Whitaker v. Garcetti
| Decision Date | 10 May 2007 |
| Docket Number | No. 05-55690.,No. 05-55629.,05-55629.,05-55690. |
| Citation | 486 F.3d 572 |
| Parties | Jack N. WHITAKER; Ramon Portillo, aka Candido Gutierrez-Elenes; Avelino Avalos; Eduardo Martinez; Virginia Delgado, aka Edna Cabrera; Ricardo Carrizoza, aka Vicente Lopez-Carrizoza; Lauro Rocha Gaxiola; Antonio Rocha Gastelum, Plaintiffs-Appellees, v. Gil GARCETTI; Curtis A. Hazell; David Demerjian; Jason Lustig; County of Los Angeles, Defendants-Appellants, and Willie Williams; Dan Harden; Horacio Marco; Chuck Livingston; Keith Lewis; City of Los Angeles, Defendants. Jack N. Whitaker; Ramon Portillo, aka Candido Gutierrez-Elenes; Avelino Avalos; Eduardo Martinez; Virginia Delgado, aka Edna Cabrera; Ricardo Carrizoza, aka Vicente Lopez-Carrizoza; Lauro Rocha Gaxiola; Antonio Rocha Gastelum, Plaintiffs-Appellants, v. Gil Garcetti; Curtis A. Hazell; David Demerjian; Jason Lustig; County of Los Angeles; Willie Williams; Dan Harden; Horacio Marco; Chuck Livingston; Keith Lewis; City of Los Angeles, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alison M. Turner, Greines, Martin, Stein & Richland LLP, Los Angeles, CA, and Lisa S. Berger, Deputy City Attorney, Los Angeles, CA, for the defendants-appellants-cross-appellees.
Philip A. DeMassa, San Diego, CA, for the plaintiffs-appellees-cross-appellants.
Appeals from the United States District Court for the Central District of California; William J. Rea, District Judge, Presiding. D.C. No. CV-99-08196-WJR.
Before T.G. NELSON, SUSAN P. GRABER, and SANDRA S. IKUTA, Circuit Judges.
Eight individual Plaintiffs allege that Defendants, who are individuals and entities associated with the City and County of Los Angeles, intercepted Plaintiffs' telephone calls after having obtained wiretap authorizations by using falsified warrant applications. Plaintiffs also allege that Defendants unconstitutionally concealed the existence of the wiretaps by using a "handoff" procedure. Plaintiffs sued Defendants under 42 U.S.C. § 1983 for declaratory and monetary relief.1 The district court granted summary judgment to Plaintiffs on their claim for declaratory relief on the handoff procedure, ruling that the procedure violates the Fourth Amendment. The district court granted summary judgment to Defendants on Plaintiffs' claims for monetary relief, ruling that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), barred Plaintiffs' claim for damages from the alleged warrant falsification and that Defendants were entitled to qualified immunity on Plaintiffs' claim for damages from the handoff procedure. We hold that Plaintiff Whitaker's claim alleging that the wiretap that intercepted his telephone call was obtained using a falsified warrant application may proceed against Defendants Williams, Lewis, Garcetti, Demerjian, the City of Los Angeles, and the County of Los Angeles; none of the other claims can survive.
This case involves three sets of Plaintiffs and two sets of Defendants:
— Plaintiff Jack Whitaker, a lawyer;
— Plaintiffs Ramon Portillo, Avelino Avalos, Eduardo Martinez, Virginia Delgado, and Ricardo Carrizoza ("Portillo Plaintiffs"), who possessed 60 kilograms of cocaine;
— Plaintiffs Lauro Gaxiola and Antonio Gastelum, who possessed 190 kilograms of cocaine;
— Defendants Gil Garcetti, Curtis Hazell, David Demerjian, and Jason Lustig, who worked in the Los Angeles District Attorney's office, and the County of Los Angeles ("County Defendants"); and
— Defendants Willie Williams, Dan Harden, Horacio Marco, Chuck Livingston, and Keith Lewis, who worked in the Los Angeles Police Department, and the City of Los Angeles ("City Defendants").
As summarized by the district court:
The events that gave birth to the instant dispute were two separate narcotics wiretap investigations conducted by the Los Angeles Police Department ("LAPD"). The first investigation revolved around Downey Communications ("Downey" and "the Downey wiretaps"), while the second revolved around the Atel Cellular and Pager Company ("Atel" and "the Atel wiretaps"). LAPD investigators supposedly suspected these companies of facilitating drug deals by providing cellular telephone and digital paging services to narcotics traffickers and money launderers. The Defendants then submitted to the Los Angeles Superior Court applications for wiretap orders, which included sworn affidavits in order to establish probable cause against Downey and Atel. In relying on the sworn statements within the affidavits, the Superior Court issued wiretap orders for the Downey and Atel wiretaps. Thus, the wiretaps were supposedly designed to further investigate the suspected criminal activity of Downey Communications and Atel Cellular and Pager Company, and their respective principals and employees.
