Dougherty v. City of Covina

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE DOUGHERTY and JONATHAN 

DOUGHERTY, No. 09-56395

Plaintiffs-Appellants, D.C. No.

v.  2:08-cv-07114-PA-

CITY OF COVINA; ROBERT CT

BOBKIEWICZ; KIM RANEY, OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

June 9, 2011—Pasadena, California

Filed August 16, 2011

Before: Betty B. Fletcher and N. Randy Smith,

Circuit Judges, and Rudi M. Brewster,

District Judge.*

Opinion by Judge N.R. Smith;

Concurrence by Judge Brewster

*The Honorable Rudi M. Brewster, Senior District Judge for the U.S.

District Court for Southern California, San Diego, sitting by designation.

10865

10868 DOUGHERTY v. CITY OF COVINA

COUNSEL

Danielle L. Casselman and Gary S. Casselman (argued), Law

Offices of Gary S. Casselman, Los Angeles, California, for

the plaintiff-appellant.

Mary A. Pendergrass, Christopher M. Pisano (argued), and

George Roscoe Trindle, III, Best Best & Krieger, Los Ange-

les, California, for the defendants-appellees.

OPINION

N.R.SMITH, Circuit Judge:

Under the totality of the circumstances, a search warrant

issued to search a suspect’s home computer and electronic

equipment lacks probable cause when (1) no evidence of pos-

session or attempt to possess child pornography was submit-

DOUGHERTY v. CITY OF COVINA 10869

ted to the issuing magistrate; (2) no evidence was submitted

to the magistrate regarding computer or electronics use by the

suspect; and (3) the only evidence linking the suspect’s

attempted child molestation to possession of child pornogra-

phy is the experience of the requesting police officer, with no

further explanation. Our circuit, however, has not previously

addressed this question. Therefore, the officers involved in the

search are entitled to qualified immunity.

BACKGROUND

On October 12, 2006, Officer Robert Bobkiewicz, of the

City of Covina Police Department, and four other police offi-

cers (three from the City of Covina and one from the City of

Glendora) searched Appellant Bruce Dougherty’s1 home pur-

suant to a warrant issued by a magistrate on October 11, 2006.2

The search warrant authorized the officers to search for child

pornography on Dougherty’s computer and electronic media.

To obtain the search warrant, Officer Bobkiewicz submit-

ted an affidavit reciting that he was involved in the investiga-

tion of Dougherty’s inappropriate touching of one of his sixth

grade students at Royal Oak Elementary School. The student

reported that Dougherty had lifted her up in front of the class

after she told him that she had won a cross-country meet. She

reported that Dougherty’s hands were touching her breasts

when he lifted her up to a level where he could look at her

buttocks. The student told Bobkiewicz that she had seen Dou-

gherty look up the skirts and down the tops of other girls in

the class. In interviews, other students confirmed the lifting

1

Both Bruce Dougherty and his son, Jonathan, appealed the district

court’s ruling, but Jonathan abandoned his appeal. See infra Section V.

Consequently, for simplicity, all references in this opinion to “Dougherty”

refer only to the father, Bruce Doughtery.

2

For purposes of this Opinion, the facts in the Complaint are taken as

true. We reference the search warrant affidavit, upon which the Complaint

necessarily relies, for these facts. See Van Buskirk v. Cable News Network,

Inc., 284 F.3d 977, 980 (9th Cir. 2002).

10870 DOUGHERTY v. CITY OF COVINA

incident to Bobkiewicz and also reported that Dougherty

looked up the skirts and down the shirts of girls in the class.

