Garcia v. County of Merced

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN GARCIA, 

Plaintiff-Appellee,

v.

COUNTY OF MERCED; JOHN TAYLOR,

Merced County Deputy Sheriff,

Defendants-Appellants, No. 09-17188

and

MERCED COUNTY SHERIFF’S

 D.C. No.

1:07-cv-00867-

DEPARTMENT; MERCED COUNTY OWW-DLB

DISTRICT ATTORNEY’S OFFICE;

GORDON SPENCER, District

Attorney; ALFREDO CARDWOOD,

Bureau of Narcotics Enforcement

Special Agent Supervisor,

Defendants.



5983

5984 GARCIA v. COUNTY OF MERCED

JOHN GARCIA, 

Plaintiff-Appellee,

v.

COUNTY OF MERCED; JOHN TAYLOR,

Merced County Deputy Sheriff;

MERCED COUNTY SHERIFF’S No. 09-17189

DEPARTMENT; MERCED COUNTY

D.C. No.

DISTRICT ATTORNEY’S OFFICE;

GORDON SPENCER, District  1:07-cv-00867-

OWW-DLB

Attorney,

Defendants, OPINION

and

ALFREDO CARDWOOD, Bureau of

Narcotics Enforcement Special

Agent Supervisor,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, Senior District Judge, Presiding

Argued and Submitted

February 15, 2011—San Francisco, California

Filed May 5, 2011

Before: John T. Noonan, Diarmuid F. O’Scannlain, and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Trott

GARCIA v. COUNTY OF MERCED 5987

COUNSEL

Michael Woods, McCormick, Barstow, Sheppard, Wayte &

Carruth LLP, Fresno, California; Roger Matzkind, Chief Civil

Litigator, County of Merced, Merced, California, for the

defendant-appellants.

John Garcia, Law Office of John Garcia, Merced, California;

Norman Newhouse, Redwood City, California, for the

plaintiff-appellee.

OPINION

TROTT, Circuit Judge:

Defendants Alfredo Cardwood and John Taylor (the “Offi-

cers”) interlocutorily appeal the district court’s denial of qual-

ified immunity from John Garcia’s 42 U.S.C. § 1983 Fourth

5988 GARCIA v. COUNTY OF MERCED

Amendment claims against them. Garcia’s Fourth Amend-

ment claims and his state law false imprisonment claim arose

out of his arrest on suspicion of smuggling methamphetamine

into the Merced County Jail to one of his clients, Alfonso

Robledo, and from a subsequent search, supported by a search

warrant, of his office.1 We reverse and remand for entry of

judgment in favor of the Officers.

A. Standard of Review

We review de novo a grant of summary judgment on the

basis of qualified immunity. Elder v. Holloway, 510 U.S. 510,

516 (1994). In determining whether summary judgment is

appropriate, we must view the evidence in the light most

favorable to the non-moving party. Huppert v. City of Pitts-

burg, 574 F.3d 696, 701 (9th Cir. 2009). “When a police offi-

cer asserts qualified immunity, we apply a two-part analysis

. . . . ” Torres v. City of Los Angeles, 548 F.3d 1197, 1210

(9th Cir. 2008). The first question is whether “the officer’s

conduct violated a constitutional right.” Saucier v. Katz, 533

U.S. 194, 201 (2001). The second question is whether the

right was “clearly established.” Id. at 202. In determining

whether a right was “clearly established,” the court considers

whether it would be clear to a reasonable officer that his con-

duct was unlawful in the situation he confronted. Id.

Moreover, as the Supreme Court elaborated in Anderson v.

Creighton, 483 U.S. 635 (1987), “it is inevitable that law

enforcement officials will in some cases reasonably but mis-

takenly conclude that probable cause is present, and we have

indicated that in such cases those officials — like other offi-

cials who act in ways they reasonably believe to be lawful —

should not be held personally liable.” Id. at 641 (citing Malley

v. Briggs, 475 U.S. 335, 344-345 (1986)). To subject such

officials to the “fear of personal monetary liability and harass-

ing litigation” carries with it the “substantial social costs” of

1

Garcia was not prosecuted for the offense for which he was arrested.

GARCIA v. COUNTY OF MERCED 5989

unduly inhibiting them in the discharge of their official duties.

Anderson, 483 U.S. at 638.

B. Probable Cause to Arrest

[1] Probable cause to arrest exists when officers have

knowledge or reasonably trustworthy information sufficient to

lead a person of reasonable caution to believe that an offense

has been or is being committed by the person being arrested.

Beck v. Ohio, 379 U.S. 89, 91 (1964). For information to

amount to probable cause, it does not have to be conclusive

of guilt, and it does not have to exclude the possibility of

innocence, a distinction which the district court overlooked.

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).

