# Petition for Writ of Certiorari — Allen v. Gypsy Church of the Northwest ex rel. Marks > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0809%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 907 ## Text 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 COPE Wee oso ak eyes 1 PER WIND» 6 dso knee kag ce hee eee 1 STATUTES INVOLVED IN THIS CASE............. 2 STATEMENT OF THE CASE ... ...5663skcascdeawanees 4 A. Senedak... «66 ice eee naa eee 4 BS. Course of proceeQnags . 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 Z & > % 4 2 ; 4 4 f 2 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 retrieved. This box subsequently disappeared. A footlocker and several cans of money were also found under a false floor. In total, approximately $1.6 million was discovered at the 428 S. Thor residence. During the course of the search, the officers made several calls to Lieutenant Freeman who remained back at the police station, seeking advice on what to do with the cash. Initially, Freeman advised them not to seize the cash as it was not included in the warrant and it was not clear whether it could be linked to any illegal activity. As additional amounts were discovered, Freeman tele- phoned Captain Allen who suggested that the officers contact Deputy Prosecutor Patricia Thompson and Assis- tant United States Attorney James Crum for legal advice regarding the seizure of the cash. Thompson told the officers that they need not attempt to amend the warrant or seek another warrant, even though the original war- rant did not mention cash, because the cash was seized pursuant to the plain view doctrine. AUSA Crum advised the officers to hold the cash for IRS seizure. Captain Allen ordered the property moved to the Public Safety Building where the search was to be com- pleted. When the officers arrived at the Police Station at approximately 8:00 p.m., Grabenstein prepared a search App. 67 warrant return and inventory. The inventory process was completed around 1:00 a.m. on June 19, 1986. The prop- erty sheets prepared by each of the seizing officers were copied and attached to the standard search warrant return which was given to Grover Marks. On June 23, 1986, the IRS served a series of liens or notices of seizure on the City of Spokane for the cash that had been seized from Grover’s residence. Also on that day, the City was served with a certified copy of a Writ of Garnishment in the amount of $42,864.89 from Spokane County Superior Court File No. 80-2-02048-4. The cash, excluding $43,000 for the garnishments, was turned over to the IRS. The $43,000 was deposited in a separate bank account. On June 20, 1986, the Marks filed a motion for return of the cash that was seized from Grover Marks’ residence, and asked for an expedited hearing on the matter. Over the County Prosecutor’s objection, an expedited hearing was conducted on June 23, 1986, before Judge Tanksley, the judge who issued the warrant. Judge Tanksley denied the County’s motion for permission to present oral testi- mony or written affidavits of the officers who partici- pated in the search, on the basis that such testimony could not affect or alter the court’s ruling regarding the illegality of the officers’ actions in seizing the cash.° Judge Tanksley ruled that the cash was outside the scope of the warrant and that the plain view exception did not apply because, although the officers were legally present 5 The legality of the officers’ conduct with respect to the other items seized was not in question at that time. App. 68 and the cash was inadvertently discovered, the cash was not immediately identifiable as evidence of a crime. Defendants’ Joint LR 56 Statement, Ex. 58, p. 7-8. The Judge then granted the Marks’ motion for return of the property, subject to the IRS notice of seizure and the writ of garnishment. In December 1986, the State of Washington brought a criminal action against James Senator Marks, II, Jane Marks, Grover Marks and Marie “Lippie” Marks, charg- ing them with trafficking in stolen goods. In November 1987, Judge Murphy conducted a hearing on the Marks’ motion for return of the seized property and ordered the State to return to the defendants all property that had not been identified as stolen through public viewings. The items that had been identified as stolen remained subject to further proceedings in the court. In May 1988, the Marks moved to dismiss the crimi- nal charges against them and/or to suppress evidence seized during the June 18, 1986 search. After a lengthy evidentiary hearing which was held in June 1988, Spokane Superior Court Judge John A. Schultheis granted the motion and dismissed the action. Judge Schultheis found it impossible to determine, from reading the prop- erty lists attached to the search warrant, either their relevance to or connection with the property to be seized from the residences. He found no reference to the prop- erty lists in the search warrant, nor any allegation that identified the defendants as possible suspects in the thefts or burglaries, nor any suggestion that any of these items. might have been sold to or by any of the defen- dants. App. 69 Judge Schultheis also found: that there was strong evidence indicating that the search may have begun prior to Judge Tanksley’s signing of the warrant at 3:10 p.m.;° that Grabenstein refused to read Grover Marks the war- rant even though Marks stated that he could not read it himself; that the officers refused to allow the Marks’ attorney to read