Stephen Burrell v. Mike McIlroy Glen C. Rector, Jeff Thorpe

OAKES, Senior Circuit Judge,

dissenting.

I respectfully dissent from the majority’s holding that Detective Rector is entitled to qualified immunity. The majority assumes, without deciding, that Burrell can establish a Fourth Amendment violation. Given the uncontroverted facts in the record, I would hold that Burrell has in fact established a Fourth Amendment violation by the initial warrantless arrest by Detective Rector in the absence of probable cause, which, as defendants conceded at oral argument, was lacking up until the moment officers discovered a weapon in Burrell’s apartment. I would also hold that no reasonable officer in *1127 Detective Rector’s position could have believed that he could properly arrest Burrell without probable cause, or that a detention, much less an arrest, could otherwise be justified as incident to a search under Michigan v. Summers, 452 U.S. 692 , 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981), where a search warrant had not yet been issued. 1

The defendants do not controvert that Detective Rector ordered Burrell to get out of his car at gunpoint, forced him face-down to the ground at gunpoint, handcuffed him, placed him in a police car while Burrell’s car was searched and, that search proving fruitless, then transported him, still in handcuffs, to 1750 Karen Avenue to await the grant of the search warrant application. Moreover, defendants do not dispute that Detective Rector Miran-dized Burrell sometime before the search of either of Burrell’s apartments began. According to the arrest report in the record, and in conformity with Detective Rector’s trial testimony in the state court criminal proceedings, Detective Rector Mirandized Burrell some time before Rector left to seek consent to search the second apartment at 1500 Karen, and therefore necessarily did so before the search warrant for 1750 Karen had been issued, and before the search of either apartment began. According to the same arrest report, after the searches of the apartments each revealed a weapon, Detective Mcllroy arrested Burrell, charging him with weapons counts. Burrell does not dispute the existence of probable cause for this second arrest following the discovery of weapons. Burrell, whose fingerprints did not appear on either of the weapons recovered, and who shared his apartments with other occupants, was tried and acquitted of the federal weapons charges arising from both of the February 4 searches.

Although defendants have argued, for the first time on appeal, that the initial seizure by Detective Rector was an investigatory stop, the seizure in this case was conducted in a manner indistinguishable from a full-scale formal arrest. See Washington v. Lambert, 98 F.3d 1181, 1188-89 (9th Cir.1996). None of the special circumstances in which courts have found that aggressive police action or especially intrusive means of effecting a stop may be justified, without converting the seizure into an arrest, are present here. See id. at 1189 (“our cases make clear that we have only allowed the use of especially intrusive means of effecting a stop in spe *1128 cial circumstances, such as 1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight; 2) where the police have information that the suspect is currently armed; 3) where the stop closely follows a violent crime; and 4) where the police have information that a crime that may involve violence is about to occur”) (footnotes omitted). Not one of the defendants’ submissions forming the record on this appeal contains a sworn statement or assertion by defendants that they had specific information, as the cases require, that Burrell was personally armed when he was approached by Detective Rector. Defendants assert, in lieu of the argument based upon Michigan v. Summers advanced in the district court, that the facts supporting their yet-unapproved application for the search warrant, alone and without the need for any other suspicion-engendering event, provided legal justification for arrest tactics in seizing Burrell. The record, however, is devoid of any particularized facts or objective bases justifying the type of seizure effected here. 2 While defendants’ counsel contended at oral argument that the officers believed Burrell to be armed, counsel’s argument does not constitute record evidence of the specific “information” which the cases cited in Washington v. Lambert require, and it is nevertheless inappropriate for an appellate court to assume or infer purported beliefs not actually articulated in the record, particularly where defendants have been represented by counsel from the beginning of this litigation and have had the opportunity to introduce evidentiary material supporting their motions for summary judgment below. 3 In any case, notwithstanding defendants’ arguments, the only reasonable conclusion to be drawn from the undisputed facts in the record is that Mr. Burrell was formally arrested when he first encountered Detective Rector.

