a “seizure conducted without a warrant is per se 6 unreasonable under the Fourth Amendment -- subject only to a few 7 . . . well-delineated exceptions”
How later courts described this case
- a “seizure conducted without a warrant is per se 6 unreasonable under the Fourth Amendment -- subject only to a few 7 . . . well-delineated exceptions”
- “when seizing property for criminal investigatory 11 purposes, compliance with the Fourth Amendment satisfies pre- 12 deprivation procedural due process as well”
- “Generally, in a search made pursuant to a warrant, 22 only specifically enumerated items may be seized.”
- “to determine 18 whether the government exceeded the scope of a warrant, [courts] 19 compare the terms of the warrant to the search actually 20 conducted”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 ----oo0oo----
11
12 SCARLETT ANN JONES, an No. 2:22-cv-01574 WBS JDP
individual,
13
Plaintiff,
14 MEMORANDUM AND ORDER RE:
v. DEFENDANTS’ MOTION TO DISMISS
15 OR STRIKE
CITY OF VALLEJO, VALLEJO POLICE
16 DEPARTMENT, DETECTIVE MURPHY,
and DOES 1 through 20,
17
Defendants.
18
19 ----oo0oo----
20 Plaintiff Scarlett Jones brought this § 1983 action
21 against defendants City of Vallejo, Vallejo Police Department,
22 and Detective Brian Murphy, alleging several violations of the
23 Constitution and California state law, all premised on the
24 seizure of cash from her residence. Defendants now move to
25 dismiss and/or strike the complaint. (Docket No. 34.)
26 I. Factual and Procedural Background
27 The Complaint provides the following factual
28 allegations:
1 On or about November 6, 2021, Defendants, CITY OF
VALLEJO, VALLEJO POLICE DEPARTMENT, and DETECTIVE
2 MURPHY unlawfully seized monies from Plaintiff,
Scarlett Ann Jones[’] residence located at 368 Reis
3 Avenue, Vallejo, CA 94591. Seizure of the monies from
Plaintiff’s residence was not within the scope of the
4 search warrant. Defendants were supposed to provide a
seizure form immediately, specifying the items seized
5 and Defendants did not do so. The funds illegally
taken from Plaintiff . . . rightfully belong to
6 Plaintiff and the total of which is estimated to be in
excess of $700,000.00. Defendants never provided an
7 accounting of how much money was unlawfully seized
from Plaintiff’s residence nor filed a Notice of
8 Forfeiture.
9 (Compl. ¶¶ 9-13.)
10 The warrant1 indicates that the police were searching
11 for evidence in connection with a homicide that occurred at the
12 residence. (See Search Warrant (Docket No. 23-2 at 5-15) at 12.)
13 On December 15, 2022, the court granted a stay of this
14 action pending plaintiff’s motion for return of the seized
15 property in Solano County Superior Court. (See Docket Nos. 24,
16 25.) On February 16, 2023, the state court judge heard
17 plaintiff’s motion for return of the property and held that the
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19 1 The court hereby GRANTS defendants’ request for
judicial notice of the search warrant, as “‘[c]ourts regularly
20 find that search warrants are public records properly subject to
judicial notice[.]’” See Chavez v. City of California, No. 1:19-
21
cv-00646 DAD JLT, 2020 WL 1234503, at *3 (E.D. Cal. Mar. 13,
22 2020) (quoting Ferguson v. Cal. Dep’t of Justice, No. 16-cv-06627
HSG, 2017 WL 2851195, at *1 (N.D. Cal. July 4, 2017)). Judicial
23 notice is also appropriate because plaintiff has incorporated the
warrant into the complaint by reference and does not dispute that
24 the document provided by defendants is an authentic copy of the
warrant. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.
25
2005) (“[T]he ‘incorporation by reference’ doctrine [applies] to
situations in which the plaintiff’s claim depends on the contents
26
of a document, the defendant attaches the document to its motion
27 to dismiss, and the parties do not dispute the authenticity of
the document, even though the plaintiff does not explicitly
28 allege the contents of that document in the complaint.”).
1 City was in lawful possession of the property based on the
2 initial evidence presented by the City. (See Joint Status Report
3 (Docket No. 26) at 2; Cert. Tr. of Evid. Hr’g (Docket No. 34-2 at
4 39-52) at 7:26-8:3.)2 This court subsequently lifted the stay in
5 this action on February 28, 2023. (See Docket No. 27.)
