Perkins v. City of West Covina, 94-56365
| Decision Date | 09 May 1997 |
| Docket Number | No. 94-56365,94-56365 |
| Parties | 97 Cal. Daily Op. Serv. 3460, 97 Daily Journal D.A.R. 5965 Lawrence PERKINS; Clara Perkins; April Perkins, a minor, by and through her Guardian ad Litem, Lawrence Perkins, Plaintiffs-Appellants, v. CITY OF WEST COVINA; Detective Ferrari; Detective Melnyk, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Patrick S. Smith, Klass, Helman & Ross, Los Angeles, California, for plaintiffs-appellants.
S. Frank Harrell, Franscell, Strickland, Roberts & Lawrence, Santa Ana, California, for defendants-appellees.
Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-93-07084-SVW.
Before: CANBY, BOOCHEVER, and LEAVY, Circuit Judges.
Lawrence, Clara, and April Perkins appeal the district court's grant of summary judgment in their 42 U.S.C. § 1983 suit against the city of West Covina, and the court's grant of qualified immunity to individual police officers. City detectives searched Perkins' home in connection with a murder investigation involving a former boarder. Perkins had difficulty securing the recovery of his property seized during the search, including cash and a starter pistol.
Perkins claims the individual officers violated his clearly established Fourth and Fourteenth Amendment rights during the search. He also claims that the city's notice of the procedure for retrieving the property, and the procedure itself, were inadequate, and therefore violated his right to due process. We affirm the district court's grant of summary judgment to the individual defendants on the ground of qualified immunity. We reverse the summary judgment in favor of the City, however, because we conclude that the City's policy violated due process by failing to notify Perkins of the means of retrieving his seized property.
On May 18, 1993, Julio Alberto Clark was shot to death at the home of Lashaun McDuffy in West Covina, California. When West Covina police searched McDuffy's residence, they found evidence linking McDuffy's boyfriend, Marcus Marsh (a.k.a. Marcus Winter) ("Marsh"), to the murder. They also found evidence of gang activity, a vial of rock cocaine, and $994.00 in cash.
McDuffy gave the police Marsh's telephone number, which the police traced to the home of the plaintiffs and appellants in this case, Lawrence, Clara, and April (a minor child) Perkins, at 531 Balham Avenue in La Puente, California. Another officer confirmed the address with Marsh's probation officer, and documents found in Marsh's car contained the same address. Marsh had rented a room from Perkins, although Perkins later stated that at the time of the search Marsh had moved out.
On May 20, 1993, Citrus Municipal Court Judge Dan Thomas Oki signed a search warrant authorizing a search of "all rooms, attics, basements, garages, and other parts therein" of four addresses, including Perkins' home. The warrant authorized a search for "any evidence of street gang membership or affiliation with a street gang," and
West Covina detectives David Melnyk, Michael Ferrari, Dan Nalian, and Lieutenant John Schimanski searched the Perkins' home on May 21. No one was home, and Detective Nalian later stated that he and the other officers did not know which was Marsh's bedroom. During the search, the officers seized gang photos (some depicting Marsh), paperwork belonging to Marsh, and an address book belonging to Lawrence Perkins. They also seized a twelve-gauge shotgun and various kinds of ammunition. From the closet in a locked southwest bedroom, the officers seized a starter pistol and $2,469 in cash. Detective Ferrari testified that he reasoned it was evidence within the scope of the search warrant because the detectives had recovered narcotics and cash from McDuffy's house, and Detective Nalian stated that he considered the cash "evidence that Marcus Marsh, and perhaps other residents of the house, were involved in illegal drug and gang related criminal activity."
The house was left in disarray, with damage to doors and some personal items. The officers left a form entitled "Search Warrant: Notice of Service" ("the notice"). The notice stated:
To Whom it May Concern:
1. These premises have been searched by peace officers of the West Covina Police Department pursuant to a search warrant issued on 5-20-93, by the Honorable Dan Oki, judge of the Municipal Court, Citrus Judicial District.
2. The search was conducted on 5-21-93. A list of the property seized pursuant to the search warrant is attached.
3. If you wish further information, you may contact: Det. Ferrari or Det. Melnyk at [telephone number].
The form also listed the name "Lt. Schimanski" and his telephone number. It did not include the search warrant number.
Lawrence Perkins ("Perkins") called Detective Ferrari that day; Detective Ferrari told him to call back a few days later. Perkins called back and came in to talk to Detective Ferrari, who told him that he had no objection to releasing the money, but Perkins would need to get a court order to get the property returned. Perkins testified, and Detective Ferrari denied, that Detective Ferrari said he would help Perkins get the property back if Perkins would testify against Marsh.
