Opposition Brief — City and County of San Francisco v. Rodis (No. 07-1376)

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No. 07-1376 1 T= 2008

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OFFICE OF THE

SUPRE 4F ee aks

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In The

Supreme Court of the Gnited States

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v

CITY AND COUNTY OF SAN FRANCISCO,

SERGEANT JEFF BARRY, OFFICER-MICHELLE

LIDDICOET, and ALEX FAGAN,

Petitioners,

V.

RODEL E. RODIS,

Respondent.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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RESPONDENT’S BRIEF IN OPPOSITION

Sd

LAWRENCE W. FASANO, JR.

720 Market St., Penthouse Suite

San Francisco, CA 94102

Telephone: (415) 956-8800

Facsimile: (415) 956-8811

Counsel for Respondent

Rodel E. Rodis

July 2008

RESTATEMENT OF

QUESTIONS PRESENTED FOR REVIEW

1. Does the mere act of passing a suspected

counterfeit bill, by and of itself, furnish police officers

with sufficient probable cause to arrest an individual

pursuant to 18 U.S.C. § 472, even if the arresting

officers have absolutely no evidence of any “intent to

defraud” — an element required to prove a violation of

the statute?

2. Are the officers who arrested Respondent for

tendering a $100 bill, authentic by all indications but

which had allegedly appeared suspicious-looking to

the store personnel, entitled to qualified immunity

even where the officers had no objective evidence that

a crime pursuant to 18 U.S.C. § 472, or any other

crime, had been committed, was being committed or

was being attempted, and even where they knew

Respondent on a personal basis and as a leading

public figure in his ethnic community and in the

general community?

TABLE OF CONTENTS

Page

RESTATEMENT OF QUESTIONS PRESENTED

FOR REVIEW

TABLE OF AUTHORITIES

RELEVANT CONSTITUTIONAL AND STATU-

TORY PROVISIONS

INTRODUCTION

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND

II. THE PROCEEDINGS BELOW

REASONS FOR DENYING THE PETITION

I. REVIEW IS NOT WARRANTED BE-

CAUSE THE NINTH CIRCUIT’S DECI-

SION DOES NOT CONFLICT WITH

ANY DECISION OF THIS COURT

OVER THE PROPER APPLICATION OF

THE DOCTRINES OF PROBABLE

CAUSE AND QUALIFIED IMMUNITY

REVIEW IS ALSO NOT WARRANTED

BECAUSE THERE IS NO CONFLICT

AMONG THE CIRCUITS OVER

WHETHER PROBABLE CAUSE AS TO

THE INTENT ELEMENT HAS TO

FIRST BE PRESENT BEFORE AN IN-

DIVIDUAL MAY BE ARRESTED FOR

SUSPECTED VIOLATION OF 18 U.S.C.

SECTION 472

TABLE OF CONTENTS -— Continued

Page

A. Probable cause as to the intent ele-

ment existed in the out-of-circuit

cases cited by Petitioners 16

Probable cause as to the intent ele-

ment existed in the Ninth Circuit

cases cited by Petitioners 19

Ill. GRANTING THE PETITION AND THE

CALENDARING OF THE CASE FOR

ARGUMENT WITH PEARSON IS NOT

WARRANTED BECAUSE SAUCIER

AND PEARSON ARE COMPLETELY

DISTINGUISHABLE FROM THE IN-

STANT CASE

PUBLIC POLICY CONSIDERATIONS

MILITATE STRONGLY AGAINST GRANT-

ING THE PETITION

CONCLUSION

TABLE OF AUTHORITIES

FEDERAL CASES

Baker v. McCollan, 443 U.S. 137 (1979)

Bates v. U.S., 352 F.2d 399 (9th Cir. 1965)

Brinegar v. United States, 338 U.S. 160

(1949)

Callahan v. Millard County, 494 F.3d 891 (10th

Cir. 2007)

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Illinois v. Gates, 462 U.S. 213 (1983)

Locke v. United States, 7 Cranch 339 (1813)

Marks v. Carmody, 234 F.3d 1006 (7th Cir.