6 II. Motion to Dismiss
7 Federal Rule of Civil Procedure 12(b)(6) allows for
8 dismissal when the plaintiff’s complaint fails to state a claim
9 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
10 The inquiry before the court is whether, accepting the
11 allegations in the complaint as true and drawing all reasonable
12 inferences in the plaintiff’s favor, the complaint has stated “a
13 claim to relief that is plausible on its face.” Bell Atl. Corp.
14 v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of
15 the elements of a cause of action, supported by mere conclusory
16 statements, do not suffice.” Id.
17 A. Fourth Amendment Seizure
18 Plaintiff’s fourth claim alleges that the seizure of
19 the cash “was not within the scope of the search warrant” (see
20 Compl. ¶ 10) and therefore violated the Fourth Amendment. The
21 warrant listed the following specific types of property to be
22 seized: blood; biological fluids/DNA; fingerprints; clothing;
23 blood stained items; firearms and indicia of firearm ownership;
24
2 The court hereby GRANTS defendants’ request for
25
judicial notice of the certified transcript of the February 16,
2023 state court evidentiary hearing (see Docket No. 34-2 at 39-
26
52) as an indication of what occurred during that proceeding, see
27 Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012),
but does not presume the truth of any factual assertions made
28 therein.
1 bullets, casings, and projectiles; cell phones; cameras,
2 recording devices, and recorded footage; computers, laptops,
3 tablets, and similar devices; photographs and measurements of the
4 scene; indicia of ownership or control over the premises; and
5 “any other item or evidence tending to show that homicide with a
6 firearm was committed or that a particular person committed this
7 homicide.” (Search Warrant at 6-7.)
8 “The Fourth Amendment’s particularity requirement . . .
9 ‘confines an officer executing a search warrant strictly within
10 the bounds set by the warrant.’” United States v. Ramirez, 976
11 F.3d 946, 951 (9th Cir. 2020) (quoting Bivens v. Six Unknown
12 Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394 n.7
13 (1971)). The type of property seized, currency, is not
14 enumerated in the warrant. Plaintiff has therefore plainly
15 stated a claim under the Fourth Amendment on the theory that the
16 seizure exceeded the scope of the warrant. See Snitko v. United
17 States, 90 F.4th 1250, 1263 (9th Cir. 2024) (“to determine
18 whether the government exceeded the scope of a warrant, [courts]
19 compare the terms of the warrant to the search actually
20 conducted”); United States v. Giberson, 527 F.3d 882, 886 (9th
21 Cir. 2008) (“Generally, in a search made pursuant to a warrant,
22 only specifically enumerated items may be seized.”).3 The court
23
3 Defendants’ motion states that the cash was seized as
24 “possible evidence of [Employment Development Department (‘EDD’)]
fraud due to the large sum, how it was stored,” and the presence
25
of other evidence suggesting EDD fraud. (See Docket No. 34 at
12.) While defendants also argue in conclusory fashion that the
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cash was “related to the homicide investigation” (see id. at 23),
27 defendants’ reference to EDD fraud lends credence to plaintiff’s
allegation that the search exceeded the scope of the warrant,
28 which was expressly limited to homicide-related evidence.
1 therefore will not dismiss the fourth claim.
2 It is possible that some exception to the warrant
3 requirement may apply (though defendants have not identified any
4 such exception). See Brewster v. Beck, 859 F.3d 1194, 1196 (9th
5 Cir. 2017) (a “seizure conducted without a warrant is per se
6 unreasonable under the Fourth Amendment -- subject only to a few
7 . . . well-delineated exceptions”). Regardless, the complaint
8 need not expressly negate the application of potential exceptions
9 to the warrant requirement, as allegations indicating that the
10 search exceeded the scope of that warrant are sufficient at the
11 pleading stage. See Agro Dynamics, LLC v. United States, No. 20-
12 cv-2082 JAH KSC, 2023 WL 6130813, at *7 (S.D. Cal. Sept. 19,
13 2023) (denying motion to dismiss and declining to grant qualified
14 immunity on Fourth Amendment claim because, inter alia, “the
15 alleged facts show that [defendants’ seizure] exceeded the scope
16 of the search warrant”); Reasoner v. City of Pittsburg, No. 18-
17 cv-07674 TSH, 2019 WL 3503066, at *9 (N.D. Cal. Aug. 1, 2019)
18 (“assuming [plaintiff’s] factual allegations to be true and
19 construing all inferences from them in his favor, [he] has stated
20 a claim for violations of his Fourth Amendment rights because he
21 alleges [d]efendants acted outside the scope of the warrant”);
22 Green v. County of Yuba, No. 2:18-cv-02234 JAM AC, 2019 WL
23 827638, at *4 (E.D. Cal. Feb. 21, 2019) (denying motion to
24 dismiss Fourth Amendment claim because “even with a valid
25 warrant, [plaintiff’s] allegations, if true, would support a
26 finding that the search and seizure exceeded the scope of the
27 warrant”).
