Opposition Brief — Allen v. Gypsy Church of the Northwest ex rel. Marks

ee syeme Gourt, VU. 9.

No. 96-1884 \t) «© FLED

JUN 27 1997

In The

Supreme Court of the Uniteh States j

+ °

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, Michae! Lavelle, Larry Lindskog, Jack Neumiller,

Andrew Pavlischak, Gerald Poindexter, Richard Poole, Sheldon Reeve,

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

Petitioners,

VS.

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 Guardian 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.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

GREGG R. SMITH TERRY E. THOMSON

Counsel of Record STERNBERG THOMSON

LAW OFFICES OF OKRENT & SCHER, PLLC

GREGG R. SMITH 701 Fifth Avenue, Suite 3210

W. 905 Riverside, Suite 409 Seattle, WA 98104

Spokane, WA 99201 (206) 623-1330

(509) 456-0883

x Attorneys for Respondents i ¥

i

LIST OF INTERESTED PARTIES

The respondents are correctly identified in the caption

except that Gregg R. Smith, Esq., of the Law Offices of

Gregg R. Smith, and Terry E. Thomson, Esq., of Sternberg

Thomson Okrent & Scher, PLLC, are counsel only for the

plaintiffs in Eastern District of Washington Cause No. 89-

425-AAM (hereinafter the “425 Respondents” or “425

Plaintiffs”) including: Gypsy Church of the Northwest,

Grover and Marie Marks; Marguerite Marks, individually

and as guardian ad item for Steven Marks; Robert and Polly

Marks, individually and as guardians ad litem for Richard

Marks, Shirley Marks, Lisa Marks and Steve Marks; Larry

_ and Laura Zeko, individually and as guardians ad litem for

Robert Zeko, Jason Zeko, Crissie Zeko, and Sonny Zeko;

and Pete Marks, individually and as guardian ad litem for

Buck Marks.

Patrick K. Stiley, Esq., is counsel of record for the

plaintiffs in Eastern District of Washington Cause No. 89-

423-AAM (the "423 Plaintiffs"), including: James Senator

Marks II and Jane Marks; Tommy Marks; David Marks; and

James Senator Marks II, as guardian ad litem for Marie

Marks, Michael Marks and Sonny Marks; Linda Marks; and,

Tina Marks.

ii

TABLE OF CONTENTS

Page

I COUNTERSTATEMENT OF THE CASE........ |

A entpeGaOUbOR. 5:05 «sis Fdcde cases cnwt acne nadie ]

B Petitioners’ Misstatements of Fact............... 2

I THERE IS NO CONFLICT BETWEEN CIRCUIT

lll. YBARRA v. ILLINOIS SETS FORTH

WELL-ESTABLISHED CONSTITUTIONAL

PRINCIPLES ON THE SEARCH OF PERSONS. .

TV. COIs sok bah cine nds see ss 20

APPENDIX B App. B. 1

COURTS ON RESPONDENTS’ INTERIM FEE

:

—s

~~

ili

TABLE OF AUTHORITIES

Cases Page

Animal Lovers Volunteer Ass'n v. Carlucci, 867 F.2d 1224

(9th Cir. 1989)...... Be SST a a SVS TERS 12

Farrar v. Hobby, 506 U.S. 103 (1992). .....-..--+-- 11,12

McGinnis v. Kentucky Fried Chicken

of Ca@ifornia, 51 F.2d 805 (9th Cir. 1994), 506 U.S. 103

SUG os ica bana pecs cate esececsccsecees 12

Morales v. City of San Rafael,

96 F.3d 359 (Sth Cir. 1996). ........--- eee eee ees 12, 13

Texas State Teachers v. Garland

Ind. Sch. Dist., 489°J.S. 782 (1989). ... 2... e eee cece 12

Trevino v. Gates, 99 F.34 911 (9th Cir. 1996)..........- 12

Ybarra v. Illinois, 444 U.S. 895 (1979). .........- 1, 10, 15

Statutes and Rules

29 U.S.C. 1983

Supreme Court Rule 15.1... 2.2.00... .. cece eee cece: 2

1

The “425 plaintiffs/respondents”, as defined above,

request that the Court deny the petition for writ of certiorari

seeking review of an opinion of the Ninth Circuit Court of

Appeals. The Ninth Circuit opinion is reported at 102 F.3d

1012 (9th Cir. 1996), and is attached as Appendix A to the

petitioners’ Appendix. (For the convenience of the Court, all

citations to the opinion will be to the opinion attached as

Appendix A to the petition.)

I. COUNTERSTATEMENT OF THE CASE

A. Introduction

Petitioner law enforcement officers (hereinafter the

"officers") distort the record on appeal, allude to unsubstantia-

ted facts outside the record, and ignore the well-established

holdings in Ybarra v. Illinois, 444 U.S. 85 (1979), and its

progeny, to challenge the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered on

December 19, 1996.

The officers seek review of the denial of qualified

immunity, and summary judgment on the issue of liability, for

their roles in securing and enforcing one or more general search

warrants illegally authorizing the search of “any persons on the

premises" of certain of the plaintiffs’ homes (hereinafter the "al!

persons warrants"). (See Excerpts of Record in related

proceedings before the United States Court of Appeals for the

Ninth Circuit ("ER"), at ER 652)

The "all persons” warrants led to the search of more than 15

of the 425 and 423 plaintiffs, even though no officer can

credibly argue, and no state or federal court has held to this

date after 11 years of litigation, that probable cause existed for

2

the search of more than one (or possibly two) of the plaintiffs, —

or that any effort was made by the officers to ensure that the

warrants were particularized as to each individual searched.