The majority nevertheless holds that Detective Rector had arguable justification for the seizure and is therefore entitled to qualified immunity. Because it is clear from the record that Mr. Burrell was arrested without probable cause, Detective Rector can only be entitled to qualified immunity if a reasonable officer in his position would have an arguable basis to believe probable cause existed to arrest Burrell. Again, the defendants also have not identified any specific facts in the record which could form the basis for an objectively reasonable belief that probable cause existed for an arrest, and they have limited their argument on appeal to the vague claim that there was “at least a colorable basis for Detective Rector to believe there was probable cause for an arrest prior to the execution of the search warrant” because he “constitutionally re *1129 lied upon facts yielded from Detective Mcllroy’s investigation and his own observations during the surveillance to reach this conclusion.” Def. Br. at 23. There is nothing in Detective Mcllroy’s arrest report, or in any of the documents forming the record on this appeal, that indicates that the officers had particularized information that Burrell was personally armed at the time of the seizure by Detective Rector and prior to the search. The record on this motion for summary judgment, in short, merely shows that the detectives at most suspected that the search of Bur-rell’s apartment might reveal incriminating evidence. This alone is insufficient to establish either actual, or an arguably and objectively reasonable belief in, probable cause to arrest Burrell prior to the execution of the search.

I would therefore reverse the district court’s grant of summary judgment for Detective Rector and remand for further proceedings on Burrell’s claim based upon his unconstitutional seizure. At minimum, the fact that the record is devoid of any sworn statements or factual submissions by the defendants that could support a finding of qualified immunity warrants remand for expansion of the record and to allow the district court to consider qualified immunity in the first instance.

. The district court below held that Rector effected an arrest that was justified under Michigan v. Summers. It is undisputed that the detectives in this case had not yet obtained a search warrant to search Burrell’s home at the time Detective Rector seized Mr. Burrell at gunpoint. Michigan v. Summers does not provide for a limited detention, much less an arrest, absent a search warrant. Even if a search warrant had been obtained at the time of the seizure, I am not aware of any authority that has extended Michigan v. Summers to authorize the arrest of persons associated with the premises to be searched when such persons are neither on nor near the premises, for purposes of conveying them to the situs of the search. It is notable that defendants did not cite to Michigan v. Summers in their appellate briefs, nor do they now argue that the district court’s grant of summary judgment should be upheld on this ground. Nevertheless, the majority suggests that Rector’s actions could somehow have been justified under Michigan v. Summers because such preemptive action would have minimized risk to the officers sometime in the future when they succeeded in obtaining a warrant to search the premises. A reasonable officer in Rector’s position, however, should have known that Michigan v. Summers does not purport to justify any such detention or arrest, whatever the circumstances, absent the existence of a search warrant. Here, the search warrant had not yet been issued, and any reasonable officer should have known that, absent a search warrant, a stop requires reasonable suspicion and an arrest requires probable cause.

. The affidavit in support of the warrant states only that an informant reported that Burrell had a handgun "which he keeps in the bedroom." This is hardly information that would warrant a full-scale arrest.

. While Burrell has been very ably represented on this appeal by appointed counsel from the law firm Kirkland & Ellis LLP, it should be noted that Burrell was proceeding as an incarcerated pro se litigant at the time the district court entertained the parties’ cross-motions for summary judgment. The record in this case does not contain any form of the required notice to incarcerated pro se litigants regarding the requirements and consequences of a summary judgment motion, whether given by the district court or by defendants. In Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988), the 9th Circuit held that a failure to give adequate notice to an incarcerated pro se litigant was reversible error affecting the pro se litigant’s substantial rights, without engaging in a harmless error analysis. See also Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc) (re-affirming Klingele , but holding that the notice, which had theretofore been required to issue from the district court, may be issued by the summary judgment movant).