Petition for Writ of Certiorari — Allen v. Gypsy Church of the Northwest ex rel. Marks

a yD

No.Q96188 4 MAY 27 1997

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

*

Robert Allen, Robert Bailor, John Clarke, Denise Coker, Earl

Ennis, Lawrence Freeman, Monte Gaunt (deceased), Rick

Grabenstein, William Grub, Cliff Harding, Donald Johnson,

Stephen Keane, Kenneth Krogh, Michael Lavelle, Larry

Lindskog, Jack Neumiller, Andrew Pavlischak, Gerald

Poindexter, Richard Poole, Sheldon Reeve, Nicolis Stanley,

Robert VanLeuven, Ralph Weir, Jr., and Michael Yates,

Vs. Petitioners,

Gypsy Church of the Northwest, a voluntary association, by

and through Grover Marks, Trustee; Grover and Marie Marks,

husband and wife; Marguerite Marks; Marguerite Marks as

Guardian ad Litem for Steven Marks; Robert and Polly Marks,

husband and wife; Robert and Polly Marks as Guardians ad

Litem for minor children: Richard Marks, Shirley Marks, Lisa

Marks and Steve Marks; Larry and Laura Zeko, husband and

wife; Larry and Laura Zeko as Guardians ad Litem for minor

children: Robert Zeko, Jason Zeko, Crissie Zeko and Sonny

Zeko; Pete Marks, a single man; Peter Marks as Guardian ad

Litem of a minor: Buck Marks; James Senator Marks, II, and

Jane Marks, husband and wife; Tommy Marks; David Marks;

James Senator Marks, II, as guardian ad litem for minor

children: Marie Marks, Michael Marks and Sonny Marks; Linda

Marks; and Tina Marks,

Respondents.

os

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

e

PETITION FOR WRIT OF CERTIORARI

*

JAmMes C. SLOANE

Spokane City Attorney

Rocco N. TREppieD!

Senior Assistant City Attorney

Counsel of Record

West 808 Spokane Falls Blvd.

Spokane, Washington 99201-3326

(509) 625-6225

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Did the Ninth Circuit err when it awarded attor-

neys’ fees to plaintiffs-appellees under 42 U.S.C. § 1988

on an interlocutory appeal when the plaintiffs have not

obtained an enforceable judgment, consent decree, or set-

tlement, in direct conflict with Farrar v. Hobby?

2. Did the Ninth Circuit err when it failed to grant

qualified immunity to law enforcement officers, and held

them liable, for searches of individuals which were

expressly authorized by a search warrant that had been

reviewed by a prosecuting attorney and a judge prior to

issuance under substantial time constraints and during

exigent circumstances?

il

TABLE OF CONTENTS

Page

CRJESTIONS PRESENTED «ois ce ie vveuneadusceceus i

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STATUTES INVOLVED IN THIS CASE............. 2

STATEMENT OF THE CASE ... ...5663skcascdeawanees 4

A. Senedak... «66 ice eee naa eee 4

BS. Course of proceeQnags . <<. :i5asc<n405eeeee 4

C. Statement of Facts... .....4.5005509es 7

REASONS FOR GRANTING THE WRIT ........... 13

I. THE NINTH CIRCUIT’S OPINION DIRECTLY

CONFLICTS WITH THE SUPREME COURT'S

RULING IN FARRAR v. HOBBY AND THE

FOURTH CIRCUIT’S HOLDING IN S1 AND S82 v.

STATE BOARD OF EDUCATION... << ss<css505, 13

A. The decision conflicts with Farrar v. Hobby... 13

B. The Ninth Circuit’s decision conflicts with

the Fourth Circuit’s holding in S1 & S2 v.

State Board of EdwcaleOut «...... 64 2<0 ccs vanes es 18

Il. THE NINTH CIRCUIT’S DENIAL OF QUALI-

FIED IMMUNITY TO THE OFFICERS, COU-

PLED WITH THE DETERMINATION OF

LIABILITY, IMPOSES A STANDARD OF STRICT

LIABILITY ON LAW ENFORCEMENT OFFI-

CERS. THE DECISION IS CONTRARY TO THIS

COURT’S POLICY REGARDING QUALIFIED

IMMUNITY, AND BURDENS ALL LAW

ENFORCEMENT WITH UNWORKABLE

GUIDELINES FOR ENFORCING COURT

to: es. Serre TE ea 19

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TABLE OF CONTENTS - Continued

Page

CONCLUSION es skasense sce rere ters 27

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TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987)....19, 23, 24, 28

Carey 0. Papnus, 455 U.S. 247 (ESTE) once cc cccanss 14

Farrar v. Hobby, 506 U.S. 103 (1992)............. passim

Hunter v. Bryant, 502 U.S. 224 (1991)......... 19, 24, 28

Malley v. Briggs, 475 U.S. 335 (1986).......... 23, 24, 28

McGinnis v. Kentucky Fried Chicken of California, 51

Fe A Ra sh hc vk ax seed vas dataee ce 14

Mitchell v. Forsyth, 472 U.S. 511 (1985) .............. 23

S1 & S2 v. St. Bd. of Educ. of N.C., 21 F.3d 49 (4th

Cir. 1994) (en banc), cert. denied, __ U.S. __,

115 S.Ct. 205, 130 L.Ed.2d 135 (1994) .......... 18, 19

Turney v. O'Toole, 898 F.2d 1470 (10th Cir. 1990)..... 22

Ybarra v. Illinois, 444 U.S. 85 (1979) .......... 20, 23, 24

STATUTES AND RULES

Fourth Amendment to the United States Constitu-

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a Fo rrr 2, 4, 15, 18

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PETITION FOR WRIT OF CERTIORARI

The officers respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered in

this proceeding on December 19, 1996, because the Ninth

Circuit has decided two important federal questions in

ways that conflict with relevant decisions of this Court,

and in order to resolve the conflict between the Ninth and

Fourth Circuit Courts of Appeals on the important issues

presented herein.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit that gives rise to this petition is

reported at 102 F.3d 1012 (9th Cir. 1996). It is reprinted in

Appendix A hereto at App. 1. By order filed February 26,

1997, the Ninth Circuit amended its opinion, and denied

the petition for rehearing. See App- 3-

——

4

JURISDICTION

On October 21, 1993, November 23, 1993, January 21,

1994, and March 7, 1994, the United States District Court

for the Eastern District of Washington issued orders

which denied qualified immunity to the law enforcement

officers, and ultimately ruled that many of the officers

were liable to various plaintiffs for violations of the

Fourth Amendment. See Appendices B, Cc, D and E

hereto.

The officers timely appealed each order to the Ninth

Circuit, which affirmed in part and reversed in part, and

remanded the cases to the district court in an opinion

filed on December 19, 1996. On February 26, 1997 the

Ninth Circuit denied the officers’ timely-filed motion for

rehearing, though it modified a portion of the recitation

of the factual background in the opinion. Pursuant to

Supreme Court Rule 13.3, this petition has been filed

within 90 days of the denial of rehearing.

The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1254.

& ee

STATUTES INVOLVED IN THIS CASE

42 U.S.C. § 1983 provides:

§ 1983. Civil action for deprivation of rights

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Colum-

bia, subjects, or causes to be subjected, any citi-

zen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws shall be liable to the party

injured in an action at law, suit in equity, or

other proper proceeding for redress, except that |

in any action brought against a judicial officer |

for an act or omission taken in such officer's

judicial capacity, injunctive relief shall not be |

granted unless a declaratory decree was vio- |

lated or declaratory relief was unavailable. For

the purposes of this section, any Act of Congress |

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

42 U.S.C. § 1988 provides:

~

§ 1988. Proceedings in vindication of civil rights

(b) Attorney’s fees

In any action or proceeding to enforce a

provision of sections 1981, 1981a, 1982, 1983,

1985, and 1986 of this title, title IX of Public Law

92-318 [20 U.S.C.A. § 1681 et seq.], the Religious

Freedom Restoration Act of 1993 [42 U.S.C.A.

§ 2000bb et seq.], title VI of the Civil Rights Act

of 1964 [42 U.S.C.A. § 2000d et seq.], or section

13981 of this title,,! the court, in its discretion,

may allow the prevailing party, other than the

United States, a reasonable attorney's fee as part

of the costs, except that in any action brought

against a judicial officer for an act or omission

taken in such officer’s judicial Capacity such

officer shall not be held liable for any costs,

including attorney’s fees, unless such action was

clearly in excess of such officer’s jurisdiction.

'So in original.

The Fourth Amendment to the United States Consti-

tution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

+

STATEMENT OF THE CASE

A. Introduction.

As the Ninth Circuit noted, the factual and pro-

cedural history of these two civil cases is extensive. The

Ninth Circuit’s recitation of that background is found at

Appendix A, App. 5-34. The following summarizes the

most relevant issues for this petition.

B. Course of proceedings.

On June 18, 1986 law enforcement officers in

Spokane, Washington, conducted a search and seizure

operation at two houses during an investigation into the

plaintiffs’ trafficking in stolen property. In June, 1989, the

plaintiffs filed complaints for damages against two

municipalities and 24 individuals, all of whom except two

were law enforcement officers. The plaintiffs alleged vio-

lations of their First, Fourth, Fifth, Sixth, Ninth, and

Fourteenth Amendment rights and they sought damages

under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 1988.

Each plaintiff seeks at least one million dollars in dam-

ages. The collective damages sought total $59 million. The

defendants denied each of plaintiffs’ claims. Each of the

individual defendants asserted qualified immunity from

suit as an affirmative defense.

During the course of pretrial motion practice

basically all of the plaintiffs’ causes of actions have been

dismissed, with the exception of their claims under the

Fourth Amendment.

The defendants moved for summary judgment of

dismissal of all claims in 1990. The motions regarding the

Fourth Amendment claims were denied on the basis that

issues of material fact existed.

The parties entered private mediation in March, 1992,

approximately one month prior to their trial date. The

defendants had made offers of judgment under Fed. R.

Civ. P. 68 prior to the mediation; the plaintiffs did not

respond to the offers. The mediation did not result in a

settlement, though the parties worked out an agreement

for a “damages only” trial during which the plaintiffs

would attempt to establish what damages, if any, each

was entitled to, and plaintiffs’ attorneys would have the

right to seek attorneys’ fees, if awarded by the court. The

district court judge who had handled the cases to that

point, the Honorable Robert J. MecNichols, died during

the course of the proceedings, and the settlement agree-

ment was voided.

The Chief Judge for the Eastern District of Washing-

ton attempted to get the parties to settle the cases before

he assigned them to a new judge for trial. The efforts

were unsuccessful. The cases were then assigned to the

Honorable Alan A. McDonald.

The parties again brought cross motions for summary

judgment. On October 21, 1993 the district court denied,

as a matter of law, each defendant’s motion for dismissal

based on qualified immunity (except for Detectives Reeve

6

and Grabenstein; the court deferred ruling on their

motions). See Appendix B, App. 58. The court did not rule

on the merits of the plaintiffs’ motions against the indi-

vidual defendants. The court ruled that plaintiffs had not

properly moved for summary judgment against the indi-

vidual defendants on the alleged constitutional viola-

tions; the court ordered the plaintiffs to revise their

motions and to set them for hearing. All defendants,

except Grabenstein, filed notices of appeal on November

10, 1993.

On November 23, 1993 the district court refused to

stay its proceedings notwithstanding the individual offi-

cers’ appeals which were pending in the Court of

Appeals. See Appendix C, App. 91.

On January 21, 1994 the district court denied Detec-

tives Reeve’s and Grabenstein’s motions for qualified

immunity and partially granted the plaintiffs’ motion for

summary judgment of liability against individual defen-

dants. The court preserved the remaining liability issues

for trial. See Appendix D, App. 133. Defendants Reeve

and Grabenstein timely filed motions for reconsideration

of their qualified immunity motions, and the court denied

those motions by order dated March 7, 1994. See Appen-

dix E, App. 183.

The Court of Appeals then considered the appeals of

the four orders. Prior to briefing, the Ninth Circuit

ordered the parties to participate in its mediation pro-

gram, and assigned a mediator. The mediation efforts did

not resolve the cases, and they were removed from the

mediation program, and the Ninth Circuit ultimately

ruled on the appeals. See Appendix A. The plaintiffs have

never obtained an enforceable judgment, consent decree,

or settlement with any defendant.

The plaintiffs’ attorneys recently submitted motions

for attorneys fees to the district court seeking more than

$1.3 million as a lodestar figure.

C. Statement of Facts.

The facts regarding the qualified immunity motions

of the defendant officers are wide-ranging and the record

is extensive. The facts presented here are the most rele-

vant facts for this petition. The facts demonstrate a pro-

fessional, successful investigation into a significant stolen

property ring operated at the two plaintiff houses in the

City of Spokane, Washington. The officers were able to

locate approximately 200 items of stolen property (mostly

jewelry) and a cache of $1.6 million despite the plaintiffs’

intentional efforts to disrupt the police during the two

searches.

The investigation into the stolen property ring was

initiated by Spokane County Sheriff Detective Rick Gra-

benstein in April, 1986. He caught several teenage burg-

lars who confessed to 17 burglaries. One burglar agreed

to become a “cooperating individual,” and he identified

the locations at which he sold all of the stolen property

from the burglaries. Two of the locations are homes at

which some of the plaintiffs lived, 428 South Thor and

802 South Thor in the city of Spokane, Washington. The

third location was a nearby used car lot operated by the

families. The informant agreed to assist officers investi-

gate the stolen property ring by attempting to sell pur-

portedly stolen property to individuals at the three

locations while under police surveillance.

All this while, the police were working with Deputy

Prosecuting Attorney Patricia Thompson, who worked

closely with the officers in a “Burglary Task Force.” The

sales involving the cooperating individual under surveil-

lance took place in early June, 1986. The sales of purpor-

tedly stolen property (and negotiating sessions that did

not result in sales) occurred in the presence of various

members of the Marks family at the houses, including

children.

On June 18, 1986 the informant attempted another

sale while wearing a body wire for police. However,

when the informant went to 802 S. Thor both he and

police immediately realized that the investigation had

been compromised. The officers left a surveillance officer

at each house and returned to the police station to inform

their supervisors of the developments.

The detectives discussed the developments with Lt.

Freeman and the captain of the Investigative Division,

Bob Allen. They determined that this phase of the investi-

gation would have to be immediately concluded. They

also determined that search warrants should be obtained

and executed at the houses immediately because they

feared the suspects were likely to dispose of or relocate

the evidence. Officers from other units in the department

were recruited to assist. The basic participants were

assigned roles as follows: management of the overall

operation; field supervision; designation of investigative

—$————————

ne ee Pe en ee Te

“case managers” for the searches at each house: planning

for securing the houses and ensuring safety during the

searches (they planned to search each house simul-

taneously); searchers to work for the case managers;

security; and video-taping of the searches.

Three detectives, Grabenstein, Neumiller and Reeve.

began preparation of the affidavit of probable cause in

support of the warrants to search the two houses while

the basic operational plan was formulated by the super-

visors. The officers were under severe time constraints.

Det. Reeve typed a list of the items that had been sold to

the Markses during the undercover operation and incor-

porated it in the affidavit of probable cause. Based upon

the burglar’s confession and statement that virtually all

of the property from his seventeen burglaries was sold at

802 and 428 S. Thor, the detectives also attached and

incorporated the lists of stolen property that had been

prepared by the burglary victims. The affidavit of proba-

ble cause was prepared for Det. Grabenstein’s signature.

Det. Neumiller left before the affidavit and warrants were

complete. (See infra, p. 11.) When the affidavit and search

warrants were complete, they were reviewed by Deputy

Prosecuting Attorney Patricia Thompson. The main body

of the affidavit was four single spaced typewritten pages

containing numerous details about the burglaries, the

investigation into the fencing operation, the interviews

with burglars who identified the Markses at the two

houses as fences, the fact that the sales of stolen property

were made and discussed in front of family members at

the two houses, the nature and description of the items

sold, etc. The fifth page contained a list of purportedly

stolen items sold by the informant to the Markses. The

10

6th page listed the detective’s request for places and

persons to be searched and items to be seized. It

included:

PERSON(S), Described as follows: James Marks,

Grover Marks, and any other person on the

premises at the time of warrant execution for

officer safety.

Det. Grabenstein signed this page in Spokane County

District Court Judge Raymond Tanksley’s presence, who

signed it as well. Judge Tanksley questioned the officers,

then signed the search warrants.

The search warrant for S. 428 Thor said in pertinent

part:

. evidence of said felony is located:

. on the following person(s):

Any persons on the premises of S. 428 Thor,

Spokane County, WA.

Neither the judge, nor the prosecutor, nor the detectives

noticed any constitutional problem. The district court

determined that the discrepancy between the affidavit

and the warrants to search all persons was an error that

was “not facially obvious,” which “was likely overlooked

by Grabenstein and Reeves as it was by the magistrate. It

is almost certainly a clerical error rather than fraud by

Grabenstein and Reeves.” Appendix E, App. 194, and n.