Officer Bobkiewicz also discussed the investigation with the

Assistant Superintendent for the School District, Gloria Cor-

tez. Cortez told Officer Bobkiewicz that she had conducted an

investigation after the incident with the student described

above. Her investigation turned up multiple reports of Dou-

gherty touching girls’ backs and appearing to search for bra

straps with his hands (this information was corroborated by

the former vice-principal at Royal Oak). Cortez’s investiga-

tion also turned up a 2003 report of a student, who said that

Dougherty pulled her shirt down to her waist while they were

alone in the classroom. The investigation of that incident was

not pursued, after it was determined the student made incon-

sistent statements. The mother of the student in that incident,

however, later believed she made a mistake not believing her

daughter. When police contacted that student (then in high

school) to discuss the previous allegation, she recounted that

Dougherty touched her bare breast and told her she was “a

special girl.”

In the affidavit, Officer Bobkiewicz also recounts that he

had fourteen years of experience on the police force and had

worked as a School Resource Officer. He had over 100 hours

of training involving juvenile and sex crimes, had conducted

hundreds of investigations related to sexual assaults and juve-

niles, and was the designated “Sex Crimes/Juvenile Detec-

tive” for the police department. The affidavit concludes with

Officer Bobkiewicz stating that “based upon my training and

experience . . . I know subjects involved in this type of crimi-

nal behavior have in their possession child pornography . . . .”

The affidavit then requests the ability to seize Dougherty’s

computer, cameras, and electronic media and have them

searched for child pornography. A magistrate signed the war-

rant on October 11, 2006.

When officers arrived at Dougherty’s house, he allowed the

officers to enter and search. However, when Dougherty asked

DOUGHERTY v. CITY OF COVINA 10871

to see a warrant, Officer Bobkiewicz stated that he had forgot-

ten it at the police station. During the search, the officers

entered and moved about the house with their guns drawn.

They awakened Dougherty’s adult son, Jonathan, at gun point

and gave him the option of leaving the house or sitting on the

couch in the living room during the search. Jonathan chose to

remain on the couch. The officers seized computers and “re-

lated items” from Dougherty’s home. The computers and

other items were not returned until December 27, 2007. No

charges were filed against Dougherty.

After the search of Dougherty’s house, Dougherty sued

Officer Bobkiewicz, the City of Covina, and Kim Raney, the

Chief of Police, for violating his constitutional rights.3 Dou-

gherty claimed (1) the City and the officers violated his and

his son’s Fourth Amendment right to be free from unreason-

able search and seizure, (2) the City inadequately trained and

inadequately investigated complaints about its officers (a

Monell claim4), and (3) the City, Raney, and Bobkiewicz

inadequately supervised and trained their subordinates with

respect to the incidents alleged.

The district court dismissed Dougherty’s complaint with

prejudice on August 4, 2009. The court reviewed the com-

plaint, the search warrant, and the affidavit. The court found

the warrant was supported by probable cause, and that the

detention of Dougherty and his son was reasonable. The dis-

trict court further held Bobkiewicz was entitled to qualified

immunity. Finally, the court dismissed the Monell claim on

3

The Complaint names Does 1-10, at least some of whom represent offi-

cers involved in the search. The Does, however, have not been identified

or served. Dougherty does not appeal the only issue that could implicate

police officers other than Bobkiewicz — that the search was executed

unreasonably. See infra Section V. Dougherty also does not allege or

argue that any officers other than Bobkiewicz were involved in preparing

the affidavit for the search warrant.

4

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

10872 DOUGHERTY v. CITY OF COVINA

the ground that Monell liability cannot be found if no consti-

tutional violations occurred.

STANDARD OF REVIEW

Dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6) is reviewed de novo. Thompson v. Davis, 295 F.3d

890, 895 (9th Cir. 2002). The facts alleged in a complaint are

to be taken as true and must “plausibly give rise to an entitle-

ment to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950

(2009). Mere legal conclusions “are not entitled to the

assumption of truth.” Id. The complaint must contain more

than “a formulaic recitation of the elements of a cause of

action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). It must plead “enough facts to state a claim to relief

that is plausible on its face.” Id. at 570.

Denial of leave to amend is reviewed for an abuse of dis-

cretion. Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999).