The officers further seek review of the Ninth Circuit's award

of attorneys’ fees to those plaintiffs who succeeded in (i)

stripping the officers of qualified immunity for their "all

persons" warrant, and (ii) securing summary judgment on the

issue of liability against the officers who procured the warrant

or wrongfully executed it.

In their Petition, the officers further ignore a primary

allegation and issue in these Civil Rights cases, i.e. that the

officers knowingly planned and executed a general search

hours before the warrant in dispute was issued, and that the

procurement of the warrant was pretextual only. The Ninth

Circuit has held that this significant dispute over the time of the

commencement of the search operation is inherently factual in

nature, and that a trial on the merits is required before that issue

and the officers’ qualified immunity relating thereto can be

adjudicated. (App. A, at App. 54)

B. Petitioners' Misstatements of Fact

Pursuant to United States Supreme Court Rule 15.1,

respondents bring the following misstatements of facts

contained in the Petition to the Court's attention.

The petitioners misrepresent and repeatedly imply to this

Court that all 27 of the 423 and 425 Plaintiffs were being

investigated for trafficking in stolen property, and that a sting

operation conducted by a joint City/County task force was

investigating all 27 plaintiffs. (Petition, at 4) Instead, the

investigation, as described on page one of the affidavit of

probable cause, under the heading "Crime being investigated,”

3

revolved around the activities of James Senator Marks II, aka

"Sonny" Marks, a plaintiff in the 423 case who resided at 802

S. Thor, Spokane, Washington. (ER 602)

Most of the plaintiffs searched did not live at either

Grover Marks’ house at 428 S. Thor, or James Marks' house at

802 S. Thor. They were men, women and children unrelated to

the investigation, who just happened to be relatives of Grover

Marks and Marie Marks, and who were visiting them at their

home at 428 S. Thor, Spokane, Washington, at the time of the

search operation. (See Supplemental Excerpts of Record in

related proceedings before the United States Court of Appeals

for the Ninth Circuit ("SER"), at SER 2044-45)

The petitioners further misrepresent to this Court that

their issuance of an "all persons” warrant on June 18, 1996 was

an inadvertent mistake, and that the inclusion of language

authorizing the search of "any persons on the premises" was

innocently overlooked by the officers physically preparing the

warrant. (Petition at 10, 20, 22-23, 24, and 25) The record

shows that the City of Spokane Police Department, and the

officers securing the i "all persons” warrant, were

accustomed to securing warrants for premises which broadly

(and illegally) authorized the search of "all persons” present on

the premises. On June 18, 1986, the officers specifically

planned and executed a general warrantless search of plaintiffs’

homes and persons. (Appendix B ("App. B") at 1-3; App. B at

4-11; SER 191la, 1911b, 1911c, 1913, 2487-2489) Hours

before issuance of the search warrants, Detective Denise Coker

was recruited to search the women and children present during

the operation (App. B at 12-13, 16). She and other

participating officers then attended a related pre-search briefing

during the noon hour at the Spokane Police Department, where

various supervisory officers gave general pre-search

instructions broadly to search for “items taken in residential

4

home burglaries." (App. B at 14-15)

The warrants were obtained through the efforts of

Detectives Neumiller and Reeve, and Deputy Sheriff

Grabenstein. Detective Neumiller and Deputy Sheriff

Grabenstein had taken the lead in the ongoing burglary task

force investigation, and were appointed "case managers" for the

search operations at 802 S. Thor and 428 S. Thor, respectively.

Deputy Sheriff Grabenstein, who physically presented the

warrant to the magistrate, admits that the officers intended to

secure a general "all persons" warrant, even though that intent

was not communicated to the magistrate. (App. B at 4-11)

Detective Neumiller, who worked with Deputy

Grabenstein in gathering information for the warrant(s),

participated in the noon hour briefing at the Spokane Police

Department, during which general search instructions were

provicied to Che Sanam. ame ASIRERy Sapna Legne SeneR mene

any warrants were issued). (App. B at 14-15)

Deputy Sheriff Grabenstein has further admitted that, in

the course of securing the warrant(s), he and Detectives

Neumiller and Reeve had no idea, and made no effort to

identify the persons who might be on the premises at the time

of the search operation, or whether probable cause existed to

search all such persons. (App. B at 4-11)

Instead of the issuance of the general "all persons"

warrants being inadvertent and a mere mistake (see Petition, at

10, 20, 22-23, 24 and 25), at all times prior to 1997 the officers

claimed that the warrant was properly issued and probable

cause somehow existed to search all persons on the premises of

plaintiffs’ homes. (See e.g., Appellants’ Consolidated Brief

before Ninth Circuit filed April 7, 1995, at pp. 36-37.) Even

5

existing City of Spokane Chief of Police Terrence Mangan

contended, in an affidavit in support of summary judgment on

the issue of qualified immunity, that everything was done

pursuant to established City of Spokane Police Department

policies and procedures - including presumably the arbitrary

use of a premises warrant to search all persons on the premises

at the time of the search. (SER 2158)

The petitioners further misrepresent to this Court that

the officers did not commence a warrantless, general search

around the noon hour (consistent with the noon hour briefing

at the police station). (Petition at 11-12) Numerous third party

witnesses, as well as plaintiffs, personally observed the officers’

search activities hours before the warrants were issued on June

18, 1986. (See e.g., SER 1809-1810, 1855-74, 1941, 1943-

1944, 1945-1946, 1964-1966, 1967-1968)

