San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE SAN JOSE CHARTER OF THE 

HELLS ANGELS MOTORCYCLE CLUB,

an unincorporated association;

JAMES ARNETT; MARNIE ARNETT;

ROBERT BRANCATO; LESLIE

BRANCATO; RONALD COOK; VICKI

BOZZI; FILLMORE CROSS; MARGARET

CROSS; TED DEMELLO; DEBORAH

VAN TASSEL; JAMES ELRITE; MOLLY

ELRITE; LARRY GORHAM; JEFFREY

PETTIGREW; JAMES SOUZA; ROBERT

VIEIRA; LORI VIEIRA; JAMES WELCH;

GREGORY WILKINS; DENISE WILKINS,

Plaintiffs-Appellees, No. 02-16329

v.

 D.C. No.

CV-99-20022-JF

CITY OF SAN JOSE, a municipal

corporation,

Defendant,

and

DECENA, Sgt.; CARNEY, Sgt.;

MESSIER, Officer; NIEVES, Officer;

MICHAEL FERNANDEZ, Police

Officer, San Jose Police Officer;

WILLIAM MANION, Police Officer,

San Jose Police Officer; D.

NEWMAN, Police Officer, San Jose

Police Officer; KNOX, Police

Officer, San Jose Police Officer,

Defendants-Appellants.



3937

3938 SAN JOSE HELLS ANGELS v. SAN JOSE

THE SAN JOSE CHARTER OF THE 

HELLS ANGELS MOTORCYCLE CLUB,

an unincorporated association;

JAMES ARNETT; MARNIE ARNETT;

ROBERT BRANCATO; LESLIE

BRANCATO; RONALD COOK; VICKI

BOZZI; FILLMORE CROSS; MARGARET

CROSS; TED DEMELLO; DEBORAH

VAN TASSEL; JAMES ELRITE; MOLLY

ELRITE; LARRY GORHAM; JEFFREY

PETTIGREW; JAMES SOUZA; ROBERT

VIEIRA; LORI VIEIRA; JAMES WELCH;

GREGORY WILKINS; DENISE WILKINS,

Plaintiffs-Appellees,

No. 02-17132

v.

CITY OF SAN JOSE, a municipal  D.C. No.

CV-99-20022-JF

corporation; DECENA, Sgt.; CARNEY,

OPINION

Sgt.; MESSIER, Officer; NIEVES,

Officer; MICHAEL FERNANDEZ,

Police Officer, San Jose Police

Officer; WILLIAM MANION, Police

Officer, San Jose Police Officer;

D. NEWMAN, Police Officer, San

Jose Police Officer; KNOX, Police

Officer, San Jose Police Officer;

JORGE GIL-BLANCO, Officer;

CHARLES GILLINGHAM, Sheriff;

MARK TRACY, Sheriff; CITY OF

CAPITOLA; DONALD BRAUNTON; M.

LAPLANT, FBI Agent; KEITH LITTLE,

Officer;



SAN JOSE HELLS ANGELS v. SAN JOSE 3939

SAN JOSE POLICE DEPT. NET ENTRY 

TEAM; SAN JOSE POLICE DEPT.

M.E.R.G.E. UNIT #2; JAMES GREER;

RONALD LEBAUDOUR; SANTA CLARA

POLICE OFFICERS; COFFMAN,

Officer; GILROY POLICE DEPT.,

Defendants,



and

ROBERT LINDERMAN, Deputy

Sheriff, in his individual capacity,

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of California

Jeremy Fogel, District Judge, Presiding

Argued and Submitted

December 3, 2003—San Francisco, California

Filed April 4, 2005

Before: Richard A. Paez, Marsha S. Berzon, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Paez;

Partial Concurrence and Partial Dissent by Judge Bea

3942 SAN JOSE HELLS ANGELS v. SAN JOSE

COUNSEL

Ann Miller Ravel, County Counsel, Winifred Bota, Deputy

County Counsel, and Aryn Paid Harris, Deputy County Coun-

sel, Office of the County Counsel, San Jose, California, for

defendant-appellant Linderman.

Richard Doyle, City Attorney, Michael G. Groves, Senior

Deputy City Attorney, Clifford Greenberg, Senior Deputy

City Attorney, Office of the City Attorney, San Jose, Califor-

nia, for defendants-appellants Decena, Newman, Manion,

Knox, Carney, Messier, and Nieves.

SAN JOSE HELLS ANGELS v. SAN JOSE 3943

Karen L. Snell, Kate Dyer, and Marc H. Axelbaum, Clarence,

Snell & Dyer, LLP, San Francisco, California, for the

plaintiffs-appellees.

OPINION

PAEZ, Circuit Judge:

In this civil rights action under 42 U.S.C. § 1983,

Defendants-Appellants, seven San Jose City Police Officers

(“SJPOs”)1 and Deputy Sheriff Linderman, appeal from an

order of the district court denying in part their motions for

qualified immunity. This action arises out of the simultaneous

execution of search warrants at the residences of members of

the Hells Angels, and at the Hells Angels clubhouse on Janu-

ary 21, 1998. While executing one of the search warrants at

the residence of plaintiffs Lori and Robert Vieira, the officers

shot two of the Vieiras’ dogs. While searching plaintiff James

Souza’s property, the officers shot and killed one of Souza’s

dogs. During the course of the searches at all of the locations,

the officers seized literally “truckloads” of personal property

for the sole purpose of showing in a murder prosecution that

the Hells Angels had common symbols, which in turn would

qualify it as a criminal street gang and therefore support a

sentencing enhancement under California Penal Code

§ 186.22 against the defendant in that case. In seizing this “in-

dicia” evidence, the officers seized numerous expensive

Harley-Davidson motorcycles, a concrete slab, and a refriger-

ator door and in so doing, caused significant damage to the

items seized as well as to other property.

In their third amended complaint, the plaintiffs alleged that

the searches violated the Fourth Amendment. The defendants

1

The SJPOs are defendants Sergeant Decena, Sergeant Carney, Officer

Messier, Officer Nieves, Officer Manion, Officer Newman, and Officer

Knox.

3944 SAN JOSE HELLS ANGELS v. SAN JOSE

moved for summary judgment on the ground that they are

entitled to qualified immunity. The district court, applying the

two-part test established by the Supreme Court in Saucier v.

Katz, 533 U.S. 194 (2001), for determining whether a public

official is entitled to qualified immunity, denied their motions,

in part. The SJPOs and Linderman appeal the denial of their

motions for qualified immunity.

We affirm the district court’s order denying the SJPOs and

Linderman qualified immunity. We hold that Linderman’s

instruction to seize “truckloads” of personal property, includ-

ing numerous motorcycles and a piece of concrete, for the

sole purpose of proving that the Hells Angels was a gang was

an unreasonable execution of the search warrants in violation

of the Fourth Amendment. We further hold that at the time the

searches were carried out the law was sufficiently clear to put

a reasonable officer on fair notice that this conduct was

unlawful.

We also hold that the shooting of the dogs at the Vieira and

Souza residences was an unreasonable seizure, and an unrea-

sonable execution of the search warrants, in violation of the

Fourth Amendment. Exigent circumstances did not exist at

either residence, as the SJPOs had a week to consider the

options and tactics available for an encounter with the dogs.