9. It further noted that the magistrate “questioned Gra-

benstein and Reeve at length regarding the warrants,”

and determined that there is no evidence that the officers

knew the warrants were invalid. Appendix E, App. 194-5,

and n. 10.

11

While Grabenstein, Neumiller and Reeve worked on

the warrants, the supervisors briefed those recruited for

the search operation. Additionally, Det. Neumiller

stopped working on the warrant and went to the briefing

and described the property that the two search warrants

would seek. Since the warrants were not yet signed (the

warrants were signed at 3:10 p.m.) the officers were

informed that the warrants would seek many items

known to have been stolen in a string of residential

burglaries, especially numerous items of jewelry. Elec-

tronic equipment and photographic equipment were also

described. They were informed that Det. Neumiller

would be the case manager at the 802 S. Thor residence

and Det. Grabenstein at the 428 S. Thor residence, and

that the case managers would have the warrants.

The officers were then dispatched to a “staging area”

near the two houses to await the warrants. At approxi-

mately 2:00 p.m. the surveillance officers advised that a

car was leaving each residence. The officers were con-

cerned that evidence was being removed from the houses.

The simultaneous departure of vehicles heightened the

officers’ concern that the houses needed to be secured

until the warrants arrived to prevent any additional

movement of evidence. Lt. VanLeuven telephoned Dep-

uty Pros. Atty. Patricia Thompson from the staging area;

Deputy Prosecutor Thompson informed him that they

could either seek consent to enter the houses and wait for

the warrants, or they could secure the premises from the

outside to prevent any ingress or egress. The officers

decided to request consent.

At 428 S. Thor the home owner, Mrs. Lippie Marie

Marks, allowed Lt. VanLeuven and the other officers to

CO

12

enter the house where they waited for the warrant. The

officers did not search anyone or anything before the

warrant arrived, although they did make a “protective

sweep” to ensure their safety and to be certain no poten-

tial evidence would be disturbed pending arrival of the

warrant. (The plaintiffs allege the officers forcibly entered

and searched hours before the warrant arrived.)

Several Marks family members were at the 428 S.

Thor address when the warrant was delivered and the

search began. Some of the people at that location were

searched. A female detective, Denise Coker, was dis-

patched to 428 S. Thor to pat-down search some women

and children. She conducted the pat-down searches in a

bedroom while the others were in the living room, and

gathered and recorded items of jewelry for review and

possible seizure. No weapons were found. No one was

handcuffed.

The officers allowed additional family members into

the 428 S. Thor house at the request of Lippie Marie

Marks even though they did not live there. The officers

thought it would be less troublesome to allow Lippie

Marie and her husband, Grover, to have family support

while the police were present. Police allowed Ken Pete

Marks and Bobby Marks to enter. They were pat searched

by Det. Krogh.

The Markses were disruptive and/or created diver-

sions during the search at 428 S. Thor. At times they

attempted to “palm” or hide items that were being

reviewed for possible seizure by the officers. Before the

search was completed the officers determined that the

fa ee

13

Markses were engaging in coordinated, extremely disrup-

tive behavior and intentionally creating diversions. The

officers consulted Lt. Freeman via telephone at the police

station to discuss their options. At the direction of Capt.

Allen, the officers collected the types of property identi-

fied in the warrant and moved the scene of the search to

the Public Safety Building so that they could continue

their efforts to execute the warrant and identify stolen

property without further interference.

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT’S OPINION DIRECTLY

CONFLICTS WITH THE SUPREME COURT’S RUL-

ING IN FARRAR v. HOBBY AND THE FOURTH

CIRCUIT’S HOLDING IN S1 AND S82 v. STATE

BOARD OF EDUCATION.

A. The decision conflicts with Farrar v. Hobby.

The Ninth Circuit granted attorney’s fees on an inter-

locutory appeal contrary to the express holding in Farrar

v. Hobby, 506 U.S. 103 (1992). The plaintiffs seek $59

million in damages; they have been awarded $0.00. Their

attorneys seek $1.3 million in fees.

Whether a party is entitled to an award under 42

U.S.C. § 1988 is determined by a two-prong test. The

Ninth Circuit completely ignored the second prong. First,

the party must establish he is the “prevailing party.”

Second, the “prevailing party” must establish a “level of

success” in comparison to the actual relief sought. Farrar

v. Hobby, supra. The plaintiffs seek millions of dollars in

14

damages, but have not yet obtained any relief establish-

ing any actual damages. Section 1983 cases are no differ-

ent than other damages cases; no damages may be

awarded without proof of actual injury. Carey v. Piphus,

435 U.S. 247, 264 (1978). Therefore, awarding attorneys’

fees at this time is premature.

Where the relief sought and obtained is lim-

ited to money, the terms “extent of success” and

“level of success” are euphemistic ways. of refer-

ring to money.

McGinnis v. Kentucky Fried Chicken of California, 51 F.3d

805, 809-810 (9th Cir. 1994).

The Ninth Circuit determined that attorneys’ fees are

to be awarded to certain plaintiffs on certain limited

issues. It stated:

Plaintiffs here have won more than the mere

right to proceed to trial. We affirm the district

court’s liability decision regarding those officers

who searched persons, and certain plaintiffs

have, accordingly, conclusively established their

entitlement to relief. We have also made other

determinations that will require decisions in

plaintiffs’ favor. We therefore hold that attor-

neys fees are appropriate in those instances. We

remand the question of the amount of fees to the

district court.

Appendix A at App. 55.

However, the cases cited by the Ninth Circuit at

Appendix A, App. 55 in support of the award were

decided before Farrar v. Hobby, supra, which substantially

changed the criteria a party must meet in order to be

entitled to attorneys’ fees under 42 U.S.C. § 1988. The

niece i,

15

Supreme Court determined that “the most critical factor”

in determining the reasonableness of a fee award to a

“prevailing party” is “the degree of success obtained.”

Farrar, supra, 506 U.S. at 114. None of the plaintiffs have

an enforceable judgment, consent decree, or settlement

against any defendant. Indeed, virtually all of their

causes of action have been dismissed. Since this litigation

is at a point where it is not possible to determine the

“degree of success obtained,” if any, by the plaintiffs, it is

premature to order any fees at this time. At best, certain

plaintiffs may only be deemed “prevailing parties.”

In some circumstances, even a plaintiff who

formally “prevails” under § 1988 should receive

no attorney’s fees at all. A plaintiff who seeks

compensatory damages but receives no more

than nominal damages is often such a prevailing

party. As we have held, a nominal damages

award does render a plaintiff a prevailing party

by allowing him to vindicate his “absolute”

right to procedural due process through

enforcement of a judgment against the defen-

dant. Carey, 435 U.S., at 266. In a civil rights suit

for damages, however, the awarding of nominal

damages also highlights the plaintiff’s failure to

prove actual, compensable injury. Id., at 254-264.

Whatever the constitutional basis for substan-

tive liability, damages awarded in a § 1983

action “must always be designed ‘to compensate

injuries caused by the [constitutional] depriva-

tion.’” Memphis Community School Dist. v.

Stachura, 477 U.S., at 309 (quoting Carey, supra,

at 265) (emphasis and brackets in original).

When a plaintiff recovers only nominal damages

because of his failure to prove an essential ele-

ment of his claim for monetary relief, see Carey,

16

supra, at 256-257, 264, the only reasonable fee is

usually no fee at all. In an apparent failure to

heed our admonition that fee awards under

§ 1988 were never intended to “’produce wind-

falls to attorneys,’” Riverside v. Rivera, supra, at

580 (plurality opinion) (quoting S. Rep. No.

94-1011, p. 6 (1976)), the District Court awarded

$280,000 in attorney’s fees without “con-

sider[ing] the relationship between the extent of

success and the amount of the fee award.”

Hensley, supra, at 438.

Farrar, supra, 506 U.S. at 115.

It is quite possible that the appropriate attorney fee

award in this case to the prevailing plaintiffs will be no

fee at all. Id. The plaintiffs have consistently alleged and

testified throughout the pre-trial proceedings that they

were not only searched for jewelry, (which is the only

issue on which the Ninth Circuit ruled that some plain-

tiffs prevailed) but that they were sexually molested,

paraded naked in front of other people, beaten, prevented

from using bathroom facilities and forced to urinate on

themselves, and subjected to other similar outlandish and

horrific indignities during the search. No objective evi-

dence remotely supports these incredible claims. The

defendants deny these allegations and are prepared to

refute each and every one at trial. As in Farrar, supra, and

numerous other civil rights cases, the plaintiffs who are

seeking 59 million dollars may prevail on a technical

constitutional issue, but receive a damages award that

bears no relation whatsoever to the extraordinary sums

sought.

There are several other factors throughout the long

history of this case which are also quite likely to prevent

17

any prevailing plaintiff from obtaining “success” as mea-

sured by damages. The defendants should have the

opportunity to present each and every argument with

respect to the propriety of awarding any attorneys’ fees at

the appropriate time in the case, i.e., after the District

Court has entered judgment establishing damages, which

would be after a trial to determine if any plaintiff can

prove damages on his/her prevailing issue. (This is

assuming the plaintiffs prevail on this petition with

respect to the second issue presented, i.e., whether any of

the petitioners are liable.)

By ignoring the Farrar criteria, the Ninth Circuit has

ordered the award of attorneys fees at a time when all it

can conclusively do is determine that the plaintiffs are a

“prevailing party.” There is nothing for the district court,

on remand, to compare to the plaintiffs’ asserted “suc-

cess.”

What is the remedy if, after trial, plaintiffs only get

nominal damages, or very low damages that are nowhere

near the millions they seek? Will the court order the

plaintiffs’ attorneys to return any fees prematurely

ordered at the interlocutory stage if they are unsuccessful

at trial in obtaining the huge financial damages the plain-

tiffs seek? Is it appropriate to award fees on appeal if

plaintiffs have not responded to Fed. R. Civ. P. 68 offers of

judgment that were made several years before any rul-

ings on summary judgment and the appeals to the Ninth

Circuit? The Ninth Circuit’s failure to adhere to Farrar,

supra, has created confusion and injustice; its decision

should be reviewed by this Court.

18

B. The Ninth Circuit’s decision conflicts with the

Fourth Circuit’s holding in $1 & S2 v. State

Board of Education.

In addition, the Ninth Circuit’s decision conflicts

with the Fourth Circuit’s holding in S1 & S2 v. St. Bd. of

Educ. of N.C., 21 F.3d 49 (4th Cir. 1994)(en banc), cert.

denied, __ U.S. __, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994).

In discussing the “catalyst theory,” the Fourth Circuit

adhered to the holding in Farrar v. Hobby, supra, stating:

A person may not be a “prevailing party” plain-

tiff under 42 U.S.C. § 1988 except by virtue of

having obtained an enforceable judgment, con-

sent decree, or settlement, giving some of the

legal relief sought in a § 1983 action.

S1 & S2, supra, 21 F.3d at 51.

The Fourth Circuit en banc decision adopted the

dissenting opinion of Circuit Judge Wilkinson in the orig-

inal S1 & S2 decision. 21 F.3d at 41. Judge Wilkinson's

decision (at 6 F.3d 168-72) and the Fourth Circuit’s adop-

tion of it declare that Farrar unequivocally held that:

No material alteration of the legal relationship

between the parties occurs until the plaintiff

becomes entitled to enforce a judgment, consent

decree, or settlement against the defendant.

(Footnote omitted; emphasis in original.)

S1 & S2, supra, 6 F.3d at 168. The Fourth Circuit declared

that this and other express statements in Farrar would be

“rendered meaningless” if plaintiffs are awarded attor-

neys fees without demonstrated legal entitlement. S1 &

S2, supra, 6 F.3d at 168. The Fourth Circuit delineated the

conflict between itself and the other circuits, stating:

iz = - <n =

19

The cases from other circuits cited by the

majority [minority after en banc decision at 21

F.3d 49] are no more persuasive in resuscitating

catalyst theory. With all due respect, those cases

fail to come to grips with Farrar’s ruling that

“{nJo material alteration of the legal relationship

between the parties occurs until the plaintiff

becomes entitled to enforce a judgment, consent

decree, or settlement against the defendant.”

(Citation omitted.)

S1 & S82, supra, 6 F.3d 160 at 169, n 2.

Thus, the Ninth Circuit’s opinion, which ignored and

abandoned Farrar, supra, is also in clear conflict with the

Fourth Circuit.

Il.

THE NINTH CIRCUIT’S DENIAL OF QUALIFIED

IMMUNITY TO THE OFFICERS, COUPLED WITH

THE DETERMINATION OF LIABILITY, IMPOSES

A STANDARD OF STRICT LIABILITY ON LAW

ENFORCEMENT OFFICERS. THE DECISION IS

CONTRARY TO THIS COURT’S POLICY

REGARDING QUALIFIED IMMUNITY, AND

BURDENS ALL LAW ENFORCEMENT WITH

UNWORKABLE GUIDELINES FOR ENFORCING

COURT ORDERS.

The Ninth Circuit’s denial of qualified immunity and

determination of liability is contrary to the holdings and

policy in Anderson v. Creighton, 483 U.S. 635 (1987), Malley

v. Briggs, 475 U.S. 335 (1986), and Hunter v. Bryant, 502

U.S. 224 (1991).

The Ninth Circuit denied qualified immunity to each

officer that searched persons at Appendix A, App. 31,

stating:

20

Instead we conclude that regardless of the terms of

the warrant, the law was clearly established that

the officers could not search all persons present

on the premises in the absence of individualized

probable cause. (Footnote omitted; emphasis

added.)

The standard applied by the Ninth Circuit to any

officer who allegedly searched a person is a rigid,

unyielding standard. In effect, it applies a standard of

strict liability to every officer any time Ybarra v. Illinois,

444 U.S. 85 (1979), is subsequently deemed to have been

violated when the officer enforces a facially valid warrant

that contains a mistake, even though it had been pre-

pared and reviewed by an experienced detective and

prosecutor, and was reviewed and signed by a judge. The

Ninth Circuit’s standard improperly requires each search-

ing officer to evaluate de novo all action taken and all

information known by others before he/she searches pur-

suant to the warrant. It must be kept in mind that the

issue in the case is not whether evidence obtained in

violation of Ybarra, supra, should be suppressed; the issue

is one of qualified immunity from suit.

The Ninth Circuit’s decision creates an unworkable

burden for law enforcement agencies and officers

throughout the country. Officers must rely upon direction

from judges and supervisors during search operations. A

search warrant is an order from a court which directs

searching officers to take certain action; it is a statement

to the officer in the field that probable cause exists for the

officer to take the action ordered by the court. It is wholly

inappropriate to ask line officers to second guess the

probable cause determination made by a judge, especially

ao

21

when the line officer is already aware that a prosecutor

and experienced detectives have prepared the affidavit of

probable cause and warrants. Public policy dictates that

once a warrant has been issued by the magistrate, the

officer in the field should enforce the warrant rather than

ignore it. Officers in the field are acting as functionaries

of the court when searching pursuant to a warrant; they

should not have to be concerned about their personal

liability in the event the warrant is ultimately deemed

invalid.

State officials “must not be required to act as

pseudo-appellate courts scrutinizing the orders

of judges,” but subjecting them to liability for

executing an order because the order did not

measure up to statutory standards would have

just that effect. To allow plaintiffs to bring suit

any time a state agent executes a judicial order

which does not fulfill every legal requirement

would make the agent “a ‘lightning rod for

harassing litigation aimed at judicial orders.’ ”

Simple fairness requires that state officers “not

be called upon to answer for the legality of

decisions which they are powerless to control.”

(Citations omitted.)

A narrow conception of facial validity also

would deprive the court of most of the benefit it

derives from the existence of quasi-judicial

immunity for officers carrying out its orders.

“‘The fearless and unhesitating execution of

court orders is essential if the court’s authority

and ability to function are to remain uncom-

promised,’ ” but state officers subject to litiga-

tion “might neglect the execution” of those

orders. .. . “The public interest demands strict

a,

22

adherence to judicial decrees,” ... . (Citations

omitted.)

Turney v. O'Toole, 898 F.2d 1470, 1473 (10th Cir. 1990).

The Ninth Circuit’s decision affects four classes of

officers in this case: the officers who prepared the war-

rants (Grabenstein & Reeve); the officers who ordered or

authorized warrants to be sought (Allen and Freeman);

any officers who directed others to comply with the war-

rants; and officers who searched persons (Grabenstein,

Krogh and Coker).

In this case, Officers Krogh and Coker were mere

functionaries at the time they were directed by the war-

rant to search certain individuals who could easily be

hiding and/or wearing stolen property (jewelry) at the

time; they were dealing with people who demanded to be

present during the search and appeared to be implicated

in hiding the stolen goods and/or creating diversions.

Under the totality of the circumstances confronting each

it is contrary to public policy to hold them personally

liable for an error that occurred in a judge’s chambers

and was not caught by any of four people reviewing it.