the warrant or to confer with his clients; that none of the officers conducting the search (other than Grabenstein) saw a copy of the search warrant either prior to or during the search; that the warrants lacked particularization to such an extent that the officers had no guidelines from which to determine what could or should be seized, thereby giving complete discretion to the indi- vidual officers conducting the search; that the officers 6 In his Findings of Facts, Judge Schultheis states: Although the search warrants were not delivered to the respective homes until approximately 3:30 p.m., and were not signed by Judge Tanksley until approximately 3:10 p.m., a watch is shown in the police videotape made at South 428 Thor. This watch had been removed from the wrist of Grover Marks. The time on the watch shows 1:07. It is very evident from the videotape that the watch is operating. In addition, an ambulance was called, as well as a Paramedic Squad truck, to the area of the Markses’ [sic] residences at 2:56 p.m. on June 18, 1986. The ambulance and paramedic units were called to the scene because of apparent fainting and other physical problems experienced by some of the occupants at South 428 Thor during the course of the search. At the hearing, Sgt. Ennis testified that they were called at his order and at his direction after the discovery of the money; this was when the physical problems and disturbances began, and this occurred when the search was nearly completed. App. 70 conducted a general search of the homes as well as of the persons who were present at the residences; and that no inventory of or receipt for any property or money seized was left with the residents at either address. Based on these findings, Judge Schultheis concluded that the searches were violative of the Fourth and Sixth Amend- ments of the United States Constitution; Article I, Sec. 7 of the Washington State Constitution; and Washington State criminal laws.’ The plaintiffs instituted the present Civil Rights actions in June 1989. On March 30, 1991, Judge McNichols entered an order precluding the defendants from relying on the plain view doctrine to justify the seizure of cash and property not specifically identified in the warrant, because the first element of the doctrine - a lawful initial intrusion — was absent. The Judge premised his ruling on the state court’s determination that the warrant and resulting searches and seizures were illegal. Judge McNichols expressly adopted the state court ruling through the application of collateral estoppel. ? The State appealed the district court’s dismissal of the action and its order directing the return of the money, but did not appeal the court’s ruling on the suppression issue. The Washington Supreme Court reversed the trial court’s order of dismissal, reinstated the criminal charges against the defendants and remanded the matter to the trial court for an evidentiary hearing. App. 71 DISCUSSION I. COLLATERAL ESTOPPEL In June 1991, the plaintiffs moved this ‘court for an order precluding relitigation of the constitutional issues previously adjudicated and resolved in the state court criminal proceedings. The plaintiffs’ motion was directed solely against the County and City of Spokane as they were the real parties in interest in the criminal proceed ings and were therefore in privity with the State of Wash- ington, the nominal plaintiff in that action. By order dated September 11, 1991, Judge Robert J. McNichols concluded that the illegality of the search under the Fourth and Fourteenth Amendments had been fully liti- gated and resolved in the state court and that the doctrine of collateral estoppel would be applied to prevent relitigation of that narrow issue in the civil rights action." It is apparent from the language of the order that Judge McNichols intended to apply the doctrine against the individual defendants as well as the County and the City. On November 7, 1991, Judge McNichols summarily denied the defendants’ motion for reconsideration of the order regarding the application of the doctrine of collat eral estoppel. A second motion for reconsideration was likewise denied on March 13, 1992. In denying the second motion, Judge McNichols noted that the state trial court, after conducting a lengthy evidentiary hearing, deter- mined that the search warrant was overbroad and insuffi- ciently specific and that the defendant officers operated 8 The court reserved ruling on the applicability of the collateral estoppel doctrine to the alleged violation of plaintiffs’ Sixth Amendment rights. App. 72 } with complete discretion in executing a general search of the plaintiffs’ homes. To refuse application of the collat- eral estoppel doctrine under these circumstances would, in the opinion of Judge McNichols, “essentially prevent any state criminal trial findings, no matter how clear, from being used as the basis for offensive collateral estoppel in a subsequent civil action.” Defendants have filed a third motion for reconsidera- tion of the September 11, 1991 order regarding the appli- cation of collateral estoppel. Defendants claim that Judge MeNichols’ erred in two respects: first, by determining that the defendants were in privity with the State in the criminal proceeding, and second, by concluding that the application of collateral estoppel will not work an injus- tice against the defendants. The starting point for the reconsideration of prior decisions by a federal district court is Rule 54(b) of the Federal Rules of Civil Procedure. Rule 54(b) provides that absent an express entry of a final judgment, all orders of a district court are “subject to reopening at the discretion of the district judge.