The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD A. LAWSON, Jr., No. 15-35907
Plaintiff-Appellant, D.C. No. 3:11-cv-00151-SLG
v.
MEMORANDUM *
JEFFERY GREGG; MONIQUE DOLL;
NATHANIEL CLEMENTSON; MICHAEL
DAHLSTROM; RICHARD F.
YOUNGBLOOD,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted April 10, 2018
Pasadena, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and DRAIN,** District
Judge.
Plaintiff-Appellant Leonard Lawson brought the instant civil rights action
under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
Bureau of Narcotics, 403 U.S. 388 (1971), against Defendants-Appellees Jeffery
Gregg and Monique Doll, both assigned as Drug Enforcement Administration
(“DEA”) Task Force Officers in the Anchorage Police Department, as well as
Defendants-Appellees Richard Youngblood, Nathaniel Clementson, and Michael
Dahlstrom, who are Special Agents with the DEA.
Plaintiff-Appellant’s Second Amended Complaint alleges that the
Defendants-Appellees violated the Fourth Amendment when they executed an
anticipatory warrant without the requisite contingency and entered Plaintiff-
Appellant’s residence to secure a FedEx package containing cocaine. Plaintiff-
Appellant further alleges that Defendants-Appellees engaged in an overbroad
protective sweep and arrested him without probable cause. A different panel of
this court vacated Plaintiff-Appellant’s criminal conviction for being a felon in
possession of a firearm and ammunition, concluding that because the officers
failed to comply with the terms of the anticipatory warrant and no exigent
circumstances existed, the firearm found during the officers’ sweep should have
been suppressed. Thereafter, Plaintiff brought the instant civil rights action, and
the district court granted the officers’ motion to dismiss based on the doctrine of
qualified immunity. Lawson timely appealed this decision.
Our review is de novo. Davis v. City of Las Vegas, 478 F.3d 1048, 1053
(9th Cir. 2007). We have jurisdiction pursuant to 28 U.S.C. § 1291.
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1. Plaintiff-Appellant fails to demonstrate that the district court erred in
concluding it was reasonable for Gregg, the lead agent, to believe the “fails to
transmit” contingency had been met. In light of clearly established precedent
requiring interpretation of warrants in a commonsense manner, United States v.
Vesikuru, 314 F.3d 1116, 1123 (9th Cir. 2002), it was reasonable for Gregg to
conclude that the “fails to transmit” contingency was satisfied once the device
malfunctioned and transmitted an erroneous tone that the package had been
opened. At that point, a reasonable officer could have believed that the object of
the contingency had been met—namely that the officers were no longer able to
determine if the package had been opened. Even though another panel found a
Fourth Amendment violation, qualified immunity provides “ample room for
mistaken judgments” and “makes accommodation for reasonable error.” Hunter v.
Byrant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343
(1986)).
2. The non-supervisory officers are likewise entitled to qualified
immunity because they are permitted to rely on their supervisor’s judgment that the
contingencies of the warrant had been met. Ramirez v. Butte-Silver Bow Cty., 298
F.3d 1022, 1028 (9th Cir. 2002), aff’d sub nom. Groh v. Ramirez, 540 U.S. 551
(2004). The district court erred however, in determining that Youngblood, the Unit
Supervisor, was also entitled to qualified immunity on this basis. Clearly
3 15-35907
established law, Ramirez, 298 F.3d at 1027-28, requires supervisors such as
Youngblood to read the warrant and understand its scope, which he failed to do.
3. Youngblood is nonetheless entitled to qualified immunity because it
was reasonable for all of the officers to believe exigent circumstances permitted
entry into Plaintiff-Appellant’s home to secure the package. Because the device
had malfunctioned, the officers could not determine whether the package had been
opened and whether its contents had been destroyed. They knew other persons
were present at the residence and did not know whether Liza Valcarcel had alerted
them to the fact that she was signaled to pull over. Thus, it was reasonable for
Defendants-Appellees to conclude that other persons may attempt to flee or to
destroy the contents of the package and any other incriminating evidence. See
United States v. Wilson, 865 F.2d 215, 217 (9th Cir. 1989). The district court did
not err in granting qualified immunity to the Defendants-Appellees for the
warrantless entry into Plaintiff-Appellant’s home.
4. The district court did err in granting the officers qualified immunity
with respect to the protective sweep, which was not “a quick and limited search of
[the] premises . . . to protect the safety of police officers or others.” Maryland v.
Buie, 494 U.S. 325, 327 (1990). Any reasonable officer in the Defendants-
Appellees’ position would have known he was violating clearly established Fourth
Amendment jurisprudence because the Defendants-Appellees took 64 photographs,
4 15-35907
obtained luggage tag and computer information, and recovered a black container
hidden behind the computer during the protective sweep. See Cuevas v. De Roco,
531 F.3d 726, 735 (9th Cir. 2008). We do not address the parties’ disputes
regarding the duration of the protective sweep or amount of prospective damages,
as they are irrelevant to our qualified immunity determination. Cuevas, 531 F.3d
at 735.
5. Lastly, the district court did not err in concluding the officers were
entitled to qualified immunity for Plaintiff-Appellant’s warrantless arrest. The
officers reasonably believed they had the authority to enter the premises to secure
the package because the warrant’s contingency had been satisfied and/or because
exigent circumstances permitted their entry into the home. The shotgun was in
plain view, the officers were familiar with Plaintiff-Appellant and his prior felony
conviction for narcotics trafficking, and they knew a package containing cocaine
had just been delivered to his home. Based on “the totality of the
circumstances[,]” the officers were reasonable in “conclud[ing] that there was a
fair probability that [Plaintiff-Appellant] had committed a crime.” United States v.
Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (quoting United States v. Smith, 790
F.2d 789, 792 (9th Cir. 1986)).
In sum, we affirm the district court’s grant of qualified immunity to
Defendants-Appellees with regard to their arrest of Plaintiff-Appellant and entry
5 15-35907
into his home. We reverse the district court’s grant of qualified immunity with
regard to the protective sweep. We remand for further proceedings consistent with
this disposition. Each party should bear its own costs.
AFFIRMED IN PART; AND REVERSED AND REMANDED IN
PART.
6 15-35907
FILED
Lawson, Jr. v. Gregg, No. 15-35907
MAY 07 2018
Judge Schroeder, concurring in part and dissenting in part.
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that the officers were not entitled to immunity for
the putative protective sweep of the house. I must respectfully disagree with my
colleagues’ conclusion that it was reasonable for the officers to believe that when
they entered they were complying with the warrant. The same facts were before
this court when Mr. Lawson appealed his conviction. We vacated on the ground
that “the police did not comply with the conditions of the warrant.” United States
v. Lawson, 499 F. App’x 711, 712 (9th Cir. 2012). We explained that the warrant
authorized entry to the house if the device “failed to transmit.” Id. The problem
was that the device did transmit, emitting a continuous tone before it reached the
house, and the police entered anyway.
For this reason our prior panel correctly held the officers did not comply
with the warrant and vacated the conviction. The majority today does not
expressly disagree with that conclusion, yet holds that the officers were reasonable
in deciding they were authorized to enter. I would hold, consistent with our earlier
decision, that the entry was unreasonable. I agree with the prior panel there were
no exigent circumstances. See id. Accordingly, the district court’s dismissal of
this action should be reversed, and I respectfully dissent.