Attorneys and judges have had many hours since the

searches occurred to study and pick apart the legal

issues; officers at the scene did not. Indeed, the different

conclusions on these issues reached by the prosecutor,

defense attorneys and judges in the criminal case, fol-

lowed by the conflicting decisions in the civil case under-

score the difficulties faced by the officers in the heat of

the moment.

23

Even if this Court determines that the officers who

prepared and sought the search warrant did so uncon-

stitutionally as it relates to the search of the individual

plaintiffs at the two respective homes, the officers are

nonetheless entitled to qualified immunity from suit

under this Court’s case law. As stated in Anderson v.

Creighton, 483 U.S. 635 (1987),

We have recognized that it is inevitable that

law enforcement officials will in some cases rea-

sonably but mistakenly conclude that probable

cause is present, and we have indicated that in

such cases those officials - like other officials

who act in ways they reasonably believe to be

lawful — should not be held personally liable.

We have frequently observed, and our many

cases on the point amply demonstrate, the diffi-

culty of determining whether particular

searches or seizures comport with the Fourth

Amendment. (Cite omitted.) Law enforcement

officers whose judgments in making these diffi-

cult determinations are objectively legally rea-

sonable should no more be held personally

liable in damages than should officials making

analogous determinations in other areas of law.

Id., 483 U.S. at 641, and 644.

Qualified immunity is extended to officers who were

alleged to have violated the Fourth Amendment. See:

Mitchell v. Forsyth, 472 U.S. 511 (1985); Malley v. Briggs,

475 U.S. 335 (1986); Anderson v. Creighton, supra. However,

even if the clear standard in Ybarra, supra, had been

violated in this case it is nonetheless appropriate to grant

qualified immunity to the two officers (Coker and Krogh)

24

who conducted a search of some people at 428 S. Thor

because, based upon the totality of the circumstances

confronting each of them, a reasonable officer in his/her

situation could believe that his or her actions were, in fact,

lawful. Hunter v. Bryant, 502 U.S. 224, 228-9 (1991). The

officer’s interpretation need not be the most reasonable;

the correct inquiry is whether a reasonable officer could

believe his conduct to be lawful. Id. Even “if officers of

reasonable competence could disagree on this issue,

immunity should be recognized.” Malley v. Briggs, 475

U.S. at 341. The Ninth Circuit’s denial of qualified immu-

nity and imposition of liability upon the officers with the

least amount of information should be reviewed.

Similarly, the Ninth Circuit’s determination (see

Appendix A, App. 30) that any officer or supervisor who

helped obtain the warrants could be liable is contrary to

this Court’s qualified immunity decisions. If this petition

is denied, this Court will allow the Ninth Circuit’s deci-

sion to bind law enforcement officers in hectic, confusing,

and even dangerous situations for inadvertent mistakes

made by others, including judges. The record does not

contain any evidence that suggests any officer or super-

visor directed others to get a warrant to search “all peo-

ple present,” contrary to Ybarra, supra. Qualified

immunity should be granted rather than directing the

district court to seek out tortfeasors when pretrial discov-

ery and motion practice has established no facts to sup-

port liability.

Finally, the Ninth Circuit’s decision to hold liable the

officers who obtained the warrants (Dets. Reeve and Gra-

benstein) is contrary to this Court’s qualified immunity

policy declarations. Malley v. Briggs, supra; Anderson v.

eg

25

Creighton, supra. The district court determined that the

authorization in the warrants to search all persons was an

error that was “not facially obvious,” which “was likely

overlooked by Grabenstein and Reeves as it was by the

magistrate. It is almost certainly a clerical error rather

than fraud by Grabenstein and Reeves.” Appendix E,

App. 194, note 9. The district court noted that plaintiffs’

allegations that Reeve and Grabenstein knew the war-

rants were invalid “appear unfounded,” there being no

evidence whatsoever produced by plaintiffs. Appendix E,

App. 194-5, note 10. They even had an experienced pros-

ecutor scrutinize it prior to submission to the judge.

The Ninth Circuit also overlooked or misap-

prehended the record on a critical issue regarding Dets.

Grabenstein and Neumiller. The Court indicated in foot-

note 26 at Appendix A, App. 31, that it did not consider

qualified immunity of an officer who searched only those

persons specifically named in the warrant, the affidavit in

support thereof, or “any others as to whom the affidavit

established probable cause. No appellant asserts that his

conduct was so limited.” The Court either overlooked or

misapprehended the record and argument in support of

Detective Grabenstein’s motion for qualified immunity.

Detective Grabenstein’s involvement in the search

was discussed at pages 49-53 of the “ Appellants’ Consoli-

dated Brief.” At page 50 (App. 209) it was argued:

Detective Grabenstein did not search

beyond that scope of the warrant. He searched

only Grover Marks, whom he knew to be personally

named in the warrant. (ER 224) He personally

seized only two gold rings and a watch from

Grover Marks. (ER 244) Detective Grabenstein

26

knew those items matched “multiple” descrip-

tions in the search warrant. (ER 1494, n. 37)

(Emphasis added.)

Similarly, at page 51 (App. 211) he argued:

The search warrant authorized the search of

Grover Marks. Detective Grabenstein knew the

warrant contained “multiple” men’s rings and

gold watches. As stated in the affidavit he had

just prepared, Grabenstein had information that

Grover Marks had been buying just such prop-

erty, and that White’s purchasers had been seen

wearing some of the stolen property. (ER 603-04)

Grabenstein is entitled to qualified immunity for

his limited search and seizure from Grover

Marks. (Emphasis in original.)

This issue was also addressed in the “Appellants’ Consol-

idated Reply Brief” at pages 15-16.

Detective Grabenstein should be granted qualified

immunity for his search of Grover Marks because the

record is uncontested that he searched only Grover

Marks, a person for whom probable cause was estab-

lished in the affidavit.

The Ninth Circuit erroneously determined that Det.

Neumiller unreasonably obtained and executed a warrant

to search all persons present. Appendix A, App. 30-31. It

noted that he “assisted” Grabenstein and Reeve in pre-

paring the warrant application but went to one of the

houses “before the warrant was authorized by the magis-

trate.” App. 30, and note 24. The Ninth Circuit overstated

his involvement. It is uncontradicted that his involve-

ment was limited as he testified by affidavit at ER 268:

27

My assistance in the preparation of the war-

rant was limited to gathering various reports

about the prior activities and burglaries and

reviewing the basic facts for establishing proba-

ble cause with Det. Grabenstein and Det. Reeve.

They then undertook the task of physically pre-

paring the affidavit of probable cause and the

warrant itself. They brought it to Spokane

County Deputy Prosecuting Attorney Patricia

Thompson for review, and then to Judge Tank-

sley for judicial review and authorization. (See

App. 218-19)

He did not search anyone or direct anyone to search

people. The denial of qualified immunity to him and

determination he is liable should be reviewed.

*

CONCLUSION

The Court should accept review of the Ninth Circuit

decision for several reasons.

The award of attorneys’ fees under 42 U.S.C. § 1988

when the plaintiffs have not obtained an enforceable

judgment, consent decree, or settlement is in direct con-

flict with Farrar v. Hobby, supra, and the Fourth Circuit’s

case law. It creates significant practical problems and is

contrary to public policy.

The denial of qualified immunity to the law enforce-

ment officers and determination of liability establishes

dangerous and unworkable precedent for law enforce-

ment, and is contrary to this court’s holdings and policy

28

statements in Anderson v. Creighton, supra, Malley v.

Briggs, supra, and Hunter v. Bryant, supra.

Dated this 23rd day of May, 1997.

James C. SLOANE

City Attorney

Rocco N. TRepprep!

Senior Assistant City Attorney

App. 1

TABLE OF CONTENTS

Page

Marks v. Clarke, 102 F.3d 1012 (9th Cir.

“Order,” filed October 21, 1993 in United States

District Court, Eastern District of Washington,

Cause Nos. C-89-423-AAM and C-89-425-

“Order Denying Motion to Stay and Resetting

Dates,” filed November 24, 1993 in United

States District Court, Eastern District of

Washington, Cause Nos. C-89-423-AAM and

(ERIE, 5s ks ko 5s Se Ea App. 91

“Order on Summary Judgment,” filed Janu-

ary 21, 1994 in United States District Court,

Eastern District of Washington, Cause Nos.

C-89-423-AAM and C-89-425-AAM........ App. 133

“Order on Motions for Reconsideration,”

filed March 7, 1994 in United States District

Court, Eastern District of Washington, Cause

Nos. C-89-423-AAM and C-89-425-AAM...App. 183

Cover page and Pages 49-54 of “Appellants

Consolidated Brief,” in Gypsy Church of the

Northwest, et al. v. Spokane County, et al.,

and James Senator Marks, II, et ux., et al. v.

City of Spokane, et al., Cause Nos. 93-36092,

93-36093, 93-36094, 94-35250, 94-35251,

94-35252, 94-35253 and 94-35372 in the

United States Court of Appeals for the Ninth

ony Pern r rer ore tes. App. 207

App. i

TABLE OF CONTENTS - Continued

Page

Pages 1, 5 and 6 of “Affidavit of Jack Neu-

miller,” ER pages 264, 268 and 269 in Gypsy

Church of the Northwest, et al. v. Spokane

County, et al., and James Senator Marks, II, et

ux., et al. v. City of Spokane, et al., Cause

Nos. 93-36092, 93-36093, 93-36094, 94-35250,

94-35251, 94-35252, 94-35253 and 94-35372 in

the United States Court of Appeals for the

gk TEP TEE TTC Tee eee ree App. 217

App. 1

APPENDIX A

James Senator MARKS; Tommy Marks;

David Marks, Plaintiffs-Appellees,

V.

John R. CLARKE; William F. Grub;

Stephen W. Keane; Michael Lavelle;

Gerald R. Poindexter; Robert VanLeuven;

Ralph C. Weir, Defendants-Appellants,

James Senator MARKS; Tommy Marks;

David Marks, Gypsy Church of the

Northwest, Plaintiffs-Appellees,

V.

John R. CLARKE; William F. Grub;

Stephen W. Keane; Michael Lavelle;

Gerald R. Poindexter; Robert VanLeuven;

Ralph C. Weir, Defendants,

and

Robert G. Bailor; Denise E. Coker;

Monte E. Gaunt; Donald E. Johnson;

Richard J. Poole; Nicolis E. Stanley;

Michael FE. Yates, Defendants-Appellants.

James Senator MARKS; Tommy Marks;

David Marks, Plaintiffs-Appellees,

Vv.

John R. CLARKE; William F. Grub;

Stephen W. Keane; Michael Lavelle;

Gerald R. Poindexter; Robert VanLeuven;

Ralph C. Weir, Defendants,

and

City of Spokane; Robert Allen;

Earl L. Ennis; Lawrence R. Freeman;

Clifford Harding; Kenneth R. Krogh;

App. 2

Larry M. Lindskog; Jack E. Neumiller;

Andrew J. Pavlischak; Sheldon Reeve,

Defendants-Appellants.

GYPSY CHURCH OF THE

NORTHWEST, Plaintiff-Appellee,

Vv.

SPOKANE COUNTY, Defendant,

and

John R. Clarke; William F. Grub;

Stephen W. Keane; Michael Lavelle;

Gerald R. Poindexter; Robert VanLeuven;

Ralph C. Weir, Defendants-Appellants.

GYPSY CHURCH OF THE

NORTHWEST, Plaintiff-Appellee,

v.

SPOKANE COUNTY, Defendant,

and

Robert G. Bailor; Denise E. Coker;

Monte E. Gaunt; Donald E. Johnson;

Richard J. Poole; Nicolis E. Stanley;

Michael F. Yates, Defendants-Appellants.

GYPSY CHURCH OF THE

NORTHWEST, Plaintiff-Appellee,

v.

SPOKANE COUNTY, Defendant,

and

City of Spokane; Robert Allen;

Earl L. Ennis; Lawrence R. Freeman;

Clifford Harding; Kenneth R. Krogh;

App. 3

Larry M. Lindskog; Jack E. Neumiller;

Andrew J. Pavlischak; Sheldon Reeve,

Defendants-Appellants.

GYPSY CHURCH OF THE

NORTHWEST, Plaintiff-Appellee,

and

Grover Marks, Plaintiff-Appellee,

v.

Detective Rick GRABENSTEIN,

Defendant-Appellant.

Nos. 93-36092 to 93-36094, 94-35251

to 94-35253 and 94-35372.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 16, 1995.

Decided Dec. 19, 1996.

As Amended on Denial of Rehearing

Feb. 26, 1997.

Church group and 26 individual complainants

brought action against 23 police officers under § 1983 for

allegedly violating their Fourth Amendment rights by

unreasonably seeking and executing warrant to search

two resideices and all persons present at those resi-

dences. The United States District Court for the Eastern

District of Washington, Alan A. McDonald, J., granted

partial summary judgment for plaintiffs on issue of lia-

bility, and defendants appealed. The Court of Appeals,

Reinhardt, Circuit Judge, held that: (1) officers who

unreasonably obtained and executed warrant to search all

persons present at family residences were not entitled to

App. 4

qualified immunity; (2) material issue of fact on whether

search began before or after warrant arrived precluded

summary judgment for officers on qualified immunity

grounds; (3) police officers who conducted traffic stops

based on probable cause outside residence to be searched

were entitled to qualified immunity; (4) approval of gen-

eral “any persons on the premises” searches by prosecu-

tor and magistrate who signed warrant did not entitle

officers who obtained warrant to qualified immunity; (5)

officers who were informed by their supervisors regard-

ing scope of warrant fulfilled their duty to become

informed as to scope of warrant, or to read or refer to

signed warrant while they searched; (6) officers were

entitled to qualified immunity for their conduct related to

off-site inspection at police station of seized property;

and (7) attorney fees were appropriate for actions against

officers who searched persons other than suspects at

family residences.

Affirmed in part; reversed and remanded in part.

Rocco N. Treppiedi and Jeanie J. Mohler, Assistant

City Attorneys, Spokane, WA, Jerry R. Neal and John R.

Nelson, Preston Gates & Ellis, Spokane, WA, for defen-

dants-appellants.

Gregg R. Smith, Spokane, WA, Terry E. Thomson,

Sternberg, Thomson & Okrent, Seattle, WA, and Patrick

K. Stiley, Spokane, WA, for plaintiffs-appellees.

App. 5

Appeals from the United States District Court for the

Eastern District of Washington, Alan A. McDonald, Dis-

trict Judge, Presiding. D.C. Nos. CV-89-00423-AAM,

CV-89-00425-AAM.

Before: REINHARDT, TROTI and TASHIMA*, Cir-

cuit Judges.

REINHARDT, Circuit Judge:

Appellants in this case are twenty-three individual

City of Spokane police officers’ and one individual

Spokane County law enforcement officer.2 Appellees, the

plaintiff Gypsy Church of the Northwest and the twenty-

six individual plaintiffs in district court cases Marks v.

City of Spokane and Gypsy Church v. Spokane County, filed

suit under 42 U.S.C. § 1983 in June 1989 alleging that

three years earlier, in 1986, appellants and the City of

Spokane and Spokane County (the “municipalities” )* vio-

lated their Fourth Amendment rights by unreasonably

seeking and unreasonably executing a warrant to search

—

* The Honorable A. Wallace Tashima was a United States

District Judge for the Central District of California, sitting by

designation, when this case was argued. He has since been

appointed to this court.

1 We refer to the individual defendants as officers for

convenience. However, one of the City defendants, video

technician Michael Lavelle, is an employee of the Spokane City

Police Department and not a police officer.

2 The County defendant is Detective Rick Grabenstein.

Another county law enforcement officer, Sheriff Larry Erickson

is a defendant in this litigation. He is not a party to this

interlocutory appeal, however.

3 Unless otherwise qualified, the term “defendants” will

refer to appellants and the : iunicipalities collectively.

App. 6

two residences and all the persons present at those resi-

dences. On this appeal, appellants challenge four orders

of the district court in which that court initially denied all

but two of the appellants qualified immunity, certified the

interlocutory appeal of its qualified immunity determina-

tion as “frivolous” and retained jurisdiction over the

proceedings, denied the remaining two appellants quali-

fied immunity and granted partial summary judgment in

favor of the plaintiffs. At that point it deemed the quali-

fied immunity appeals no longer frivolous.

Appellants filed their first motions for summary

judgment on the basis of qualified immunity in early

1990. District Judge Robert J. McNichols denied the

motions on May 30, 1990 because material disputes of fact

existed regarding their conduct during the search. In

September 1991, Judge McNichols held that the issue

whether the search was legal had been fully litigated and

resolved, in state criminal proceedings, against both the

individual officers and the municipalities and that they

were all collaterally estopped from relitigating the

search’s legality in the present civil action. Later in Sep

tember 1991, defendants requested the district court to

reconsider its order regarding the applicability of collat-

eral estoppel, and Judge McNichols denied the motion. In

February 1992, plaintiffs moved for summary judgment,

and defendants, in turn, again moved for reconsideration

of the collateral estoppel issue. In a March 1992 order,

Judge McNichols denied the plaintiffs’ motion for sum-

mary judgment on the ground that “key issues of vigor-

ously disputed fact” existed and again declined to

App. 7

reconsider its collateral estoppel order.* The disputed

issues of fact apparently related to questions of which of

the individual officers did which acts to which plaintiffs

and at what times.