- A Spokane, Washington attorney, Robert McGoldrick,

personally observed search activities under way at James

Marks' residence at 802 S. Thor around noon on June 18, 1986,

and then witnessed firsthand the officers’ evasive and deceptive

acts to cover up their warrantless search. When attorney

McGoldrick requested a copy of the warrant from the officers

present at the 802 S. Thor home, the officers claimed they did

not have one, but that McGoldrick could obtain one at Grover

Marks’ home at 428 S. Thor residence. When Mr. McGoldrick

immediately drove to the 428 S. Thor residence to obtain a

copy of the warrant, the officers at the 428 S. Thor residence

denied him access to the residence or plaintiffs. (See SER

1855-1874)

Police videotechnician and appellant Lavelle videotaped

the seizure of a watch from plaintiff Grover Marks’ person,

including videotaping the movement of the “second” hand on

the watch and the time of day of 1:08, whereas the warrants

6

were issued at about 3:15 pm. (SER 1903; 1969) The time of

1:08 p.m. is consistent with the time plaintiffs have estimated

the search activities commenced. (SER 1770-1782)

The petitioners further misrepresent to this Court that

the officers only conducted “pat down" searches of plaintiffs

found on the premises. (Petition, at 12) Detective Denise

Coker has admitted to conducting "body searches” of the

women and children (male and female) present at the 428 S.

Thor residence at the time of the search. (App. B at 16) Her

contemporaneous police report admits to conducting the “body

searches" of the plaintiffs in the 423 and 425 cases. (App. B at

18) Detectives Coker and Krogh, and Deputy Sheriff

Grabenstein, not only conducted searches of plaintiffs, they

seized all valuable personal property items on the persons

searched. Without making any effort to identify property items

to the warrant(s), Detective Coker, for example: (i) removed

bracelets from Marie Marks’ wrists (SER 1774-1776, 1914a);

(ii) removed jewelry from Laura Zeko's person (SER 1913);

(iii) removed jewelry from Marguerite Marks’ person (SER

1770-1772, 1913); (iv) removed hoop earrings from 6-year old

Crissie Marks's ears (SER 1914a); (v) removed $11.00 in

pocket money from Richard Marks (SER 2047); (vi) removed

$9.00 in pocket money from Steve Marks (SER 2047); (vi)

removed $7.00 in pocket money from Buck Marks (SER 2047);

and, (vii) inspected the diaper, and removed a Gypsy good luck

charm pinned to Steven Marks’ diaper. (SER 1790, 1911b,

2047, 2259-2260)

Altogether, 14 of the 18 individual plaintiffs in the

"425" case, and several of the individual plaintiffs in the

companion "423" case, were subjected to searches and/or the

seizure of property from their persons. (SER 1908a-1908b,

2491) The identity of the "425" plaintiffs searched, their ages

at the time of the June 18, 1986 search, and an indication of

7

whether or not they were named in the warrant, are set forth

below (see also SER 2044-2046):

Name of 425 Named

Plaintiff Searched Age in Warrant

Grover Marks Adult Yes

Marie Marks Adult No

Marguerite Marks Adult No

Steve Marks 23 months No

Bobby Marks Adult No

Richard Marks 11 years No

Steve Marks 10 years No

Laura Zeko Adult No

Chrissie Zeko 6 years No

Robert Zeko 11 years No

Jason Zeko 9 years No

Sonny Zeko 7 months No

Pete Marks Adult No

Buck Marks 6 years No

The petitioners falsely indicate to this Court that, at the

time of the search operation, they seized 200 items which they

had identified as stolen. (Petition at 7) In contrast,

Detective/Case Manager Grabenstein admits that he brought

only one copy of the approximately 40-page warrant with him

to 428 S. Thor, does not know what happened to it, did not

refer to the warrant during the search operation at 428 S. Thor,

did not consult with any one on the search team as to their

search activities, was not approached by any one on the search

team regarding what to search for or seize, and was not

requested to review and did not review property items seized to

the warrant before they were seized. (App. B at 4-11, 17) At

the time of the seizure of over 400 items of property from 428

S. Thor, the officers failed to identify any of the jewelry seized

as coming within the terms of the warrant, other than certain

silverware and rings sold for about $5.00 to Marie Marks the

day before. (SER 1786-1787, 1790-1792, 1794, 1809-1810,

1913, and 2248)

Only more than a week later, when the officers broadly

advertised and conducted a “public display" of the property

items seized from plaintiffs, did numerous members of the

public come forward and assert conflicting claims to various

property items. (SER 1895, 1906, 2300, 2356) The conflicting

claims of the plaintiffs and members of the public (sometimes

more than one member of the public made claim to the same

item of property) were later resolved by separate hearing, and

involved the distinctly different issue of superior right to

possession, not whether property had been "stolen".

Even defendants’ own police tactics experts, i.e. (ii) Don

Van Blaricom, former Chief of Police of the City of Bellevue,

Washington and (ii) Leonard Territo, Ph.D., have admitted that

without access to a warrant during the search operation, Case

Manager Grabenstein, and the other officers involved in the

search, could not have done a proper job of determining what

and whom to search and whether to seize an item pursuant to

the warrant. (SER 2286-88, 2291-2296, 2300-2301, 2303)

The petitioners further misrepresent to this Court that

plaintiffs can only demonstrate the officers’ liability for

"technical constitutional issues,” and that plaintiffs are not

entitled to more than “nominal” or “very low" damages.

