Ramirez v. City of Buena Park, No. 04-56832.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Brunetti
• Citation: 560 F.3d 1012
• Docket Number: No. 04-56832.
• Decision Date: 25 March 2009
• Parties: Joseph C. RAMIREZ, a/k/a Joe Ramirez, Plaintiff-Appellant, v. CITY OF BUENA PARK; Pedro Montez; Frank Hornung, e/s/a Hank Hornung; Marc Odom, Defendants-Appellees.

560 F.3d 1012 Joseph C. RAMIREZ, a/k/a Joe Ramirez, Plaintiff-Appellant,
v.
CITY OF BUENA PARK; Pedro Montez; Frank Hornung, e/s/a Hank Hornung; Marc Odom, Defendants-Appellees. No. 04-56832. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 8, 2006. Filed March 25, 2009.

[560 F.3d 1016]

E. Thomas Barham, Jr. and Shirley A. Ostrow, Law Offices of Barham and Ostrow, Los Alamitos, CA, for the plaintiff-appellant.

Mitchell E. Abbott, Michael P. Coyne, and Robert C. Ceccon, Richards, Watson, & Gershon, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Gary L. Taylor, District Judge, Presiding. D.C. No. CV-03-01754-GLT.

Before: ALEX KOZINSKI, Chief Judge, MELVIN BRUNETTI and PAMELA ANN RYMER, Circuit Judges.

BRUNETTI, Circuit Judge:

On May 2, 2003, Officer Pedro Montez of the Buena Park Police Department noticed a car parked outside a drugstore. Montez observed Joseph C. Ramirez in the car's driver's seat, apparently asleep at the wheel. Montez subsequently detained, searched, and arrested Ramirez for being under the influence of a controlled substance. Montez and two other officers then impounded Ramirez's car for its safekeeping. Montez issued Ramirez a citation and released him on his own recognizance after performing additional tests (including a blood test) at the police station. The blood test later came back negative and no charges were filed.

Ramirez filed the present 42 U.S.C. § 1983 action against Montez seeking damages for the detention, search, arrest, and blood test, and against Montez and the other two officers for the impoundment of his car. Ramirez also included a Monell claim against Buena Park for the impoundment of his car, and five state law claims against the defendants.

The defendants filed a motion for summary judgment and Ramirez filed a partial motion for summary judgment. The district court granted the defendants' motion on Ramirez's section 1983 and state law claims, and denied Ramirez's partial motion for summary judgment. Ramirez now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm in part, reverse in part, and remand for further proceedings.

I. Factual background

A few minutes before 8:00 p.m. on May 2, 2003, Ramirez sat parked in his red BMW convertible outside a Rite Aid pharmacy on Beach Boulevard in Buena Park, California. Montez was patrolling the area in his patrol car when he noticed Ramirez's car with its parking lights on. The parties dispute many of the facts relating to Montez's subsequent detention, search, and arrest of Ramirez.

A. The detention

While still in his patrol car, Montez observed that Ramirez's seat was reclined and that Ramirez had his eyes closed and appeared to be asleep at the wheel. Montez decided to investigate further because he was aware that several grab-and-run type thefts of alcohol had occurred at the location and that getaway vehicles are commonly used in thefts and robberies. Montez was also concerned that Ramirez may have had some medical problem, or may have been physically impaired.

560 F.3d 1017

Montez is certified by The International Association of Chiefs of Police as a Drug Recognition Expert. Montez attended an eighty-hour program administered by the California Highway Patrol which included training on the techniques of drug influence evaluation, recognition of the signs and symptoms of persons under the influence of drugs, and the physiology and effects of drugs on the body. Montez also received extensive instruction and demonstrated proficiency on how to properly conduct vital sign and eye examinations, and the use of approved field sobriety tests. The training program instructed Montez that many drugs, including Central Nervous System (CNS) stimulants, may significantly increase respiration; that falling asleep quickly, inappropriately, and sometimes uncontrollably, is a common side effect of CNS stimulants; that irritability is a general indicator of CNS stimulant use; that pupil dilation beyond 6.5mm is indicative of drug use; that the normal adult pulse rate is 60 to 90 beats per minute and that an elevated pulse is indicative of drug use; and that distorted time perception is indicative of drug use.