Judge McNichols died before any further significant

court proceedings occurred, and the case was reassigned

to District Judge Alan A. McDonald. Defendants there-

upon moved a third time for reconsideration of Judge

McNichols’ collateral estoppel determination, and the

plaintiffs moved for reconsideration of the denial of their

summary judgment motion. On October 21, 1993, Judge

McDonald reversed Judge McNichols’ collateral estoppel

order as it applied to appellants® and, because appellants

were no longer estopped from arguing that the search

was lawful, granted the plaintiffs leave to revise and

resubmit their summary judgment motion regarding the

liability of the individual officers. In the same order,

Judge McDonald denied qualified immunity to all of the

4 In October 1989, the defendants filed counterclaims

against the Marks plaintiffs, alleging that some of the plaintiffs

had violated the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). The district

court dismissed defendants’ RICO counterclaims in September

1991. In June 1993, the district court dismissed a separate actio!

originally filed in state court, in which the plaintiffs alleged that _

the defendants’ RICO counterclaims violated their civil right

and that, by filing the counterclaims, defendants committed the

torts of malicious prosecution, abuse of process, outrage, and

negligent infliction of emotional distress.

5 Judge McDonald agreed with Judge McNichols, however,

that the municipal defendants, the City of Spokane and Spokane

County, were estopped from relitigating the issue of the legality

of the search.

P| -

oe ataaaamaaaa aati

App. 8

individual City officers except Reeve and postponed rul-

ing on the qualified immunity of Reeve and County offi-

cer Grabenstein until he ruled on the renewed motion for

summary judgment that he expected the plaintiffs to file.®

The individual City appellants, including Reeve, filed

notices of appeal from this order. Reeve appealed the

court’s failure to rule on his qualified immunity motion,’

while the other City officers appealed the court’s denial

of their qualified immunity motions on’the merits. Gra-

benstein did not appeal the October 21, 1993 order until

later.

6 In this order, the district court also reconsidered the

defendants’ motion for summary judgment as to certain claims

on the grounds that: (1) the plaintiffs’ alleged injury was not

caused by a custom, policy, or practice of the County or the City

and (2) there was no evidence that the defendants’ actions were

motivated by racial animus. It declined to grant summary

judgment on the issue of municipal liability, holding that,

viewing the evidence in the light most favorable to the non-

moving party, “a reasonable jury could find proof of customs,

policies, or practices that would lead to municipal liability.”

Judge McDonald did, however, grant summary judgment in

favor of the defendants on the claims alleging racial animus,

concluding that the plaintiffs set forth no facts that would

support a finding that the defendants acted with discriminatory

intent. These portions of the October 21, 1993 order are not

before us.

7 We need not consider whether we have jurisdiction over

Reeve’s appeal from an order postponing a decision on

qualified immunity, see, e.g., Workman v. Jordan, 958 F.2d 332, 335

(10th Cir.1992) (holding that orders postponing a decision on

qualified immunity are immediately appealable), because his

subsequent appeal of the district court’s denial of qualified

immunity for some of his conduct rendered his first appeal

moot.

App. Yy

After filing their notice of appeal from Judge

McDonald’s qualified immunity order, the City appel-

lants filed a motion in the district court to stay the trial

set for March 7, 1994 and all other proceedings in the case

pending resolution of their interlocutory appeal of the

qualified immunity determination. On November 24,

1993, the district court certified their interlocutory appeal

as “frivolous,” retained jurisdiction as we have allowed

under Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.1992),

and, accordingly, denied their motion for a stay. Appel-

lants did not seek a stay from this court.

On January 21, 1994, Judge McDonald ruled that

Grabenstein and Reeve were entitled to immunity for

seeking the warrant to search but denied them immunity

for conduct related to the actual search and, in light of his

retention of jurisdiction under Chuman, granted the plain-

tiffs summary judgment on liability as to the search itself,

holding that it was conducted pursuant to an invalid

warrant. At the same time, the judge reserved certain

specific questions as to specific conduct by particular

plaintiffs and defendants for trial. The City appellants

then filed an amended notice of appeal, appealing the

denial of their motion for a stay of proceedings and the

summary judgment order. In addition, Reeve’s appeal

encompassed the denial of his qualified immunity

motion. Grabenstein appealed the court's October 21,

1993 failure to grant him qualified immunity in accor-

dance with an extension of time for that purpose granted

him earlier by the district court.

Finally, on March 7, 1994, the district court ruled on

motions for reconsideration filed by both sides. In this

order, Judge McDonald denied Grabenstein and Reeve’s

“a 1

App. 10

request for reconsideration of his denial of qualified

immunity to them. He also clarified some of his liability

rulings. The City officers filed second amended notices of

appeal from Judge McDonald’s ruling on the motions for

reconsideration and Grabenstein filed another notice of

appeal, appealing the district judge’s January 21, 1993

order denying his motion for qualified immunity and

granting the plaintiffs summary judgment on liability.

Grabenstein’s notice of appeal was also from Judge

McDonald’s order deciding the motions for reconsidera-

tion.

We review only three of the four orders appellants

ask us to review. The district court’s November 24, 1993,

order certifying appellants’ interlocutory appeal as frivo-

lous and refusing the appellants’ request for a stay of

further proceedings is not appealable.® After applying to

8 In Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.1992), we

recognized an exception to the general rule that a valid notice of

appeal divests the district court of jurisdiction over all but

tangential matters. This exception applies in cases in which the

district court certifies that the defendant’s interlocutory appeal

is “frivolous” or “forfeited.” See Apostol v. Gallion, 870 F.2d 1335,

1339 (7th Cir.1989) (explaining that a frivolous qualified

immunity claim is one that is unfounded, “so baseless that it

does not invoke appellate jurisdiction” and that a forfeited

qualified immunity claim is one that is untimely or dilatory).

The Supreme Court recently endorsed the district court’s power

to certify a defendant’s interlocutory appeal of the denial of

qualified immunity as frivolous or forfeited as a means of

protecting civil rights plaintiffs from abusive successive pre-

trial assertions of qualified immunity. Behrens v. Pelletier,

U.S. __, ___-__, 116 S.Ct. 834, 840-41, 133 L.Ed.2d 773 (1996).

In the instant case, Judge McDonald certified appellants’

interlocutory appeal as “procedurally frivolous” based on his

App. 11

the district court for a stay, the City appellants should

have applied to this court for a discretionary stay to

prevent the district court from proceéding to trial. See

Chuman, 960 F.2d at 105 n. 1. They failed to do so. We

note, however, that the damage to the appellants was

limited, because after entering its summary judgment

order as to liability and ruling on Grabenstein and

Reeve’s entitlement to qualified immunity, the district

court then certified the City appellants’ interlocutory

appeal as no longer frivolous and stayed the trial. The

three orders we review include among their holdings the

understandable belief that the appeal prior to resolution of the

plaintiffs’ summary judgment motion was unwarranted

because it could result in a ping-ponging between the appellate

and trial courts in contravention of the our circuit’s limit of one

pre-trial interlocutory appeal for defendants claiming qualified

immunity. We had articulated that rule in Nelson v. Silverman,

999 F.2d 417, 418-19 (9th Cir.1993) (following Pelletier v. Federal

Home Loan Bank of San Francisco, 968 F.2d 865 (9th Cir.1992),

holding that “a defendant may bring only one-pre-trial appeal

of a denial of qualified immunity.”).

The district court issued its decision before the Supreme

Court’s decision in Behrens v. Pelletier, U.S. _. —~ 116 S.Ct.

834, 840, 133 L.Ed.2d 773 (1996), which reversed our decision in

Pelletier. In Behrens, the Court held that a defendant may appeal

both the district court’s denial of a motion to dismiss on the

basis of qualified immunity and a subsequent denial of

summary judgment on the basis of such immunity. Behrens, __

US. at __, 116 S.Ct. at 840. Thus, the Court has decided, over

Justice Breyer’s vigorous objection, id. at __ 116 S.Ct. at 842,

that a defendant claiming qualified immunity may indeed have

two bites at the appellate apple. Id. at __, 116 S.Ct. at 840.

Accordingly, the district court’s rationale for its determination

of frivolity is no longer tenable, and we see no reason to

consider it further here.

ee

App. 12

denials of appellants’ qualified immunity motions in the

October 21, 1993, January 21, 1994, and March 7, 1994

orders.? See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct.

2806, 2817-18, 86 L.Ed.2d 411 (1985). This case is quite

unusual. Ordinarily, if the district court deems the appeal

frivolous and the court of appeals agrees, the appeal can

be disposed of summarily. When however, the court of

appeals concludes that the appeal has some substance, it

will ordinarily grant the stay and handle the appeal in the

ordinary course. Then, only the rulings made prior to the

appeal are potential candidates for review. In the instant

case, we consider a non-frivolous interlocutory appeal in

the normal course, except that because there was no stay,

the district court proceeded to make substantial rulings

on the case while the appeal was pending. Thus, here

9 Before the district court, the plaintiffs argued that

appellants’ interlocutory appeal was waived because they could

have filed an appeal from Judge McNichols’ May 30, 1990 order

denying appellants’ motion to dismiss on the basis of qualified

immunity. The district court did not rule on the plaintiffs’

waiver motion in the November 24, 1993 order. However, in a

March 2, 1994 order, the court denied the plaintiffs’ renewed

motion to certify the interlocutory appeal as waived. The

plaintiffs renew this argument on appeal and we reject it. Where

the appeal is from the denial of motions to reconsider that were

decided on entirely different grounds than those relied on by

the district court at the time of its initial decision, the

opportunity for an interlocutory appeal has not been forfeited.

The new grounds upon which Judge McDonald decided the

motion to reconsider raise significant legal questions that had

not been considered by Judge McNichols. An interlocutory

appeal from such an order is appropriate and permits us to

consider the new grounds on which the district court relied.

App. 13

included in the three orders, are additional significant

rulings that we are now asked to review.

We conclude that in this case we have jurisdiction to

review the district court’s rulings granting partial sum-

mary judgment on liability,1° even though those rulings

are not independently immediately appealable.’? We do

so because the district court's liability rulings are unques-

tionably inextricably intertwined with its decisions to

deny appellants qualified immunity. See Swint v. Chambers

County oy |S a 115 S.Ct. 1203, 1212, 131

10 For the sake of clarity, references to the district court's

partial summary judgment order should be understood to refer

to both the January 21, 1994 order and the order deciding the

parties’ motions for reconsideration of that order. In the latter

order, the district court simply amended two paragraphs of its

partial summary judgment order to specify which defendants

were liable to which plaintiffs, denied the “425” plaintiffs’

motion for reconsideration of the grant of partial qualified

immunity to Grabenstein and Reeve, denied the individual City

defendants’ motion for reconsideration of the liability

judgments, and denied County defendant Grabenstein’s motion

to reconsider the partial denial of his claim of qualified

immunity.

11 The district court initially certified these orders for

interlocutory appeal pursuant to 28 U.S.C. § 1292(b), stating in

the orders that they involved controlling questions of law “as to

which there is substantial ground for difference of opinion” and

that immediate appeal from them “may materially advance the

ultimate termination of the litigation.” 28 U.S.C. § 1292(b).

However, a motions panel of this court denied the defendants’

petition to appeal these orders immediately pursuant to

§ 1292(b). The order of the motions panel does not preclude this

court from now considering those appeals to the extent that they

are inextricably intertwined with the issues over which we have

direct appellate jurisdiction.

“ :

- 1

App. 14

L.Ed.2d 60 (1995). In reviewing the district court’s orders,

it is often impossible to separate the court’s reasoning or

decisions regarding qualified immunity from those

regarding liability. The issues are generally analyzed

together and are sometimes simply not susceptible of

independent review. Equally if not more important, the

district court’s rulings granting partial summary judg-

ment in favor of the plaintiffs on the issue of liability are

dependent on both the reasoning and results of its quali-

fied immunity decisions: a predicate to granting sum-

mary judgment in favor of the plaintiffs on the liability

issue is the conclusion that appellants are not entitled to

qualified immunity. Accordingly, insofar as we reverse

the qualified immunity determinations of the district

court, our decision also necessarily requires reversal of

the consequent liability rulings. To conclude otherwise

would result in the anomaly of a conflict between our

qualified immunity holdings and the liability determina-

tions of the district court. Thus, to the extent that we hold

that appellants are entitled to qualified immunity or that

a triable issue regarding qualified immunity exists, we

reverse any inconsistent summary judgment decision

contained in the district court’s January 21, 1994 and

March 7, 1994 orders.

I. BACKGROUND

The factual and procedural history of the civil cases

relating to this ten year-old search is quite extensive. We

set forth below an overview of the most relevant aspects

of the events which led up to the civil filings, and of the

numerous judicial proceedings, criminal and civil, that

have stemmed from those events.

App. 15

A. Factual Background

In the late spring of 1986, Spokane County Sheriff

Detective Rick Grabenstein arrested Michael White in

connection with a string of burglaries in Spokane County.

White informed Grabenstein that he had sold items of

stolen property to James “Sonny” Marks at a residence

located at 802 S. Thor and at other unidentified locations,

and to other “gypsies,” including Grover Marks, at A&A

Auto Sales and another residence located at 428 S. Thor.’

Because the three locations were within the Spokane city

limits, Grabenstein contacted the Spokane City Police

Department Burglary Task Force, a task force composed

of several burglary detectives, plainclothes officers from

the patrol division, and a sergeant, under the direction of

Lieutenant Larry Freeman. Grabenstein was temporarily

assigned to the Task Force to facilitate the investigation.

At the Task Force’s request, White attempted to sell

purportedly stolen property at 802 S. Thor and 428 S.

Thor while the police observed his efforts. White suc-

cessfully conducted the first such sale on June 10 to James

Marks at 802 S. Thor. The investigating officers, including

defendants Grabenstein, Reeve, and Neumiller, obtained

court authorization to videotape and audio record subse-

quent conversations between White and individuals at

the sale locations. Ensuing successful sales were video-

taped on June 12 and June 17. On June 18 at 802 S. Thor,

12 The plaintiffs contend that Grover Marks was wrongly

identified on a police videotape and that he has never owned,

operated, or served as an employee or agent of A & A Auto

Sales.

App. 16

the officers, again using White, attempted another under-

cover sale. Because of the way the person who answered

the door behaved, the officers concluded that she was

aware of their surveillance. The investigating officers

returned to the police station and informed defendants

Freeman and Allen that they believed the investigation

had been detected, and thereby compromised, and that

they wanted to secure a warrant to search the two Thor

residences.

Allen, a captain in charge of the Spokane City Police

Department’s Investigative Division, authorized the

detectives to end the investigation and obtain a search

warrant forthwith. Allen also authorized the use of detec-

tives from other units to assist in the search operation

and recruited additional personnel from other divisions

in the department.

Three officers, Grabenstein, Reeve, and Neumiller,

prepared the affidavit in support of the warrant. Neu-

miller collected the reports of the seventeen burglaries to

which informant White had confessed and reviewed them

with Grabenstein and Reeve. However, he left during the

preparation of the warrant application to participate in a

noon briefing of officers who were to assist in the search.

In their affidavit, the officers requested a warrant!}> to

search 428 S. Thor and 802 S. Thor, all vehicles on those

13 Two warrants were executed in this case, one for 428 S.

Thor and one for 802 S. Thor. Except for the different addresses

and the fact that the 802 S. Thor warrant specified James Marks

as a person to be searched while the other mentioned no

individual, the warrants were identical. We will, for the most

part, refer to the two warrants with the singular “warrant.”

App. 17

premises, and James Marks, Grover Marks, and any other

persons present “for officer safety.” The magistrate

signed the proposed warrant submitted by the officers at

approximately 3:10 p.m. Unlike the request set forth in

the affidavit, the warrant authorized searches of all per-

sons on the premises for the purpose of obtaining evi-

dence. Sixteen stolen property reports from White's

burglaries and a list of the items White had sold at the

Thor residences during the undercover investigation

were apparently attached to the affidavit and the war-

rant.

The officers who conducted the search had varying

degrees of information about the scope of the warrant.

Grabenstein and Reeve, who had drafted the warrant and

sought magistrate approval, saw the completed, signed

warrant before they conducted any search activity. Defen-

dants Clarke, Coker, Ennis, Gaunt, Johnson, Keane, Poin-

dexter, and VanLeuven attended a briefing session at

which defendants Allen, Freeman, Neumiller and

Pavlischak told them about the types of items to be

sought under the warrant they expected would be issued

~ items commonly stolen in residential burglaries, such as

jewelry, silverware, electronic equipment and photo-

grapic equipment. The officers who attended the briefing

were informed that Grabenstein and Neumiller would be

the case managers at the two residences and would each

have a copy of the warrant. Other defendants, Bailor,

Grub, Krogh, Lavelle, Poole, Stanley, and Yates, received

less formal briefing in the form of instructions from other

officers. Some of these defendants had participated in the

investigation of the alleged fencing operation. Defendant

Harding, the Assistant Chief of Police of the Spokane City

App. 18

Police Department, was apprised of some part of the

events of June 18th.