Maryland v. Pringle, 540 U.S. 366 (2003)

U.S. v. Allison, 616 F.2d 779 (5th Cir. 1980)

U.S. v. Blum, 432 F.2d 250 (9th Cir. 1970)

U.S. v Ford, 461 F.2d 534 (9th Cir. 1972)

U.S. v. Everett, 719 F.2d 1119 (11th Cir. 1983)

U.S. v. Hernandez, 825 F.2d 846 (5th Cir. 1987)

U.S. v. Mayo, 394 F.3d 1271 (9th Cir. 2005)

Ornelas v. United States, 517 U.S. 690 (1996)

Pearson v. Callahan, No. 07-751 3, 4, 23, 24, 25

Saucier v. Katz, 533 U.S. 194 (2001)

V

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES & CONSTITUTIONAL PROVISIONS

18 U.S.C. § 472

42 U.S.C. § 1983

U.S. Const. amend. IV

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

The Fourth Amendment to the United States Consti-

tution states:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons or

things to be seized.

42 U.S.C. § 1983 states in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of Co-

lumbia, subjects, or causes to be subjected,

any citizen of the United States or other per-

son within the jurisdiction thereof to the

deprivation of any rights, privileges, or im-

munities secured by the Constitution and

laws, shall be liable to the party injured in

an action at law, suit in equity, or other

proper proceeding for redress, except that in

any action brought against a judicial officer

for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was

violated or declaratory relief was unavail-

able.

18 U.S.C. § 472 states:

Whoever, with intent to defraud, passes, ut-

ters, publishes, or sells, or attempts to pass,

utter, publish, or sell, or with like intent

brings into the United States or keeps in

possession or conceals any falsely made,

forged, counterfeited, or altered obligation or

other security of the United States, shall be

fined under this title or imprisoned not more

than 20 years, or both.

4

INTRODUCTION

In their petition, Petitioners contend that the

Ninth Circuit erred in holding that “an officer may

not arrest an individual on suspicion of passing a

counterfeit bill unless the officer has evidence of

‘Intent to defraud’ above and beyond the intent in-

ferred from the passing of the bill.” Petition (“Pet.”) 3.

Petitioners also claim that the appellate court’s

holding “creates a split with the Eleventh and Fifth

Circuits, both of which have made clear that an at-

tempt to pass a counterfeit bill is sufficient to establish

a probable cause to arrest.” Jd. at 3-4. Petitioners

further insist that “[e]very decision in existence at the

time of the arrest had held or implied ‘that officers

may arrest an individual on suspicion of passing a

counterfeit bill when the individual attempts to pass

the bill, and that no additional evidence of intent to

defraud is required to establish probable cause.” /d.

at 4. Lastly, Petitioners are asking this Court to grant

3

the writ and calendar the case for argument with

Pearson v. Callahan, No. 07-751, allegedly because

Pearson and Respondent’s case are “virtually identi-

cal.” Id. at 22 n.3.

Petitioners’ contentions reflect a dark, worrisome

and patently unreasonable interpretation of this

country’s deeply rooted laws, both constitutional and

statutory. Fortunately for all Americans, Petitioners’

claims are unmeritorious, unwarranted and simply

wrong. The police are not entitled to qualified immu-

nity in circumstances like the present case where

they failed to conduct any investigation as to whether

Respondent intended to pass counterfeit currency,

chose to ignore an abundance of factual circumstances

which, by all reasonable interpretations, indicated

that Respondent did not intend to pass counterfeit

currency, and yet still arrested Respondent.

Firstly, Petitioners overlook the factual contexts

and the totality of circumstances in the in-circuit

cases they cited, all of which are manifestly distin-

guishable from Respondent’s case. Moreover, the

appellate court’s fact-bound analysis in Respondent’s

case and the ultimate decision it rendered was consis-

tent with this Court’s clearly enunciated holdings in

cases involving the proper application of the doctrines

of probable cause and qualified immunity. See Mary-

land v. Pringle, 540 U.S. 366 (2003); Illinois v. Gates,

462 U.S. 213 (1983); Brinegar v. United States, 338

U.S. 160 (1949). In keeping with the mandate of the

Fourth Amendment, this Court has never derogated

the need to satisfy probable cause as to the intent

4

element prior to effecting any type of arrest, and

there is simply no compelling argument to make an

exception when the matter involves suspected coun-

terfeit currency.