Nonetheless, the officers failed to develop a realistic plan for

incapacitating the dogs other than shooting them. Finally, we

hold that the unlawfulness of the officers’ conduct would

have been apparent to a reasonable officer at the time the offi-

cers planned for serving the search warrants.

SAN JOSE HELLS ANGELS v. SAN JOSE 3945

I.

A. STATEMENT OF FACTS

A. Events Leading to the January 21, 1998 Search

On August 24, 1997, Kevin Sullivan was beaten to death at

the Pink Poodle nightclub in San Jose. Linderman of the

Santa Clara County Sheriff’s Office led the murder investiga-

tion. He ultimately determined that Steve Tausan, one of the

nightclub’s bouncers and a member of the San Jose Charter

of the Hells Angels Motorcycle Club (“SJHA”), committed

the crime.2 Linderman also suspected other SJHA members

and associates of concealing evidence of the murder.3

The District Attorney’s Office charged Tausan with the

murder of Kevin Sullivan. On October 6, 1997, Linderman

applied for a warrant to search the SJHA clubhouse and the

residences of various individuals alleged to be affiliated with

the Hells Angels. On the basis of Linderman’s 27-page affida-

vit and the testimony of confidential informants, Santa Clara

County Superior Court Judge John Ball issued the search war-

rants on the same day, authorizing a search of the clubhouse

and the individual residences for a security videotape depict-

ing the beating of Sullivan, financial records connecting the

Hells Angels to the Pink Poodle, and notes of a Hells Angels

meeting held five nights after the killing. Police investigative

2

According to the security guard at the Pink Poodle, Kevin Sullivan was

harassing a dancer at the nightclub and had been told that the Pink Poodle

employed Hells Angels members as bodyguards. Sullivan responded with

derogatory remarks about the Hells Angels. The owner of the nightclub

called Tausan and told him what happened. Tausan allegedly arrived ten

minutes later and beat and killed Sullivan.

3

A witness told Linderman that there was a videotape of the incident

made over the Pink Poodle security system. The witness stated that he

believed that a copy of the tape had been given to the Hells Angels.

3946 SAN JOSE HELLS ANGELS v. SAN JOSE

officers recovered meeting minutes after several exhaustive

searches, but failed to find the alleged videotape.4

In January 1998, the District Attorney’s Office sought a

second set of search warrants for nine residences and the

SJHA clubhouse. In support of the application for the second

set of warrants, Linderman submitted a 24-page affidavit,

which incorporated his October 6, 1997 affidavit. Judge Ball

issued the warrants as requested on January 20, 1998. The ten

warrants were substantially identical except for the location

and the name of the resident. The second set of warrants again

authorized the seizure of a copy of the security videotape, and

notes or records of a Hells Angels meeting held on the Friday

following the murder of Sullivan.5 Judge Ball also authorized

a search for evidence that showed indicia of Hells Angels

affiliation, including “any evidence of membership in, affilia-

tion with, activity of, or identity of, any gang, including but

not limited to, any reference to ‘Hells Angels.’ ” The purpose

of this provision in the warrants was to obtain evidence sup-

porting a street gang sentencing enhancement against Tausan

under California Penal Code § 186.22 because, allegedly, the

murder had been committed in furtherance of the criminal

conduct of the Hells Angels “gang.”

Prior to the January 1998 searches, the Sheriff’s Office had

arranged for assistance from multiple law enforcement agen-

cies, including the San Jose City Police Department. There

were two types of law-enforcement teams that assisted with

the execution of the warrants. First, “entry teams” composed

of San Jose City police officers were used to enter the prem-

4

The October 7, 1997 search is not a subject of this appeal.

5

In a ruling not at issue in this appeal, the district court ruled that the

affidavit supporting the search warrant was insufficient to establish proba-

ble cause to search for the videotape or meeting notes. The court, how-

ever, found that the warrant was supported by probable cause for the

purpose of seeking gang indicia evidence. The plaintiffs do not challenge

the probable cause determination in this interlocutory appeal.

SAN JOSE HELLS ANGELS v. SAN JOSE 3947

ises surrounding the residences and secure safe entry into the

residences. Once the location was secured, “search teams”

composed only of officers from the Sheriff’s Office were to

conduct the searches and take possession of property covered

by the warrant. Leaders of the entry teams were given approx-

imately one-week advance notice of the action in order to pre-

pare for the searches.

At 7:00 a.m. on the morning of January 21, 1998, teams of

law enforcement officers simultaneously served the search

warrants at residences of members of the Hells Angels in vari-

ous parts of Santa Clara and Santa Cruz counties. It is the

conduct of the law enforcement personnel in carrying out

these searches under the second set of warrants that gave rise

to plaintiffs’ claims.6

B. San Jose Police Officers

The role of the SJPOs was to effect entry and secure the

premises at the various locations for the search teams. The

Vieiras and Souza both had large, aggressive dogs. The

SJPOs shot and killed dogs at both residences.

1) Souza Residence

The entry operation at the Souza home was supervised by

Sergeant Decena, who learned about the search a week prior

to the operation. Officer Newman supervised the search of

Souza’s residence. He obtained Souza’s arrest record, which

revealed that Souza had been arrested for weapons and nar-

cotics charges. The team also received background informa-

tion which showed that there were two guard dogs, one which

was a Rottweiler, at the Souza residence. During surveillance

6

The district court held that the search of Jeffrey Pettigrew’s residence

did not violate a clearly established constitutional right, and therefore, the

defendants were entitled to qualified immunity with respect to that search.

The plaintiffs have not challenged that ruling on appeal.

3948 SAN JOSE HELLS ANGELS v. SAN JOSE

before the search, the SJPOs saw a sign on Souza’s side gate

stating “Warning Property Protected By Guard Dog;” the offi-

cers also learned that Souza owned a Rottweiler that was

known to attack without provocation.

The officers planned to gain entry into Souza’s house by

having a primary team go through the front door, while a sec-

ondary team entered through a side gate to secure the back-

yard and to allow for the safe search of a second smaller

building. The plan was for the officers to make both entries

simultaneously and to announce their presence with a knock

notice at the front door.

The SJPOs planned either to isolate or to shoot the dogs, so

they would not threaten the safety of the primary entry team.

The officers had no plan to use non-lethal methods of inca-

pacitation; nor did they have a specific plan for “isolating” the

dogs or any intention of giving Souza the opportunity to iso-

late his Rottweiler himself.

On the day of the search, the primary entry team entered

through the front door of the main house7 while the secondary

team unsuccessfully tried to cut the lock on the side gate with

bolt cutters. The secondary team’s failure to gain entry

through the gate caused them to enter the main house follow-

ing the first team, at which point the secondary team informed

the first team that they had failed to gain access to the back-

yard through the side gate. Although both teams were safely

inside the house, the backyard remained unsecured and the

dogs remained on the loose. We note, however, that because

Souza was not home the teams could have conducted their

search inside the house without hurriedly dealing with the

dogs in the backyard.

7

Souza was not home, so the entry team members broke down the front

door after receiving no answer to their knock.

SAN JOSE HELLS ANGELS v. SAN JOSE 3949

Nonetheless, after entering the backyard through the main

house, two of the officers proceeded to patrol the yard to look

for the Rottweiler. Because miscellaneous objects and

machinery strewn across the yard created obstacles to both

motion and sight, the officers kept their firearms (MP-5 auto-

matic rifles) drawn. Then, according to Officer Manion,

[t]he [R]ottweiler suddenly appeared around the cor-

ner, approaching from the west at a distance of about

ten to fifteen feet. It looked at me, gave a low growl,

and started advancing toward me. I feared that the

dog was going to attack me and I immediately dis-

charged my firearm pulling the trigger twice.