Grover Marks lives at 428 S. Thor and James Marks,

Grover’s son, lives at 802 S. Thor. The numerous individ-

uals present at 428 S. Thor and 802 S. Thor during the

execution of the warrant were all related to Grover Marks

and his wife, Marie Marks — they included their children,

grandchildren, and one great-grandchild. Not all the indi-

viduals present, however, resided at the two residences.

All the plaintiffs are members of the Kalderasha tribe

of Rom, or “Gypsies.” Plaintiffs assert that at the time of

the search and tor a number of years preceding it, Grover

Marks was the “baro” or “king” of his Rom community.

As such, he assumed important political, cultural, and

religious responsibilities. Grover Marks also contends

that he served as a “private banker” responsible for safe-

guarding jewelry and other property of the community

and its individual members throughout the northwestern

United States. According to the plaintiffs, the baro of the

Rom is also responsible for arranging payment for and

hosting religious feasts and the weddings and funerals of

community members.

Some officers were assigned to watch the Thor resi-

dences while others were assigned to the preparation of

the warrant application and to obtaining the warrant.

Officers began arriving at “the staging area,” which was

somewhere near the two residences, to await the receipt

of the warrant approximately two hours before it was

signed by the magistrate. At least an hour before the

warrant was signed, defendant Weir stopped a vehicle

leaving 428 S. Thor that was driven by plaintiff David

App. 19

Marks for a moving-traffic violation. Plaintiffs Jane

Marks, Laura Zeko, and Chrissie Zeko were passengers in

the vehicle. While Weir was speaking with David Marks,

defendant Grub arrived and directed the individuals in

the car to return to the house and wait for the search

warrant. The driver and three passengers returned to 428

S. Thor and entered the residence. Around the same time,

defendant Bailor stopped plaintiff James Marks, who was

observed putting a container in the trunk of his car, as he

was driving away from 802 S. Thor. The ostensible reason

for the stops was the absence of a license plate.14 Defen-

dant Bailor, along with defendant Lindskog, conversed

with James Marks and searched his vehicle with his con-

sent, after which Marks, perhaps as requested, returned

to his residence at 802 S. Thor.

The plaintiffs contend that officers VanLeuven,

Keane, and Poindexter forcibly entered 428 S. Thor;

appellants contend that Marie Marks invited the officers

inside. Appellants also contend that James Marks invited

Neumiller and other officers to enter 802 S. Thor and

consented to a search of his home, informing the officers

that a warrant was not necessary.'° Plaintiffs do not offer

evidence to refute the contention that James Marks ini-

tially consented to 2 warrantless search of his home;’®

14 James Marks’ twelve year-old son, Michael Marks, was

also in the car.

15 The officers assert, however, that they declined the

invitation to search, and instead waited for the arrival of the

warrant.

16 In their brief, plaintiffs do assert that appellants “began

the warrantless search by forcibly barging into the homes at 428

S. Thor and 802 S. Thor.” This assertion is supported with

App. 20

however, the record supports the inference that, at some

point during the course of these events, Marks withdrew

his initial invitation and consent.!” The plaintiffs assert

that the search began hours before the warrant was even

issued and was therefore invalid.'® Appellants contend

citations to the record preceded by the signal “[sJee, for

example.” Unfortunately, none of the cited material refers to the

search at 802 S. Thor, and, unaided, we have been unable to

locate material in the voluminous record that would support

plaintiffs’ contention. Accordingly, we treat as undisputed,

appellants’ documented claim that James Marks initially invited

them into his home and consented to a search of the premises.

17 For example, Det. Neumiller states in his affidavit that

Marks refused to open a safe discovered on the premises until

the officers threatened to get a locksmith to open it forcibly.

Marks then opened it quickly and slammed it shut. Neumiller

then “order[ed]” Marks to open it again. Neumiller also states in

his affidavit that after inspecting the warrant, Marks’s attorney

“told Mr. Marks that he should allow the search,” suggesting

that prior to that time Marks had, at least at some point, refused

to do so. Accordingly, we conclude that the issue of consent to

search the premises at 802 S. Thor is genuinely disputed by the

parties.

18 Several plaintiffs have stated in affidavits that the search

began prior to the hour at which the warrant was issued by the

magistrate. The plaintiffs also argue that testimony from state

criminal and civil proceedings stemming from the search

supports their contention. They point to testimony of the

attorney called by Grover Marks during the search, several

neighbors, and a postman. This third-party testimony makes it

clear that the officers were present before the search warrant

was authorized but does not answer the question whether the

search was actually proceeding or whether the officers had

simply secured the area. The plaintiffs also contend that the

facts that the Spokane Fire Department received a call for

assistance at 2:56 p.m. and that an ambulance arrived at 3:09,

before the warrant was issued, along with officer testimony as

App. 21

that the search did not commence until after copies of the

search warrant were delivered to 802 S. Thor by Reeve

and to 428 S. Thor by Grabenstein.*”

The individual defendants were involved in the

search operation in varying degrees. For instance, defen-

dant Weir’s only participation was his traffic stop of the

vehicle driven by David Marks. Defendant Clarke evi-

dently never entered either house and simply provided

perimeter security. Defendant Lavelle videotaped the

searches at both residences but did no searching himself.

Other officers may have gone inside the homes but did

not participate directly in any search or actual seizure.

Some officers may have searched persons as well as the

premises, while others may have performed only the

latter type of search. Also, some of the defendants man-

aged or supervised the search. Grabenstein and Neu-

miller served as the “case managers” in charge of the

search at 428 S. Thor and 802 S. Thor, respectively. Free-

man, who was back at the police station oversaw the

search from there; officers at the search scene informed

him of developments as they unfolded. Freeman mon-

itored the search closely and periodically phoned defen-

dant Allen and shared the information with him.”

to when during the search the ambulance was called, prove that

the search began before the warrant was issued. The defendants

counter that the ambulance was called to “stand-by” before the

search began, according to normal police procedure.

19 The appellants state that the officers did execute a

“protective sweep” of the residences before the warrants

arrived to ensure their safety.

20 Allen left the police station sometime after the warrant

was signed and went home.

App. 22

Plaintiffs Grover and Marie Marks, their daughter

Marguerite Marks and her child Steve Marks (23 months),

their son Robert Marks and his children Richard (11

years) and Steven Marks (10 years), their daughter Laura

Zeko and her four children Robert (11 years), Jason (9

years), Chrissie (6 years), and Sonny Zeko (7 months),

their son Peter Marks and his son Buck Marks (6 years),

and their daughter-in-law Jane Marks and her son David

Marks were present during the search of 428 S. Thor.

Plaintiffs James Marks and his son Michael Marks were

present during most of the search of 802 S. Thor, but left

to visit 428 S. Thor while the search of the latter residence

was still in progress, and may have been searched there.

Plaintiffs Larry Zeko (husband of Laura Zeko and father

of Robert, Jason, Chrissie, and Sonny Zeko), Tommy

Marks (father of Sonny Marks), and Tina Marks (daugh-

ter of James and Jane Marks) apparently were not present

during the search of either residence. There is a dispute

among the parties as to whether appellants confined

Polly Marks and her daughters Shirley Marks and Lisa

Marks outside the residence of 428 S. Thor during the

search. The plaintiffs contend that Marie Marks and

Linda Marks were “restrained” outside 428 S. Thor dur-

ing the search.

The plaintiffs allege that officers detained and

searched all persons who were initially inside the two

residences and all who entered during the law enforce-

ment operation. Appellants say they searched “some,”

but not ail, of the persons present. It is unclear which

officers searched which plaintiffs. However, the parties

agree that defendant Coker conducted the searches of

‘enim

App. 23

women and children.?! Appellants also claim that the

Markses were generally very disruptive during the search

and continually attempted to hide items that were subject

to seizure.

Approximately 200 items of personal property were

seized at 802 S. Thor, and approximately 440 items,

including seven canisters of money, were seized and

removed from 428 S. Thor. Prior to leaving the residences,

the officers photographed and videotaped much of the

property, including the canisters, as well as the persons

present. The property included jewelry, electronic equip-

ment, cashier’s checks, car titles, and cash sewn in blan-

kets and stashed in boxes. No cash was seized at the 802

S. Thor residence.

Extraordinary sums of cash were discovered during

the search of 428 S. Thor. Because money was not speci-

fically listed in the search warrant, the officers did not

seize approximately $10,000 in cash when it was first

discovered. However, when another significant amount

was discovered and its discovery reported to Freeman by

telephone, the officers were authorized by Allen and

Freeman to begin seizing all the cash they uncovered. The

officers did so and seized money they found in several

locked boxes and canisters in a chest of drawers with a

false bottom. Robert Marks was arrested while some of

the cash was being discovered.

Later in the search, the officers telephoned Freeman

and Allen and were directed by them to take all the

21 Appellants’ attempt to characterize these searches as

mere “pat-down(s],” is wholly unsupported by the record.

——_—_— aaaaaaaaacaaia mmaiaaaaaaa aa i il

App. 24

confiscated property and transport it to the police station

for identification. The property the officers took to the

station included that confiscated from various places

throughout the residences and from the persons of those

Marks family members present during the search. At the

station, officers cross-referenced their inventory lists from

the search at 802 S. Thor with the items placed in the

property room, continued inventorying items from 428 S.

Thor, and counted the money found at 428 S. Thor.

James and Grover Marks accompanied the police and

property to the police station. The Internal Revenue Ser-

vice sent two investigators to the station to observe the

counting of the money. The counting and inventorying of

the money was ultimately completed around 1:00 a.m.

June 19, 1986. A total of approximately $1,600,000 was

counted by the police.

On June 23, the City was served with a Writ of

Garnishment in the amount of $42,864.89. The plaintiff in

the garnishment action was an individual named Paul

Richards. The defendants in the garnishment were sev-

eral of the plaintiffs in this case, including Grover, Marie,

James, and Jane Marks. Also on June 23, the IRS served a

series of liens and notices of seizure on the City of

Spokane for the cash seized from Grover Marks’ resi-

dence pursuant to levies made against several members

of the Marks family. The levies were served on the City

before the Spokane Superior Court ruled that the money

seized during the search of 428 S. Thor should be

returned to the owner of the residence.

The IRS seized all of the cash in the City’s custody,

except for $43,000 that was subject to the garnishment

App. 25

previously served against the City. The City deposited the

$43,000 into a separate bank account to cover the garnish-

ment. The City then paid $42,864.89 into the Spokane

County Superior court as ordered on July 31 and paid the

remaining balance of the bank account, $357.79, to the IRS

pursuant to the original notices of levy and seizure. In

accordance with a stipulation entered into by the parties,

the IRS returned $519,000 and later, as part of a tax

settlement, returned all but $300,000 of the remaining $1

million.

Also in July 1986, the Spokane Police Department

conducted a viewing of the property seized during the

June 18 search. According to appellants, the viewing was

limited to burglary victims: (1) who could prove that they

were the victim of a crime during the last three years that

had been reported to a law enforcement agency; (2) a

copy of whose crime report could be located in law

enforcement records; and (3) whose report described the

items stolen. Approximately 35 of these crime victims

identified numerous items they claimed had been stolen

from them.

B. Procedural Background

1.. State Court

Pursuant to a Washington state criminal rule allow-

ing persons aggrieved by an unlawful search and seizure

to move the state court for the return of the property on

the ground that it was illegally seized, the Markses

moved for return of the seized cash on June 20, 1986, two

days after the search. That same day, after an expedited

hearing on the matter, the state court, Magistrate Judge

EE

App. 26

Ramond R. Tanksley, ordered the return of the approxi-

mately $1.6 million in cash that had been seized from

Grover Marks’ residence at 428 S. Thor, ruling that the

cash was outside the scope of the warrant and that the

plain view exception to the warrant requirement did not

apply because, although the officers were legally present

and the cash was inadvertently discovered, it was not

immediately identifiable as evidence of a crime.

After obtaining the order directing the return of the

cash, the Markses moved for the return of the other

seized property or in the alternative to suppress the

; property as evidence. In October and November 1987, the

Spokane Superior Court ordered the State of Washington

to return to the Markses all the property that had not

been identified as stolen. The items that had been charac-

terized as stolen, remained subject to further proceedings

in court.

Earlier, the State of Washington had charged James

Marks, Jane Marks, Grover Marks, and Marie Marks with

trafficking in stolen goods. In May 1988, the Markses

moved to suppress all evidence seized during the search

and to dismiss the criminal charges against them. After a

lengthy evidentiary hearing, the Spokane court held that

the police exceeded the authorization in the search war-

rant, conducted illegal searches because the searches and

seizures made by the officers were unreasonable and the

warrant itself failed to particularize the items to be

seized, and that the officers were guilty of mismanage-

ment and governmental misconduct, in violation of the

Fourth and Sixth Amendment of the United States Consti-

tution, Article I, section 7 of the Washington State Consti-

tution, and Washington state criminal laws. The court

App. 27

suppressed all the seized evidence, dismissed the under-

lying criminal charges, and ordered the police to return

all confiscated property to the Markses.

The State of Washington appealed the state trial

court’s order dismissing the charges and directing the

return of property which had been identified as stolen.

However, the state did not appeal the order suppressing

all the evidence seized. The City of Spokane joined the

appeal of the order directing return of the property

because the City had custody of the items and was made

subject to an order to show cause at the request of the

Markses. The Washington Supreme Court reversed the

trial court’s order of dismissal and reinstated the criminal

charges, holding that dismissal was unwarranted because

suppression of the evidence eliminated any prejudice

caused by the governmental misconduct, and remanded

the matter to the trial court for an evidentiary hearing to

determine who had the lawful right to possession of the

disputed property. State v. Marks, 114 Wash.2d 724, 790

P.2d 138, 145 (1990). Ultimately, the criminal charges

against Grover and Jane Marks were dismissed, and

Marie and James Marks entered “Alford” pleas to

reduced charges and paid fines.

2. Federal Court

In June 1989, the Markses instituted the two, now

consolidated, civil rights actions against the City of

Spokane, Spokane County, and the individual defendants

out of which this appeal arose. The plaintiffs in Cause

No. C-89-423-AAM (the case primarily involving events

at the 802 S. Thor residence) are James Marks, Jane

cacti aia

App. 28

Marks, Tommy Marks, David Marks, Marie Marks,

Michael Marks, Sonny Marks, Linda Marks, and Tina

Marks. The plaintiffs in Cause No. C-89-425-AAM (the

case primarily involving events at the 428 S. Thor resi-

dence) are the Gypsy Church of the Northwest, a volun-

tary association, by and through Grover Marks, trustee;

and Grover Marks, Marie Marks, Marguerite Marks,

Steven Marks, Robert Marks, Polly Marks, Richard

Marks, Shirley Marks, Lisa Marks, Steve Marks, Larry

Zeko, Laura Zeko, Robert Zeko, Jason Zeko, Chrissie

Zeko, Sonny Zeko, Peter Marks, and Buck Marks.

The plaintiffs sued the City of Spokane and city

employees Robert Allen, Robert Bailor, John Clarke,

Denise Coker, Earl Ennis, Larry Freeman, Monte Gaunt,

William Grub, Clifford Harding, Donaid Johnson, Step-

hen Keane, Ken Krogh, Michael Lavelle, Larry Lindskog,

Jack Neumiller, Andrew Pavlischak, Gerald Poindexter,

Richard Poole, Sheldon Reeve, Nicolis Stanley, Robert

VanLeuven, and Michael Yates and Spokane County,

Larry Erickson, and Rick Grabenstein.

Il. OVERVIEW

In the three orders we are reviewing, the district

court first denied qualified immunity to all appellants?2

22 The district court apparently concluded that defendant

Weir, a police officer whose only role in the search was stopping

a vehicle that left the residence before the warrant arrived, was

not entitled to qualified immunity because there was a material

dispute as to whether the traffic stop was pretextual and that

defendant Harding, Assistant Chief of the Spokane City Police,

was not entitled to immunity because of a material dispute as to

——

Le blk AB BEE 6 eae gtr i

App. 29

and then held most of them liable for their participation

in an unlawful search conducted pursuant to an invalid

warrant.23 The court held that the warrant was overbroad

and that it was invalid because it (1) authorized a “gen-

eral” search in violation of the Fourth Amendment's

requirement that warrants describe with particularity the

items to be seized and (2) authorized the search of all

persons on the premises for reasons other than officer

safety without the requisite individualized probable

cause. The court also held that the officers erred in failing

to take the necessary actions to gain an understanding of

the specific provisions of the warrant and in failing to

refer to those provisions while conducting the search.