Montez pulled behind Ramirez's vehicle, got out of his patrol car, and walked up to Ramirez's driver's-side door. According to Montez—as related in his March, 2004 deposition and in a declaration made in September of 2004 and attached to the defendants' motion for summary judgment— after reaching the driver's-side door, he observed Ramirez for three to five seconds. During this time, Montez claims Ramirez's eyes were closed and that he appeared to be breathing rapidly, as if he had been exercising. Montez estimated that Ramirez took "[a]bout 10, 12" breaths during this three-to-five-second period. Montez also illuminated Ramirez's chest/waist area with his flashlight, observed Ramirez's hands in his front by his waist area, and then knocked on the window. According to Montez, Ramirez opened his eyes, looked at him and either opened the window or the driver's door slightly. Montez claims that Ramirez appeared irritable and aggressive and assertively asked if it was necessary to knock on his window. Montez told Ramirez that he was checking on him and asked what he was doing. Ramirez responded that he was tired and was taking a nap. According to Montez, Ramirez's pupils appeared to be dilated beyond the normal range. Montez began to suspect that Ramirez might be under the influence. Still not satisfied as to what Ramirez was doing, Montez asked him to get out of the car to further investigate. Ramirez complied. At this point, Montez observed that Ramirez's keys were in the ignition.

According to Ramirez, he had been sleeping about twenty to twenty-five minutes when Montez knocked on his window. Ramirez also claims he was not breathing rapidly when Montez first observed him. Although he was asleep at that time and therefore could not have been aware of his breathing pattern, Ramirez relies on Montez's police report dated May 3, 2003 to support this claim. Ramirez notes that Montez's police report describes the events of May 2, 2003 chronologically, and that in the report, Montez "noticed Ramirez had dilated pupils and appeared to be breathing fast," only after he "tapped the driver's seat window, and Ramirez opened his eyes and looked at [him]." After being startled by the knocking on his window, Ramirez slightly opened his door to talk to Montez. According to Ramirez, Montez's first questions were about drinking or doing drugs. Ramirez responded that he did not drink or do drugs. Although Ramirez's counsel conceded at oral argument that Ramirez's response "could be accurately characterized as testy," Ramirez claims that he was neither irritable nor aggressive when he "calmly but firmly asked [Montez] if this was a standard procedure to go around

560 F.3d 1018

banging on glass windows of persons that are sitting or sleeping in their cars." Montez responded by clenching his teeth, staring at Ramirez "with an extreme hard look," and exclaiming, "Okay we were going to do this the easy way. I would have asked a couple questions and you would have been on your way. But now we will do it the hard way. Get out of your car!" Startled and very frightened, Ramirez complied. Furthermore, Ramirez contends that Montez could not have seen his pupils from where Montez was standing while Ramirez was still seated in his vehicle. Although Ramirez could not see into his own eyes, he offered photographic evidence, produced after the fact, to show the unlikelihood Montez was able to see his pupils during the initial encounter. Construing these facts in the light most favorable to Ramirez, we must assume Montez was unable to sufficiently see Ramirez's pupils. This, however, does not mean we assume Ramirez's pupils were not dilated, but rather that his pupil dilation is not a factor to be considered in the reasonable suspicion and probable cause determination.

B. The pat-down search

According to Montez, he performed a pat-down search for officer safety once Ramirez stepped out of his car. Montez testified that he tapped Ramirez's outer garments to make sure there were no bulges or weapons concealed. Montez did not mention the pat-down search in either his police report or his declaration in support of the defendants' motion for summary judgment. Montez testified that he did not include the pat-down search in his police report because it was "something that [he] would recall, so [he] ... didn't put it in there."

According to Ramirez, once he was out of his vehicle Montez ordered him to put both hands on top of the car. Montez proceeded to search Ramirez, which included reaching into his pockets. Ramirez did not consent to the search.

C. The arrest and impoundment

According to Montez, after performing the pat-down search he took Ramirez's pulse and found it to be 132 beats per minute. Montez also administered a field sobriety test called the "Romberg test." The Romberg test evaluates an individual's internal clock by asking the individual to estimate the passing of thirty seconds while standing with his eyes closed and his head tilted back. It is within the acceptable margin of error for an individual to take between twenty and forty seconds to estimate the passing of thirty seconds. According to Montez, Ramirez took forty-five seconds to estimate the passing of thirty seconds. As a precaution, Montez also requested that a follow-up officer respond because once out of his vehicle, Ramirez appeared to be irritable and confrontational. According to Montez, because Ramirez had exhibited several classic signs of being under the influence of a controlled substance, including apparent uncontrollable sleepiness, irritability, rapid breathing, dilated pupils, markedly elevated pulse and distorted time...