Officer Manion’s shots killed the Rottweiler instantly. The

SJPOs left unharmed a small white dog that was also present

but was judged to pose no threat once the Rottweiler had been

killed.

2) Vieira Residence

Sergeant Carney supervised the search operation for the

Vieira residence and was given about a week to plan the

search. Like Souza, the Vieiras had not been accused of any

crime. Officer Messier, the team leader, conducted surveil-

lance and gathered intelligence several days prior to the oper-

ation which revealed that: (1) Robert Vieira had prior

weapons-related convictions; (2) the Vieira property included

a residence and a junkyard completely encircled by a tall,

padlocked, cyclone fence, and (3) there might be dogs,

although the number and breed were unknown. Messier

assigned Officer Nieves the task of handling any dogs that

might be present. The plan for entering the property was to

cut the lock on the outer fence, approach the house, give

knock-notice, then enter and secure the house.

At the Santa Clara Sheriff’s Office briefing on the morning

of the operation, Sergeant Carney was told that the Vieira

3950 SAN JOSE HELLS ANGELS v. SAN JOSE

property, in particular, was guarded by three large dogs. Offi-

cer Nieves, who was assigned the duty of protecting the entry

team, planned to deal with the dogs in the following manner:

First, he hoped that the dogs would not appear at the gate. If

they did, he planned to poke them through the fence with his

shotgun and try to scare them. (Officer Nieves carried a shot-

gun specifically because of the possible presence of dogs.) If

that did not work, he planned to assess the situation and

engage the dogs, to ensure the safety of the entry team.

Because the SJPOs believed that they needed to secure quick

entry to preserve an element of surprise and prevent the possi-

ble destruction of evidence, they had no intention of calling

on the Vieiras to control their dogs.

When the entry team approached the Vieiras’ gate, three

large dogs resembling Bullmastiffs emerged and ran toward

the gate barking and growling. As the officers stuck their

hands through the fence to cut the lock, one of the dogs

jumped and snapped at their hands. Although the SJPOs were

armed with pepper spray, no officer attempted to use the

spray to subdue the dogs.8 Instead, Officer Nieves attempted

to scare the dogs away by yelling at them and pushing one of

the dogs back with the barrel of his shotgun. The dogs, how-

ever, would not retreat, and the persistent barking caused

Officer Nieves to fear that the surprise of the mission might

be compromised.

Officer Nieves pointed his shotgun at one of the barking

dogs and shot it. The first dog went down, but the second dog

did not retreat. Officer Nieves shot at the second dog twice,

critically wounding it, causing it and the third dog to retreat.9

Although he had already shot the first dog at point blank

8

The officers did not bring with them any of the variety of non-lethal

“pain compliance” weapons used by police forces, such as tasers or stun-

bag shotguns.

9

The second dog was later taken by an Animal Control Officer and

euthanized due to extensive injury.

SAN JOSE HELLS ANGELS v. SAN JOSE 3951

range, Officer Nieves testified that the dog “was apparently

trying to get back up . . . [a]nd in an effort to ensure that he

wasn’t going to attack or be a problem for the team,” Officer

Nieves fired a fourth shot at the dog’s head, killing it. The

SJPOs left unharmed the third dog, which retreated to a hid-

ing place away from the officers, and the fourth dog, which

was chained in the backyard.

Meanwhile, the noise outside awoke Robert Vieira. He

emerged from the house at the second floor balcony just as

the officers gained entry through the gate. The police

instructed him to remain where he was with his hands up. An

officer broke through the front door using a ram. When the

SJPOs reached Robert Vieira, they located a firearm propped

up against the bedroom window.

C. Linderman’s Seizure of “All” Indicia of Membership In

the Hells Angels

The January search warrants included a provision for the

seizure of property with indicia of Hells Angels affiliation, to

assist the prosecution in obtaining evidence to support a gang

sentencing enhancement against Tausan under Penal Code

§ 186.22. To this end, the search warrants authorized seizure

of:

Any evidence of membership in affiliation with,

activity of, or identity of, any gang, including but not

limited to, any reference to “Hells Angels,” “HA”,

“Red & White”, “81”, “Big Red Machine”,

“HAMC”, including, but not limited to, “West Coast

OM notes”, “East Coast OM notes”, “BHC newslet-

ter”, including, but not limited to, drawings, paint-

ings, photographs, photograph albums, videotapes,

writings, furniture, furnishings, fixtures, and objects

known, or which may appear by content, to depict or

contain mention of membership in, affiliation with,

activity of, or identity of, any gang, including, but

3952 SAN JOSE HELLS ANGELS v. SAN JOSE

not limited to, the following: names, initials, and

monikers of known, or which may appear by con-

tent, to be gang members or affiliates; acronyms,

logos, slogans, symbols, signs, and expressions

known, or which may appear by content, to identify

a gang or any of its members or affiliates; and identi-

fying numbers, colors, and expressions of a geo-

graphic region with which a gang is known, or which

may appear by content, to associate. . . .

On the day of the January 1998 search, separate search

teams from the Santa Clara Sheriff’s Office conducted the

searches and seizures once the various premises were secured.

Although Linderman did not personally participate in the exe-

cution of all of the warrants, he coordinated the efforts of the

law enforcement agencies, made the initial risk assessment

with respect to each location, and answered questions called

in by officers at the search sites.

The search teams at the Hells Angels’ residences found that

there were numerous items that bore indicia of Hells Angels

affiliation. Fearing that they might take too many items, sev-

eral officers called Linderman to clarify what items should be

seized. Linderman instructed them to take everything that

constituted “indicia” of Hells Angels affiliation as defined in

the warrant, including belts, jewelry, plaques, t-shirts, hats,

watches, vests, calendars, clocks, sculptures, photographs, and

correspondence. The officers conducting the searches also

took larger articles such as motorcycles, a mailbox, a refriger-

ator door with decals, and a cement portion of the driveway

in front of the clubhouse containing the signatures of Hells

Angels members. At the end of the searches, the teams carted

away “literally truckloads of Hells Angels indicia” and had to

rent special offsite storage to accommodate the large amount

of evidence.

SAN JOSE HELLS ANGELS v. SAN JOSE 3953

II.

STANDARD OF REVIEW

We review de novo a district court’s decision regarding

qualified immunity. Elder v. Holoway, 510 U.S. 510, 516

(1994). The evidence must be viewed in the light most favor-

able to the non-movant. Oliver v. Keller, 289 F.3d 623, 626

(9th Cir. 2002). “To the extent that the defendants’ arguments

quibble with the district court’s view of the facts, we do not

consider them. We view the evidence in the light most favor-

able to the plaintiffs.” Ganwich v. Knapp, 319 F.3d 1115,

1119 n.5 (9th Cir. 2003).

Qualified immunity serves to shield government officials

“from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has

set forth a two-pronged inquiry to resolve all qualified immu-

nity claims. First, “taken in the light most favorable to the

party asserting the injury, do the facts alleged show the offi-

cers’ conduct violated a constitutional right?” Saucier, 533

U.S. at 201. Second, if so, was that right clearly established?