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 12 (1983). The district court’s discretion, however, may be properly exercised only within the confines of the “Law of the Case” doctrine. This judicially created doctrine is a rule of practice which, “[a]Js most commonly defined, posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 815-16 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). , cc sac cncaciicncciaisssaassn ns sacl mn I ee App. 73 lhe doctrine promotes the principles of finality and judi- cial economy by protecting against the relitigation or reconsideration of settled issues. Christianson, 486 U.S. at 816. The doctrine encompasses a court's explicit decisions as well as those issues decided by necessary implication. Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990); Eichman v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir. 1989). The Ninth Circuit rigidly adheres to the law of the case doctrine and has held that a district court may reconsider an issue previously decided in only three instances: (1) where the first decision was clearly erro- neous and would result in manifest injustice; (2) where there has been an intervening change in the controlling law: or (3) where the evidence in a subsequent proceed- ing is substantially different. Milgard, 902 F.2d at 715. Before exercising its discretion to reconsider a prior rul- ing, the district court should consider the stage of the proceeding in which reconsideration is sought and the nature of the issues involved. 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (1981). The Supreme Court has held that the doctrine of collateral estoppel may be applied offensively in a § 1983 case to preclude relitigation of a federal constitutional issue decided in state criminal proceedings. “[N]othing in the language of § 1983 remotely expresses any congres- sional intent to contravene the common-law rules of pre- clusion or to repeal the express statutory requirements of the predecessor of 28 U.S.C. § 1738... .” Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 82 (1984) (quot- ing Allen v. McCurry, 449 U.S. 90, 97-98 (1980)). However, App. 74 collateral estoppel cannot be invoked against a party who did not have a full and fair opportunity to litigate the issue in the earlier case. Allen, 449 U.S. at 95. Under 28 U.S.C. § 1738, a federal court must give a state court judgment the same preclusive effect it would be given under the law of the state in which the judgment was rendered. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Thus, this court must first determine whether Washington rules of collateral estop- pel would bar relitigation of the plaintiffs’ Fourth Amendment claims in a subsequent civil proceeding. Col- lateral estoppel can be invoked under Washington law only if the issues in the two actions are identical, there was a final judgment on the merits in the first action, the party against whom the plea is asserted was a party to or in privity with a party to the prior adjudication, and application of the doctrine does not work an injustice on the party against whom it is to be applied. Maland v. Retirement Systems, 103 Wn.2d 484, 489, 694 P.2d 16 (1985); Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1984). While the state, county and city are distinct legal entities, their interests in the criminal prosecutions were sufficiently similar to invoke the doctrine of collateral estoppel.? In contrast, the individual officers were neither parties to the criminal proceedings nor privies of parties. “[P]rivity does not exist merely because a person ‘hap- pen(s] to be interested in the same question, or in proving 9 The court shall not elaborate on this point. Suffice it to say that, with respect to the County and the City, the undersigned agrees with the reasoning set forth by Judge McNichols in his September 11, 1991 order. App. 75 or disproving the same state of facts.’ “ Duncan v. Clem- ents, 744 F.2d 48, 52 (8th Cir. 1984). Privity within the meaning of the doctrine of issue preclusion is privity as it exists in relation to an identity of interest in the subject matter of the litigation. The interest of the State of Mis- souri in a criminal proceeding are not identical to those of an individual officer such as Schae- ffer. In a different context, the Supreme Court noted: “[T]he purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant.” Id. at 52 (quoting United States v. Standefer, 447 U.S. 10, 25 (1980). The interests of the individual defendants were not adequately protected or represented in the prior adjudi- cation brought by the State. While the officers may have been witnesses in the state proceedings, they had no direct individual personal interest in the outcome of the criminal case. The State was interested solely in obtaining a conviction. Since the prosecutor believed she could succeed in this goal without using the suppressed evi- dence, she chose not to appeal the suppression ruling. The prosecutor states in her affidavit that she gave no consideration whatsoever to the officers’ potential lia- bility in a subsequent § 1983 action when she opposed the suppression motion or when she determined not to appeal the court’s ruling on that issue. App. 76 Moreover, it cannot be said that the individual