DISCUSSION

I. Probable Cause

[1] “Sufficient information must be presented to the magis-

trate to allow that official to determine probable cause; his

action cannot be a mere ratification of the bare conclusions of

others.” Illinois v. Gates, 462 U.S. 213, 239 (1983). When an

affidavit moves “beyond the ‘bare bones,’ ” however, a “total-

ity of the circumstances test” is employed. Id. at 238-39.

Under the totality of the circumstances test, a neutral magis-

trate must “make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit

before him, including the ‘veracity’ and ‘basis of knowledge’

of persons supplying hearsay information, there is a fair prob-

ability that contraband or evidence of a crime will be found

in a particular place.” Id. at 238. The magistrate is free to

DOUGHERTY v. CITY OF COVINA 10873

draw “reasonable inferences . . . from the material supplied to

him by applicants for a warrant.” Id. at 240.

[2] The “standards for determining probable cause for a

search warrant” apply to a search for child pornography on a

computer. United States v. Kelley, 482 F.3d 1047, 1050 (9th

Cir. 2007). Neither “certainty nor a preponderance of the evi-

dence is required,” but rather a “fair probability” that the evi-

dence will be found. Id. The magistrate’s determination of

probable cause “should be paid great deference.” Id. (internal

citation and quotation marks omitted). “‘Although in a partic-

ular case it may not be easy to determine when an affidavit

demonstrates the existence of probable cause, resolution of

doubtful or marginal cases in this area should largely be deter-

mined by the preference to be accorded to warrants.’ ” Id. at

1050-51 (quoting Gates, 462 U.S. at 237 n.10) (alteration

omitted).

[3] Although there does not need to be direct evidence of

solicitation of child pornography to create probable cause,

Kelley, 482 F.3d at 1051-52, the reviewing court must make

certain there was a “substantial basis” for the finding, United

States v. Weber, 923 F.2d 1338, 1343 (9th Cir. 1990) (citing

Gates, 462 U.S. at 238). In Weber, we held that probable

cause did not exist to search a house for child pornography

when an affidavit recited only that a suspect had two years

previously received a catalog of child pornography and had

ordered four images of possible child pornography.5 Id. at

1345. The affidavit in Weber included a statement from a

police detective stating that he knew “the habits of ‘child

molesters,’ ‘pedophiles,’ and ‘child pornography collectors’

and that from his knowledge of these classes of persons he

could expect certain things to be at their houses, from diaries

to sexual aids to photo developing equipment.” Id. The affida-

5

Probable cause did exist to search for the four images that Weber actu-

ally ordered from a fake catalog sent by the government. Weber, 923 F.3d

at 1346.

10874 DOUGHERTY v. CITY OF COVINA

vit did not, however, have a “whit of evidence” that Weber

was a child molester, and it did not describe how many maga-

zines or photographs it would take to qualify as a “collector.”

Id. We noted that “[i]t goes without saying that the govern-

ment could not search Weber’s house for evidence to prove

Weber was a collector merely by alleging he was a collector.”

Id. We distinguished the probable cause demonstrated in the

affidavit in Weber from the affidavit in United States v. Rabe,

848 F.2d 994 (9th Cir. 1988). We noted that, in Rabe, there

was direct evidence that the defendant had child pornography

in his home. Id. We also noted that the expert in Rabe specifi-

cally concluded that the defendant was a pedophile, and the

expert and magistrate knew that the defendant admitted to

owning child pornography and desired to take nude photos of

children before the warrant was issued. Weber, 923 F.2d at

1345-46 (citing Rabe, 848 F.2d at 995-96).

If probable cause did not exist in Weber, it cannot exist

here. In Weber, the affidavit included at least some direct evi-

dence of the defendant’s possible possession of child pornog-

raphy, including a two-year-old delivery of a catalog

containing child pornography, an order from a fake catalog

with image names suggesting child pornography, and general

information regarding collectors, pedophiles, and molesters.