28 B. Other Federal Claims
1 The first claim under the Equal Protection Clause fails
2 because the complaint does not contain any non-conclusory factual
3 allegations suggesting that “defendants acted with an intent or
4 purpose to discriminate against the plaintiff based upon
5 membership in a protected class.” See Shooter v. Arizona, 4
6 F.4th 955, 960 (9th Cir. 2021).
7 The second claim alleging deprivation of procedural due
8 process fails because it is duplicative of the Fourth Amendment
9 claim. See Sanders v. City of San Diego, 93 F.3d 1423, 1429 (9th
10 Cir. 1996) (“when seizing property for criminal investigatory
11 purposes, compliance with the Fourth Amendment satisfies pre-
12 deprivation procedural due process as well”).
13 The third claim alleging deprivation of substantive due
14 process fails because “the Fourth Amendment provides an explicit
15 textual source of constitutional protection” that applies to
16 unlawful seizures, and therefore “that Amendment, not the more
17 generalized notion of ‘substantive due process,’ must be the
18 guide for analyzing these claims.” See Graham v. Connor, 490
19 U.S. 386, 395 (1989).
20 The fifth claim under the Takings Clause fails because
21 “property seiz[ed] during a criminal investigation” is not taken
22 for “public use” and therefore cannot sustain a takings claim.
23 See Jenkins v. United States, 71 F.4th 1367, 1373 (Fed. Cir.
24 2023); see also Scott v. Jackson County, 297 F. App’x 623, 625–26
25 (9th Cir. 2008). There is persuasive out-of-circuit authority
26 indicating that seizure of property in the criminal context can
27 lead to “takings liability for the period after seized property
28 is no longer needed for criminal proceedings.” See Jenkins, 71
1 F.4th at 1373. However, there are no allegations in the
2 complaint that suggest defendants have retained the property when
3 it is no longer required for the purpose of a criminal
4 investigation.
5 Accordingly, the court will dismiss the first, second,
6 third, and fifth claims.
7 C. State Law Claims
8 The sixth claim for negligence fails because the
9 complaint’s vague reference to defendants’ supposed duty to
10 comply with “the Municipal Code and other quality of life and
11 [sic] codes” (see Compl. ¶ 56) does not sufficiently allege the
12 circumstances giving rise to a duty (as required to state a
13 negligence claim, see Ileto v. Glock Inc., 349 F.3d 1191, 1203–04
14 (9th Cir. 2003)), let alone what defendants had a duty to do, nor
15 has plaintiff cited any authority on the issue.
16 The seventh claim alleging breach of a mandatory duty
17 pursuant to California Government Code § 815.6 fails because
18 neither the complaint nor plaintiff’s opposition brief identify
19 any “specific statutory mandate” that defendants are alleged to
20 have violated. See State Dep’t of State Hosps. v. Superior Ct.,
21 61 Cal. 4th 339, 348 (2015).
22 Accordingly, the court will dismiss the sixth and
23 seventh claims.
24 D. Qualified Immunity
25 Defendant Murphy argues that he is entitled to
26 qualified immunity. “‘The doctrine of qualified immunity
27 protects government officials from liability for civil damages
28 insofar as their conduct does not violate clearly established
1 [federal] statutory or constitutional rights of which a
2 reasonable person would have known.’” Longoria v. Pinal County,
3 873 F.3d 699, 704 (9th Cir. 2017) (quoting Pearson v. Callahan,
4 555 U.S. 223, 231 (2009)).
5 While courts are permitted to consider qualified
6 immunity at the pleadings stage, the Ninth Circuit has explained
7 that doing so “raises special problems for legal decision
8 making.” See Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir.
9 2018) (citing Kwai Fun Wong v. United States, 373 F.3d 952, 956-
10 57 (9th Cir. 2004)). By considering qualified immunity at the
11 pleadings stage, “the courts may be called upon to decide far-
12 reaching constitutional questions on a nonexistent factual
13 record.” Kwai Fun Wong, 373 F.3d at 957.