defen- dants had a full and fair opportunity to contest factual issues concerning their roles in the search. The officers were not directly employed by the state and had no measure of control over the criminal proceeding or the decision to appeal. To apply collateral estoppel offen- sively under these facts would work a great injustice as it would essentially deny the individual defendants an opportunity to present ‘a defense. See, Davis v. Eide, 439 F.2d 1077 (9th Cir. 1971) (city police officers, not directly employed by state and with no measure of control over criminal proceeding and no direct individual personal interest in its outcome, lack sufficient privity with the state to invoke doctrine of collateral estoppel); Farley v. North Bergen Township Bd. of Educ., 705 F. Supp. 223, 228 (D.N.J. 1989) (improper to invoke offensive collateral estoppel against an official who cannot be said to have had a full and fair opportunity to contest factual issues concerning his role in unconstitutional activity, even though he was strongly implicated in the state proceed- ings and was a witness in those proceedings). IT IS HEREBY ORDERED that the defendants’ motion for reconsideration is GRANTED. That portion of the court’s September 11, 1991 order, applying the collat- eral estoppel doctrine to defendants other than the County and City of Spokane, is VACATED. Only the County and City will be estopped from relitigating the constitutionality of the June 18, 1986 search and seizure. The court notes that the plaintiffs, apparently relying on Judge McNichols’ previous rulings on collateral estop- pel, have not moved for summary judgment against the Blies stir aacen Aad 4/ App. individual defendants with respect to the underlying con- stitutional violations. Because this issue may be amenable to resolution on summary judgment, the court grants plaintiffs leave to file a motion for summary judgment, limited to the sole issue of whether the individual defen- dants’ actions deprived the plaintiffs of their constitu- tional rights. The motion shall be filed on or before November 8, 1993. Defendants’ response must be filed no later than November 22, 1993. Plaintiffs’ reply, if any, shall be filed on or before December 3, 1993. The motion shall be heard without oral argument on December 17, 1993. Il. QUALIFIED IMMUNITY On March 13, 1992, Judge McNichols denied plain- tiffs’ motion for summary judgment on the remaining issues of liability under 42 U.S.C. § 1983.10 The plaintiffs subsequently moved the court to reconsider its decision, to the extent summary judgment was denied against the individual officers who participated in the June 18, 1986 search. The plaintiffs set forth two grounds in support of their motion for reconsideration: (1) the court’s ruling rested on a Ninth Circuit case which was overruled by the United States Supreme Court in Hunter v. Bryant, __ US. _, 112 S. Ct. 534, 116 L.Ed.2d 589 (1991), and (2) the 10 As stated above, because Judge McNichols had previously ruled that the defendants would be collaterally estopped from denying the illegality of the search, the plaintiffs’ summary judgment motion centered on the officers’ immunity from suit rather than the validity of the warrant or of the search conducted pursuant thereto. App. 78 officers cannot, as a matter of law, rely on good faith immunity defense where they acted pursuant to a facially deficient warrant and conducted a general search. Plaintiffs argue that the court, by overlooking the teachings of Hunter v. Bryant and its progeny, erroneously concluded that the qualified immunity issue was one of fact to be determined by a jury. The Supreme Court in Hunter made it clear that the applicability of a good faith immunity defense is a question of law which trial courts should usually resolve on motions for summary judg- ment prior to trial. Defendants agree that the material facts relevant to the qualified immunity defense are undisputed and that the issue should be decided as a matter of law. Because the order denying plaintiffs’ motion makes no reference to Hunter, the court shall reconsider the motion in light of the test set forth in that case. Officers are entitled to qualified immunity from suit if, in light of the clearly established law at the time, a reasonable official could have believed his conduct was lawful. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Hemphill v. Kincheloe, 987 F.2d 589, 591 (9th Cir. 1993). A two-step analysis must be undertaken to determine whether this standard is satisfied. The court must ask: 1) “Was the law governing the official’s conduct clearly established?” and 2) “Under that law, could a reasonable officer have believed the conduct was lawful?” Hemphill, 987 F.2d at 992 (quoting Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993)). This analysis must be employed at the earliest possible stage of litigation. Hunter v. Bryant, 112 S.Ct. at 536. — a — App. 79 “If a reasonable official could have believed that his actions were lawful, summary judgment on the basis of qualified immunity is appropriate.” Hemphill, 987 F.2d at 593. The court need not decide the constitutionality of the officers’ conduct, if it finds that they reasonably believed the searches were constitutional. Act Up!/Portland, 988 F.2d at 872-73. On the other hand, summary judgment for the plaintiffs may be appropriate if the court determines that, even construing the facts in defendants’ favor, the officers could not have reasonably believed their conduct was lawful. 