... The Los Angeles Superior Court granted the application to intercept nine telephone lines [of Downey] on November 8, 1994. Due to the numerous extensions of the wiretap order and expansions in the number of telephone lines tapped, Defendants intercepted over 30,000 conversations that took place across thirty Downey telephone lines for a duration of 11 months.
... The Los Angeles Superior Court granted the application to intercept twenty-two telephone lines [of Atel] on May 21, 1996. Due to the myriad of extensions sought and obtained, Defendants were able to intercept dozens of thousands of conversations over the course of twenty-two months.
... [T]he Downey and Atel wiretaps uncovered substantial criminal activity although none on the part of any of the putatively targeted parties. While intercepting calls pursuant to these broad and enduring wiretaps, Defendants became aware of suspicious conduct on the part of Plaintiffs, although none of the Plaintiffs were so much as named in the wiretap orders or under investigation by the LAPD at the time of the orders. In other words, Plaintiffs were mere clients of Downey or Atel, or merely involved in conversations with clients of Downey or Atel, but as a result of the two wiretaps, were indirectly subjected to electronic surveillance. These electronic surveillances served as the soil out of which the investigations against Plaintiffs originally grew.
Whitaker v. Garcetti, 291 F.Supp.2d 1132, 1136-37 (C.D.Cal.2003) (footnotes omitted).
Plaintiffs allege that Defendants intentionally concealed the existence of the wiretaps from them through the use of a "handoff" procedure. By Defendants' own admission,
[t]he logistics of the procedure are rather simple. An investigative unit applies for and obtains a wiretap order from a judge. Pursuant to the wiretap order, the investigative unit conducts electronic surveillance and gathers specific evidence of imminent criminal conduct. Rather than arriving at the scene and making arrests after observing the criminal conduct, the investigating unit transmits the information to another unit without expressly stating that the delivering unit obtained the information via a wiretap. The receiving unit is given both the specific information gathered through the wiretap and the critical instruction to "investigate" the conduct, which, in law enforcement code, ... signifies that the receiving unit should arrive at the crime scene and, rather than execute an arrest, observe the illicit conduct in order to obtain what law enforcement refers to as "independent" probable cause.
Upon acquiring this so-called "independent" probable cause, the receiving unit either makes an immediate arrest or obtains a search warrant on the sole basis of the so-called "independent" probable cause. The criminally accused is then prosecuted without ever knowing that he was subjected to the wiretap surveillance, as no mention of the wiretap is made in any police reports, through any discovery disclosures, or by any testifying detectives at hearings or at trial (the testifying detectives, non-coincidentally, belong to the receiving unit). The conviction follows, yet the very existence of the wiretap is concealed from the criminally accused, in order to permit the survival of any pending investigations revolving around the wiretap.
Id. at 1138 (footnotes omitted).
Each set of Plaintiffs raises claims about the wiretaps and the handoff procedure from a different perspective.
On May 22, 1995, Whitaker, a lawyer, received a telephone call from a client. An LAPD detective intercepted the call. During the conversation, Whitaker and his client discussed plea bargaining and witness interviews. Police never arrested Whitaker or charged him with a crime.
On June 18, 1997, LAPD detectives were told to surveil a location, allegedly based on interceptions of the Portillo Plaintiffs' telephone calls. From the surveilled location, detectives followed a vehicle to a residence. After this surveillance, police obtained a search warrant and seized 60 kilograms of cocaine and $124,000 in cash. Police arrested Portillo, Avalos, Martinez, Delgado, and Carrizoza.
On October 17, 1997, the Portillo Plaintiffs pleaded guilty. Portillo was sentenced to 10 years' imprisonment, Avalos was sentenced to 15 years' imprisonment, Martinez was sentenced to 10 years' imprisonment, Delgado was sentenced to 182 days' imprisonment plus 3 years of probation, and Carrizoza was sentenced to 17 years' imprisonment. On May 29, 1998, the Portillo Plaintiffs' counsel of record received notice about the existence of the wiretaps, but the notice did not state whether the Portillo Plaintiffs' calls had been intercepted.
On May 23, 1996, an LAPD detective was told to surveil a location, allegedly based on interceptions of Gaxiola's and Gastelum's telephone calls. From that location, the detective followed Gastelum. After this surveillance, police obtained a search warrant for two residences and seized 190 kilograms of...
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