Weber, 923 F.3d at 1345. Here, by contrast, the affidavit

includes only a three-year-old allegation of attempted moles-

tation by one student and current allegations of inappropriate

touching of and looking at students.

[4] The affidavit contains no facts tying the acts of Dou-

gherty as a possible child molester to his possession of child

pornography. The affidavit provides no evidence of receipt of

child pornography. No expert “specifically concludes” Dou-

gherty is a pedophile. In the affidavit, Officer Bobkiewicz

states only that “[b]ased upon [his] training and experience

. . . subjects in this type of criminal behavior have in their

possession child pornography . . . .” The affidavit provides no

indication that Dougherty was interested in viewing images of

DOUGHERTY v. CITY OF COVINA 10875

naked children or of children performing sex acts. There is no

evidence of conversations with students about sex acts, dis-

cussions with children about pictures or video, or other possi-

ble indications of interest in child pornography. Officer

Bobkiewicz either did not search Dougherty’s work computer

or email account for indications of pedophilia or child por-

nography, or did so and did not find any. Indeed, the affidavit

does not even verify that Dougherty owned a computer or the

other targets of the search or had internet service or another

means of receiving child pornography at his home.

Other circuits have split on the question of whether evi-

dence of child molestation, alone, creates probable cause for

a search warrant for child pornography. The Second Circuit

has stated that a “crime allegedly involv[ing] the sexual abuse

of a minor, [does] not relate to child pornography. . . . That

the law criminalizes both child pornography and the sexual

abuse (or endangerment) of children cannot be enough.”6

United States v. Falso, 544 F.3d 110, 123 (2d Cir. 2008). The

Sixth Circuit agrees that, when probable cause is established

“for one crime (child molestation) but [the warrant is]

designed and requested [to] search for evidence of an entirely

different crime (child pornography),” it is “beyond dispute

that the warrant [i]s defective.” United States v. Hodson, 543

F.3d 286, 292 (6th Cir. 2008). In fact, in Hodson, the evi-

dence was much more related to viewing children in sex acts

and to computers than the evidence in the affidavit here.

There, in an internet chatroom, Hodson “confided that he . . .

favored young boys, liked looking at his nine-and eleven-

year-old sons naked, and had even had sex with his seven-

year-old nephew. [Hodson] also expressed his desire to per-

6

The Second Circuit also noted, however, that “nothing in the affidavit

draws a correlation between a person’s propensity to commit both types

of crimes.” Falso, 544 F.3d at 123. The Falso court did not consider

whether a conclusory statement tying persons involved with sexual abuse

of a minor to possession of child pornography would suffice to create

probable cause in absence of more direct evidence or a more detailed

explanation of why such a connection exists.

10876 DOUGHERTY v. CITY OF COVINA

form oral sex on the presumptive twelve-year-old boy . . . and

his willingness to travel . . . to do so.” Id. at 287. Nonetheless,

the Sixth Circuit firmly held that the warrant was “so lacking

in indicia of probable cause that” not even the good-faith

exception to unlawfully executed warrants could apply. Id. at

292-93.

The Eighth Circuit, however, has rejected the reasoning of

Falso and Hodson, stating “[t]here is an intuitive relationship

between acts such as child molestation or enticement and pos-

session of child pornography.” United States v. Colbert, 605

F.3d 573, 578 (8th Cir. 2010). The affidavit in Colbert, how-

ever, did include evidence that the accused had enticed a child

to come to his apartment. Id. at 577.

[5] Ultimately, the question of probable cause is “not read-

ily, or even usefully, reduced to a neat set of legal rules.”

Gates, 462 U.S. at 232. Thus, while the “totality of circum-

stances” could, in some instances, allow us to find probable

cause to search for child pornography, Officer Bobkiewicz’s

conclusory statement tying this “subject,” alleged to have

molested two children and looked inappropriately at others, to

“having in [his] possession child pornography” is insufficient

to create probable cause here.

