Sinclair v. City of Grandview

• Decision Date: 26 September 2013
• Docket Number: No. CV–12–3041–RMP.,CV–12–3041–RMP.
• Citation: 973 F.Supp.2d 1234
• Parties: Karen SINCLAIR, individually and as Guardian Ad Litem for K.S. and J.A., minor children; and Julian Al–Ghamdi, Plaintiffs, v. CITY OF GRANDVIEW, a municipal corporation in the State of Washington, et al., Defendants.
• Court: U.S. District Court — District of Washington

973 F.Supp.2d 1234

Karen SINCLAIR, individually and as Guardian Ad Litem for K.S. and J.A., minor children; and Julian Al–Ghamdi, Plaintiffs,

v.CITY OF GRANDVIEW, a municipal corporation in the State of Washington, et al., Defendants.

No. CV–12–3041–RMP.

United States District Court, E.D. Washington.

Sept. 26, 2013.

Darryl Parker, Ada Ko Wong, Premier Law Group PLLC, Bellevue, WA, for Plaintiffs.

Kirk A. Ehlis, Menke Jackson Beyer LLP, Yakima, WA, Steve R. Puz, Attorney General of Washington, Olympia, WA, Robert L. Christie, Thomas P. Miller, Christie Law Group PLLC, Seattle, WA, for Defendants.

ORDER GRANTING IN PART CITY AND COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROSANNA MALOUF PETERSON, Chief Judge.

BEFORE THE COURT is a motion for summary judgment filed by Defendants City of Grandview, Michael Akins, Kal Fuller, John Arraj, Rick Abarca, Mitch Fairchild, Kevin Glasenapp, Travis Shepard, Seth Bailey, Robert Tucker, and Therese Murphy (“City and County Defendants”), ECF No. 79. The Court heard oral argument on the motion. Darryl Parker appeared on behalf of Plaintiffs Karen Sinclair, Julian Al–Ghamdi, and minor children K.S. and J.A. Kirk A. Ehlis appeared on behalf of the City and County Defendants. The Court has considered the briefing and supporting documentation, and the file, and is fully informed.

BACKGROUND

This case arises from a series of investigations of marijuana growing in the backyard of Plaintiffs' residence. Detective Michael Akins sought and obtained a warrant to search for evidence of drug trafficking in Plaintiffs' homes. Officers from the City of Grandview and a regional anti-drug task served the warrant. Plaintiffs were arrested and the condition of their home was reported to child protective services. Plaintiffs Julian Al–Ghamdi and Karen Sinclair were charged under Washington law with manufacturing a controlled substance and possession with intent to deliver a controlled substance. The charges against Mr. Al Ghamdi and Ms. Sinclair were eventually dismissed. Plaintiffs then brought suit against Detective Akins and others alleging violations of their civil rights under 42 U.S.C. § 1983. Defendants now seek summary judgment on all of Plaintiffs' claims against them.

The events relevant to Plaintiffs' suit began in the fall of 2008, when Officer Kevin Glasenapp of the Grandview Police Department responded to a citizen complaint that marijuana was being grown in the backyard of Plaintiffs' residence. In the course of investigating the citizen complaint, Officer Glasenapp was able to observe marijuana growing in Plaintiffs' backyard from the vantage point of a public utility easement running behind Plaintiffs' home. After observing the marijuana, Officer Glasenapp made contact with Plaintiff Julian Al Ghamdi at Plaintiffs' residence. Plaintiff Karen Sinclair had lived at the residence with Mr. Al Ghamdi since approximately 2001. Minor Plaintiffs K.S. and J.A. also lived at the residence.

Mr. Al Ghamdi confirmed to Officer Glasenapp that he was growing marijuana in his backyard and produced a medical marijuana permit for Officer Glasenapp. According to Mr. Al Ghamdi, Officer Glasenapp instructed Mr. Al Ghamdi to bring a copy of his medical marijuana permit to the Grandview Police Department when his permit was reissued the following year. Mr. Al Ghamdi delivered a new copy of his medical marijuana permit to a clerk at the Grandview Police Department when his permit was renewed in July of 2009.

Officer Glasenapp forwarded the results of his 2008 investigation to Grandview Police Detective Michael Akins. Detective Akins was a member of the L.E.A.D. Task Force, which is a regional anti-drug task force comprised of officers from local law enforcement agencies in Yakima County.

The citizen informant again contacted the Grandview Police Department in the fall of 2009 to report that marijuana was being grown in Plaintiffs' backyard. The citizen complaint was passed on to Detective Akins at the L.E.A.D. Task Force for further investigation. Detective Akins went to the area of Plaintiffs' home within a few days of receiving the report of the citizen complaint. Upon reaching the area, Detective Akins walked along the public utility easement behind Plaintiffs' home and observed several large marijuana plants growing in Plaintiffs' backyard. Detective Akins then decided to obtain a warrant to conduct a search of Plaintiffs' home.