988 F.2d at 873 (“if the facts alleged by the defendant officer could not support a reasonable belief that his conduct was lawful, he is not entitled to qualified immunity”). It is said that the qualified immunity doctrine “ ‘gives ample room for mistaken judgments’ by protect- ing ‘all but the plainly incompetent or those who know- ingly violate the law.’ ” Hunter, 112 S.Ct. at 537 (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)). The doc- trine allows for reasonable error because “officials should not err always on the side of caution” merely to avoid being sued. Hunter, 112 S.Ct. at 537. Qualified immunity attaches to an officer who con- ducts a search pursuant to and within the scope of a validly issued warrant, but only if the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant is objectively reasonable. United States v. Leon, 468 U.S. 897 (1984). It is the magistrate’s responsibility to determine whether the officer’s allegations establish prob- able cause and, if so, to issue a warrant com- porting in form with the requirements of the App. 80 Fourth Amendment. In the ordinary case, an officer cannot be expected to question the mag- istrate’s probable-cause determination or his judgment that the form of the warrant is techni- cally sufficient. “[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.” Penaliz- ing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. United States v. Leon, 468 U.S. 897, 920-21 (1984). The immunity vanishes, however, if the search warrant affi- davit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable or if the warrant is so facially deficient in particularizing the place to be searched or the items to be seized that the executing officers cannot reasonably presume it to be valid. Id. at 923. The officers bear the burden of proving that their reliance on the warrant was objectively reason- able. United States v. Michaelian, 803 F.2d at 1042, 1048 (9th Cir. 1986). According to the plaintiffs, neither the warrant nor the pre-search instructions gave the executing officers objective standard that would permit them to differenti- ate between the property lawfully subject to seizure and the legitimate property possessed by the individual plain- tiffs found in the homes. Because no reasonably prudent, well-trained officer should have relied upon the June 18, 1986 general warrant or upon instructions from super- visors to engage in a general search, plaintiffs urge the court to find that all officers who participated in the illegal general search are stripped of any good faith immunity defense as a matter of law. App. 81 “{I]n the context of Fourth Amendment viola- tions there can be no inquiry as to a police officer’s subjective intent or belief. Rather, only an officer’s ‘objective good faith - that is, whether he could reasonably have believed that [his conduct] did not violate the Fourth Amend- ment — may be relevant to the availability of the qualified immunity defense to monetary liability under § 1983.’ ” Morgan v. Woessner, 975 F.2d 629 (9th Cir. 1992). The law is clearly established that warrants must particularly describe the things to be seized and that the executing officers must confine their activities to the pre- cise scope of the warrant. Guerra v. Sutton, 783 F.2d 1371, 1375 n.4 (9th Cir. 1986). An officer who conducts a search or makes an arrest without knowledge of the details of the warrant under which he or she presumes to act vio- lates clearly established law. Id. at 1375. This is not to say that all or even any of the officers must actually see the warrant, as law enforcement officers are entitled to rely on one another to a certain extent. Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986). However, the mere exis- tence of a warrant will not insulate officers from liability for unconstitutional searches or seizures, if they fail to inquire as to the warrant’s nature and scope. Id. at 1375. In Guerra, the chief of police of Zillah, Washington called a local INS supervisor and reported that illegal aliens were living in certain houses in the Leland Street neighborhood of Zillah. The police chief requested assis- tance from the INS to “back up” the understaffed local police department during an investigation of the resi- dences. The police chief assured the supervisor that he App. 82 would obtain an appropriate warrant. An INS superior agreed to allow ten INS investigators to assist in the investigation, provided the local police had warrants. The next day, the local police officers and the INS agents searched three homes in the Leland neighborhood and arrested a number of individuals. Neither the INS nor the local police had obtained a warrant for the searches, nor had they made any attempt to obtain a warrant. None of the INS agents saw or asked to see a warrant. The individuals who had been detained or arrested during the search brought a § 1983 claim against the police officers and a parallel Bivens claim against the ten INS agents. The district court dismissed the claims against the INS agents, finding they were immune from suit due to their reliance on the police chief’s assurances that the necessary paperwork was being done to obtain appropriate warrants. The Ninth Circuit vacated the dis- missal after concluding that the agents were not entitled to invoke the qualified immunity defense. Although the Circuit Court agreed that the INS defendants reasonably relied on the representation of a responsible person that a