II. Qualified Immunity

[6] “A police officer is not entitled to qualified immunity

if: (1) the facts show that the officers conduct violated a plain-

tiff’s constitutional rights; and (2) those rights were clearly

established at the time of the alleged violation.” Millender v.

Cnty. of Los Angeles, 620 F.3d 1016, 1023-24 (9th Cir. 2010)

(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)), cert.

granted, 79 U.S.L.W. 3344 (U.S. June 27, 2011). The law in

this circuit had not been clearly established regarding whether

allegations of sexual misconduct or molestation at a place of

work provide probable cause to search a residence for child

pornography in the absence of an explanation tying together

DOUGHERTY v. CITY OF COVINA 10877

the two crimes. Neither this court nor the Supreme Court has

addressed this question. Further, as discussed supra, other

Circuit Courts of Appeal have split on similar questions.

Compare Colbert, 605 F.3d at 578, with Falso, 544 F.3d at

123, and Hodson, 543 F.3d at 292. Therefore, because the law

was not clearly established at the time of the alleged events,

the district court did not err in holding Bobkiewicz and the

other police officers are entitled to qualified immunity. See

Pearson, 555 U.S. at 243.

III. The Monell and Supervisory Liability Claims

Qualified immunity does not shield municipalities from lia-

bility. Owen v. City of Independence, 445 U.S. 622, 657

(1980)). However, we “may affirm the district court’s dis-

missal on any ground supported by the record.” Wolfe v.

Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Under Twom-

bly, the Complaint does not state a plausible cause of action

for either municipal or supervisory liability.

[7] A government entity may not be held liable under 42

U.S.C. § 1983, unless a policy, practice, or custom of the

entity can be shown to be a moving force behind a violation

of constitutional rights. Monell v. Dep’t of Soc. Servs. of the

City of New York, 436 U.S. 658, 694 (1978). In order to estab-

lish liability for governmental entities under Monell, a plain-

tiff must prove “(1) that [the plaintiff] possessed a

constitutional right of which [s]he was deprived; (2) that the

municipality had a policy; (3) that this policy amounts to

deliberate indifference to the plaintiff’s constitutional right;

and, (4) that the policy is the moving force behind the consti-

tutional violation.” Plumeau v. Sch. Dist. No. 40 Cnty. of

Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal quotation

marks and citation omitted; alterations in original).

Failure to train may amount to a policy of “deliberate indif-

ference,” if the need to train was obvious and the failure to do

so made a violation of constitutional rights likely. City of

10878 DOUGHERTY v. CITY OF COVINA

Canton v. Harris, 489 U.S. 378, 390 (1989). Similarly, a fail-

ure to supervise that is “sufficiently inadequate” may amount

to “deliberate indifference.” Davis v. City of Ellensburg, 869

F.2d 1230, 1235 (9th Cir. 1989). Mere negligence in training

or supervision, however, does not give rise to a Monell claim.

Id.

[8] Here, Dougherty’s Monell and supervisory liability

claims lack any factual allegations that would separate them

from the “formulaic recitation of a cause of action’s ele-

ments” deemed insufficient by Twombly. See 550 U.S. at 555.

Regarding the Monell claim, Dougherty alleged only that (1)

“Defendant CITY’s policies and/or customs caused the spe-

cific violations of Plaintiff’s constitutional rights at issue in

this case[ ]” and (2) “Defendant CITY’s polices and/or cus-

toms were the moving force and/or affirmative link behind the

violation of the Plaintiff’s constitutional rights and injury,

damage and/or harm caused thereby.” The Complaint lacked

any factual allegations regarding key elements of the Monell

claims, or, more specifically, any facts demonstrating that his

constitutional deprivation was the result of a custom or prac-

tice of the City of Covina or that the custom or practice was

the “moving force” behind his constitutional deprivation.