Id. “The relevant, dispositive inquiry in determining whether

a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situa-

tion he confronted.” Id. at 202. This inquiry is wholly objec-

tive and is undertaken in light of the specific factual

circumstances of the case. Id. at 201; see also Sorrels v.

McKee, 290 F.3d 965, 970 (9th Cir. 2002).

III.

DISCUSSION

A. Search for All Indicia of Hells Angels Affiliation

We affirm the district court’s denial of qualified immunity

to Deputy Sheriff Linderman.

3954 SAN JOSE HELLS ANGELS v. SAN JOSE

The plaintiffs allege that Linderman’s instruction to seize

every item with indicia of Hells Angels affiliation, including

customized Harley-Davidson motorcycles and a refrigerator

door, was an unreasonable execution of the search warrants in

violation of their Fourth Amendment rights. They further

argue that the manner in which the warrants were executed

under Linderman’s instructions was unreasonable because the

officers caused unnecessary destruction of property, including

jack-hammering the sidewalk in front of the Hells Angels

clubhouse to remove a piece of concrete with the Hells

Angels’ names. The plaintiffs argue this conduct violated

their Fourth Amendment right to be free of “unnecessarily

destructive behavior, beyond that necessary to execute a war-

rant effectively.” Liston v. County of Riverside, 120 F.3d 965,

979 (9th Cir. 1997).

[1] The test of what is necessary to “execute a warrant

effectively” is reasonableness. “An officer’s conduct in exe-

cuting a search is subject to the Fourth Amendment’s mandate

of reasonableness from the moment of the officer’s entry until

the moment of departure.” Lawmaster v. Ward, 125 F.3d

1341, 1349 (10th Cir. 1997). “When officers obtain a warrant

to search an individual’s home, they also receive certain lim-

ited rights to occupy and control the property; however, the

Fourth Amendment binds the officers such that the right to

search a home concomitantly obliges the officers to do so in

a reasonable manner.” Id. at 1350.

In examining whether Linderman caused the officers to

execute the warrants unreasonably, “it is proper to consider

both the purpose disclosed in the application for a warrant’s

issuance and the manner of its execution.” United States v.

Rettig, 589 F.2d 418, 423 (9th Cir. 1978). This is because

“[t]he standard of reasonableness embodied in the Fourth

Amendment demands that the showing of justification match

the degree of intrusion.” Berger v. New York, 388 U.S. 41, 70

(1967) (Stewart, J., concurring). Here, the January 1998

search warrants authorized a search of the Hells Angels’ resi-

SAN JOSE HELLS ANGELS v. SAN JOSE 3955

dences for (1) a videotape of scenes from the Pink Poodle on

August 24, 1997; (2) indicia of Hells Angels affiliation or

membership; and (3) notes or records of meetings at the Hells

Angels clubhouse. Although the officers did not find the vid-

eotape or meeting notes, the officers seized numerous items

of Hells Angels indicia. It is the manner in which the officers

carried out this latter objective that, in part, led to the plain-

tiffs’ civil rights action. Viewing the facts in the light most

favorable to the plaintiffs, we conclude that the authority to

seize indicia evidence to support a sentencing enhancement

against Tausan did not justify the level of intrusion and exces-

sive property damage that occurred during the search of the

various locations.

[2] The search for indicia of Hells Angels affiliation served

a limited purpose. The property here in dispute was not evi-

dence of a crime; rather, the justification for seizing the indi-

cia evidence was to support a sentencing enhancement against

Tausan. As Linderman explained at his deposition, the indicia

evidence was “evidence towards the gang enhancement.

That’s what it was being seized for.” In the Tausan murder

trial, the prosecution sought to prove the applicability of a

three-year sentencing enhancement by showing that Tausan

was a member of an “ongoing organization, association, or

group of three or more persons . . . having a common sign or

symbol.” Cal. Penal Code § 186.22. The prosecution sought

this evidence from the plaintiffs, who were neither co-

defendants with Tausan in the murder trial nor charged with

any crime. To prove the sentencing enhancement, the officers

seized “literally truckloads” of evidence. The officers seized

belts, jewelry, plaques, t-shirts, hats, watches, vests, calen-

dars, clocks, sculptures, photographs, and correspondence.

They seized the plaintiffs’ Harley-Davidson motorcycles,

most worth over $20,000, because they contained indicia of

Hells Angels affiliation. The officers jack-hammered and

removed a piece of the sidewalk in front of the Hells Angels

clubhouse because some of the members’ names were written

on it. The officers also removed the door to the (working)

3956 SAN JOSE HELLS ANGELS v. SAN JOSE

clubhouse refrigerator because it had a Hells Angels decal on

it. The clubhouse mailbox and clubhouse street sign that read

“Angels Place” were also seized.

[3] As the Eighth Circuit noted in reviewing a similar war-

rant for indicia evidence (also served on the Hells Angels),

such evidence diminishes in evidentiary value the more evi-

dence is seized:

The indicia warrants, like many warrants, authorized

the search of nearly every corner of the residence.

Unlike most warrants, these warrants were issued to

obtain evidence on just one fact—membership in the

Hells Angels. Unlike most warrants, the evidence on

this issue would be needlessly cumulative once

enough evidence was obtained to establish member-

ship. While additional evidence would usually show

the breadth of criminal activity, in the instant case

additional evidence would at some point have no

additional probative value in determining member-

ship.

United States v. Apker, 705 F.2d 293, 302 (8th Cir.), modified

on other grounds, United States v. Fitzgerald, 724 F.2d 633

(8th Cir. 1983) (en banc). Despite the “truckloads” of evi-

dence seized during the searches, the prosecution only pre-

sented a few seized photographs at Tausan’s trial. The motor-

cycles, concrete slab, and refrigerator door were not offered

to support the gang enhancement at Tausan’s trial.

Although the seizure of the indicia evidence was for the

limited purpose of establishing a sentencing enhancement

against Tausan, Linderman nonetheless instructed every offi-

cer who called him to seize anything with Hells Angels indicia.10

10

When Deputy Sergeant Denis called about the motorcycles at the Pet-

tigrew residence, Linderman instructed Sergeant Denis to seize them. He

gave the same answer to Deputy Bacon when he called about a motorcycle

SAN JOSE HELLS ANGELS v. SAN JOSE 3957

In so doing Linderman asserts that he was simply complying

with the terms of the search warrants and that the officers exe-

cuted the warrants in a lawful manner. Testimony of other

officers involved in the searches, however, shows that at least

some questioned whether this extensive seizure was neces-

sary. Officer Faler testified that he was “surprised” when

Linderman told him to seize everything because “[i]t just

seemed like there were so many items in there that had Hells

Angels or—as described on the search warrant, that it just

seemed like we had more than enough.” Officer Tomlinson

testified that “there’s an implied reasonable there” and it

“never occurred to me to take the motorcycle” even though it

had a Hells Angels decal on it.

[4] Linderman’s primary defense is that the warrants speci-

fied the quantity and kind of evidence to be seized, and that

he had no power to deviate from the explicit specifications.

Linderman’s argument depends on reading the word “any” in

the search warrant as equivalent to “all”—and the concomi-

tant assumption that he not only had the power to seize “all”

indicia evidence, but could not lawfully exercise his discre-

tion to seize anything less. This argument is unpersuasive.

First, the word “any” in the search warrants did not mean

“all.” The relevant text of each search warrant itself draws a

distinction between “any” and “all.” While the search war-

rants authorized the search for “any” indicia evidence, at

another point the search warrants authorized the search for

“any and all yards, garages . . . for the following property.”