Secondly, Petitioners’ claim of conflict among the

circuits is likewise illusory. There is no split among

the circuits as to whether probable cause as to the

intent element has to first be present before an

individual may be arrested for suspected violation of

18 U.S.C. § 472. Again, even a cursory review of the

factual background of the out-of-circuit cases Peti-

tioners cited suggests that, unlike in Respondent’s

case, the arresting officers had reasonable bases before

they effected the contested arrests, thereby satisfying

probable cause as to the intent element.

Thirdly, Petitioners’ attempt to use Respondent’s

case as a vehicle to insert themselves in the matter of

Pearson is misguided. Even allowing for the possibil-

ity that Petitioners may have something of value to

provide this Court in its deliberations on whether the

holding in Saucier v. Katz, 533 U.S. 194 (2001),

should be overruled, Respondent’s case differs so

markedly with Pearson (or even Saucier) such that

Petitioners’ contention that they are “virtually identi-

cal” is very much a stretch. The simple fact of the

matter is that, very much unlike the plaintiffs in

Pearson and Saucier, Respondent, known to the

officers at the time of his arrest to be an elected

public official and a leading figure in his ethnic

community and the general community, did nothing

remotely unlawful except tender a bill acquired in the

a)

regular stream of commerce to complete a regular

purchase at the store where he was arrested.

Petitioners are urging this Court to disregard the

law’s requirement of them to exercise reasonableness

in conducting an arrest and are asserting the defense

of qualified immunity even where the arrest was

completely unjustified under the circumstances. The

doctrine of probable cause should not be diluted to the

level asked for by Petitioners because permitting

them to do so effectively turns the defense of qualified

immunity into one of absolute immunity.

Lastly, the Court should not disturb the well-

reasoned decision of the Ninth Circuit and deny

Petitioners’ petition for a writ of certiorari because

there are compelling public policy reasons which are

manifest and which militate strongly against ruling

on behalf of Petitioners. Curbing possible police

abuses in conducting seizures and arrests is one such

public policy consideration; preventing an ordinary

citizen from maliciously having a fellow citizen ar-

rested on the pretext that the latter was passing

what “appeared” to the former to be a counterfeit bill

is another. Indeed, the ramifications of a ruling

favorable to Petitioners are significant and unten-

able.

6

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND

On February 17, 2003, Respondent performed the

everyday action of paying in a retail store with U.S.

currency when he attempted to purchase several

items at his local Walgreens store with a $100 bill,

1985 series. The bill he used did not appear unusu-

ally old or wrinkled, and it had the normal texture of

other $100 bills he had in his possession, all of which

were genuine. Nonetheless, Walgreens’ store manager

Dennis Snopikov, after examining the bill with a

counterfeit detector pen which indicated that the bill

was genuine, called the San Francisco Police De-

partment (SFPD) and reported that he had suspicions

about a bill, that he was not sure but he thought it

might be counterfeit.

When the first two SFPD police officers, Sgt. Jeff

Barry and his partner, Officer Barbara Dullea, ar-

rived at the scene, Sgt. Barry recognized the Respon-

dent but made no attempt to approach either the

Respondent or the Walgreens manager, who were

engaged in a civil conversation. The officers then

reported a Code 4, that the “situation was under

control,” to a second squad car, and waited at the door

for the other officers to arrive. The officers in the

second squad car, composed of Officers Michelle

Liddicoet and James Nguyen, understood Code 4 to

mean “suspect in custody” and expected to see the

Respondent already in handcuffs upon their arrival.

However, when they entered the Walgreens store,

7

Officers Liddicoet and Nguyen saw that the suspect

was not in custody as earlier reported, so they pro-

ceeded to place handcuffs on Respondent.

Just before placing the handcuffs on the Respon-

dent, Officer Nguyen spoke briefly with the Wal-

greens manager while Officer Liddicoet spoke with

the Respondent. The Walgreens manager told Officer

Nguyen that he had compared the $100 bill with a

genuine bill, and that he was uncertain about the

authenticity of the bill Respondent had used. The

officers never looked at the “other” $100 bill which

the Walgreens manager said he had compared it with,

and which he said had a watermark and a magnetic

security strip. They also never engaged in any inves-

tigation about whether Respondent had any intent to

defraud Walgreens.