Perkins attempted to obtain the court order. About a month after the search, Perkins went to Citrus Municipal Court and asked to see Judge Oki, but was told Judge Oki was on vacation. He attempted to get another judge to release the property, but Perkins was informed that there was nothing under his name, and that he needed the number of the search warrant, or a case number in Marsh's case. Although Detective Ferrari believed he gave Perkins the search warrant number, Perkins testified that it was the wrong number. Perkins also testified that he was unable to get the correct warrant number at the court because the warrant was sealed and no file number was assigned. There was no case number for Marsh because charges had not yet been filed. The search warrant, however, was listed in a public document with the court clerk by the address where the search occurred, along with the number of the search warrant. Perkins was apparently unaware of this, and no city employee informed him of the method for obtaining the number.
Perkins, Clara Perkins, and April Perkins filed suit in district court on November 19, 1993, against the city of West Covina, Detectives Ferrari and Melnyk, Lieutenant Schimanski, and Los Angeles County. The complaint alleged that the individual defendants violated the Perkins' Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 by their "arbitrary intrusion ... into the security of plaintiffs' privacy" and their search without probable cause. The complaint also alleged that the city and county maintained "an official policy and custom of permitting the occurrence of the types of wrongs set forth hereinabove and hereafter," including failing properly to train officers, encouraging arrests without probable cause, procuring unlawful search warrants, and failing to investigate police misconduct, in violation of Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The complaint asked for general and special damages, pain and suffering, punitive damages, and attorney fees. The city answered, asserting qualified immunity on behalf of the individual defendants, among other affirmative defenses.
The parties filed cross-motions for summary judgment in March 1994. The district court ordered defendants to file supplemental briefs regarding the procedure for obtaining release of seized monies. At about the same time, the city filed a motion for the return of the property.
On May 12, 1994, the district court granted summary judgment for the city on the Perkins' Monell claim, and for all defendants on the claim that the warrant lacked probable cause. The court postponed a ruling on the qualified immunity of the individual officers.
The court also postponed a ruling on a claim against the city for failing to return the Perkins' seized property. Finding that "the City had a procedure for the return of unlawfully seized property; plaintiff needed only to Trial was scheduled for June 14. The city returned the property (with the exception of the starter pistol, which had been reported stolen) on June 24, 1994, more than a year after it was seized.
obtain a court order. But, the City's procedure for the return of unlawfully seized property may be entirely inadequate in practice-plaintiff claims he could not obtain the court order," the district court suggested that these facts might be the basis of a due process claim not raised in the complaint, and asked for further briefing.
On July 8, the district court granted summary judgment on all remaining claims in favor of the city and the detectives. (The county and Lieutenant Schimanski had been dismissed.) The order did not address the question whether the city's notice and procedure for recovery of seized property violated due process.
Perkins appealed. After oral argument, we remanded to the district court for determination of the due process issue. After supplemental briefing, the district court granted summary judgment for the city, holding that Perkins had waived his due process challenge to the city's procedures by failing to invoke a state statute providing for the return of improperly seized property, and that Perkins received adequate notice.
A law enforcement officer is entitled to qualified immunity in a § 1983 action if the district court...
To continue reading
Request your trial
-
Robinson v. City of San Bernardino Police Dept., CV 96-2539-DT (RC).
...WNS adhered to a policy, custom or practice that caused him to be deprived of his constitutional rights. Perkins v. City of West Covina, 113 F.3d 1004, 1010 (9th Cir.1997); Pierce, 76 F.3d at 1039 (9th Here, the plaintiff has neither identified nor shown any specific policy, custom or pract......
-
Vlcek v. Chodkowski
...the search warrant number or a method for obtaining the number).’ ” Perkins at 239, 119 S.Ct. 678, quoting Perkins v. City of W. Covina, 113 F.3d 1004, 1012 (9th Cir.1997) ( Perkins I ).{¶ 77} After making the above observation, the court of appeals set forth the following description of th......
-
Fakoya v. Cnty. of Clark
...37. Id. 38. Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997). 39. Doc. 15 at 4-5. 40. Ram, 118 F.3d at 1310 (citing Perkins v. City of West Covina, 113 F.3d 1004, 1008 (9th Cir. 1997)). 41. Doc. 1 at 5, ¶ 21. 42. Id. 43. Doc. 10 at 5. 44. Doc. 15 at 4. 45. Cnty. of Sacramento v. Lewis, 523 U.S. ......
-
Holman v. City of Warrenton, No. CV 01-1310-BR.
...nonfinal deprivation of property is nonetheless a `deprivation' in the terms of the Fourteenth Amendment.'" Perkins v. City of West Covina, 113 F.3d 1004, 1010 (9th Cir.1997), overruled on other grounds, 525 U.S. 234, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999) (quoting Fuentes v. Shevin, 407 U.S......
-
No instructions required: due process and post-deprivation remedies for property seized in criminal investigations.
...of West Covina v. Perkins, 119 S. Ct. 678 (1999) (No. 97-1230). (66) Id. at 2. (67) Id. (68) Id. (69) Perkins v. City of West Covina, 113 F.3d 1004, 1006 (9th Cir. (70) Id. (71) Respondent's Brief at 2-3, Perkins (No. 97-1230). (72) Petitioner's Brief at 7-8, Perkins (No. 97-1230). (73) Id ......