Tarantino v. Eggers

• Decision Date: 27 June 1967
• Docket Number: No. 21538.,21538.
• Citation: 380 F.2d 465
• Parties: Edward R. TARANTINO, Appellant, v. Sgt. J. EGGERS and Officer J. Mourning, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

380 F.2d 465 (1967)

Edward R. TARANTINO, Appellant, v. Sgt. J. EGGERS and Officer J. Mourning, Appellees.

No. 21538.

United States Court of Appeals Ninth Circuit.

June 27, 1967.

Edward R. Tarantino in pro. per.

Daniel L. Dintzer, Robert Vallier, Los Angeles, Cal., for appellees.

Before HAMLEY, KOELSCH and DUNIWAY, Circuit Judges.

PER CURIAM:

Edward R. Tarantino, proceeding pro. per. and in forma pauperis, brought this civil rights action against J. F. Eggers, J. R. Mourning and Vera Krupp. The trial court granted the motion of Vera Krupp to dismiss the action for failure to state a claim, and Tarantino has not perfected an appeal therefrom. The trial court also granted the motion of defendants Eggers and Mourning for summary judgment in their favor. Such a judgment was entered and Tarantino appeals.

Tarantino alleged in his complaint that, on August 31, 1964, while acting under color of their authority as police officers of the City of Beverly Hills, California, Eggers and Mourning forced their way at gun point into Tarantino's Los Angeles apartment and placed him under arrest. Immediately afterwards, Tarantino alleged, these officers searched him and made a general search of his apartment, as a result of which they seized various articles and $1,000 in cash. Tarantino alleged that, at this time, Eggers and Mourning did not have an arrest warrant or a search warrant, and did not have reasonable cause to arrest him.

Tarantino further alleged in his complaint that, following this arrest and seizure, Eggers and Mourning took him out of Los Angeles and to the jail in the City of Beverly Hills. According to the complaint, Tarantino was there imprisoned incommunicado and deprived of the assistance of counsel. Tarantino alleged that Eggers and Mourning then returned to the vicinity of plaintiff's residence where they made a warrantless search of his parked automobile and took $10,000 in cash from the trunk of that vehicle. Tarantino alleged that this money was not the fruits of a crime but had been obtained by him under the terms of a negotiable instrument issued on August 14, 1964 in Las Vegas, Nevada. Tarantino further alleged that none of the money or property seized as described above, has been returned to him.

Eggers and Mourning filed an answer denying the critical allegations of the complaint, except that they admitted that they had arrested Tarantino and had taken him to the jail in the City of Beverly Hills. They further alleged that certain of Tarantino's personal property had been impounded, inventoried and deposited with the City of Beverly Hills police department as evidence in a criminal case.

This answer also contains two affirmative defenses. One was to the effect that, at the time they arrested Tarantino, Eggers and Mourning had probable cause to believe that he was a member of a robbery gang which had participated in several crimes in the City of Beverly Hills, including a robbery of Herbert and Hazel Kronish at 9201 Wilshire Boulevard. The other affirmative defense was to the effect that in making the arrest and searches, Eggers and Mourning used no more force than was reasonably necessary under the circumstances. Any injuries or damages sustained by Tarantino, these two defendants alleged, were caused solely by his own wrongful acts and misconduct.

On October 4, 1966, Eggers and Mourning filed a motion for a summary judgment and a notice that the motion would be heard on October 10, 1966. The motion was made on the ground that the action "has no merit" because Eggers and Mourning at all times acted legally and properly in arresting Tarantino, making the searches, and seizing and assuming control over Tarantino's property and cash. The motion was based upon the pleadings and records, and the affidavits of Eggers and Mourning attached...