proper warrant would be obtained, it found that the agents were stripped of their immunity because they failed to inquire as to the nature and scope of the warrant (which in fact was not obtained) and were not given an advance briefing as to the source and extent of their authority to enter, search, and arrest. We are not willing to extend qualified immunity to the conduct of INS agents acting under the assumed authority of a warrant where such agents have not made inquiry as to the nature and scope of that warrant. An INS agent who App. 83 conducts a search or makes an arrest without knowledge of the details of the warrant under which he presumes to act violates clearly estab- lished law. Guerra, 783 F.2d at 1375. The circuit court remanded the case to the district court to determine whether an illegal arrest occurred when the homes were surrounded or when the individual plaintiffs were interrogated. In so doing, the Ninth Circuit made it clear that the absence of immunity did not foreclose the possibility that the agents’ actions were constitutional. Id. at 1375 (“It is possible, as the comments of the district court suggest, that the acts of the INS defendants were not 4th Amendment violations at all and hence are not affected by the defendants’ lack of immunity... . ”). The facts in the case at bar are similar to those found in Guerra. Officers were solicited to help other officers execute warrants that were in the process of being obtained. While the present case differs in that a warrant actually issued and a pre-briefing session was held, the end result is the same: the officers conducted the search without inquiring as to the scope and nature of the war- rant after it had been issued. The evidence presented by the defendants establishes that the officers who conducted the noon-hour briefing advised those in attendance that they had not seen the warrants or the affidavit of proba- ble cause but that the warrants would essentially seek all items which could have been stolen during the course of a burglary, including jewelry, photography equipment and silverware. In light of the existing law regarding the particularity of descriptions in warrants, the officers’ App. 84 reliance on pre-issuance statements essentially authoriz- ing a general search of the premises and all occupants therein is not objectively reasonable. That the officers were acting pursuant to directions or instructions does not provide a basis for broader immunity. The undisputed facts establish that defendants Gra- benstein and Reeve were the only officers with knowl- edge of the contents of the search warrants. The remaining officers neither knew nor inquired as to the scope of the warrants. As a matter of law, the qualified immunity defense is unavailable to all defendant officers other than Grabenstein and Reeves. For this reason, IT IS ORDERED that the plaintiffs’ motion for reconsideration of the order denying summary judgment on the qualified immunity issue is GRANTED, to the extent discussed above.!! 11 Should summary judgment be granted against defendants Grabenstein and Reeves following the hearing scheduled for December 17, 1993, the court will at that time revisit the immunity issue as it relates to those officers. See, United States v. Michaelian, 803 F.2d 1042 (9th Cir. 1986) (good faith exception does not extend to situations in which the officer obtains a warrant based on a “bare bones” affidavit and then relies on good faith execution by innocent colleagues); United States v. Stubbs, 873 F.2d 210 (9th Cir. 1989) (executing officers cannot reasonably presume facially defective warrant to be valid). No further briefing on the immunity issue will be required or permitted, as the court has been fully informed of the parties’ positions by the submissions currently under review. App. 85 II. SUMMARY JUDGMENT The defendants move for summary judgment on four grounds: 1) the plaintiffs cannot establish liability for the constitutional torts alleged against the individual defen- dants because they are immune from suit;!? 2) the plain- tiffs’ alleged injury was not caused by a custom, policy, or practice of the County or the City; and 3) there is no evidence that the defendants’ actions were motivated by racial animus. A court will grant summary judgment to the moving party only “if the pleadings, depositions, answers to interrogatories, and admissions of [sic] file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A. Custom, Policy or Practice 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen 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. 12 The court will not address defendants’ qualified immunity argument, as the issue was fully discussed in the preceding section in the context of plaintiffs’ motion for reconsideration. App. 86 Municipalities are “persons” subject to liability under section 1983 where “action pursuant to official municipal policy of some nature cause[s] a constitutional tort.” Mon- ell v. Department of Social Services, 436 U.S. 658, 691 (1978). Municipal liability can be established in one of three ways: (1) the plaintiff may prove that a municipal employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstand- ing practice or custom which constitutes the standard operating procedure of the local governmental entity; (2) the plaintiff may establish that the individual who com- mitted the constitutional tort w [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0809%3A1. Public record. Not legal advice.