As we said in Lopez, police are not required “to believe to an

absolute certainty, or by clear and convincing evidence, or

even by a preponderance of the available evidence” that a sus-

pect has committed a crime. Id. at 1078. All that is required

is a “fair probability,” given the totality of the evidence, that

such is the case. Id. Considering the facts in the light most

favorable to Garcia, we conclude that Officers Cardwood and

Taylor reasonably concluded that there existed sufficient

probable cause to arrest Garcia.

C. The Investigation

Robert Plunkett, a jailhouse informant incarcerated on

charges of theft, described in detail to law enforcement an

elaborate method of smuggling methamphetamine into the

Merced County Jail. According to the informant, one of his

fellow inmates, Alfonso Robledo, told him he had an attorney,

identified as Garcia, who was prepared to accept drugs from

the informant for delivery to Robledo in jail. The drugs were

to be concealed in a Bugler tobacco pouch.

Before acting on Plunkett’s information, the Officers took

steps to corroborate and to verify what he had told them. Dur-

5990 GARCIA v. COUNTY OF MERCED

ing this process, they confirmed from jail records and else-

where the following:

1) Plunkett indeed had an in-custody relationship

with Robledo.

2) Robledo was in jail on drug charges.

3) Garcia was Robledo’s attorney.

4) Garcia’s investigator, Augie Provencio,2 had in

fact been in the jail on business during the time of

the discussions under investigation, as claimed by

Plunkett.

5) Plunkett was not in a computer database of unreli-

able informants.

In addition, Plunkett named a “Sylvia Brown” as Garcia’s

usual source of methamphetamine, information he had

received from Robledo. At Officer Taylor’s request, Plunkett

called Sylvia Brown on the telephone and told her he had got-

ten some drugs for Robledo, half of which were for Garcia,

and the other half he would keep for himself. Sylvia Brown’s

response was to the effect that this arrangement was alright.

Officer Taylor personally monitored the call.

Every fact and detail given by Plunkett checked out, and no

misinformation or deception was discovered. As observed by

the district court:

[A]s [to] the reliability of Mr. Plunkett, the court is

well satisfied that there were at least seven to eight

items of corroboration that confirm what his report

2

Provencio, according to the record, flushed the methamphetamine

down the toilet in Garcia’s office before the Officers arrived with a war-

rant.

GARCIA v. COUNTY OF MERCED 5991

was of the modus operandi, the people who were

involved in it, how it was being conducted, and

again, some of the circumstances of this case provide

additional objective corroboration.

The district court’s Memorandum Decision regarding the

County Defendants’ Motion for Summary Judgment or Partial

Adjudication, dated September 28, 2008, states on page 5 as

an undisputed fact, “SUF 20,” that prior to Garcia’s arrest,

“Deputy Taylor also checked John Garcia’s criminal record

[before conducting the reverse sting], confirming that Garcia

had a history of drug-related violations.” The record does not

support this statement. Although it is undisputed that Garcia

served two prison terms in the 1960s and 1970s for drug-

related offenses, one federal and one state, Garcia does dis-

pute whether Deputy Taylor — or anybody else — examined

his record before the search of Garcia’s office. Taylor filed a

declaration saying he did so check, but in his affidavit for the

search warrant, he averred that Garcia’s record was not avail-

able. Consequently, we decline the Officers’ request to

include Garcia’s criminal record in our probable cause analy-

sis.

Accordingly, after approval from the District Attorney’s

office, the Officers gave the informant (with permission from

a judge) a Bugler tobacco pouch containing methamphet-

amine for delivery to Robledo via Garcia in what is called a

“reverse sting.” The methamphetamine was clearly visible to

anyone opening the pouch. In surveillance mode, the Officers

then saw Garcia accept the pouch from the informant and take

it to his law office, which was later searched with a warrant

supervised by a special master, as contemplated by Section

1524(c)(1) of the California Penal Code. The warrant was

signed by the same judge who approved the release of the

methamphetamine from official custody for the controlled

delivery.

In these circumstances, whether Garcia opened the pouch

when he received it from Plunkett or not, there can be no

5992 GARCIA v. COUNTY OF MERCED

doubt that Garcia’s acceptance of the Bugler tobacco pouch

from a person known to him to be a fellow inmate of his cli-

ent, to be delivered to that client in jail, served unmistakably,

without any more, as adequate confirmation and corroboration

of the informant’s detailed information.

[2] Facts require context. Garcia was neither a green attor-

ney nor one familiar only with civil practice. As of his arrest,

he had been practicing criminal law in Merced and Modesto

for twenty years, a fact known to the Officers. Garcia does not

dispute that he knew — as does anyone familiar with the sys-

tem — that it was unlawful to deliver even tobacco to an

inmate in the jail where Robledo and Plunkett were housed.