(Petition, at 16-17) Men, women and children having nothing

to do with the pending investigation had their persons and

property subjected to an invasion of over 20 armed officers,

who forcefully barged into the residences at 428 S. Thor and

802 S. Thor. (App. B at 1-3) These men, women and children

were subjected to body searches, without just cause, had all of

9

their personal effects and cash seized from them, and were

essentially held hostage in one room of the 428 S. Thor

residence, or on the grounds of the residence, during a search

the late afternoon and evening. (App. B at 1-3; SER 1918)

Three additional individual 425 plaintiffs, i.e., Polly Marks and

her two minor daughters, Shirley and Lisa, were essentially

held hostage on the grounds of the home at 428 S. Thor during

most of the search operation. (SER 2047)

The questionable "all persons” warrants, and conduct of

the officers during the search, were more than a "mere

constituted technicality." During the evening of June 18, 1986,

Captain Allen, Lieutenant Freeman, Deputy Police Chief

Harding, and Assistant City Attorney Treppiedi, among others,

had an unusual meeting at the Spokane Police Department, and

conversed by telephone with Deputy Prosecuting Attorney Pat

Thompson. At that time, Mr. Treppiedi and Deputy Prosecuting

Attorney Thompson reviewed with top-ranking members of the

City of Spokane Police Department the search activities and the

novel idea of “amending” the warrants after the fact, because of

the breadth of the search operation. (SER 2208, 2210-2212)

The petitioners misrepresent to this Court that the 425

Plaintiffs’ demands in this lawsuit exceed $40 or $59 million,

in an effort to discredit and defer the Ninth Circuit's

determination that they are entitled to an interim award of fees.

(Petition, at 4, 13-14, and 17) The 425 complaint makes no

dollar demand in its complaint, and merely attached a 1989

“Claim for Damages” which stated that the amount of the

damages were “undetermined at this time” and were estimated

only. (ER 27)

In an effort to undermine plaintiffs’ nght to fees, the

petitioners further misrepresent to this Court that “practically

A

4

10

all" of plaintiffs’ claims have been dismissed. (Petition, at 5)

But plaintiffs’ claims for constitutional torts, in violation of 42

U.S.C. Section 1983, has always been a central focus of the 425

plaintiffs’ claims. Plaintiffs' claims to this effect, and the

damages flowing therefrom, have not been materially affected

by the court rulings to date. The court rulings, including the

Ninth Circuit's December 19, 1996 opinion, as amended, have

confirmed the continuing vitality of Ybarra v. Illinois, supra,

and the invalidity of the "all persons" warrants in this case.

The petitioners further misrepresent to this Court that

certain FRCP 68 offers of judgment preclude an award of fees.

The offers of judgment are not part of the record, but

nevertheless do not preclude plaintiffs’ claim to an interim

award of fees for prevailing on their claims against those

individual officers involved in the procurement and execution

of defendants’ "all persons" warrants. Regardless, the Ninth

Circuit opinion does not preclude the trial court's consideration

of relevant facts or issues relating to the fee application,

including the status of any pertinent Rule 68 offers of

judgment.

The petitioners further misrepresent to this Court that

the warrants in issue were secured under substantial time

constraints and exigent circumstances, explaining (apparently)

the alleged mistake in securing an “all persons warrant.”

Inconsistently, the officers have admitted that they had the

homes at 428 S. Thor and 802 S. Thor under constant

surveillance during the morning and afternoon of June 18,

1986; that they had “frozen” the homes prior to the

commencement of the search, so that no one could enter or

leave the premises; that it was customary for the officers to

"freeze" premises to be searched; that they had more than

twenty officers assigned to security and search teams for the

search operation (see SER 2060-2061); that they claim they

11

gained access to the homes with the express consent of the

plaintiffs (which the plaintiffs deny); and, that the officers

claim they dutifully waited for hours inside the plaintiffs’

homes until the warrants were signed at 3:15 p.m. and

delivered at about 3:30 p.m. to the homes (which the plaintiffs

also deny, and which petitioners’ own videotape evidence

refutes, showing the seizure of Grover Marks' watch at 1:08

p.m.).

Il. THERE IS NO CONFLICT BETWEEN CIRCUIT

COURTS ON RESPONDENTS' INTERIM FEE

AWARD.

The petitioner officers are in error when they argue that

the Ninth Circuit's interim award of fees conflicts with existing

law, or the Fourth Circuit's holding in Farrar v. Hobby, 506

U.S. 103 (1992). The award of fees is premised solely on the

fact that those persons illegally searched pursuant to the general

“all persons” warrants clearly have prevailed on the merits.

These plaintiffs have denied the officers’ qualified immunity

for their roles in procuring or executing such warrants, and

have secured summary judgment on the issue of liability for

such conduct. (Appendix A at App. 55)

Petitioners misrepresent that it is impossible to

determine the degree of success obtained by respondents, when

there is an enormous record before the district court, and the

the record and pertinent factual issues relating to an interim fee

application and award.

The officers’ objection to the Ninth Circuit's award of

attorneys’ fees is not credible, given the controlling law of this

Court and the Ninth Circuit, which is in accord with a proper

12

analysis of Farrar v. Hobby’. Morales v. City of San Rafael, 96

F.3d 359, 362 (9th Cir. 1996). Attorneys’ fees, pursuant to 42

U.S.C. Section 1988, are properly awarded on appeal to a party

who successfully defends the merits of the issues on appeal.