Although Sgt. Barry was the first to arrive and

was the ranking officer at the scene, he told Officer

Liddicoet not to mention his name in the police

report. Aside from the fact that Sgt. Barry knew that

Respondent was a lawyer and an elected member of

the Community College Board of the City College of

San Francisco (CCSF), Sgt. Barry also personally

knew Respondent because Sgt. Barry headed the boys

athletic program of the parochial schoo! where Re-

spondent’s sons were enrolled and where their sons

were classmates. The last time they spoke, Sgt. Barry

had expressed negative feelings against Respondent,

claiming that Respondent and the other members

of the CCSF Board of Trustees had placed his

brother-in-law, a police officer at CCSF, at risk for

8

physical harm’ because they did not allow CCSF

police officers to carry firearms on campus.

When Officer Liddicoet arrived at the Walgreens

store, Sgt. Barry informed Officer Liddicoet that

Respondent was a lawyer, an elected public official,

and that Respondent did not like police officers.’

Officer Liddicoet thereafter entered the store and,

after telling Respondent she knew who he was, told

Respondent that he “should be ashamed” of himself,

placed Respondent in handcuffs without ever making

any effort to inspect the other $100 bill which the

Walgreens manager had allegedly compared the

suspected bill to, without inspecting a third $100 bill

which Respondent had used to complete his purchase,

and without inspecting any of the other bills Respon-

dent may have had in his possession at the time.

Respondent was transported in the back of a

squad car to a police station with his hands hand-

cuffed behind his back and his knees pressed up.

After arriving at the police station, Respondent was

then put in a holding area with one of his wrists

' Officer Liddicoet originally denied having been told

anything by Sgt. Barry about Respondent. After cross-

examination, she changed her testimony and admitted that Sgt.

Barry had told her something about Respondent. In her revised

testimony, however, she claims that he told her this only after

Respondent was released. In view of her contradictory testimony

and her conduct, it appears more likely that she was told these

things (that Respondent dislikes police officers) when she

arrived at the scene and that titis was part of the reason Officer

Liddicoet was in a rush to place the Respondent in handcuffs.

3

handcuffed to a metal bar, which significantly re-

strained his movement.

Needing assistance in ascertaining the genuine:

ness of the bill, Officer Nguyen called the Secret

Service but was unable to speak with an agent imme-

diately, so he left a message requesting a return call.

After about thirty minutes, a Secret Service agent

returned the call, discussed the details of the sus-

pected bill with Officer Nguyen, and concluded that

the bill was in fact genuine.

Several more minutes later, Respondent was

released from custody, and Officer Nguyen drove him

back to Walgreens. At the time Respondent was

released, Officer Nguyen admitted to Respondent

that he knew all along that the bill was real, and that

he told the other officers that he thought it was real.’

During the arrest, the drive to the police station

in the back of the squad car, and the detention at the

police station, Respondent suffered injuries to his

back which required chiropractic care, injuries to his

wrist, and emotional distress.

Shortly after the incident, the SFPD issued a

formal memorandum which set forth specific proce-

dures to be followed when investigating suspected

* Set. Barry testified that he did not handle the bill himself

and was 10-50 feet away from the officers handling the bill.

Officer Liddicoet admitted at her deposition that the suspected

bill actually looked real to her.

10

counterfeit currency incidents. The new policy now

requires police officers to conduct an investigation

into the element of intent before they can make an

arrest.

Il. THE PROCEEDINGS BELOW

On October 1, 2003, Respondent filed a complaint

against the City and County of San Francisco, then

Chief of Police Alex Fagan, Sgt. Barry and Officer

Liddicoet under 42 U.S.C. Section 1983 for false

arrest and excessive force in violation of Respondent’s

Fourth Amendment rights, conspiracy to violate said

rights, injunctive relief, and several state law claims.

On February 11, 2005, Petitioners moved for

summary judgment, and on March 22, 2005, the U.S.

District Court for the Northern District of California

granted the motion as to Respondent’s conspiracy,

municipal liability and injunctive relief claims, but

denied the motion in all other respects after finding

that, because the officers lacked evidence regarding

Respondent’s intent to defraud, probable cause was

necessarily lacking and ine arrest was therefore

unlawful. The district court also found Sgt. Barry and

Officer Liddicoet not entitled to qualified immunity

because the illegality of the arrest was clearly estab-

lished at the time. Petitioners’ Appendix (“Pet. App.”)