Simply to accept jail contraband from one inmate who was

out on a pass for delivery to another in custody raises unmis-

takable red flags. Thus, at the point of acceptance of the

pouch, the Officers clearly had probable cause both to arrest

Garcia and to support their application to Judge Dougherty for

a search warrant for Garcia’s office.3 The probable cause we

conclude was present was not just that Garcia knowingly pos-

sessed the methamphetamine in the prepared pouch, but that

he was actively involved in smuggling a controlled substance

and contraband into the jail.

[3] Granted, Robert Plunkett was a “jailhouse informant.”

However, the law does not exclude from consideration infor-

mation from this source in connection with the workings of

the criminal justice system, even as sworn witnesses in court.

As the Supreme Court said in On Lee v. United States, 343

U.S. 747 (1952), “[s]ociety can ill afford to throw away the

evidence produced by the falling out, jealousies, and quarrels

3

The search produced from the bathroom a plastic bag containing a

small amount of methamphetamine, a small amount of methamphetamine

from the office, a one-pound scale, and six packages of Bugler tobacco.

Garcia’s explanation of the methamphetamine in the bathroom was the

result of “spillage” when Augie Provencio flushed the contraband from the

prepared Bugler package down the toilet.

GARCIA v. COUNTY OF MERCED 5993

of those who live by outwitting the law. Certainly no one

would foreclose the turning of state’s evidence by denizens of

the underworld.” Id. at 756. As Clarence M. Kelley, a former

director of the Federal Bureau of Investigation once candidly

observed, “without informants, we’re nothing.” In fact, our

federal immunity statutes, 18 U.S.C. §§ 6002-6003, “reflect[ ]

the importance of testimony, and the fact that many offenses

are of such a character that the only persons capable of giving

useful testimony are those implicated in the crime.” Kastigar

v. United States, 406 U.S. 441, 446 (1972). Indeed, it was

information from a jailhouse informant, Virginia Graham, that

put an end to the murderous rampage of the vile Manson fam-

ily, a cabal of killers that terrorized Los Angeles, California

in 1969. While Graham was housed in the Sybil Brand Insti-

tute for Women with Susan Atkins, a member of “Charlie’s

Family,” Atkins told Graham how she had killed the actress

Sharon Tate. Graham passed this information to the authori-

ties, and the rest is history. Thus, the relevant question regard-

ing information from Plunkett — and from all jailhouse

informants — is not whether it is legally cognizable, but

whether it is corroborated and credible.

[4] Moreover, at the time of Garcia’s arrest, Officers Card-

wood and Taylor reasonably relied on the observation of

Agent Carlisle, another member of the surveillance team, that

Garcia opened the Bugler tobacco pouch in Plunkett’s pres-

ence. When there has been communication among agents,

probable cause can rest upon the investigating agents’ “collec-

tive knowledge.” United States v. Bernard, 623 F.2d 551,

560-61 (9th Cir. 1980). An officer’s statement that he wit-

nessed a suspect knowingly take possession of a controlled

substance establishes probable cause.

[5] In the alternative, we conclude that reasonable officers

in possession of this information under these circumstances

could not have known that to act as they did would violate the

constitutional rights upon which Garcia predicates his consti-

5994 GARCIA v. COUNTY OF MERCED

tutional claims. Cunningham v. Gates, 229 F.3d 1271, 1287

(9th Cir. 2000) (citing Anderson, 483 U.S. at 636-37).

[6] The mistake made by the district court in its analysis of

probable cause was to use Garcia’s subsequent self-serving

denial that he knowingly accepted methamphetamine in the

pouch as a reason, in a qualified immunity context, to con-

clude that probable cause at the time of Garcia’s arrest was

a disputed factual issue. For a trial on charges of knowing

possession, Garcia might disclaim knowledge of the contents

of the pouch, but that is a different issue from what the arrest-

ing officers had probable cause to believe when he was taken

into custody. Probable cause cannot be defeated by a defen-

dant’s subsequent denial in court that he had the knowledge

or the intent required for a conviction. Here, we note that Gar-

cia does not dispute that he did carry the methamphetamine

into his office.

[7] Accordingly, the Officers are plainly entitled to quali-

fied immunity from Garcia’s unlawful arrest claim.

D. Oral Affidavit for Search Warrant

[8] Probable cause to issue a search warrant exists when

“given all the circumstances set forth in the affidavit . . . there

is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Illinois v. Gates, 462 U.S.