Trevino vy. Gates, 99 F.3d 911, 926 (9th Cir. 1996).

Petitioners seek to prevent the award of attorney's fees

through an incorrect analysis of the Farrar case, and to define

the right to fees as a function of the damages awarded, citing to

flawed interpretation of Farrar would prevent the award of

attorneys’ fees in any interlocutory appeal, regardless of the

success achieved, whereas a proper analysis indicates that

attorneys’ fees are to be awarded where the plaintiff has

succeeded on any significant issue. Animal Lovers Volunteer

Ass'n v. Cariucci, 867 F.2d 1224, 1225 (9th Cir. 1989).

Instructive is Texas State Teachers v. Garland Ind. Sch.

Dist., 489 U.S. 782, 790 (1989):

Our decision in Henley [461 U.S. 424 (1983)]

is consistent with congressional intent in this

regard. Congress clearly contemplated that

interim fee awards would be available ‘where a

party has prevailed on an important matter in

the course of litigation, even when he ultimately

does not prevail on all issues.’ S.Rep. No. 94-

1011, p. 5 (1976); see also H.R. Rep. No. 94-

1558, p. 8 (1976). U.S. Code Cong. &

Admin.News 1976, pp. 5908, 5912. In

*$06 U.S. 103 (1992)

*51 F.3d 805, 809-810 (9th Cir. 1994)

13

discussing the availability of fees pendente lite

under Section 1988, we have indicated that such

awards are proper where a party “has

established his entitlement to some relief on the

merits of his claims, either in trial or on

” Hanrahan v. Hampton, 446 U.S. 754,

757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670

(1980).

In the context of a Section 1983 case, the success of a

plaintiff is not necessarily measured by the moncy ultimately

awarded to an individual plaintiff, but rather as a function of

analysis of whether it is proper to award attorneys’ fees

pursuant to 42 U.S.C. Section 1988 is set forth in Morales v.

City of San Rafael’:

However, Farrar also stands for a more limited

proposition, and it is in the application of this

narrow second ruling that the district court erred

in this case. In Farrar, the Supreme Court

created an exception to the general rule

governing a district court's calculation of

attorneys’ fees. The Court held that “nominal

damages” cases in which the relief is de

minimis are exempted from the general

requirements that govern the calculation of

attorney's fees including the requirement that a

_ lodestar first be calculated. 506 U.S. at 116-18,

113 S.Ct. at 576 (O'Connor, J., concurring).

; :

ee oe eae a. ch ti iculati :

796 F.3d 359 (9th Cir. 1996)

Id at 362-63 (emphasis added).

To determine whether the plaintiffs achieved more than

"technical" success, other factors must be analyzed, which

include the "significance of the legal issues" and the "public

purpose” served by this litigation. Supra at 363. By sustaining

many of the district court's rulings on the illegality of an "all

persons" warrant, the plaintiffs have achieved success that

entitles them to relief, not merely the right to proceed to trial.

Regardless of the monetary outcome, substantial public benefit

has accrued as well, including the discrediting and curtailment

of those police tactics in clear violation of Constitutional

guarantees. 2

Without limiting, or minimizing, each of the determinations

in the Opinion, the petitioner officers were denied qualified

immunity on two significant issues. First, those persons who

were proximate to the execution of a search warrant at a

'"family home, where innocent family members or friends

might be residing or visiting," and in which there is no

individualized probable cause or other circumstances that

would justify a search, will no longer be subject to petitioners’

blanket search and seizure. (Appendix A, at App. 41-43)

Secondly, a defective search warrant reviewed by a prosecutor

and signed by a judge remains defective, “absent specific

frum an impartial judge or magistrate..."

(Appendix A, at App. 39-40, quoting ILS. v. Kow, 58 F.3d at

429). The Ninth Circuit has also affirmed summary judgment

against those officers involved in procuring or executing the

15

search warrant.

As a result of these determinations, among others, the

plaintiffs have secured far more than a technical victory, and

are entitled to an award of attorneys’ fees.

Petitioners disingenuously claim that the Ninth Circuit's

opinion, awarding fees, has “created confusion and an

injustice" (Petition at 17), when the only confusion and

injustice come from petitioners’ litigation tactics. Peti- tioners

seek to cloud the issues on plaintiffs' right to fees by a distorted

and inaccurate statement of facts, and then seek to impose such

strict criteria for an award of fees that a district court would

have no discretionary authority to award interim fees.

Ill. Ybarra v. Illinois Sets Forth Well-Established

Constitutional Principles on the Search of Persons.

Petitioners have not stated a proper jurisdictional

ground for challenging the Ninth Circuit's opinion that

petitioners’ general “all persons” warrant is patently overly

broad and unconstitutional. Petitioners ignore the seminal

holding in Ybarra v. Illinois, supra, and its progeny, which

have clearly and unequivocally required that warrants be

particularized as to each person to be searched. Petitioners

ignore their own comment on page 5 of their Petition for

Rehearing before the Ninth Circuit:

The Appellants, and presumably law

enforcement officers all across the country,

understand and appreciate the clear holding in

Ybarra_v. Illinois, 444 U.S.

85 (1979).