(emphasis added). Plaintiffs also point to the first definition

at the residence of Fillmore Cross and to Deputy Greer when he called

about a motorcycle at the residence of James and Marnie Arnett. When

Deputy Pennington called Linderman about the piece of concrete with the

names of Hells Angels members to ask “did he want me to go through the

trouble to have somebody come down with a cement saw,” Linderman

said to remove the piece of concrete. Linderman personally made the deci-

sion to seize the motorcycle at Ted DeMello’s address when he was pres-

ent at the search, and signed the inventory sheet.

3958 SAN JOSE HELLS ANGELS v. SAN JOSE

of “any” in Webster’s Collegiate Dictionary: “one or some

indiscriminately of whatever kind, . . . one or another taken

at random <ask any man you meet>.” As the district court

noted in denying Linderman’s Motion for Reconsideration, “a

directive that the search teams seize only a sampling of gang

indicia from each location would have complied with the lit-

eral terms of the search warrant and would not have required

Linderman to substitute his own discretion for the terms of the

warrant itself.”

[5] Second, even assuming Linderman’s construction of

“any” as “all,” while the search warrant gave Linderman the

power to instruct the officers to seize items with Hells Angels

indicia, it did not mandate that he order them to seize every-

thing complying with the literal terms of the warrant. The pur-

pose of having a particularized, as opposed to general,

warrant is to “ ‘assure[ ] the individual whose property is

searched or seized of the lawful authority of the executing

officer, his need to search, and the limits of his power to

search.’ ” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quot-

ing United States v. Chadwick, 433 U.S. 1, 9 (1977)). In other

words, a search warrant gives an officer the “power” to seize

the items specified in the warrant. While an officer generally

does not have the power to seize anything not specified in the

warrant, he retains discretion over the execution of the search

and, as is implicit in the word “power,” can exercise discre-

tion to leave items that may arguably come within the literal

terms of the search warrant.11

11

Linderman nonetheless asserts that he had no discretion. For support,

he cites Marron v. United States, which stated that “[a]s to what is to be

taken, nothing is left to the discretion of the officer executing the warrant.”

275 U.S. 192, 196 (1927). Linderman, however, misunderstands Marron.

Marron stands for the proposition that an officer has no discretion to seize

items not listed on a warrant meeting the Fourth Amendment’s particular-

ity requirement. As the search warrant delineates the officer’s power to

search, the officer has no “discretion” to exceed that power. An officer,

however, does retain discretion as to how to reasonably execute a search.

“It is difficult to imagine that a case could arise where an officer executing

SAN JOSE HELLS ANGELS v. SAN JOSE 3959

Moreover, the record indicates that other officers under-

stood that they had discretion not to seize some items with

Hells Angels indicia. Lori Vieira’s journal, introduced as an

exhibit at her deposition, recounts a conversation during the

search with Officer Garcia who supposedly said he was going

to seize her “blue bus” because it had a Hells Angels sticker

on it, but “decided not to.” Linderman’s position, however, is

that the warrant required seizure of the bus because it had a

Hells Angels decal. Similar to that position is a hypothetical

raised in the district court hearing on May 28, 2002: If a Hells

Angels member lived in a mansion made of stone with col-

umns all around it and decided to write his initials on every

column, would that give law enforcement officers the power

to tear out a column as evidence that he lived there if the war-

rant authorized the seizure of any evidence proving that he

did? The answer is clearly no.

[6] The unreasonable nature of Linderman’s instructions to

seize all evidence of indicia is highlighted by the destruction

of property caused by the seizures. In executing the warrants,

the officers cut the mailbox off its post, jack-hammered the

sidewalk outside the clubhouse, and broke the SJHA’s refrig-

erator. This “unnecessarily destructive behavior, beyond that

necessary to execute [the] warrant[s] effectively, violates the

Fourth Amendment.” Liston, 120 F.3d at 979.

[7] We also hold that at the time Linderman directed the

officers to seize “truckloads” of Hells Angels indicia in sup-

port of a sentencing enhancement, even if it meant removing

a refrigerator door, “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202. At the time the warrants were

a valid search warrant would not at some stage in the matter be required

in the very nature of things to exercise his judgment as to what thing or

things or person or persons were to be seized under the warrant.” Strauss

v. Stynchcombe, 165 S.E.2d 302, 307 (Ga. 1968).

3960 SAN JOSE HELLS ANGELS v. SAN JOSE

served, a reasonable officer would have been aware that an

unreasonable execution of a search warrant violated the

Fourth Amendment. See Liston, 120 F.3d at 979; see also

Lawmaster, 125 F.3d at 1349. Linderman knew that the

search for indicia evidence was for the limited purpose of

establishing that the Hells Angels was a gang. Despite this

limited purpose, he instructed officers to seize numerous

expensive motorcycles, a piece of concrete, and a refrigerator

door. None of these items, not even photographs of these

items, were presented at Tausan’s trial.

[8] Linderman argues that he nonetheless is entitled to

qualified immunity because there is no clearly established law

in this case-specific context. Linderman is not entitled to qual-

ified immunity “simply because there [is] no case on all fours

prohibiting [this] particular manifestation of unconstitutional

conduct.” Headwaters Forest Def. v. County of Humboldt,

276 F.3d 1125, 1131 (9th Cir.), cert. denied, County of Hum-

boldt v. Burton, 537 U.S. 1000 (2002) (quoting Deorle v.

Rutherford, 272 F.3d 1272, 1274-75 (9th Cir. 2001)). There

need not be prior authority dealing with this precise factual

situation in order to deny Linderman qualified immunity for

his actions. See, e.g., Hope v. Pelzer, 536 U.S. 730, 739

(2002); Sorrels, 290 F.3d at 970. Rather, the state of the law

at the time the warrants were served must have provided

Linderman with “fair warning” that his conduct was unconsti-

tutional. See Hope, 536 U.S. at 741. We conclude that it did

and that the unlawfulness of Linderman’s conduct would be

apparent to a reasonable officer.12 Accordingly, we affirm the

district court’s denial of qualified immunity in this instance.

B. Shooting of the Dogs

We also affirm the denial of qualified immunity to the

12

Indeed, several officers executing the search questioned whether the

extensive seizure was necessary, indicating their understanding that the

warrant did not require seizure of all material coming within its terms.

SAN JOSE HELLS ANGELS v. SAN JOSE 3961

SJPOs involved in the shooting of the dogs at the Souza and

Vieira residences.

[9] “[T]he destruction of property by state officials poses as

much of a threat, if not more, to people’s right to be ‘secure

. . . in their effects’ as does the physical taking of them.” Ful-

ler v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on

other grounds, Robinson v. Solano County, 278 F.3d 1007,

1013 (9th Cir. 2002) (citation omitted). “The killing of [a] dog

is a destruction recognized as a seizure under the Fourth

Amendment” and can constitute a cognizable claim under

§ 1983. Id.

[10] Reasonableness is the touchstone of any seizure under

the Fourth Amendment. Thus, to comply with the Fourth

Amendment, the seizure—in this case, shooting and death—

of the Vieiras’ and Souza’s dogs must have been reasonable

under the circumstances. We look to the totality of the cir-

cumstances to determine whether the destruction of property

was reasonably necessary to effectuate the performance of the

law enforcement officer’s duties. See Deorle, 272 F.3d at

1279. “A seizure becomes unlawful when it is ‘more intrusive

than necessary.’ ” Ganwich, 319 F.3d at 1122 (quoting Flor-

ida v. Royer, 460 U.S. 491, 504 (1983)). To determine

whether the shooting of the dogs was reasonable, we balance

“the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing gov-

ernmental interests at stake.” Graham v. Connor, 490 U.S.

