Baldwin v. Placer County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL W. BALDWIN, DDS; 

GEORGIA CHACKO,

Plaintiffs-Appellees,

No. 04-15848

v.

D.C. No.

PLACER COUNTY; TRACY GRANT;

RON GOODPASTER; BRIAN WIGGAM;  CV-01-01177-MCE

ORDER AND

KEVIN BESANA; STEPHEN L.

AMENDED

D’ARCY; JEFFERY POTTER; PLACER

OPINION

COUNTY SHERIFF’S DEPARTMENT;

Officer REED,

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

March 18, 2005—San Francisco, California

Filed April 19, 2005

Amended August 8, 2005

Before: John T. Noonan, Sidney R. Thomas, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Noonan

10193

10196 BALDWIN v. PLACER COUNTY

COUNSEL

David K. Huskey, Auburn, California, for the defendants-

appellants.

J. David Nick and Paul R. Turley, San Francisco and Oak-

land, California, for the plaintiffs-appellees.

Kate Wells, Santa Cruz, California, for plaintiff-appellee

Georgia Chacko.

ORDER

The opinion filed on April 19, 2005 is amended as follows:

At slip op. p. 4410, l. 3-4, change sentence to read: “On the

conceded facts before us, whatever exigency existed was

insufficient to justify the batteries.”

At slip op. p. 4410, at the end of the first paragraph ending

“a practicing dentist and his wife.”, add “We conclude that

‘the law at th[e] time [of the search] . . . clearly establish[ed]

BALDWIN v. PLACER COUNTY 10197

that the officer’s conduct could violate the Constitution.’

Brosseau v. Haugen, 125 S.Ct. 596, 599 (2005).”

At slip op. p. 4411, at the end of the second paragraph end-

ing “bleached out.”, add a new paragraph.

The County invokes a fundamental case on the

Fourth Amendment, Franks v. Delaware, 438 U.S.

154 (1978). Franks does permit a court to purge the

false statements and to sustain the warrant if the

unpurged residue would justify it. But what will sus-

tain the warrant must already be within it. The

County is pointing to evidence not cited in the war-

rant. That evidence cannot sustain the warrant. See

United States v. Davis, 714 F.2d 896, 899 (9th Cir.

1983) (under Franks, “[t]he fact that probable cause

did exist and could have been established by a truth-

ful affidavit does not cure the error.”).

With this amendment, the panel has voted to deny the peti-

tion for rehearing. Judges Thomas and Fisher have voted to

deny the petition for rehearing en banc and Judge Noonan has

so recommended.

The full court has been advised of the petition for rehearing

en banc, and no active judge has requested a vote whether to

rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the petition for

rehearing en banc is DENIED.

The panel will not entertain any new petitions for rehearing

or petitions for rehearing en banc.

10198 BALDWIN v. PLACER COUNTY

OPINION

NOONAN, Circuit Judge:

Placer County and several of its police officers (collec-

tively, the County) have taken this interlocutory appeal from

the district court’s denial of their motion for qualified immu-

nity in this 42 U.S.C. § 1983 action brought by Michael Bald-

win and Georgia Chacko (the plaintiffs). On the basis of the

facts conceded as undisputed by the County for purposes of

this appeal, we hold that the County violated established con-

stitutional rights of the plaintiffs and that qualified immunity

was properly denied.

FACTS

On September 22, 1998, Jeff Potter, an officer of the mari-

juana eradication team (MET) of the County’s Sheriff Depart-

ment, applied for a search warrant for the residence of

Michael Baldwin and Georgia Chacko, then Baldwin’s wife.

The affidavit stated that on July 16, 1998, Deputy Mark Reed

had told Sergeant Kevin Besana that “a citizen informant” had

told him that Michael Baldwin, a dentist, was “possibly grow-

ing marijuana.” The date when this information was given and

the date when Baldwin was possibly growing marijuana were

not stated in the affidavit. Potter stated that Besana had passed

this tip to him and that four days after receiving it, he con-

firmed Baldwin’s office address as a dentist and obtained the

registration number of his car; Potter used the car registration

to confirm the informant’s statement as to Baldwin’s home

address. A check of DMV records showed Baldwin to be 35

years-old, 5′ 9″, weighing 165 pounds and Georgia Chacko to

be 34 years-old, 5′ 5″, weighing 125 pounds.

On September 16, 1998, so the affidavit continues, Potter

searched the trash at Baldwin’s home address. He found

“marijuana leaves and stems recently cut from a mature mari-

juana plant. The marijuana was fresh green and still moist.”