Regarding supervisory liability, Dougherty alleged only “neg-

ligent” hiring and training and pointed to no instances of

deliberate indifference. Dougherty failed to plead “enough

facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. Therefore, we affirm the district

court’s dismissal of these claims.

IV. Leave to Amend

[9] Dougherty briefly argues that he should have been

allowed leave to amend. As we stated in Albrecht v. Lund:

A party may amend the party’s pleading once as a

matter of course at any time before a responsive

pleading is served. . . . Nevertheless, if a complaint

DOUGHERTY v. CITY OF COVINA 10879

is dismissed for failure to state a claim upon which

relief can be granted, leave to amend may be denied,

even if prior to a responsive pleading, if amendment

of the complaint would be futile.

845 F.2d 193, 195 (9th Cir.), modified, 856 F.2d 111 (9th Cir.

1988) (internal citations and quotation marks omitted). In

Albrecht we determined that amendment would be futile,

because “Albrecht’s claim of undue influence as an alterna-

tive basis for these counts is groundless. For example,

Albrecht does not allege that Lund exercised excessive

strength or that he was a dominant subject and Albrecht was

a servient subject.” Id. at 196 n.1. Just as in Albrecht, Dou-

gherty failed to allege any facts demonstrating that his consti-

tutional deprivation was the result of a custom or practice of

the City of Covina or that the custom or practice was the

“moving force” behind his constitutional deprivation. Dou-

gherty could have identified any such fact in his briefing or

argument before us, but he did not. Thus, because we must

conclude that amendment would be futile, we affirm the dis-

trict court’s dismissal with prejudice of the Monell and super-

visory liability claims, because amendment would be futile.

Id. at 195.

V. Lawfulness of the Search and Seizure

Dougherty apparently does not appeal the district court’s

ruling on whether the search was executed lawfully. He does

not include this issue in his statement of issues and makes no

argument as to this issue in his Opening Brief. Accordingly,

it is not before us.

AFFIRMED.

BREWSTER, Judge, concurring in the judgment:

I conclude the search warrant was supported by probable

cause. United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006)

10880 DOUGHERTY v. CITY OF COVINA

(en banc). I accord more deference to the independent judg-

ment of the magistrate judge and to the experience and train-

ing of the investigating officer. Based upon Officer

Bobkiewicz’s specific training and experience in the field of

sex crimes against children, the facts presented led him to

conclude that an individual who molests children probably

possesses child pornography. I agree with the Eighth Circuit’s

analysis in United States v. Colbert, 605 F.3d 573, 578 (8th

Cir. 2010), that it is a common sense leap that an adult male,

who teaches sixth graders, engaged in this type of inappropri-

ate conduct would likely possess child pornography. Accord

United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir. 1994);

United States v. Houston, 754 F. Supp. 2d 1059, 1062-64 &

n.1 (D. S.D. 2010); see also Osborne v. Ohio, 495 U.S. 103,

111 n.7 (1990). Dougherty’s pattern of affirmative miscon-

duct with several sixth grade students is closely related to an

interest in looking at sexual images of minors. The facts sug-

gested to Officer Bobkiewicz, a highly trained and experi-

enced “Sex Crimes/Juvenile Detective,” that a potential child

predator has moved along the continuum of looking and into

the realm of touching. Dougherty’s active misconduct distin-

guishes his case from the cases involving defendants who

may have passively received unsolicited child pornography.

E.g., United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir.

2007); United States v. Weber, 923 F.3d 1338, 1345 (9th Cir.

1990). More importantly, the magistrate judge reviewed the

affidavit and signed the search warrant. The magistrate

judge’s determination “should be paid great deference.”

Gourde, 440 F.3d at 1069 (quoting Illinois v. Gates, 462 U.S.

213, 236 (1983)).

Although I disagree with the probable cause analysis, I con-

cur that the police officers are entitled to qualified immunity.

Accordingly, my position would not alter the outcome of this

case.