386, 396 (1989) (citation and internal quotation marks omit-

ted).

[11] Here, the intrusion was severe. The officers shot and

killed one of Souza’s dogs, and two of the Vieiras’ dogs. We

have recognized that dogs are more than just a personal effect.

See Miller v. Clark County, 340 F.3d 959, 968 n.13 (9th Cir.

2003). The emotional attachment to a family’s dog is not

comparable to a possessory interest in furniture. As noted in

Lori Vieira’s journal, the effect of her being handcuffed just

3962 SAN JOSE HELLS ANGELS v. SAN JOSE

yards from where her dog Sam lay dead and bleeding was

extremely traumatic.13

[12] Viewing the facts in the light most favorable to the

Vieras and Souza, the seizures were unreasonable, in violation

of the Fourth Amendment. Most important, both entry teams

had a week to plan the execution of the entry. At the Souza

residence, despite advance knowledge of the presence of two

guard dogs, the full extent of the plan to protect the entry

team from the dogs was to either “isolate” or shoot the dogs.

The officers had no specific plan for isolating the dogs. At the

Vieira residence, Officer Nieves was in charge of handling the

dogs. According to Officer Messier’s declaration, “Officer

Nieves was assigned to deal with dogs if there were any,

which is why he had a shotgun and was first in the stacking

order. However, I did not give Officer Nieves any specific

instructions as to how to deal with any dogs.” (emphasis

added). Officer Nieves’s “little plan” consisted of first hoping

that the dogs would not appear at the gate. If they did, he

planned to poke them through the fence with his shotgun to

try and scare them. If that did not work, he planned to “engage”14

the dogs to ensure the safety of the entry team. In short, as the

district court concluded, despite a week to plan for the entry,

the officers developed no realistic plan other than shooting the

dogs while serving the search warrants.

Nonetheless, the officers identify three governmental inter-

ests to justify the intrusion: (1) the law enforcement interests

in accomplishing the goals of the search warrant, i.e., seeking

evidence of a murder; (2) the need for stealth and speed, cou-

13

At Lori Viera’s deposition, she testified that she wrote in her journal,

“I had to stand again not far from by [sic] poor dog (Sam). By now blood

had drained from him and was running down the driveway. (I am crying

now because I can see him, laying there, and all that blood. All that blood,

for what.)”

14

At Nieves’ deposition, he conceded that when he said he “engaged”

the dogs, he meant that he aimed his shotgun and shot at the dogs.

SAN JOSE HELLS ANGELS v. SAN JOSE 3963

pled with the fact that the searches were simultaneous (in

order to avoid one subject informing others); and (3) the

safety of the officers.

Although the search warrants were obtained in connection

with a murder investigation, none of the plaintiffs were poten-

tial suspects. The defendants were seeking a videotape and

meeting minutes as evidence of the murder at the Pink Poo-

dle. As the district court concluded, however, there was insuf-

ficient probable cause to believe that either the videotape or

the meeting minutes would be found at the residences. The

district court ruled that the warrants were supported by proba-

ble cause only with respect to the search for evidence with

indicia of Hells Angels affiliation.15

[13] The SJPOs’ contention that shooting the dogs was nec-

essary to preserve stealth is equally unpersuasive. It was the

officers’ own method of entry that compromised their ability

to effectuate a quiet entry. At the Souza residence, the SJPOs

used a ram to break down the front door before they even

dealt with the dogs; at the Vieira residence, the residents were

awakened not by the barking of their dogs, but rather by the

four shotgun blasts discharged at the dogs. If Officer Nieves

truly feared that continued barking would “alert the residents

and possibly jeopardize the mission,” it was an unreasonable

response—indeed, an utterly irrational one—to fire four shot-

gun blasts to “engage” the dogs. All of the above consider-

ations support the conclusion that the officers violated the

plaintiffs’ Fourth Amendment rights by unnecessarily shoot-

ing the dogs.

While the governmental interest of safety might have pro-

vided a sound justification for the intrusion had the officers

been surprised by the presence of the dogs, the same reason-

15

Again we do not review the determination that there was probable

cause to search for indicia lacking any connection to the defendant, as the

issue is not before us.

3964 SAN JOSE HELLS ANGELS v. SAN JOSE

ing is less convincing given the undisputed fact that the offi-

cers knew about the dogs a week before they served the

search warrants. The officers had substantial time to develop

strategies for immobilizing the dogs. They knew or should

reasonably have known that the Fourth Amendment requires

officers to avoid intruding more than is necessary to enforce

a search warrant. See Ganwich, 319 F.3d at 1122. As the dis-

trict court explained, the officers “created an entry plan

designed to bring them into proximity of the dogs without

providing themselves with any non-lethal means for control-

ling the dogs. The officers, in effect, left themselves without

any option but to kill the dogs in the event they—quite

predictably—attempted to guard the home from invasion.”

Having determined that the officers violated the plaintiffs’

Fourth Amendment rights for purposes of the first step in the

qualified immunity analysis, the second step asks whether the

constitutional right was clearly established. As the Supreme

Court has cautioned, it is not enough that there is a generally

established proposition that excessive use of force is unlaw-

ful. Saucier, 533 U.S. at 202. “[T]he right that the official is

alleged to have violated must have been ‘clearly established’

in a more particularized, and hence more relevant, sense: The

contours of the right must be sufficiently clear that a reason-

able official would understand that what he is doing violates

that right.” Id.

However, “it is not necessary that the alleged acts have

been previously held unconstitutional, as long as the unlaw-

fulness [of defendant’s actions] was apparent in light of pre-

existing law.” Sorrels, 290 F.3d at 970 (citation omitted)

(alteration in original). “In other words, while there may be no

published cases holding similar policies unconstitutional, this

may be due more to the obviousness of the illegality than the

novelty of the legal issue.” Id. In Hope, the Supreme Court

recognized that previous cases do not have to be “fundamen-

tally similar” and that officials can still be on notice even in

novel factual circumstances. 536 U.S. at 741. Both parties

SAN JOSE HELLS ANGELS v. SAN JOSE 3965

concede that the ultimate question is whether the state of the

law at the time was clear enough to provide reasonable offi-

cers with sufficient notice that their conduct was unlawful.

[14] Prior to the events at issue in this case, we had held

that unnecessary destruction of property in the course of exe-

cuting a warrant is unconstitutional. Liston, 120 F.3d at 979.

We also had held that the killing of a person’s dog constitutes

an unconstitutional destruction of property absent a suffi-

ciently compelling public interest. See Fuller, 36 F.3d at 68;

see also Brown v. Muhlenberg Twp., 269 F.3d 205, 211-12

(3d Cir. 2001); Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir.