BALDWIN v. PLACER COUNTY 10199

He also, he said, had found “marijuana seeds and a hydro-

ponic grow rock. There were also two black 1/2 gallon plant-

ing pots commonly used in indoor marijuana grows and four

packages of ‘rain drop’ irrigation equipment commonly used

in indoor marijuana grows.” He concluded on the basis of his

specific training in the investigation of narcotics and his ten

years of experience in approximately three hundred narcotics

cases that “[t]he items found in the trash inspection reveal an

ongoing criminal activity to grow marijuana indoors.” He also

concluded that “it is common for persons involved in the cul-

tivation of marijuana to also be involved in the sale of mari-

juana.” Potter sought a warrant listing the documents and

property he expected to find; he did not mention guns. On

September 23, 1998, a state court judge issued the search war-

rant that Potter sought.

According to the plaintiffs’ evidence, the only marijuana in

their trash searched by Potter were blackened bits of mari-

juana wrapped in a paper towel, the remnants of smoked mar-

ijuana. They bolster their claim of falsity in Potter’s affidavit

by thirteen declarations from other individuals whose trash

was searched by MET. In each instance MET officers swore

they found “marijuana leaves and stems recently cut from a

mature marijuana plant” and that “the marijuana was fresh

green and still moist.” In each instance, these thirteen individ-

uals swore they placed no marijuana or products of marijuana

in their trash.

The Baldwins’ further evidence is that the “rain drop” irri-

gation equipment was only for outdoor landscaping and that

this fact should have been obvious to a trained narcotics

investigator. The equipment included a sprinkler spraying

water up to 14 feet, a soaker hose, and 6″ heavy duty support

stakes; none of these items are used in an indoor grow. The

two black gardening pots pointed to no illegal activity. The

“grow rock” in Potter’s affidavit was, the plaintiffs also state,

a lava rock with no implication of criminal activity.

10200 BALDWIN v. PLACER COUNTY

In the early dawn of the day that Potter obtained the war-

rant, according to the sworn declaration of Michael Baldwin,

a group of five officers including Potter entered Baldwin’s

home “para-military style” without knocking. Officer Reed

encountered Baldwin as Baldwin came into the house from

the back door. Reed pointed his gun at him and ordered him

to lie down. Baldwin complied with the order. Reed “then

pushed his gun at the rear of [Baldwin’s] head and placed his

knee in the small of [Baldwin’s] back, all the while pressing

a loaded firearm against the back of [Baldwin’s] head.” Bald-

win was terrified that the gun would go off.

According to the sworn deposition of Georgia Chacko, she

was clothed only in a T-shirt and cotton briefs and just getting

up to start her day when she opened her bedroom door to be

confronted by a flashlight in her face and fingers sharply pok-

ing five to seven times at her throat and forcing her back into

the bedroom. A voice told her to get on the floor. A gun was

pointed at her, then brought into contact with her head for 30

seconds. She got on the ground. The unidentified gunman

kneed her in the small of her back and handcuffed her. The

gunman was Potter.

PROCEEDINGS

On October 12, 2001, the plaintiffs filed their first amended

complaint. The County moved for summary judgment on the

ground of the qualified immunity of the officers. On April 2,

2004, the district court denied the motion, ruling that triable

material issues of fact existed as to the plaintiffs’ claims of

excessive force, judicial deception, and conspiracy by the

MET team, all in violation of 42 U.S.C. § 1983; state law

claims similarly remained open to credibility determinations

by a jury.

The County appeals.

BALDWIN v. PLACER COUNTY 10201

ANALYSIS

[1] Jurisdiction. Where there is a dispute as to material

issues of fact, we have no jurisdiction. Johnson v. Jones, 515

U.S. 304, 313 (1995). On the face of the district court’s deci-

sion finding disputed facts, we are prevented from proceeding

further. The County avoids dismissal, however, by stating that

it “accepted the Baldwins’ evidence for purposes of summary

judgment, thereby obviating any alleged factual disputes” and

that therefore “no factual disputes preclude appellate jurisdic-

tion over this interlocutory appeal.” The appeal is directed

only to denial of immunity if the plaintiffs’ facts are accepted;

so the appeal is directed to appealable issues of law. Mitchell

v. Forsyth, 472 U.S. 511, 530 (1985). Although the defen-

dants have found it hard to stick to their concession and occa-

sionally appear to dispute the facts, we take them at their

word and for this appeal accept only the plaintiffs’ version of

what happened. The facts for this appeal are not alleged, they

are admitted. Consequently, we have jurisdiction.