Petitioners seek to cloud the issues by falsely claiming

16

that their "all persons" warrant was an innocent mistake, and

that they should not be heid strictly liable for "inadvertent

mistakes". (Petition at 24) In truth, petitioners planned a

general search of persons, recruited Detective Coker in the

morning hours on June 18, 1986 for the search of women and

children (none of whom is identified in the probable cause

affidavit or warrants), gave general search instructions to the

officers attending the pre-search briefing at the police station, —

and thereafter proceeded to conduct body searches on any

persons on the premises of the home at 428 S. Thor. The

searching officers made no attempt to gain access to a copy of

the warrant, or to inquire about the contents of the warrant or

authority to search all persons, or to inquire of Case Manager

Grabenstein, who prepared the affidavit of probable cause and

warrant, and was present during the search at 428 S. Thor.

If, as petitioners contend, the preparation of a general

"all persons” warrant was a mistake or innocent oversight, why

did the officers not stop at a pat down search for officer safety

reasons? Why did the officers instead plan hours before the

search began to search a!l plaintiffs present? Why did the

officers intentionally conduct body searches of innocent men,

women and children? Why did they seize all jewelry and

personal property on plaintiffs’ persons, without knowing

whether or not they came within the scope of the warrants?

Why was this "mistake" not disclosed by the officers during the

past 11 years of litigation, instead of for the first time on appeal

in the officers’ motion for reconsideration before the Ninth

Circuit, and now in their Petition for Writ of Certiorari to this

Court?

17

IV. CONCLUSION

The writ of certiorari should be denied.

Dated this 25th day of June, 1997.

Gregg R. Smith

Terry E. Thomson

Counsel for Respondents

Appendix B - i

TABLE OF CONTENTS

Page

Pages 1, 2, and 3 of "Affidavit of

Marie Marks," SER pages 1774-1174,

filed May 18, 1990 in United States

District Court, Eastern District of

Excerpts of pages 75, 78, 81- 86,

88-92, 95-96 of transcript for

January 29, 1992 Deposition of

Rick E. Grabenstein of January 29,

1992, SER 2246-2247,

ye) vo ay os” ne App. B 4

Pages 1 and 2 of "Affidavit of Denise

Coker," filed April 3, 1990 in United

States District Court, Eastern District

Pages 19 and 22 of "425" Plaintiffs’

LR 56 Counterstatement of Material

Facts in Opposition to Defendants’

Renewed Motions for Summary Judgment,

- Ete filed July 27, 1993 in United States

District Court, Eastern District of Washington,

Cause No. C-89-425-RJM. ............. App. B 14

App. B-ii

Page 1,057 of testimony of Denise Coker

during June 24, 1988 Suppression Hearing

before Spokane County Superior Court

Judge John A.Schultheis, SER 1913...... App. B 16

Page 1,370 of testimony Rick E.

Grabenstein during June 27, 1988

Suppression Hearing before Spokane

County Superior Court Judge John A.

Sclnibtiedia, SER 1905... 2.5. c ese see App. B 17

Spokane Police report, dated

June 18, 1986 and prepared by

Denise Coker, SER 2491. .............. App. B18

App. B-1

Mark E. Vovos, P.S.

Attorneys at Law

West 1309 Dean Avenue

Delphi Building

Spokane, WA 99201

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

GYPSY CHURCH OF THE )

NORTHWEST, et al., ) NO. C89-

) 425-RJM

Plaintiff, )

vs. ) AFFIDAVIT

) OF MARIE

SPOKANE COUNTY, et al., ) MARKS

)

)

Defendant.

My name is Marie Lippie Marks, and I am one of the

Plaintiffs. I am over 70 years old, and I live at South 428 Thor

in Spokane, Washington. I have lived there about 30 years.

On June 18, 1986, police officers (some with uniforms

and some without uniforms) forced their way into my home

before or during the Noon hour. When they came in, I was in

the house with Marguerite, my daughter, and seven

grandchildren. My husband, Grover, was not home. The

police frightened me when they came in, and Marguerite tried

to put her foot against the door, but they forced their way in.

They went to the front of the house on Thor, opened the door,

and let other police officers come in. They asked if anyone else

was home, and then just started searching the house.

App. B-2

In my presence, my daughter Marguerite asked to see

a paper or some permission for the police to be there. They

said thev had a warrant coming pretty soon. They were there

for a long time (more than a hour) before my husband came

home. Mr. Frank Costanzo, a business associate of my

husband, stopped by earlier ard then left. From the time the

first police came, more police officers kept coming in bunches

and searching every place in the house. Rose, another daughter

of mine, had come into the house and fainted, and the police

said they would call an ambulance.

The police continued to search everybody in the house.

My sons, Pete Marks and Bobby Marks, arrived before my

husband did. Whenever family members came in, the police

took all the jewelry from their persons. I remember that they

had money that they had fouud displayed on the bed, and were

taking pictures of it. They were taking pictures of everything.

They never showed us a warrant.

The police found religious artifacts and holy money,

and they changed their minds 2 or 3 times before they decided

to take the money also. The police officers were ripping the

money out of the holy blanket while I was crying, and I begged

them not to do that because of our religion. Other religious

artifacts were taken from ine and from the children in the

house. Earrings were taken from the babies and from my girl

grandchildren.

The police would not let anybody leave the house once

they came in. They wouldn't let us speak our own language.

My son, Bobby, kept asking for a warrant, and when he kept

doing so, the police arrested him.

App. B-3

At one time, our attorney Robert McGoldrick was —

outside of the house, towards the alley, and I could see him, but

the police would not let me go to him, and would not let him

come into our house. It seemed like the police didn't care what

they were doing as long as they could take all jewelry off

anybody who was in the house.

The police made me go into a bedroom and take off my

clothes, and I know that they did this to other women who were

there.