Prior to applying for the search warrant, Detective Akins provided another detective from the task force, Detective Mark Negrete, with a phone number and asked Detective Negrete to call the phone number and attempt to purchase drugs from “Julian.” Detective Akins gave Detective Negrete an assumed identity with whom “Julian” would be familiar. Detective Negrete was not familiar with either Mr. Al Ghamdi or Ms. Sinclair, and had never encountered them or heard their voices prior to being asked to place the call.

Detective Negrete testified at his deposition that he called the phone number provided to him by Detective Akins and that a female voice answered the phone. Detective Negrete asked “[i]s Julian there?” The female asked Detective Negrete who was calling and Detective Negrete gave her the name of the assumed identity that Detective Akins had directed him to use. The female then told Detective Negrete to “hold on” and left the phone. Detective Negrete testified that he heard the female say “Julian.” When a man spoke in to the phone, Detective Negrete asked whether he could purchase some “bud” or “green,” referring to marijuana. The man indicated that he did not have marijuana to sell at that time, but that he could “get you [Negrete] some white.” Detective Negrete assumed that “white” referred to cocaine or methamphetamine. Detective Negrete indicated that he would like some “white” and the two arranged for Negrete to pick it up the following afternoon or evening. ECF No. 100–8, at 28–32, 35–36.

Detective Negrete did not record the telephone conversation or take any notes of the conversation. In addition, Detective Negrete could not recall at his deposition the phone number that he called or the assumed identity that he used. Nor did Detective Negrete actually purchase drugs from anyone at the Plaintiffs' residence. According to Detective Negrete, the search warrant was executed on Plaintiffs' residence before the arranged time for the sale of drugs. Detective Negrete further admitted that he did not know if the female who answered the phone was Karen Sinclair and testified that it “could have been anybody.” Regarding the identity of the man on the other end of the line, Detective Negrete explained: “I don't know if that was Julian Al–Ghamdi, but I asked for Julian and they gave me Julian.” ECF No. 100–8, at 33.

Detective Akins applied to a Yakima County superior court judge for a warrant to search Plaintiffs' home and submitted a draft affidavit in support of the warrant. Detective Akins' draft affidavit stated that Mr. Al Ghamdi possessed a medical marijuana permit and set forth Mr. Al Ghamdi's qualifying medical conditions as listed on the permit. Detective Akins' draft affidavit contained additional analysis and facts indicating that the detective did not believe that Mr. Al Ghamdi was in genuine need of the use of medical marijuana. ECF No. 84–1.

The Yakima County judge reviewed Detective Akins' draft search warrant affidavit and indicated that she would not authorize the search warrant based on the affidavit. Detective Akins then consulted with a Yakima County prosecutor, Therese Murphy, regarding the warrant affidavit.

Detective Akins' draft affidavit contained information from a “good citizen” informant regarding Plaintiffs' growing of marijuana. The citizen informant's identity was known to Detective Akins but was not disclosed in the warrant affidavit. Detective Akins and Ms. Murphy stated that the detective contacted the citizen informant by telephone during the editing process and obtained additional information, which was then included in the warrant. In addition to adding this information to the edited affidavit, Detective Akins and Ms. Murphy removed the information regarding Mr. Al Ghamdi's medical marijuana permit and medical condition.

When Detective Akins and Ms. Murphy had finished editing the search warrant affidavit, the judge reviewed the revised affidavit and signed the search warrant authorizing the search of Plaintiffs' home. The revised search warrant contained information that a citizen informant had observed and reported marijuana growing in Plaintiffs' backyard in July of 2009. The affidavit stated that the citizen informant had no criminal record, was not a paid informant, and was not working for previous criminal charges. The citizen informant was said to be “motivated over concern of the neighborhood and children who live in the area.”

The warrant affidavit contained additional information that Detective Akins went to the area of Plaintiffs' home on September 16, 2009, and walked an alleyway that ran behind Plaintiffs' home and contained utility poles. From the vantage point of the alleyway, Detective Akins verified that several large marijuana plants could be seen in the backyard of Plaintiffs' home.

The warrant affidavit further stated that Detective Akins contacted the citizen informant on September 17, 2009, and that the citizen informant told Detective Akins that he or she had observed approximately ten to fifteen marijuana plants growing in the backyard of Plaintiffs' residence. The citizen informant believed that Plaintiffs had been growing marijuana at the residence since October or November of 2008. The citizen informant claimed that Ms. Sinclair had told him or her that the marijuana was for sale and that Mr. Al Ghamdi and Ms. Sinclair had a storage area for marijuana plants in a cellar below the house.

The citizen informant further told Detective Akins of a previous time that she had contacted the ...