[2] Excessive force. The County argues that “objectively

reasonable” officers could have believed that “the exigency of

the entry” justified the batteries on the plaintiffs. On the con-

ceded facts before us, whatever exigency existed was insuffi-

cient to justify the batteries. Baldwin was a practicing dentist.

Nothing in the record indicates that the officers had reason to

believe that he would resist or flee. The officers had stated no

belief that the plaintiffs would be armed; they mentioned no

criminal history or conspiracy that could have justified such

a belief. They had no reason not to identify themselves before

giving orders to the plaintiffs. Invading a home in the early

morning, they have stated no fact justifying their batteries.

They violated the civil right of the plaintiffs to be free from

battery by gun-wielding officers, a right established in this

circuit since 1984. McKenzie v. Lamb, 738 F.2d 1005, 1010

(9th Cir. 1984) (Kennedy, J.). Potter’s fingers at the throat of

Baldwin’s wife constitute a separate battery that a reasonable

officer would know was excessive. The governmental inter-

10202 BALDWIN v. PLACER COUNTY

ests in using handcuffs are at their maximum when “a warrant

authorizes a search for weapons and a wanted gang member

resides on the premises.” Muehler v. Mena, 125 S. Ct. 1465,

2005 WL 645221 at *4 (March 22, 2005). Conversely, gov-

ernmental interests are at a minimum when the searchers

assert no belief that weapons will be found and no belief other

than that the occupants of the house are a practicing dentist

and his wife. We conclude that “the law at th[e] time [of the

search] . . . clearly establish[ed] that the officer’s conduct

could violate the constitution.” Brosseau v. Haugen, 125 S.Ct.

596, 599 (2005).

[3] Judicial Deception. The Fourth Amendment is the

guarantee of every citizen that his home will be his castle,

safe from the arbitrary intrusion of official authority. It is no

barrier at all if it can be evaded by a policeman concocting a

story that he feeds a magistrate. This obvious truth is met by

the County with the argument that we should redact Potter’s

affidavit, purge it of its lies, and find what remains sufficient

to justify the issuance of the warrant. See Liston v. County of

Riverside, 120 F.3d 965, 972 (9th Cir. 1997). Objectively, the

County adds, there was enough to justify a search. Its argu-

ments are unpersuasive.

First, when Potter’s lies are taken out, what is left is an

unidentified citizen at an unidentified date telling a sheriff’s

deputy of marijuana growing at an unidentified time; also the

presence of a rock and two pots, the uses of which are ambig-

uous. No magistrate could have authorized a search on this

basis, essentially amounting to an informant’s tentative tip.

[4] Second, the County shifts its ground in arguing that

“objectively” — that is, not within Potter’s affidavit — there

were facts justifying the search: .08 grams of burnt marijuana,

“virtually unrecognizable as marijuana,” are conceded to have

been in the trash by the plaintiffs. The County cites in support

of its argument Devenpeck v. Alford, 125 S. Ct. 588 (2004),

holding that not the officer’s motive in making an arrest but

BALDWIN v. PLACER COUNTY 10203

the objective circumstances are to be considered by a court

judging the officer’s action. Devenpeck does not speak to our

case. Here, it is what facts were alleged to induce the magis-

trate to act. Plainly, Potter’s lies were substantial in moving

the magistrate. The force of the lies on the mind of the magis-

trate cannot be bleached out.

The County invokes a fundamental case on the Fourth

Amendment, Franks v. Delaware, 438 U.S. 154 (1978).

Franks does permit a court to purge the false statements and

to sustain the warrant if the unpurged residue would justify it.

But what will sustain the warrant must already be within it.

The County is pointing to evidence not cited in the warrant.

That evidence cannot sustain the warrant. See United States

v. Davis, 714 F.2d 896, 899 (9th Cir. 1983) (under Franks,

“[t]he fact that probable cause did exist and could have been

established by a truthful affidavit does not cure the error.”).

[5] The plaintiffs’ established civil rights were violated by

presentation of the false affidavit. Liston, 120 F.3d at 972-73.

Qualified immunity was rightly denied.

[6] Conspiracy. Conspiracy to violate a citizen’s rights

under the Fourth Amendment by lying to the magistrate is

evidently as much a violation of an established constitutional

right as the perjury itself. Whether there is sufficient evidence

of the conspiracy is for a jury to decide. No immunity exists

for the conspiracy.

AFFIRMED.