213, 238 (1983). The Fourth Amendment is violated when a

facially valid search warrant contains “deliberate or reckless

omissions of facts that tend to mislead.” United States v. Sta-

nert, 762 F.2d 775, 781 (9th Cir. 1985). A plaintiff can sur-

vive summary judgment on a defendant’s claim of qualified

immunity only “if the plaintiff can both establish a substantial

showing of a deliberate falsehood or reckless disregard and

establish that, without the dishonestly included or omitted

information, the magistrate would not have issued the war-

rant.” Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995) (sec-

ond emphasis added).

GARCIA v. COUNTY OF MERCED 5995

Garcia’s primary allegation is that by misrepresenting

and/or omitting material information in the application for the

search warrant about Plunkett’s extensive criminal record, the

Officers had engaged in actionable judicial deception. The

omission Garcia characterizes as a “deliberate falsehood or

reckless disregard for the truth” was the failure to flesh out

Plunkett’s status as a multiple felony offender — a potential

“three striker.”

[9] In the first place, there is no evidence — as acknowl-

edged by the district court — that Cardwood was aware of

Plunkett’s record other than the fact that Plunkett was in jail

for theft, a fact which the Officers did provide to the judge.

In the second, it has long been clear beyond doubt to anyone

in the criminal justice system that the word of a jailhouse

informant alone — any jailhouse informant — is suspect and

ordinarily requires corroboration before it can be accepted as

probable cause. Banks v. Dretke, 540 U.S. 668, 701 (2004)

(“This Court has long recognized the ‘serious questions of

credibility’ informers pose.”). Jailhouse informants can

always be presumed to be looking for consideration in return

for their information. The precise details of an informant’s

problems with the law, however, are not normally necessary

to alert a judge to this glaring and well-known fact, especially

in the case of an informant who was in jail on theft charges.

Theft, the crime for which Plunkett was in jail, is a quintes-

sential crime of dishonesty and moral turpitude. This fact,

plus Plunkett’s status, was sufficient to alert the judge to his

suspect and shaky character.

Also, a judge evaluating a request for a search warrant is

not a potted plant. The judge was free to ask questions, and

had he wanted to know more about Plunkett, he was free to

inquire, as judges most frequently do. This process is not a

one way street. See United States v. Leon, 468 U.S. 897, 916

n.14 (1984) (“Although there are assertions that some magis-

trates become rubber stamps for the police and others may be

unable effectively to screen police conduct, . . . we are not

5996 GARCIA v. COUNTY OF MERCED

convinced that this is a problem of major proportions.”). Had

the judge inquired about Plunkett’s record and been told he

had none, this would be a different case, but here, nothing of

the sort happened. Calling this alleged omission regarding

Plunkett’s criminal record and possible expectations in return

for his information a “falsehood” or anything of the sort is

simply exaggerated rhetoric.

Moreover, examining the Officers’ application leaves us

with the firm belief that the search warrant still would have

issued on the basis of the information presented to Judge Dou-

gherty even if it had contained the “omissions” about which

Garcia complains, as well as the details of Plunkett’s prior

convictions, which were mostly for drug offenses. All Plun-

kett’s complete record could have done would be to confirm

what Judge Dougherty clearly knew: caveat emptor.

E. Summary

Alfredo Cardwood and John Taylor did not violate Garcia’s

constitutional rights. They carefully evaluated Plunkett’s

information, checked it against known facts, and then applied

to a judge for permission to use a controlled substance in the

continuation of their investigation. Even before conducting

the reverse sting, the Officers consulted with two deputy dis-

trict attorneys who approved of the procedure they planned to

use. They did not take Garcia into custody on the informant’s

information alone, but waited to see what Plunkett’s contact

with Garcia would produce. After developing probable cause

to arrest Garcia, they forthrightly applied to the same judge,

acting as a neutral magistrate, for a search warrant. They exe-

cuted the warrant under the supervision of a court-appointed

master (selected from an approved California State Bar list)

to ensure the integrity of Garcia’s law office and his client’s

files.

[10] This is not a case of rogue officers disregarding the

plaintiff’s constitutional rights. The officers in this case did

GARCIA v. COUNTY OF MERCED 5997

not “knowingly violate the law,” and they were not “plainly

incompetent.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Accordingly, they are plainly entitled to the “ample protec-

tion” afforded to them by the doctrine of qualified immunity.

Id.

F. State Law False Imprisonment

[11] The district court’s denial of the Officers’ motion for

summary judgment on Garcia’s state law false imprisonment

claim is appealable because resolution of the issues properly

raised on interlocutory appeal necessarily resolves the state

law issue. Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.

2003). California state law prohibits civil liability for false

arrest where an arresting officer had reasonable cause to

believe the arrest was lawful. Cal. Penal Code § 847(b)(1).

Because the Officers had probable cause to arrest Garcia, it

was error to deny their motion for summary judgment on Gar-

cia’s state law false arrest claim.

REVERSED and REMANDED with instructions to enter

judgment on behalf of the Defendants.