Finally, the court held that disputed facts as to exactly

what role particular defendants played in the search and

as to what the various defendants did or did not do to the

his role in the search. With respect to Weir, as we discuss more

fully below, we reverse the decision of the district court in light

of the Supreme Court's recent decision in Whren v. United States,

__US. __, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). With respect

to Harding, under the Supreme Court’s holding in Johnson v.

Jones, _. U.S. _4 —— 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238

(1995), we are without jurisdiction to review a decision of the

district court denying qualified immunity where that decision

turns on the existence of a genuine issue of material fact.

23 It is undisputed that all appellants except Harding and

Weir participated in the search. We note that some of those who

participated - appellants Allen and Freeman — did not

physically engage in the search and were not present at the

residences, some — those officers who only “secured” the

premises — did not actually search persons, or even the homes,

for evidence, and one, Lavelle, did not search or secure but

rather videotaped the actions of others.

App. 30

various plaintiffs required that the extent of liability of

most of the defendants be resolved at trial.

We agree with most of the results reached by the

district court in connection with its denials of appellants’

motions for qualified immunity, but we reverse in large

part its decisions granting summary judgment to plain-

tiffs on the issue of liability. First, we affirm the district

court’s denial of immunity to the officers who were

involved in obtaining the search warrant, a group that

includes the officers who prepared and applied for the

warrant — defendants Grabenstein, Reeve and Neu-

miller?4 —- and the two superior officers who authorized

them to apply for the warrant - defendants Allen and

Freeman. We do so on a basis that differs in some impor-

tant respects from that relied on by the district court. The

district court held that, even though the officers who

sought the warrant could not have “harbored an objec-

tively reasonable belief” that the warrant was supported

by probable cause to search all persons or that it

described the items to be seized with sufficient partic-

ularity, they were entitled to qualified immunity because

the affidavit and draft warrant had been approved by an

attorney and the magistrate had issued the warrant.

However, it then denied them qualified immunity on the

ground that their failure to “constant[ly] reference” the

warrant during the search was unreasonable.?> We reject

24 Neumiller assisted Grabenstein and Reeve in preparing

the warrant application but went to the 802 S. Thor residence

before the warrant was authorized by the magistrate.

25 While the district court did not explain how this

rationale would support the denial of Allen’s and Freeman’s

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App. 31

the district court’s reasoning in part. We hold instead that

the qualified immunity motion must be denied because

the officers unreasonably obtained and executed a war-

rant to search all persons present for evidence. We rely

principally on the fact that the affidavit that supported

the warrant not only was lacking in any indicia of proba-

ble cause to search all persons but itself requested per-

mission only to search two persons ~ James and Grover

Marks — for evidence of the crime under investigation -

and all others solely for officer safety.

As to those officers who actively participated in the

search of the persons present at the premises during the

execution of the warrant, we affirm the decision of the

district court denying them qualified immunity. Once

again, we do so for a different reason, at least in part,

than was relied on by the district court. Once again, we

do not rely on the officers failure to examine the warrant

or apprehend its precise provisions. Instead we conclude

that regardless of the terms of the warrant, the law was

clearly established that the officers could not search all

persons present on the premises in the absence of indi-

vidualized probable cause.2®

motions, that failure is irrelevant given the rationale we employ

here.

26 We need not consider whether qualified immunity might

apply in the case of an officer who searched only the one

individual specifically named in the warrant, only the two

individuals as to whom permission to search was sought in the

affidavit, or only those two individuals plus any others as to

whom the affidavit established probable cause. No appellant

asserts that his conduct was so limited.

App. 32

The court’s denial of qualified immunity to all the

officers who participated in the search of the premises but

were not involved in obtaining the warrant or in search-

ing persons present is justified, but again on a ground

different fron that on which the judge relied. On the

record before us, we conclude that those officers are not

presently entitled to immunity because a material dispute

of fact exists: whether the search in which they partici-

pated began before or after the warrant arrived.?”7 The

district court held that whether the search began prior to

the issuance of the warrant was a fact in dispute but did

not consider the fact material because it had denied

immunity to the defendants who participated in the

search on a different basis. Because we disagree with the

district court’s rationale — that the warrant was a general

warrant and the search was a general search - we con-

clude that the disputed fact is material and that, as such,

a dispute of material fact exists that bars summary judg-

ment.28 Accordingly the officers who searched only the

premises were not entitled to a summary judgment order

granting them qualified immunity.

Similarly, as to those officers who only secured the

premises and detained those present, but did not search

27 As noted above, supra at p. 1020, and as explained again

below, infra at p. 1032, we also conclude that a genuine issue of

material fact exists concerning whether, if the search of 802 S.

Thor began before the arrival of the warrant, James Marks

consented to a warrantless search.

28 We also conclude that the disputed fact is material to the

disposition of appellant Lavelle’s qualified immunity motion,

and accordingly we hold that summary judgment on that

ground is inappropriate at this time for him as well.

App. 33

any person or property, we hold that qualified immunity

is inappropriate at this stage of the proceedings. Under

the facts as alleged by the plaintiffs, the officers secured

the premises and detained persons present in furtherance

of an illegal, warrantless search. If the search began

before the warrant arrived, these officers are not entitled

to qualified immunity. Accordingly, because a genuine

issue of-material fact exists regarding the conduct of

appellants who secured the premises, summary judgment

on qualified immunity is not appropriate at this time.??

Finally, in light of the Supreme Court's decision in

Whren v. United States, _— U.S. __, 116 S.Ct. 1769, 135

L.Ed.2d 89 (1996), we hold that the officers who con-

ducted the traffic stops are entitled to qualified immunity

because plaintiffs do not dispute appellants’ assertions

that probable cause existed to effect the stops.*° We also

conclude that the officers who participated in transport-

ing the seized property to the police station for an off-site

inspection are entitled to qualified immunity on the

ground that their conduct did not violate clearly estab-

lished law.

Where our decisions on qualified immunity conflict

with the district court’s decision on liability we neces-

sarily reach and reverse the latter. Specifically, our quali-

fied immunity conclusions require us to reverse the

29 We express no view as to whether individual officers

may have engaged in specific conduct during the course of the

search of persons or the premises that would serve as additional

reasons for depriving them of qualified immunity.

30 We except Grub, who -apparently ordered some of the

plaintiffs to return to the house. See discussion infra p. 1033.

CC _——————

App. 34

district court’s order imposing liability against those offi-

cers who only searched, videotaped, or secured the prem-

| ises at 428 and 802 S. Thor, including those who detained

but did not search the persons present. However, we

affirm the decision imposing liability against that smaller

number of appellants who conducted the search of the

persons found on the premises. Because the district court

did not treat separately the issue of imposing liability for

the obtaining of the warrant, that issue is not properly

before us on this appeal. The district court will undoubt-

edly, however, review that question on remand in light of

our parallel ruling on qualified immunity - that, under

the circumstances of this case, clearly established law

prohibited the obtaining of a warrant for the search of all

~-persons present.

Ill. SUMMARY JUDGMENT ISSUES

Whether appellants are entitled to summary judg-

ment on the basis of qualified immunity depends upon

“whether, in light of clearly established principles gov-

erning the conduct in question, the officer[s] objectively

could have believed that [their] conduct was lawful.” Act

Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). The

two-part analysis we use to apply this standard is: “(1)

Was the law governing the official’s conduct clearly

established? (2) Under that law, could a reasonable officer

have believed the conduct was lawful?” Id. Appellants

are not entitled to summary judgment on the basis of

qualified immunity if a genuine dispute of material fact

exists. Pierce v. Multnomah County, 76 F.3d 1032, 1038 (9th

Cir.1996); Act Up, 988 F.2d at 872. Plaintiffs, conversely,

are only entitled to summary judgment on liability if no

Derren

Bre sian estate rere eos

App. 35

material dispute of fact as to the appellants’ liability

exists for trial. Warren v. Carlsbad, 58 F.3d 439, 441 (9th

Cir.1995), cert. denied, __ US. _ 116 S.Ct. 1261, 134

L.Ed.2d 209 (1996).

1. Qualified Immunity

Obtaining the Warrant

The district court concluded that the affidavit sub-

mitted by Grabenstein and Reeve failed to establish prob-

able cause sufficient to support the general “any persons

on the premises” searches authorized by the actual war-

rants: more specifically, it determined that those appel-

lants “could not have harbored an objectively reasonable

belief in the existence of probable cause to search any

individuals other than Grover and Sonny Marks.” ER at

1480. Nevertheless, the court granted them qualified

immunity on the issue because they “reasonably relied”

on the approval given both by the Spokane County Dep-

uty Prosecutor who approved the affidavit and the draft

warrant and the magistrate who signed the warrant. We

disagree, and conclude that such approval is insufficient

to entitle these defendants to qualified immunity. See

Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d

271 (1986).31

1 In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89

L.Ed.2d 271 (1986), the Supreme Court made it clear that the

objective reasonableness inquiry employed to determine an

officer’s entitlement to qualified immunity “is whether a

reasonably well-trained officer in petitioner’s position would

have known that his affidavit failed to established probable

cause and that he should not have applied for the warrant.” Id.

App. 36

The conduct of these defendants with respect to the

claim at issue falls under the clearly established rule set

out in Ybarra v. Illinois, 444 U.S. 1049, 100 S.Ct. 741, 62

L.Ed.2d 737 (1980). In Ybarra, the Court held that

Where the standard is probable cause, a search

or seizure of a person must be supported by

probable cause particularized with respect to that

person. This requirement cannot be undercut or

avoided simply by pointing to the fact that coin-

cidentally there exists probable cause to search

or seize another or to search the premises where

the person may happen to be.

Id. at 91, 100 S.Ct. at 342 (emphasis added). While holding

open the question of the constitutional propriety of a

warrant that specifically authorized the search of

“unnamed persons in a place,” the Court did so only to

the extent that such a warrant is “supported by probable

cause to believe that persons who will be in the place at

the time of the search will be in possession of [items

subject to seizure].” Id. at 92 n. 4, 100 S.Ct. at 342 n. 4. See

also Greenstreet v. County of San Bernardino, 41 F.3d 1306,

1309 (9th Cir.1994) (“A search warrant designating more

at 345, 106 S.Ct. at 1098. Malley clearly established that

determining whether an officer seeking a search warrant is

entitled to immunity is not limited to considering whether that

officer sought advice from others, such as attorneys, before

seeking the warrant or whether a magistrate ultimately

authorized the warrant. Id. The officer applying for the warrant

is required to minimize the danger of an unlawful arrest “by

exercising reasonable professional judgment.” Id. The objective

reasonableness inquiry “is confined to the objectively

ascertainable question whether a reasonably well-trained

officer would have known that the search was illegal despite the

magistrate’s authorization.” Id.

App. 37

than one person or place to be searched must contain

sufficient probable cause to justify its issuance as to each

person or place named therein.”).

Accordingly, unless supported by probable cause as

to each individual present, the warrants here were

invalid, and the conduct of the officers in obtaining the

warrants violated clearly established law of which a rea-

sonable officer would have known. We agree with the

conclusion of the district court that the warrants’ authori-

zation to search “any persons on the premises” was not

supported by probable cause, and that “Grabenstein and

Reeves could not have harbored an objectively reasonable

belief” that such probable cause was shown. First, the

affidavit submitted in support of the warrant did not seek

authorization to search all persons present for evidence.

The affidavit stated that the affiant sought a warrant for

the purpose of searching persons described as “James

Marks, Grover Marks, and any other person on the prem-

ises at the time of warrant execution for officer safety.”

(emphasis added) The draft warrant Grabenstein and

Reeve submitted along with the affidavit contained a

different description of the “persons” to be searched,

however. It sought the broader, indeed unlimited, autho-

rization to detain and search “James S. Marks, aka

‘Sonny’ and all other persons on the premises of S. 802

Thor, Spokane County, Washington” and “Any persons

on the premises of S. 428 S. Thor, Spokane County Wash-

ington.” Unlike the affidavit, the draft warrant did not

VW

App. 38

contain the officer safety limitation as to persons who

happened to be on the premises.*?

Second, while the facts presented in the affidavit

clearly supported the conclusion that stolen property was

present at 428 S. Thor and 802 S. Thor, it did not establish

probable cause to search all persons present for evidence

of the crimes. The affiant stated that several robbers had

provided information that stolen property was sold by

informant White to persons at those two addresses and

that the affiant himself had orchestrated and conducted

surveillance of undercover sales of stolen property by

White to James “Sonny” Marks and one other uniden-

tified person at the residences. However, no-one other

than James Marks, Grover Marks, Tommy Marks, a

“gypsy” named “Terry”, and an unidentified “female” at

428 S. Thor, was even mentioned in the affidavit as a

suspect, other than a vague reference to “Gypsies” gener-

ally. While the affidavit may have established probable

cause to search James Marks, and possibly also Grover

Marks, Tommy Marks, and a “gypsy” named “Terry” for

evidence of trafficking in stolen goods, none of the state-

ments in the affidavit established probable cause to

detain and search any other individuals for evidence. A

warrant to search all “Gypsies” found at a particular

location would, of course, be invalid — although it would

in fact be more specific or limited than the all persons

warrant issued here.

32 The draft warrant was apparently signed by the

magistrate without change.

dia vad Or ee epae dee Ute

App. 39

The actions of the officers who applied for a warrant

to search all persons present for evidence of crimes when

the affidavit they submitted in support of that warrant (1)

clearly stated that the officers sought only to search two

individuals, James Marks and Grover Marks for that pur-

pose, and (2) obviously failed to establish probable cause

to search persons other than those identified in the affi-

davit, “violate[d] clearly established statutory or consti-

tutional law of which a reasonable officer would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 2738, 73 L.Ed.2d 396 (1982). While the first error

alone might not serve to deprive the officers of qualified

immunity, the combination of the first and the second

clearly does.

We reject the conclusion of the district court that the

officers are insulated by qualified immunity because of

their reliance on the approval given by an attorney and

the magistrate who signed the warrant. We recently noted

in United States v. Kow, 58 F.3d 423 (9th Cir.1995), that the

fact that a warrant was reviewed by two Assistant United

States Attorneys and signed by a magistrate does not

amount to “exceptional circumstances” on the basis of

which a reasonable officer could rely on a facially invalid

warrant. Id. at 428. We have held that “absent specific

assurances from an impartial judge or magistrate that the

defective warrant is valid despite its overbreadth, a rea-

sonable reliance argument fails.” Id. at 429. The officers

applying for the warrant in this case did not ask for, nor

did they receive any such specific assurances from the

magistrate issuing the warrant. To the contrary, it appears

that the magistrate may have been misled by the terms of

the request set forth in the affidavit, and may not have

App. 40

noticed the conflict in the papers submitted to him.

Accordingly, we hold that the officers who obtained the

warrant authorizing searches of “any persons on the

premises” are not entitled to qualified immunity for that

conduct.*9

Search of “Any Persons”

We also affirm the district court’s denial of qualified

immunity as to the appellants who participated in the

search of persons who were present when the warrant

was executed. As we have just stated, the warrant at issue

in this case was invalid insofar as it authorized a search

of “any person present.” Once again, under the clearly

established law of Ybarra v. Illinois, 444 U.S. 85, 91, 100

S.Ct. 338, 342, 62 L.Ed.2d 238 (1979), “[w]here the stan-

dard is probable cause, a search or seizure of a person

must be supported by probable cause particularized with

respect to that person.” As noted above, the affidavit

submitted in support of the warrant application at most

established probable cause to search Grover, Sonny, and

Tommy Marks, as well as a “gypsy” named “Terry.” Inso-

far as the warrant purported to authorize searches of

“any persons on the premises,” it was invalid, as unsup-

ported by particularized probable cause.

33 Those officers are also not entitled, as the district court

found, to qualified immunity for their actions in searching the

persons present on the premises, nor for instructing other

officers to conduct searches of such persons.

App. 41

Notwithstanding the warrant’s invalidity, appellants

who searched the various plaintiffs are nevertheless enti-

tled to rely on the warrant, and will not be stripped of

qualified immunity, so long as their reliance is objectively

reasonable. United States v. Leon, 468 U.S. 897, 920-921,

104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984). However, an

officer is not entitled to rely on a warrant which is “so

facially overbroad as to preclude reasonable reliance by

the executing officers.” Id. at 923, 104 S.Ct. at 3420-21; See

also United States v. Luk, 859 F.2d 667, 677 (9th Cir.1988);

United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir.1985).

The burden is on appellants to prove that their reliance

on the warrant was objectively reasonable. United States v.

Michaelian, 803 F.2d 1042, 1048 (9th Cir.1986).

In this case, if the overbreadth of the warrant with

respect to searching “any person present” was not imme-

diately apparent at the pre-search briefing session, its

invalidity certainly became apparent, at the latest, when

the officers were confronted with the duty of searching

dozens of people, including children, even to the point of

“inspecting” the diaper of an infant. In whatever limited

circumstances a blanket “any person present” warrant

might survive Ybarra’s clear requirement of “probable

cause particularized with respect to [each] person,” 444

U.S. at 91, 100 S.Ct. at 342, the circumstances of the

execution of this warrant made it unreasonable for an

officer to believe that it was not facially overbroad.