1994). We also had recognized that in assessing reasonable-

ness under the Fourth Amendment an appropriate factor is

whether the officer considered alternatives before undertaking

intrusive activity implicating constitutional concerns. See

Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994); see

also Gutierrez v. City of San Antonio, 139 F.3d 441, 450 (5th

Cir. 1998).16 These cases should have alerted any reasonable

officer that the Fourth Amendment forbids the killing of a

person’s dog, or the destruction of a person’s property, when

that destruction is unnecessary—i.e., when less intrusive, or

less destructive, alternatives exist. A reasonable officer

should have known that to create a plan to enter the perimeter

of a person’s property, knowing all the while about the pres-

ence of dogs on the property, without considering a method

for subduing the dogs besides killing them, would violate the

Fourth Amendment.

It is no doubt true, as the Third Circuit’s Brown case

hypothesized, that there are potential cases in which the

state’s interest may be sufficiently compelling to “justify the

extreme intrusion occasioned by the destruction of the pet.”

16

After the events in this case, we also applied this principle in Headwa-

ters Forest Defense, 276 F.3d at 1131 (holding that the use of pepper

spray was not justified when protesters could have been removed in

another less intrusive manner).

3966 SAN JOSE HELLS ANGELS v. SAN JOSE

Brown, 269 F.3d at 210-11. However, Brown discussed cases

where dangerous animals, e.g., lions, were roaming free

endangering the public, not situations where officers inten-

tionally entered into the enclosed perimeter of the property

where lawfully held dogs were present to protect the property

from unlawful intruders.

[15] Finally, this case is not the kind where the officer was

reacting to a sudden unexpected situation, where the officers

were confronted with exigent circumstances. The Fourth

Amendment allows officers to use a certain amount of force

because they are “often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving. . . .” Graham, 490 U.S. at 397. In this case,

however, the SJPOs were given a week to plan the entry.

Other than the officers’ interest in preserving evidence, the

officers were not presented with exigent circumstances that

necessitated killing the dogs. Accordingly, the failure to

develop any realistic non-lethal plan for dealing with the dogs

is simply not the type of reasonable mistake in judgment to

which a court should give deference in determining whether

the officers are entitled to qualified immunity.17

[16] In sum, in these circumstances, a reasonable officer

would have known that the killing of the dogs at the Souza

and Viera residences was unlawful. Thus, we affirm the dis-

trict court’s denial of the SJPOs’ motion for qualified immu-

nity.

AFFIRMED.

17

The police officers’ opportunity to plan ahead distinguishes this case

from the recent Supreme Court decision, Brousseau v. Haugen, 125 S. Ct.

596 (2004) (holding that there was qualified immunity for police officers

who were considering “whether to shoot a disturbed felon, set on avoiding

capture through vehicular flight, when persons in the immediate area are

at risk from that flight”). In this case, there was no element of surprise col-

oring the officers’ judgment.

SAN JOSE HELLS ANGELS v. SAN JOSE 3967

BEA, Circuit Judge, concurring in part and dissenting in part:

I agree with almost all of the majority opinion. For the offi-

cers here to have conducted these searches without any plan

by which to control the dogs other than to shoot them is outra-

geous, especially given that they knew about the dogs well in

advance. Clearly, a reasonable officer would have understood

that his actions violated an established right of the plaintiffs.

I must dissent, however, from part III.A of the majority’s

opinion. I would reverse the district court’s order denying

Deputy Sheriff Linderman qualified immunity.

Judge Ball issued several search warrants on January 20,

1998. The issue here is whether the evidence, taken in the

light most favorable to the plaintiffs, establishes that Officer

Linderman’s instructions to seize “all” evidence covered by

the search warrant violated an established constitutional right

of the plaintiffs, and whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation Linder-

man confronted. See Saucier v. Katz, 533 U.S. 194, 201

(2001); Lee v. Gregory, 363 F.3d 931, 934-36 (9th Cir. 2004).

Here, the precise language of the warrants is important. The

warrants commanded (not authorized) the officers to seize a

very broad range of evidence in search of several crimes:

YOU ARE THEREFORE COMMANDED, in the

daytime, to make search of premises . . . for the fol-

lowing property:

1) A video tape or copy thereof depicting

scenes and images from the Pink Poodle

night club on or about August 24, 1997 in

all of the described premises;

2) Any evidence of membership in, affilia-

tion with, activity of, or identity of, any

gang, including but not limited to, any ref-

3968 SAN JOSE HELLS ANGELS v. SAN JOSE

erence to “Hells Angels,” “HA”, “Red &

White,” “81”, “Big Red Machine”,

“HAMC”, including, but not limited to,

“West Coast OM notes,” “East Coast OM

notes”, “BHC newsletter”, including, but

not limited to drawings, paintings, photo-

graphs, photograph albums, videotapes,

writings, furniture, furnishings, fixtures,

and objects known, or which may appear by

content, to depict or contain mention of

membership in, affiliation with, activity of,

or identity of, any gang, including, but not

limited to, the following: names, initials,

and monikers of known, or which may

appear by signs, and expressions known, or

which may appear by content, to identify a

gang or any of its members or affiliates;

and identifying numbers, colors, and

expressions of a geographic region with

which a gang is known, or which may

appear by content, to associate;

3) Notes or records of the Hells Angel

meeting at the Hells Angel Clubhouse, . . .

on Friday, August 29, 1997 and July

through November 1996;

And if you find the same or any part thereof, to

hold such property in your possession under Califor-

nia Penal Code Section 1536, or to release the prop-

erty to the appropriate agency for state or federal

forfeiture proceedings.

The district court denied Linderman’s motion for summary

judgment based on qualified immunity, reasoning that

because the word “any” could be read to mean “one, some or

all,” Linderman had a duty to take only a representative sam-

SAN JOSE HELLS ANGELS v. SAN JOSE 3969

pling. The word “any” can mean “all” just as easily as it can

mean “some.” Webster’s defines the word “any” as:

1: one or some indiscriminately of whatever kind: a:

one or another taken at random <ask any man you

meet> b: EVERY — used to indicate one selected

without restriction <any child would know that>;

2: one, some, or all indiscriminately of whatever

quantity: a: one or more — used to indicate an unde-

termined number or amount <have you any money>

b: ALL — used to indicate a maximum or whole

<needs any help he can get> c: a or some without

reference to quantity or extent <grateful for any

favor at all>;

3a: unmeasured or unlimited in amount, number,

or extent <any quantity you desire> b: appreciably

large or extended <could not endure it any length of

time>.

WEBSTER’S NEW WORLD COLLEGE DICTIONARY (4th ed. 2002)

(bold emphasis added). Given that Linderman was com-

manded to seize any evidence meeting the broad description

in the warrant, he was not unreasonable in construing the war-

rant literally, and certainly it is not clear that a reasonable

officer would have known that Linderman’s conduct was

unlawful in the situation he confronted. The officers were

searching for evidence of a murder, possibly gang related.

This was not a traffic offense they were investigating.1 There

1

The majority opinion minimizes the importance of the searches by stat-

ing: “The property here in dispute was not evidence of a crime; rather, the

justification for seizing the indicia evidence was to support a sentencing

enhancement against Steve Tausan.” Majority Op. at 3955. The majority

opinion is mistaken. The warrants read that the police were to look for

“evidence of the commission of felonies, to wit: violations of (California

Penal Code Section 187 (murder), Penal Code Section 211 (robbery), and

(evidence of active participation in the felonious conduct of a criminal

street gang as defined in Penal Code § 186.22.” (capitalization altered).

3970 SAN JOSE HELLS ANGELS v. SAN JOSE

was also a strong suspicion that other members of the Hells

Angels might have been involved in covering up evidence of

the crime.