14 At this stage, “[i]f the operative complaint ‘contains
15 even one allegation of a harmful act that would constitute a
16 violation of a clearly established constitutional right,’ then
17 plaintiffs are ‘entitled to go forward’ with their claims.”
18 Keates, 883 F.3d at 1235 (quoting Pelletier v. Fed. Home Loan
19 Bank of San Francisco, 968 F.2d 865, 872 (9th Cir. 1992)).
20 As relevant here, it is clearly established that a
21 “seizure conducted without a warrant is per se unreasonable under
22 the Fourth Amendment -- subject only to a few specifically
23 established and well-delineated exceptions.” See Brewster, 859
24 F.3d at 1196; see also Ramirez, 976 F.3d at 951 (the Fourth
25 Amendment “confines an officer executing a search warrant
26 strictly within the bounds set by the warrant”). At the very
27 high level of generality in which the complaint frames the
28 alleged violation -- seizure of property outside the scope of the
1 warrant -- it is possible that defendant violated a clearly
2 established right. The court therefore will not grant qualified
3 immunity at this stage.
4 However, the allegations of the complaint do not
5 foreclose the possibility that defendant Murphy did not violate
6 any clearly established right, especially given that the warrant
7 requirement is subject to several exceptions. See Brewster, 859
8 F.3d at 1196. The court’s denial of qualified immunity at this
9 juncture therefore “sheds little light” on whether defendant
10 Murphy “might ultimately be entitled to qualified immunity” once
11 the case proceeds “at least to the summary judgment stage,” where
12 “the court is presented with facts providing context for the
13 challenged actions.” See Keates, 883 F.3d at 1235.4
14 III. Motion to Strike
15 Rule 12(f) authorizes the court to “strike from a
16 pleading an insufficient defense or any redundant, immaterial,
17 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The
18 function of a 12(f) motion to strike is to avoid the expenditure
19 of time and money that must arise from litigating spurious issues
20 by dispensing with those issues prior to trial . . . .” Fantasy,
21 Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotation
22 marks, citation, and alteration omitted), rev’d on other grounds,
23 Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 (1994). “Because
24 motions to strike are ‘often used as delaying tactics,’ they are
25 ‘generally disfavored’ and are rarely granted in the absence of
26
4 Defendants also argued that they are entitled to
27 statutory immunity for the state claims. The court need not
address this argument because the court dismisses all state
28 claims.
1 prejudice to the moving party.” Pickern v. 3 Stonedeggs, Inc.,
2 No. 2:13-cv-1373 WBS, 2014 WL 309552, at *1 (E.D. Cal. Jan. 28,
3 2014) (quoting Rosales v. Citibank, FSB, 133 F. Supp. 2d 1177,
4 1180 (N.D. Cal. 2001)).
5 Defendants contend that plaintiff improperly seeks
6 attorneys’ fees under California Code of Civil Procedure § 1021.5
7 and contract damages, which they argue are not available to
8 plaintiff as a matter of law and should therefore be stricken.
9 The Ninth Circuit has held that Rule 12(f) “does not
10 authorize a district court to strike a claim for damages on the
11 ground that such damages are precluded as a matter of law.”
12 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 971 (9th
13 Cir. 2010). A prayer for relief, even if that relief is not
14 available, does not constitute an insufficient defense, or
15 redundant, immaterial, impertinent, or scandalous matter. See
16 id. at 973-74. Further, defendants have not shown that the
17 prayers for damages and fees will prejudice them. See Pickern,
18 2014 WL 309552, at *1. Thus, regardless of whether such damages
19 and fees would ultimately be available to plaintiff, the court
20 must deny the motion to strike.
21 IT IS THEREFORE ORDERED that defendant’s motion to
22 dismiss or strike (Docket No. 34) be, and the same hereby is,
23 GRANTED IN PART as to the first claim under the Equal Protection
24 Clause; second claim for denial of procedural due process; third
25 claim for denial of substantive due process; fifth claim under
26 the Takings Clause; sixth claim for negligence; and seventh claim
27 for breach of mandatory duty. The motion to dismiss or strike is
28 DENIED in all other respects. Plaintiffs have fourteen days from
eee RE OI EOE REI IE OIE III EI OSE EER ED ee eee
1 the date of this Order to file an amended complaint, if they can
2 do so consistent with this Order.
3 | Dated: May 13, 2024 dete 4k.
4 WILLIAMB.SHUBB ©. |
5 UNITED STATES DISTRICT JUDGE
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