Appellants argue that a search of all persons was

justified because “[u]nder the facts and circumstances

confronting the officers, they justifiably concluded that

they were in a ‘den of thieves.’ ” We have not previously

commented on a “den of thieves” theory in a published

App. 42

opinion. However, we believe that a warrant to search

“all persons present” for evidence of a crime may only be

obtained when there is reason to believe that all those

present will be participants in the suspected criminal

activity. That is not the case here, and would not be the

case with respect to a raid on any family home where

innocent family members or friends might be residing or

visiting. An all persons present warrant might be appro-

priate for a different kind of locale — one dedicated exclu-

sively to criminal activity - for example, a building or

apartment used as a crack house, a barn used as a meth-

amphetamine lab, or a warehouse used exclusively as a

storage place for arms. Here, as we have noted, however,

large numbers of family members, including children,

were, as the officers might have anticipated, present

before and during the search. The approach we adopt

was set forth almost a quarter century ago by the New

Jersey Supreme Court, which stated that

[a] showing that lottery slips are sold in a

department store or an industrial plant obvi-

ously would not justify a warrant to search

every person on the premises, for there would

be no probable cause to believe that everyone

there was participating in the illegal operation.

On the other hand, a showing that a dice game

in a manhole or in a barn should suffice, for the

reason that the place is so limited and the illegal

operation so overt that it is likely that everyone

present is a party to the offense.

State v. DeSimone, 60 N.J. 319, 288 A.2d 849, 850 (1972); see

also 2 W. LaFave, Search and Seizure § 4.5(e), at 546 (3d

ed. 1996) (endorsing the limited rationale outlined in

App. 43

DeSimone as the proper analysis for “all persons present”

warrants.).

The cases cited by appellants do not support their

argument. They consider the reasonableness of an offi-

cer’s conclusion that items found in plain view constitute

incriminating evidence and do not consider the question

of suspending the individualized probable cause require-

ment governing searches of persons. State v. Legas, 20

Wash.App. 535, 581 P.2d 172, 176 (1978); State v. Adame, 37

Wash.App. 94, 678 P.2d 1299 (1984). In this case, appel-

lants’ “den of thieves” argument is simply a more sophis-

ticated and beguiling version of the kind of justification

forbidden by Ybarra: “Persons detained during a search

for evidence cannot be searched according to Ybarra sim-

ply because they are there,” United States v. Vaughan, 718

F.2d 332, 335 n. 7 (9th Cir.1983). Accordingly, those appel-

lants who conducted indiscriminate searches of all per-

sons present at the family residences failed to act in an

objectively reasonable manner, and are not entitled to

qualified immunity.

Officers Who Searched the Premises

The district court relied on our decision in Guerra v.

Sutton, 783 F.2d 1371 (9th Cir.1986), to reach its conclu-

sion that the officers in this case had a duty to read and

refer to the specific authorizations in the warrant during

the search. We have not found nor do the plaintiffs point

us to any authority ascribing to police officers a duty

personally to read the search warrant they are executing or

to refer to that warrant during its execution. The plain-

tiffs, like the district court, rely on Guerra, a case which

App. 44

does not support their argument. While we did hold in

Guerra that officers executing a search warrant have a

duty to inquire as to the nature, scope, and details of the

warrant, we also made it clear that it is not necessary for

“all or even any” of the officers executing the warrant “to

actually see” it. Id. at 1375. “Officers conducting a search

should read the warrant or otherwise become fully familiar

with its contents, and should carefully review the list of

items which may be seized.” United States v. Whitten, 706

F.2d 1000, 1009-10 (9th Cir.1983) (emphasis added), cert.

denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125

(1984).

In Guerra, we held that INS agents who failed “to

inquire as to the nature and scope” of the warrant they

were executing were not entitled to qualified immunity.

Id. at 1375. We denied the agents immunity because it was

clear that they had not sought to determine specific infor-

mation regarding what the warrant authorized them to

do. Id. In contrast to the officers who executed this war-

rant, the Guerra agents had “between four and six differ-

ent understandings of what kinds of warrants the local

police obtained and who and/or what they were for,” id.

at 1375 n. 5, and were not given an advance briefing as to

the source and extent of their authority to enter and

search, id. at 1375.

Prior to the searches of the two residences, the offi-

cers in the case before us were briefed about the warrant

being sought, the nature of the criminal investigation -

that investigators had substantial evidence that persons

at the residences were trafficking in stolen property — and

App. 45

the nature of the evidence to be seized - primarily jew-

elry, silverware, and electronic and photographic equip-

ment stolen in household burglaries. Also, many of the

officers had participated in the pre-search investigation

of the alleged fencing operation. These officers were par-

ticularly familiar with the nature of the items sought.

Although every officer did not attend the formal briefing,

each officer was informed in some way by authorized

personnel regarding the scope of the search. Thus, the

district court erred in concluding that clearly established

law imposed a duty on the officers, who had generally

fulfilled their duty to become informed as to the scope of

the warrant, to read or refer to the signed warrant while

they searched. Accordingly, we hold that the district

court erred in denying the defendants qualified immunity

on that basis.

We also hold that the district court erred in conclud-

ing that the searches were conducted pursuant to an

invalid “general warrant.” Instead, we hold that the war-

rant at issue satisfied the Fourth Amendment require-

ment of particularity insofar as it authorized a search of

the premises for the types of property described therein.

The requirement that a warrant not be a general

one is in part a function of the probable cause

rule and is in part derived from the fourth

amendment requirement that warrants be ones

“particularly describing the place to be

searched, and the persons or things to be

seized.”

United States v. Hillyard, 677 F.2d 1336, 1339 (9th Cir.1982).

On this warrant, in the space designated for describ-

ing the things to be seized, the words “see attached lists”

App. 46

were typed. Attached to the warrant were the lists that

had been attached to the affidavit — the list of the items

that informant White had sold to individuals at the two

residences during the police investigation and the sixteen

stolen property reports listing the items stolen from the

property owners who filed the reports.*4

The stolen property lists attached to the warrant

included descriptions of hundreds of items of property,

mostly jewelry and silverware. The descriptions varied

from detailed - “Black Hills Gold Earrings (Land-

strom’s)” [along with a detailed drawing]; “camera [serial

number] B2103134 [brand] Nikon [model] FE-2 Black” -

to vague - “A gold chain;” “Bottle of Liqueror” [sic] and

“3 Quarters.” The list prepared by the officers also

described the items to be seized in varying degrees of

detail. That list included rather general descriptions such

as “A gold rope chain,” “A flat gold chain,” “2 gold

bands,” but also included more detailed descriptions,

such as “A men’s Bulova silver colored watch, serial

# C92458,” “A silver mask earring,” and “Queens Lace

Sterling silverware (3 crab forks, 2 butter knives, 3 salad

forks, 3 dinner forks, 5 teaspoons, 3 soup spoons).”

We have held that:

[t]he specificity required in a warrant varies

depending on the circumstances of the case and

the types of items involved. Warrants which

* At one point in their brief, the plaintiffs appear to contest

the fact that the lists were attached to the affidavit and warrant.

However, the rest of their brief treats the issue as immaterial

and refers to the attached lists as if they were in fact attached to

the warrant.

App. 47

described generic categories of items are not

necessarily invalid if a more precise description

of the items subject to seizure is not possible. In

determining whether a description is suffi-

ciently precise, we have concentrated on one or

more of the following: (1) whether probable

cause exists to seize all items of a particular type

described in the warrant; (2) whether the war-

rant sets out objective standards by which exe-

cuting officer can differentiate items subject to

seizure from those which are not; and (3)

whether the government was able to describe

the items more particularly in light of the infor-

mation available to it at the time the warrant

was issued.

United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986)

(internal citations omitted).

As opposed to containing only a description of gen-

eral categories of property, the warrant in this case incor-

porated itemized lists with descriptions, the vast majority

of which were very detailed. Moreover, the affidavit the

officers had submitted in support of the warrant estab-

lished probable cause to believe that extremely large

quantities of jewelry would be found on the premises.

This is not a case in which officers were investigating the

theft of a few specific and easily described pieces of

jewelry that could have been intermingled with the resi-

dents’ personal jewelry collection. The affidavit stated

that informant White told the affiant he had sold “nearly

all” of the property he had stolen in sixteen burglaries to

individuals living at the residences to be searched.

Finally, for the most part, the descriptions of the items

sought were as detailed as they possibly could have been,

having been written by the property owners from whom

App. 48

the items were stolen, making it unlikely that further

investigation would have made it possible to describe the

items sought with greater particularity. Cf. Kow, 58 F.3d at

428 n. 2 (noting that the government's decision to refrain

from further investigation and yet rely on the lack of

specific information to justify the lack of particularity in

the warrant is troubling and that “[t]o the extent that it

was difficult for the government to create a more partic-

ularized warrant, the government may be to blame”).

We hold that the warrant was sufficiently particular

and thus valid with respect to the search of the residences

for stolen goods. Accordingly, we conclude that insofar as

the district court’s decision to deny the officers qualified

immunity depended on its conclusion that the warrant

was unconstitutionally broad or constituted a general

warrant, it was _in error.

However, we affirm the denial of qualified immunity

to appellants who participated in the search of the prem-

ises on other grounds. With respect to the search at the

principal location, 428 S. Thor, a material dispute of fact

exists as to when the search began. The parties are in

sharp disagreement as to whether officers forcibly

entered the 428 S. Thor residence over the occupants’

objections and whether they then began searching the

residence without the occupants’ consent and without

being in possession of a warrant. Both parties agree that

several officers entered the residence before the warrant

was signed by the magistrate at 3:10 p.m. and before the

warrant arrived at the premises at approximately 3:30

p-m. How the officers entered the residence is disputed,

however. The appellants contend that the plaintiffs con-

sented to the officers’ entry and even consented to a

App. 49

warrantless search of the premises. They further contend

that the officers declined to begin searching despite the

plaintiffs’ consent and waited for the arrival of the war-

rant before beginning the search. The plaintiffs, however,

claim that defendants VanLeuven and Keane forcibly

entered 428 S. Thor without the occupants’ consent. They

also contend that the officers who entered the residence

began searching before the warrant arrived or was

signed. This dispute as to whether the officers who

searched entered the residence lawfully (pursuant either

to plaintiffs’ consent or some other exception to the war-

rant requirement) and whether they began searching

before the warrant arrived constitutes a dispute of mate-

rial fact.*° Because the conduct alleged by plaintiffs

would be clearly unlawful and because a material dispute

of fact exists, we hold that the appellants who partici-

pated in the search of 428 S. Thor are not entitled to

summary judgment on the basis of qualified immunity

for their conduct related to searching this residence.

Pierce v. Multnomah County, 76 F.3d at 1038; Act Up, 988

F.2d at 872.

As to the search at 802 S. Thor, as noted above

plaintiffs have not directed us to evidence in the record

which would refute appellants’ assertion that James

Marks initially consented to the search of his home prior

to the arrival of the warrant. However, as we also noted,

*S Again, we note that the district court found the issue of

whether the officers began searching before the warrant arrive

[sic] to be in dispute. It determined, however, that the issue was

not material, because qualified immunity was being denied on

another ground.

App. 50

the record supports the inference that whatever consent

Marks initially gave was withdrawn at some point during

the search. Accordingly, when the search began is mate-

rial here as well; a nonconsensual search could only have

been lawful pursuant to a warrant, or some exception to

the warrant requirement found not to exist by the district

court. Because genuine issues exist regarding when the

search began and regarding Marks’s consent, the officers

who searched the 802 S. Thor premises are not entitled to

qualified immunity regarding their participation in the

search.*

Officers Who “Secured” The Premises

Officers who “secured” the search premises, or

detained but did not search the persons present are also

not entitled to qualified immunity at this stage of the

proceedings because of the dispute over when the search

began. Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct.

2587, 2595-96, 69 L.Ed.2d 340 (1981), would in this case,

authorize a brief detention of the occupants of the homes

for a reasonable period of time “while a proper search

[was] conducted.” It would not, however, authorize

detaining the occupants in furtherance of an illegal search

- a search under the circumstances alleged by the plain-

tiffs. Accordingly, summary judgment on qualified immu-

nity grounds is inappropriate at this time. As a result, we

need not consider the district court’s alternative theory

36 With respect to the searches of both premises, we do not

reach the question of the legality of the seizure of any particular

items alleged to fall outside the scope of the warrant.

a eae ee ee ae ee ee ee

ll i i

App. 51

that the length of the detention might have rendered it

unreasonable.

Videotaping of Search

We hold that appellant Lavelle, a civilian employee of

the Spokane City Police Department, who videotaped

portions of the search is also not entitled to qualified

immunity at this time, but only because of the factual

dispute as to whether the search of the premises was

unlawful because it commenced prior to the issuance or

arrival of the warrant. Lavelle’s videotaping was indis-

putably performed for legitimate law enforcement pur-

poses.37 See Ayeni v. Mottola, 35 F.3d 680, 684 (2d

37 A review of our cases suggests that we have assumed

without deciding that videotaping of the execution of a valid

search warrant is lawful. See United States v. Guzman, 75 F.3d

1090, 1092 (6th Cir.1996) (noting as part of background of case

that the execution of a search warrant to search the contents of a

bus passenger’s bag was videotaped); United States v. Myers, 21

F.3d 826, 828 (8th Cir.1994) (noting as part of background of case

that law enforcement officials made a videotape of the search of

farm on which marijuana was growing, “showing the setup of

the farm and the seizure of approximately 393 marijuana plants

and a large amount of marijuana-growing equipment”), cert.

denied, _ U.S. __, 115 S.Ct. 742, 130 L.Ed.2d 643 (1995); United

States v. Carpenter, 933 F.2d 748 (9th Cir.1991) (holding that the

district court did not abuse its discretion in admitting into

evidence videotape of the execution of a search warrant

showing federal agents digging up the bodies of birds buried in

pits); United States v. Willis, 759 F.2d 1486, 1501 (11th Cir.)

(holding that district court did abuse its discretion in allowing

the jury to view a silent videotape showing the police executing

a search warrant for an airplane thought to contain cocaine),

reh’g denied, 765 F.2d 154, cert denied, 474 U.S. 849, 106 S.Ct. 144,

88 L.Ed.2d 119 (1985).

a

App. 52

Cir.1994), cert. denied, __ U.S. __, 115 S.Ct. 1689, 131

L.Ed.2d 554 (1995) (denying qualified immunity to a

United States Secret Service agent who allowed a televi-

sion crew from a weekly news magazine program to

videotape the execution of a search warrant authorizing

the search of an apartment). However, because material

disputes of fact exist as to whether the officers whom

Lavelle accompanied began searching without a warrant

and because Lavelle could be liable for participating in a

search that commenced without a warrant - even if only

by videotaping it = we hold that he is not entitled to

qualified immunity at this time.

Traffic Stops

The district court denied qualified immunity to

defendants Weir, Grub, Bailor and Lindskog for their

participation in the two traffic stops which occurred prior

to the execution of the warrants, concluding that a genu-

ine issue of material fact existed regarding pretext. There-

after, the Supreme Court handed down its decision in

Whren v. United States, __ U.S. __, 116 S.Ct. 1769, 135

L.Ed.2d 89 (1996), rejecting the argument that “the consti-

tutional reasonableness of traffic stops depends on the

actual motivations of the officers involved.” Id. at__, 116

S.Ct. at 1774. The Court held that “[a]s a general matter,

the decision to stop an automobile is reasonable where

the police have probable cause to believe that a traffic

violation has occurred.” Id. at __, 116 S.Ct. at 1772. The

district court in this case found that with respect to each

traffic stop appellants alleged probable cause to make the

stop at issue and that plaintiffs did not rebut those allega-

tions. Because appellants do not challenge the existence

a ”

App. 53

of probable cause, we reverse the district court’s decision

denying qualified immunity to the officers involved.

Under Whren, the officers’ conduct does not constitute a

Fourth Amendment violation.

We note, however, that in the “Background” section

of its January 21, 1994, order granting in part plaintiffs’

summary judgment motions, the district court stated that,

according to appellants’ representation of the facts, after

the officers stopped their car, David and Jane Marks and

Laura and Chrissie Zeko were “ordered to return to the

house where they would await the search warrant.” The

district court did not address separately the lawfulness of

this “order,” perhaps considering the issue subsumed in

the question of pretext. Appellants’ brief asserts that it

was appellant Grub who issued the “order.” Plaintiffs do

not contend otherwise. However, the record contains only

the barest of facts regarding the incident. Accordingly, we

are unable at this time to evaluate the lawfulness of this

apparent seizure, and leave it to the district court to

resolve the matter in the first instance. We therefore

affirm the part of the order denying qualified immunity

to appellant Grub, albeit for different reasons than relied

on by the district court.