It seemed like the police were there forever, but I know

they were there for at least 6 or 7 hours, and they took all our

property and religious artifacts and left. They were laughing

when they were leaving, and making fun of what they were

doing.

When the police first came they put up yellow tape

around the house. The whole experience was terrible, and a

nightmare in my life. I was afraid and fearful for my family

and myself, and the way they treated me. To this day, there

are items of jewelry that I had that have never been found, nor

were they on any inventory paper that the police have. There

is money that is missing from our house, and | know there was

no paper ever given by the police to my husband or me when

they left our home and went to the police station.

OK RR tO

App. B-4

Q. When you got to Grover’s house that afternoon or

whenever it was on June 18, '86 for the first time, did you

provide any briefing to any of the members of the task force

on the items, the specific items to be searched for?

A. No, I didn't.

2 A a

Q. You only had one copy of the search warrant?

A. I only had one.

ek RO oe

Q. (BY MR. THOMSON) Was there anyone else at Grover

Marks’ house to your knowledge during the search operation

or prior to that had seen either the affidavit for the warrant or

the warrant itself?

A. I don't believe so.

Mee ORCC ae

Q. Were you aware at the time that you were preparing the

search warrant or the affidavit for search warrant of which

specific individuals were at Grover Marks’ house?

A. I was not.

App. B-5

Q. Were you aware that there were a number of persons that

were within the house, whether visiting or there or some

other reason?

A. I did not know exactly how many people were in the

house.

Q. Did you make any effort prior to submitting the affidavit

for search warrant to Judge Tanksley to identify any of the

persons that might be in Grover's house at the time?

A. No, I didn't.

We Be i ade ae

Q. You're not aware of either Detective Reeve or Neumiller

or you making any

effort to determine who was present at the house at the time?

A. No.

Q. You mean that's a correct statement, none of the three of

you made any such effort, correct?

A. No. Excuse me. That is correct, yes.

ee

Q. And was that the intent and purpose of your reference in the

search warrant itself to the search of all persons?

App. B-6

A. The search of all persons was both for that and the fact that

any person might have had the opportunity to secrete any of

these items listed for which we were searching on their person.

Q. The affidavit doesn't seek the right to search all persons for

those reasons, though, does it?

A. It seeks the right to search all persons based on the total

information contained in the affidavit.

Q. The reference to persons immediately above your signature

on the affidavit states, does it not, James Marks, Grover Marks

and any other person on the premises at the time of warrant

execution for officer safety. Do you see that?

A. Yes, sir, I do.

Q. Is it your testimony that you intended at the time you

submitted that affidavit to Judge Tanksley to search all persons

on the premises for things other than any potential officer

safety concerns?

A. That is the first concern also in my mind at the time, was

the possibility that other property could be secreted on the

persons of people there at the residence.

Q. Did you advise Judge Tanksley that you intended to search

all persons on the premises for reasons other than officer

safety? I'm sorry, or that you sought the right to search persons

other than Grover and Jimmy Marks for reasons other than

officer safety?

A. I don't believe I specifically stated that to him, no.

App. B-7

Se aR ke ok

Q. Is it not correct that the persons on the premises of

Grover Marks' house were all searched for possession of

items of property, jewelry or other items at the

commencement of the search?

A. They were searched and these other items were located

during that search. The warrant stated that we could search

all persons on the property and they were searched. During

those searches certain items were located and seized.

bE

Q. Had any of them read the warrants to your knowledge

other than you that were in Grover Marks' house during the

search operation?

A. Not to my knowledge.

Se Rk ii

Q. (BY MR. THOMSON) Did any members of the search

party advise you as to what they were looking for?

A. Advise me what they were looking for?

Q. Yes. Or were they just searching? Did anybody indicate

to you what specifically they were looking for if anything?

A. Nobody indicated to me specifically what they were

looking for.

App. B-8

eeeEkKEK HE &

Q. Did you know what had been covered in the briefing

prior to that?

A. My understanding was that the other members of the task

force had briefed people that we were looking for the articles

and basically what would be enumerated in the search

warrant.

Q. Tell me in more detail if you can what you understood

the briefing indicated the search party members should be

looking for.

A. I was not at either of the briefings, so I don't know

exactly how it was explained.

Q. What was your understanding at the time you arrived as

to what, if anything, they were looking for, the search party

members were looking for?

MR. NEAL: Asked and answered.

Q. (BY MR. THOMSON) If you have any

understanding. You may not.

A. Like I say, I was not at any of the briefings. I don't know

how it was explained. The articles we were looking for were

the ones in the search warrant.

App. B-9

SRR kek

Q. Were you asked specifically by anybody conducting the

search at Grover Marks' house whether any specific item was

included in the search warrant?

A. I don't recall any specific questions about specific

articles.

Q. Were you responsible as case manager for reviewing all

items that were seized prior to their being removed from

Grover Marks' house?

A. Due to the large amount of articles, the individual

officers who had seizedand inventoried the articles basically

had kept their own lists or inventories. At that point we

didn't have the opportunity to complete a complete

inventory.

Q. My question was, was there any one person in the house

who was reviewing the items that had been seized to

determine whether they should be removed from the

premises, any one person who had that responsibility?

Maybe you've answered that question, but that was my

direction.

A. One person didn't go through all the items. Each

individual did their inventory and then the items were

collectively taken and, like I say, there was no one person

who was trying to compile everything.

Q. Or review everything to see if it should be removed,

correct?