Plaintiffs do not claim that Linderman told the other offi-

cers to seize property that fell outside the scope of the war-

rant. The refrigerator door, the mailbox, the motorcycles, and

especially the portion of the sidewalk in front of the club-

house in which members of the Hells Angels had written their

names in the concrete while it was still wet, all contained indi-

cia of the club’s existence and the composition of its member-

ship, essential evidence to prove the gang enhancement under

California Penal Code section 186.22. Neither is there any

evidence that Linderman knew exactly which gang indicia

would establish that Tausan was a member of the Hells

Angels gang, and had committed the murder pursuant to gang

activities. Tausan could well have had a nickname or used a

symbol to identify himself.

The district court found that because a representative sam-

pling of gang indicia evidence would have sufficed to prove

the existence of the Hells Angels, Linderman’s instructions to

seize “all” of the evidence were unreasonable. The district

court, and the majority opinion, rule that Linderman was

required to exercise discretion in deciding how much evi-

dence was enough. The law does not impose such a burden on

police officers.

In support of the proposition that police officers have a

duty to seize only a sampling of indicia evidence, the majority

opinion cites Liston v. County of Riverside, 120 F.3d 965, 979

(9th Cir. 1997) and United States v. Apker, 705 F.2d 293, 302

(8th Cir.), abrogated on other grounds, United States v. Fitz-

gerald, 724 F.2d 633 (8th Cir. 1983). Both cases are inappo-

site here.

In Liston, the police were sued for destruction of property

and unreasonably detaining the homeowners when they exe-

SAN JOSE HELLS ANGELS v. SAN JOSE 3971

cuted a search warrant for a previous owner, James Rocky

Hill, upon the new owners of a home, the Listons. The district

court denied the officers’ motion for summary judgment

based on qualified immunity. This court affirmed in relevant

part, holding there were material issues of fact for a jury as

to whether it would be clear to a reasonable officer that the

conduct of the officers who conducted the search for Hill’s

effects was unlawful, when the search was effected on the

Listons, not Hill, the suspect named in the warrant.

The evidence produced by plaintiffs included evidence that

the police had broken through their front door with a battering

ram, thrown Mr. Liston to the floor injuring him, pointed a

gun at Mr. Liston’s face even though he was not resisting the

police, and held the entire family for several minutes while

the police went through the house “trashing” it. Id. 970-71.

The Listons offered undisputed claims that the officers

destroyed the front door, broke down the fences surrounding

the backyard, dug holes in the backyard and left garbage and

the Liston’s personal property throughout the house. Id. 972.

The Listons also produced evidence that the police did all

this after the Listons informed the police that they had just

purchased the house from Hill, the subject of the warrant; the

police saw a “For Sale” sign in the yard which said the house

had “Sold”; and, the police found the escrow papers for the

sale from Hill to the Listons and Mr. Liston’s driver’s license.

Id. Mrs. Liston testified that the police knew they were in the

wrong house and were making jokes about it shortly after they

entered the house. Id. at 972. In light of the evidence that the

police were acting outside the scope of the warrant, this court

held that such evidence raised a fact question as to whether

it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted and precluded sum-

mary judgment based on qualified immunity. Id.

As the court recognized in Liston, it was not clear the

destruction of property by itself violated a constitutional right.

3972 SAN JOSE HELLS ANGELS v. SAN JOSE

“[O]fficers executing a search warrant occasionally ‘must

damage property in order to perform their duty.’ ” Id. 979

(quoting Dalia v. United States, 441 U.S. 238, 258 (1979)).

“Until the officers learned that they were in the wrong house,

the officers could have reasonably believed, under these pre-

cedents, that the way they conducted the search was lawful.

As a result, they would be entitled to qualified immunity. But

once they knew the house belonged to the Listons, their

search was no longer justified.” Id.2

There is no claim that Linderman executed the search war-

rants at the wrong location or upon the wrong people, nor that

the officers destroyed any property that did not fall within the

scope of the warrant.

Apker also involved a question different from the one pre-

sented here. Apker, did not hold that officers have a duty to

take only a representative sample of evidence described in an

indicia warrant. In Apker, the appellants challenged the indi-

cia warrants as violating the requirement under the Fourth

Amendment that the things to be seized be described with par-

ticularity. The court in Apker ruled that the indicia warrants

did not meet the Fourth Amendment’s particularity require-

ment and consequently the seizure was unlawful. 705 F.2d at

297-98.

The plaintiffs here also challenged the warrants. The dis-

trict court found that the affidavit supporting the search war-

rants was insufficient to establish probable cause to search for

the videotape or meeting notes. However, the court found that

2

The hypothetical posed by the district court that it would have been

unreasonable for an officer to cut a column off a house because it had the

owners’ initials on it is also inapposite. It would have clearly resulted in

substantial harm to property that was not described in the warrant—the

house. Here, the concrete sidewalk had the names of the members of the

Hells Angels’ club inscribed in it and the plaintiffs do not claim its

removal caused any consequential damage. All the evidence seized or

damaged fell within the scope of the warrant.

SAN JOSE HELLS ANGELS v. SAN JOSE 3973

the warrants were supported by probable cause for the pur-

pose of seeking gang indicia evidence. Plaintiffs did not

appeal this ruling. It is not clear whether the plaintiffs also

challenged the warrants as not satisfying the particularity

requirement of the Fourth Amendment, but that challenge is

not raised here. Although I might well have agreed that this

warrant was overly-broad on its face, that issue is not before

us.

While it is true the police do not have discretion to go out-

side the bounds of the warrant, neither do they violate a plain-

tiffs’ constitutional rights when they seize evidence pursuant

to a valid search warrant. That is what warrants are for—to

limit the evidence that can be seized and the areas to be

searched. It is not the police officer’s role to determine how

to limit the scope of the warrant. It is the function of the inde-

pendent magistrate to assure that there is probable cause to

issue the warrant and that the warrant is drafted narrowly and

the things to be seized are described with particularity.

Finally, there are good reasons for not requiring officers to

exercise their own discretion as to how much evidence is

enough. Linderman was not the deputy district attorney who

would try the case and was not in a position to judge whether

the trial court would admit into evidence photographs of the

objects instead of the objects themselves or whether, in this

era of digitally altered images, defense counsel would ridicule

a photograph as tainted by police technicians, should the orig-

inal object not be produced. At the time of the search, Linder-

man did not know what evidence would be found, how that

evidence might or might not prove Tausan was a member of

the Hells Angels, nor exactly what needle the district attorney

might find in that haystack. Often it is only by searching

through a large volume of evidence that an attorney is able to

find the few crucial pieces of evidence that establish the case.

It was not Linderman’s role during the simultaneous search of

3974 SAN JOSE HELLS ANGELS v. SAN JOSE

several residences to pre-judge what would or would not turn

out to be important.3

Because the police were looking for evidence of a murder,

and a possible gang enhancement charge, and, most impor-

tantly, because the police did not seize any evidence that was

outside the scope of the warrant, I fail to see how a torn-up

sidewalk, spoiled food in the refrigerator, and the loss of a

mailbox rise to the level of a constitutional violation. Accord-

ingly, I dissent from the denial of qualified immunity to

Linderman.

3

Neither is it up to Linderman to judge the dramatic effect on a jury of

the demonstrative evidence, such as the concrete sidewalk where the Hells

Angels’ members had signed their name.