Seizure of Property for Off-Site Inspection

Finally, we hold that appellants are entitled to quali-

fied immunity for their conduct related to the off-site

inspection at the police station of seized property because

we conclude that the removal of the goods to the station

and their inspection at that location did not violate

i,

App. 54

clearly established law. As noted above, we take no posi-

tion on the initial seizure of any particular items.

2. Liability

In reaching our holdings on the appellants’ qualified

immunity claims, we have rejected some of the reasoning

relied on by the district court both in its qualified immu-

nity decisions and its orders granting summary judgment

to the plaintiffs on the issue of liability. We have, more-

over, come to different conclusions in some instances

regarding the availability of qualified immunity to certain

appellants. In doing so we necessarily require the rever-

sal of the district court’s grant of partial summary judg-

ment to the extent that it conflicts with the approaches or

results we have outlined above.

Specifically, we reverse the decision granting sum-

mary judgment against those officers who searched the

premises at 428 S. Thor and 802 S. Thor in light of our

conclusion that a genuine issue of material fact exists

regarding the time at which the search began and also

regarding James Marks’s consent. For the same reasons,

we also reverse the decision granting summary judgment

against appellants who secured the premises by detain-

ing, but not searching, persons who were present when

the officers arrived. We affirm summary judgment

against those officers who participated in the search of

persons present at the premises. A judgment in favor of all

persons searched is appropriate, except for those persons

as to whom probable cause existed. We leave it to the

district court to determine initially whether cause existed

as to any of the individuals mentioned in the affidavit

App. 55

other than James Marks - as to him such cause unques-

tionably exists.

IV. ATTORNEY’S FEES

The plaintiffs seek attorneys’ fees and costs under 42

U.S.C. § 1988 for their appeal. A party may be awarded

attorney fees as a prevailing party at an interlocutory

stage of the proceeding if the party “prevails on the

merits as to one or more of his or her claims.” Ward v.

County of San Diego, 791 F.2d 1329 (9th Cir.1986) (citing

Hanrahan v. Hampton, 446 U.S. 754, 757-58, 100 S.Ct. 1987,

1989-90, 64 L.Ed.2d 670 (1980)). It is not necessary that the

party win a judgment that ends the litigation on the

merits and leaves nothing for the court to do but execute

the judgment: “The fact that the dispute between the

parties may continue does not preclude a fee award.”

Animal Lovers Volunteer Ass'n, Inc. v. Carlucci, 867 F.2d

1224 (9th Cir.1989). Plaintiffs here have won more than

the mere right to proceed to trial. We affirm the district

court’s liability decision regarding those officers who

searched persons, and certain plaintiffs have, accordingly,

conclusively established their entitlement to relief. We

have also made other determinations that will require

decisions in plaintiffs’ favor. We therefore hold that attor-

neys fees are appropriate in those instances. We remand

the question of the amount of fees to the district court.

The plaintiffs also submit that they should be entitled

to recover attorneys’ fees and costs, under 28 U.S.C.

§ 1927, on the ground that appellants’ appeal on the issue

of qualified immunity has unreasonably and vexatiously

|

App. 56

multiplied the proceedings and costs in this case. We

disagree and deny that request.

V. CONCLUSION

We conclude that the district court erred in its deter-

mination that none of the appellants is entitled to quali-

fied immunity for the search of the residences because

they failed to read the signed warrant or otherwise

inquire into the warrant’s scope, or, if they did read it,

failed to refer to it during the search. We also reject its

conclusion that the warrant was overbroad because it

failed to designate with sufficient specificity the items to

be seized. However, we hold that the officers and the

video technician who participated in the search of the

premises, as well as those officers who secured the prem-

ises, are not entitled to qualified immunity at this stage of

the proceedings because a material dispute of fact exists

as to whether the search began before or after the warrant

arrived and as to whether the search at 802 S. Thor was

consensual. We also hold that those officers who con-

ducted searches of persons present at the premises are

not entitled to qualified immunity because the provision

of the warrant which authorized the searches of all per-

sons was contrary to established law as any reasonable

officer should have known.

We affirm the district court’s denial of qualified

immunity to the appellants who participated in obtaining

the warrant, on different grounds than those on which

the district court relied. We conclude contrary to the

decision of the district court that those officers could not

reasonably rely on the approval of an attorney and a

App. 57

magistrate. We hold instead that the officers who were

involved in obtaining the warrant are not entitled to

immunity for obtaining a warrant that authorized the

search of all persons present on the premises. We also

hold that those officers are not entitled to qualified

immunity for participating in the search of the persons

who were present at the premises and that they are not

entitled to immunity for instructing others to do so.

Finally, we reverse the decision denying immunity to

those officers who participated in the traffic stops, in

light of the Supreme Court's decision in Whren v. United

States, although we affirm for the present the denial as to

the officer who ordered the occupants of a vehicle to

return to 428 S. Thor.

In reaching these conclusions we necessarily reach

some of the district court’s decisions on liability. We

reverse the district court’s liability judgment in favor of

plaintiffs to the extent that it is based on the conclusion

that the officers acted pursuant to a warrant that was

invalid with respect to the searching or securing of the

premises. Conversely, we affirm the judgment insofar as

it holds liable those who conducted searches of persons

other than persons as to whom the affidavit in support of

the warrant established probable cause.

There still remain for resolution a number of factual

issues as to which officers did what to whom and under

what circumstances. These matters cannot be resolved on

this record on interlocutory appeal. We leave them to

further proceedings in the district court.

AFFIRMED IN PART; REVERSED AND REMANDED

IN PART.

App. 58

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

JAMES SENATOR MARKS, II,

et al., No. C-89-423-

ae AAM

Plaintiffs, No. C-89-425-

vs. AAM

CITY OF SPOKANE, et al., ORDER

Defendants. (Filed

GYPSY CHURCH OF THE

NORTHWEST, et al.,

Plaintiffs,

VS.

SPOKANE COUNTY, et al.,

Defendants.

)

)

)

)

)

)

)

Oct. 21, 1993)

)

)

)

)

)

)

)

)

This matter comes before the court on the following

motions: plaintiffs’ motion for reconsideration of Judge

McNichols’ order denying plaintiffs’ motion for summary

judgment against the individual defendants (Ct. Rec. 154,

305); defendants’ third motion for reconsideration of

Judge McNichols’ order which, through the application of

the collateral estoppel doctrine, adopted the state court’s

finding that the plaintiffs’ Constitutional rights were vio-

lated (Ct. Rec. 251, 429); and defendants’ motions for

summary judgment (Ct. Rec. 259, 437, 451). The motions

were heard with oral argument on August 12, 1993, in

Yakima, Washington. Terry E. Thomson, Mark D. Deife

and Gregg R. Smith represent the plaintiffs in Cause No.

—— re ee in

App. 59

C-89-425-AAM. Jeffry K. Finer and Patrick Stiley repre-

sent the plaintiffs in Cause No. C-89-423-AAM. Jerry R.

Neal, John Nelson and Lori A. Terry represent Spokane

County, Sheriff Larry Erickson, and Rick Grabenstein.

James C. Sloane, Rocco N. Treppiedi, and Jeanie J. Mohler

represent the City of Spokane and the remaining defen-

dants.

FACTUAL BACKGROUND

In late spring of 1986, Spokane County Detective Rick

Grabenstein arrested Mike White, a suspect linked to

seventeen burglaries in Spokane County. White confessed

to selling large quantities of stolen property to members

of the Marks family at three locations within the city

limits: the residence of Grover Marks at 428 S. Thor, the

residence of James Senator Marks II (hereinafter James

Marks) at 802 S. Thor, and a used car business located

near the two residences. Detective Grabenstein relayed

this information to members of the City/County Burglary

Task Force! who had previously received reports that

members of the Marks family were involved in a “fenc-

ing” operation. The Task Force decided to use White as a

“cooperating individual” to gather additional evidence

establishing the Marks’ involvement in the purchase of

1 In 1985, the Spokane Police Department set up a Burglary

Task Force within its Investigative Division to combat a growing

epidemic of residential burglaries which plagued the Spokane

community. By design, the Task Force worked closely with the

Spokane County Prosecuting Attorney’s Office, particularly

with Deputy Prosecuting Attorney Patricia Thompson.

App. 60

stolen property. Since Detective Grabenstein had estab-

lished a good working rapport with White, the County

temporarily assigned him to the Task Force to assist in the

investigation of the alleged fencing operation.

White made several attempts between June 10 and

June 17, 1986, to effectuate undercover sales of stolen

property to the residents at 428 S. Thor and 802 S. Thor.

Three of the sales were successful. On June 10, 1986,

White sold several items of purportedly stolen jewelry to

James Marks at the 802 S. Thor address. On June 12, 1986,

White completed a second controlled sale of stolen goods

to James Marks at 802 S. Thor. This second transaction

was recorded on audio and video tape pursuant to court

order. On June 17, 1986, White sold purportedly stolen

jewelry and silverware to plaintiff Lippie Marks at the

residence located at 428 S. Thor. That purchase was also

recorded on audio and video tape pursuant to court

order.

On June 18, 1986, at approximately 11:00 a.m., White

attempted another sale at 802 S. Thor, but was refused by

plaintiff Jane Marks. Believing the refusal to have

resulted from a compromise of the investigation and fear-

ing the destruction or disappearance of evidence, the

Task Force immediately sought to obtain search warrants

for the residences. This decision was approved by Lt.

2 The County asserts that during the short period of time

that Grabenstein was working with the Task Force, he was

under the supervision of the Spokane Police Department, not

the County Sheriff’s Office. However, other than the conclusory

statements made by Grabenstein and Sheriff Erickson, the

County has produced no evidence to support this assertion.

App. 61

Larry Freeman who was in charge of the Task Force and

Captain Robert Allen, the Captain of the Investigative

Division. Capt. Allen authorized the use of detectives

from other units in the Investigative Division, and also

obtained permission from the Chief’s Office to recruit

additional personnel from other divisions in the police

department.

Detective Grabenstein and City Detectives Sheldon

Reeve and Jack Neumiller were directed to prepare a

search warrant. At approximately 11:20 a.m., the trio

went to the public safety building to prepare the affidavit

and search warrant. The officers compiled a list describ-

ing the property which White had sold to plaintiffs James

and Lippie Marks on June 10, 12 and 17, 1986. At the

suggestion of Detective Neumiller, the officers also

attached to the affidavit and warrant more than 40 pages

of stolen property reports which were prepared by the

actual property owners who were allegedly victimized by

White. The inclusion of these reports was based on

White’s statement that he and his accomplices had sold

some of the stolen items listed in the reports to members

of the Marks family. However, this connection between

the stolen property reports and the two residences sought

to be searched was not reduced to writing in the applica-

tion for the search warrant.?

3 The inclusion of stolen property reports in an affidavit of

probable cause was not a practice taught by the police

department, but was a standard practice used by Det. Neumiller

and other officers in the department. The defendants contend

that it is an accepted practice among the Spokane County

judiciary to accept the property lists contained in police reports

of residential burglaries as part of an affidavit of probable cause

App. 62

The affidavit and warrant were taken to Deputy Pros-

ecuting Attorney Patricia Thompson for review and

approval, as required by departmental policy. Once

approved, Grabenstein presented the affidavit and war-

rant to Spokane County District Court Judge Raymond

Tanksley. Judge Tanksley reviewed the affidavit and war-

rant, asked Grabenstein questions, including a specific

question about the stolen property lists, and signed two

copies of the warrant. This occurred at approximately

3:00 p.m. Immediately upon the signing of the warrants,

Grabenstein and Reeves drove to the 428 S. Thor resi-

dence. Grabenstein got out of the vehicle and Reeves

continued on to the 802 S. Thor residence.

While the search warrant affidavit was being pre-

pared, the police conducted a general briefing for those

who had been recruited to assist in the search. During the

noon-hour briefing, Neumiller described the basic prop-

erty that would be sought in the searches. Since the

warrants were not yet completed or signed, the officers

were informed that the warrants would be “generally”

seeking any items commonly stolen in residential burg]-

aries, consisting mostly of jewelry, silverware, electronic

equipment and photography equipment. Following the

or search warrant for stolen property. According to the

defendants, the district court judges recognize the fact that

officers will be looking for the additional items that are attached

to the search warrant. While there is some evidence in the

record indicating that this may have been the understanding of

the judge who issued the warrant, the suppression and

dismissal ruling of the reviewing judge suggests that the

practice does not always, in the eyes of the County judiciary,

pass constitutional muster.

: =_—es — ee

App. 63

briefing session, which lasted approximately 30 minutes,

the officers were dispatched to a staging area near the

two homes where they were to await the delivery of the

warrants.

According to the defendants’ representation of the

facts, officers began arriving at the residences at approxi-

mately 1:00 p.m. Sometime near 2:00 p.m., surveillance

crews observed James Marks drive up to his residence at

802 S. Thor, enter the house and come back out with a box

that he placed in the trunk of his car. Marks then got in

the car and drove away. About this same time, surveil-

lance crews observed a car with several individuals leave

Grover Marks’ residence at 428 S. Thor. Concerned that

evidence was being removed from the houses, Lieutenant

VanLeuven telephoned Deputy Prosecuting Attorney

Patricia Thompson who informed him that the officers

could either seek consent from the residents to enter the

homes and await the arrival of the warrants, or they

could secure the premises from the outside to prevent

any ingress or egress.

The officers made pretextual traffic stops on each of

the cars seen leaving the residences. The officers who

stopped James Marks advised him of his constitutional

rights and, after receiving Marks’ consent, conducted a

search of his vehicle. The consent form indicates that

Marks signed the form at 2:00 p.m. After the search was

completed, Marks returned to his home with the officers.

When the second vehicle was stopped, the officers

asked the occupants to identify themselves and then

ordered them to return to the 428 S. Thor residence to

await the arrival of the search warrant. While defendants

App. 64

maintain that the stop of the second vehicle occurred

shortly after 2:00 p.m., plaintiffs contend that the stop

occurred sometime around 9:30 a.m.

Upon his return to the 802 S. Thor residence, James

Marks was informed that the police were in the process of

obtaining a search warrant to look for stolen property.

Neumiller advised Marks of his constitutional rights at

2:52 p.m. and Marks signed the rights card, indicating he

wanted to talk to his attorney. The defendants state that

Marks telephoned his attorney, Robert McGoldrick, and

then informed the officers that they were welcome to

search the house.*4 Neumiller declined the invitation, and

told Marks they would wait for the arrival of the warrant.

Three officers waited inside the residence while several

others remained outside to establish a security perimeter.

Defendants claim that upon the officers’ arrival at James

Marks’ residence at 802 S. Thor, Detective Reeves gave

the warrant to Neumiller who in turn gave it to James

Marks. Near the beginning of the search, James Marks

allegedly walked over to a china hutch, grabbed some

items out of a bowl, threw them down on a table, and

stated, “These are the items that your blond hair boy sold

to us, because he needed gas money. I gave him some

4 Marks’ attorney came to the 802 S. Thor residence later

that afternoon when the search was in progress. According to

the defendants, Mr. McGoldrick reviewed the warrant and

advised James Marks that he should allow the search.

According to the plaintiffs, Mr. McGoldrick asked to see the

warrant but was advised that the warrant was at Grover’s house

and he would have to go there to read it. When Mr. McGoldrick

went to Grover’s house, the officers refused to let him enter the

house or read the warrant.

*

a

=

App. 65

money for them.” Neumiller recognized the items as

those given to White for the undercover sale. The search

continued and the officers found some more jewelry in a

safe located in the bathroom. Neumiller states in his

affidavit that he asked James Marks whether there were

any cameras or photographic equipment in the house

(this question was posed to Mr. Marks after he had asked

to speak to his attorney) and Marks responded that there

were not. The officers then found numerous pieces of

photography equipment, including cameras, lenses, flash

units, etc. Some but not all of the equipment matched the

general descriptions of equipment referred to in the war-

rant.

Grabenstein states by affidavit that he arrived at the

428 S. Thor at approximately 3:30 p.m. and delivered a

copy of the signed search warrant to Grover Marks.

Grover Marks asked Grabenstein to read him the warrant,

but Grabenstein refused because he was too busy. Gra-

benstein told Grover that he could find someone else to

read it to him. Grabenstein read Grover Marks his Mir-

anda rights and obtained Mr. Mark’s [sic] signature on the

rights card at 3:40 p.m.

Because the warrant authorized the search for jewe-

Iry and silverware, the officers searched in all places in

which such items could be secreted. During the course of

the search, all individuals present at the 428 S. Thor

residence were searched, even those who were just visit-

ing. All jewelry and money worn or possessed by the

individuals was removed for subsequent seizure. The

officers collected numerous items not listed on the war-

rant based on the plain view doctrine, having determined

that the house contained an enormous amount of such

App. 66

items, far beyond the amount one might ordinarily expect

to find as personal property.

A metal box containing more than $20,000 and some

jewelry was found in a bedroom at 428 S. Thor. Not

knowing at that time that additional amounts of money

would also be found, the officers merely filmed the box

and its contents and returned it to the closet from which

it had been retrieve

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