three weeks earlier, plaintiff had purchased a silver Dodge Intrepid on which the registration had expired. The auto dealership (the Dealer) had affixed a temporary identification sticker to the lower front windshield on the passenger side of the car and told her that this "temporary registration" would allow her to drive it until the formal registration process was completed. (See Veh. Code, § 4456, subds. (a)(1) & (2), (c) [purchaser may operate vehicle displaying report of sale without registration for six months from the date of sale or until she receives the registration, whichever is earlier].)¹

There is no evidence that Officer Morillas saw the temporary identification sticker. Because the side and rear windows of the vehicle were tinted, he also could not see plaintiff or determine her race. He testified at deposition that he had dispatch run a license plate check, which revealed an expired registration and gave no indication that registration was in progress. Dispatch records confirm this. Officer Morillas initiated a traffic stop for possible violation of Vehicle Code section 4000, subdivision (a) [driving unregistered vehicle], or section 5204, subdivision (a) [failure to display current tabs on license plate].

Officer Morillas approached the driver's door of the vehicle and told plaintiff that the registration tabs on her vehicle were expired.² She was nervous and informed him right away of the outstanding warrants in her name, but claimed they were not for her arrest. Plaintiff claims she gave Officer Morillas a color mug shot profile of the impostor, which bore the official seal of SFPD, but that he ripped it up and remarked, "You Black folks are getting better and better every day at making up things like this." Officer Morillas denies this.

In Officer Morillas's experience, it was not uncommon for suspects to attempt to avoid arrest by representing that a warrant has been cleared or that the warrant was for the arrest of someone else. Accordingly, he radioed police dispatch and requested a routine records check for a Black female named Stancy Nesby, with a date of birth of May 12, 1976. A minute or so later, dispatch responded and informed him that plaintiff had two active no-bail felony arrest warrants against her in connection with possession of cocaine for sale (Health & Saf. Code, § 11351.5).³ The dispatcher asked Officer Morillas how he had identified plaintiff, and he replied that he had done so using her driver's license. He provided her height (5'5"), weight (130 lbs.), and driver's license number to dispatch. Shortly thereafter, dispatch contacted him again and told him that SFPD had verbally confirmed the continuing validity of the warrants for the driver with this physical description. Based on the information Officer Morillas received from dispatch and his prior experience with suspects who lie about the validity of outstanding warrants against them, he believed there was probable cause to arrest plaintiff. He claims, further, that the mug shot would not have negated his belief in this regard.

Officer Morillas handcuffed plaintiff without incident and placed her in the patrol car with no rough or forceful contact. He then waited with her for 10 minutes until her boyfriend arrived and took possession of her vehicle so that it would not be towed. Officer Morillas then transported plaintiff to the Berkeley police station for booking. He acknowledges that plaintiff told him "a couple times" during this incident that she was innocent. Plaintiff claims that he promised to contact San Francisco when they arrived at the station to obtain the impostor's fingerprints.

At the station, Officer Morillas filled out an arrest form, but did not issue a citation in connection with the expired registration tabs because the outstanding warrants, which were a much more serious matter, had become the focus of the encounter. Plaintiff claims that while Officer Morillas was completing the paperwork, she reminded him of his promise and asked if he was going to tell other officers to fax her fingerprints to San Francisco to confirm her innocence, but that he told her to "shut up." Officer Morillas acknowledges that he did not advise anyone at the station regarding plaintiff's claims of innocence. Like others arrested on out-of-county warrants, plaintiff was transported to the Santa Rita jail, but was released at 1:18 a.m. the next morning.

Officer Morillas denies that any of his decisions were based on an improper or discriminatory purpose.

The September 16, 2003 Incident

Almost two weeks later, Berkeley police officer Michael Parsons (Officer Parsons) pulled plaintiff over as she was driving with a friend in Berkeley. At a recent police briefing, Officer Parsons had been instructed to be on the lookout for a silver Dodge Intrepid that was driven by a Black male and involved in illegal drug activity. This triggered his attention to plaintiff's car when he was on routine patrol late the night of September 16, 2003. From his position behind her car, he saw that the registration tab on the vehicle's license plate was expired. He could not see plaintiff or determine her race or gender. He called in the license plate number to police dispatch, which ran a DMV records check and determined that the car's registration had expired on May 18, 2003. It gave no indication that registration was in progress. The dispatcher provided this information to Officer Parsons.

Since Officer Parsons did not yet know whether the vehicle simply had an expired registration or presented a more serious matter, he called in a code indicating that he was making a traffic stop of a suspicious vehicle and automatically requesting backup. After initiating the stop, Officer Parsons approached plaintiff's car and told her that her registration was expired. (See ante, fn. 2.) Shortly after the traffic stop began, another Berkeley police officer arrived at the scene to provide backup (Officer Brown).

Afraid of another arrest on the warrants, plaintiff became highly emotional, showed Officer Parsons some related paperwork, and explained that she had outstanding warrants in her name based on the conduct of the impostor.⁴ Officer Parsons confirmed that she had warrants in her name. At some point during the stop, a man walked up and identified himself as plaintiff's brother. He told Officer Parsons that there were warrants in plaintiff's name, but that they were for the arrest of another woman who had stolen her identity. Given plaintiff's emotional demeanor and her brother's matching story, Officer Parsons decided not to pursue the warrants any further and did not take plaintiff into custody or cite her for any violation of the Vehicle Code.⁵ Officer Parsons did not have any physical contact with plaintiff during this encounter and did not say or do anything that could be considered a threat of violence. Plaintiff remained in her vehicle the entire time, and Officer Parsons did not search it. The traffic stop lasted between 15 and 25 minutes.

The September 18, 2004 Incident

Plaintiff's final encounter with Berkeley police took place a year later, on September 18, 2004. At approximately 12 noon that day, Officer Ethell Wilson (Officer Wilson) and Sergeant Thomas Curtin (Sergeant Curtin) responded to a radio broadcast that a Wells Fargo branch located inside Andronico's supermarket had been robbed by an armed suspect. The suspect, a Black male, had exited on the Addison Street side of the building two minutes earlier. Sergeant Curtin arrived at the Addison Street location within 90 seconds of the broadcast and immediately noticed a blue Ford Mustang across the street from the parking lot where the robber had reportedly fled. The Mustang was...