App. B-10

A. No, nobody went overz every officer's items to my

knowledge to see if that particular item should be removed.

Q. Any items that you reviewed would have been items you

personally searched for?

A. Right, the ones that I was personally involved in

searching for and seizing, and I don't recall any other--I

didn't do anybody else's that I recall right offhand.

Oe

Q. Or Jimmy Marks, any information outside of your

affidavit for searching and seizing any items from Jimmy

Marks?

A. I didn't do, conduct all these searches. As far as

providing the information, there was no information other

than this contained in my affidavit as the basis for the search

of those persons. However, I did not conduct all those

searches.

bE dled

Q. Who was responsible for directing a search of them?

A. It was basically a group of people went with the

males, Detective Coker went with the females. There was

really no one directing an individual to search an individual.

We all knew the general search to be done and

App. B-11

there didn't have to be a lot of specific direction, one person

to another.

Web ee oe

App. B-12

JAMES C. SLOANE

CITY ATTORNEY

ROCCO N. TREPPIEDI

STANLEY M. SCHWARTZ

Assistant City Attorneys

Office of City Attorney

5th Floor, Municipal Bldg.

Spokane, WA 99201-3326

(509) 456-2657

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

GYPSY CHURCH OF THE )

NORTHWEST, et al.,

Plaintiffs,

)

)

)

)

vs. )

)

SPOKANE COUNTY, et al., )

)

Defendants. )

STATE OF WASHINGTON :

SS.

County of Spokane

NO.C-89-425-RJM

C-89-423-RJM

AFFIDAVIT OF

DENISE E.COKER

Denise E. Coker, being first duly sworn upon oath

deposes and says:

I am one of the defendants in this suit.

I state the

following based upon my personal knowledge and experience.

App. B - 13

I am a police office for the city of Spokane. I currently

hold the rank of Detective and am assigned as an investigator

in the crimes against persons unit.

I was hired by the City as a police officer on July 1,

1973. I have attended numerous law enforcement training

programs conducted by the Spokane Police Department and

other law enforcement agencies. Attachment "A" contains a

list of many of those training programs.

On June 18, 1986 I was assigned to the Case Screening

Unit. I was contacted at that time by a member of the Burglary

Task Force who asked if I would be available to assist in

executing search warrants that they anticipated getting later that

day. I attended a briefing at around 12:00 noon in the training

room at the Public Safety Building where Lt. Freeman and one

or two other officers described the background of the

investigation they had been conducting and explained the

operation they planned for the afternoon. We were told that the

Burglary Task Force had been engaged in an investigation of

a fencing operation involving two addresses, South 428 Thor

and South 802 Thor. We were informed that they were in the

process of seeking search warrants for the two houses, and that

we would be looking for items such as jewelry, silverware, and

other items which had been stolen. We were told who the case

managers were, (the detectives that were in charge of the

particular investigation), as well as who the various

commanders would be. I believe Sgt. Earl Ennis was the Field

Supervisor, and that Det. Andrew Pavlischak would be the

Tactical Operations Commander. I was informed that my main

role would be to search any females or children present at the

scene.

RO OROR I kb

App. B-14

57. The "pre-search briefing" occurred hours before

the warrant had been prepared, and gave the searching

officers even less detail, and broader discretion, than the

soon-to-be prepared overbroad, facially invalid warrant. As

Detective Neumiller so succinctly testified at his deposition:

A. I gave a little bit of the

background briefing, and ex-

plained what we would be looking

for. And then met out at 4th

and Freya.

Q. For a minute let's stay

back at the police station.

What items were you looking

for?

A. We were looking for items

taken in residential home

burglaries.

Q. Okay. Did you read off of

any documents to say specifical-

ly what you were looking for?

A. Not at that time, no.

Q. Okay. Did you have any

hand written or typewritten

notes that you were referring

to?

A. No, I did not. [Emphasis added]

App. B-15

See February 6, 1992 Deposition of Jack Neumiller, at pp.

60-62.

we ke ak tae

Q

App. B-16

5 lala liadadied

. But you were instructed to do the body searches that you

did?

A

Q.

Q

Pe Fe -

. I wasn't--

You were instructed to do that?

Yes.

Do you know who instructed you to do that?

No.

What were you looking for?

I was just instructed to remove all jewelry items.

. And there was no identification, that you know of, that

was made while you were in the house at 428, of any of the

items that were seized from the women or children, that were

stolen?

A

. Not that I know of.

ee ee ee

App. B-17

£EEESEEEE

Q. After you arrived at 428 South Thor and identified

Grover Marks, gave him a copy of the warrant, as you say,

and then advised him of his constitutional rights, did you

give the warrant to any officer that was at the house to read?

A. No, sir, I did not.

ere eee *

App. B-18

bla Nila anata

On 6-18-86 I was requested to assist in the execution

of a search warrant @ S. 428 Thor @ 1445 hrs.

Body searches were conducted on the following

individuals: Marie Marks dob 5-5-22; Jane Marks dob 5-6-

67; Laura Zeko dob 6-21-51; Margert Marks dob 7-20-59;

Sonny Marks dob 11-3-85; Steven Mars dob 12-24-84; Steve

Marks dob 10-8-75; Richard Marks dob 9-4-74; Robert

Marks dob 4-13-75; Eric Marks dob 9-5-80; Jason Marks 10-

3-77 and Crissie Marks dob 3-23-80. All the jewelry worn by

the females was seized & later placed on P # 39479 (refer to

property sheet itemizing jewelry items).

we ke