33; see also 2004 WL 326273 (N.D. Cal.).

On April 20, 2005, Petitioners appealed to the

Court of Appeals, and on August 28, 2007, the Ninth

Circuit, after hearing oral arguments from the parties,

11

affirmed the district court’s decision. Pet. App. 1; see

also 499 F.3d 1094 (9th Cir. 2007). On October 12,

2007, Petitioners filed a petition for the Ninth Circuit

to rehear and rehear en banc its August 28, 2007

decision. The petition was denied on February 6,

2008. Pet. App. 51. The petition with this Court

thereafter followed.

REASONS FOR DENYING THE PETITION

REVIEW IS NOT WARRANTED BECAUSE

THE NINTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH ANY DECISION

OF THIS COURT OVER THE PROPER

APPLICATION OF THE DOCTRINES OF

PROBABLE CAUSE AND QUALIFIED IM-

MUNITY.

The doctrine of probable cause is grounded in a

long history of case law. “As early as Locke v. United

States, 7 Cranch 339, 348 (1813), Chief Justice Mar-

shall observed: ‘(T]he term “probable cause” ...

imports a seizure made under circumstances which

warrant suspicion.’” Gates, 462 U.S. at 235. This

Court has repeatedly held that the “substance of all

the definitions of probable cause is a reasonable

ground for belief of guilt.” Brinegar, 338 U.S. at 175.

This commonsensical standard “protects ‘citizens

from rash and unreasonable interferences with

privacy and from unfounded charges of crime,’ while

giving ‘fair leeway for enforcing the law in the

12

community’s protection.’” Pringle, 540 U.S. at 370

(quoting Brinegar, 338 U.S. at 176).

“(P]robable cause is a fluid concept — turning on

the assessment of probabilities in particular factual

contexts — not readily, or even usefully, reduced to a

neat set of legal rules.” Gates, 462 U.S. at 232. The

doctrine “deals with probabilities and depends on the

totality of circumstances.” Pringle, 540 U.S. at 371

(italics added). Thus, in determining whether an

officer had probable cause to make an arrest, a court

must “examine the events leading up to the arrest,

and then decide ‘whether these historical facts,

viewed from the standpoint of an objectively reason-

able police officer, amount to’ probable cause.” Jd.

(quoting Ornelas v. United States, 517 U.S. 690, 696

(1996)).

The doctrine of qualified immunity is similarly

well-grounded in reasonableness. As clearly enunciated

by this Court in Harlow v. Fitzgerald, 457 U.S. 800

(1982), qualified immunity is designed w shield

government agents from actions “insofar as their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.” 7d. at 818. Further, in Harlow,

this Court ruled that “[t]he public interest in deter-

rence of unlawful conduct and in cempensation of

victims remains protected by a test that focuses on the

objective legal reasonableness of an official’s acts.” Id.

at 819 (italics added).

13

The Ninth Circuit’s analysis in Respondent’s case

involved the fact-bound application of well-settled law

as briefly outlined above. After poring over the record,

the appellate court concluded that “the circumstances

surrounding Rodis’s arrest fell far short of creating a

‘fair probability’ he had committed any crime, much

less the crime in question.” Pet. App. 9 (citation

omitted). The court also noted that “[t]he record

shows, and Defendants concede, they had no evidence

whatsoever demonstrating that Rodis intended to use

the bill to defraud the store, nor was there any reason

to believe Rodis believed the bill was fake.” Jd. at 11.

Further, the court pointed out:

What is more, several facts known to the

officers at the time of the arrest significantly

decreased the probability that Rodis violated

§ 472. Viz., Rodis had other $100 bills in his

possession that were genuine, one of which

he used to complete the transaction; the

counterfeit detector pen indicated the bill

was genuine; and the officers knew Rodis

was both a San Francisco attorney and a

locally-elected public official with strong ties

to the community in which the store was

located. Spec'fically, Barry had known Rodis

for several years. He knew Rodis was a

member of the Community College Board,

and he had interacted with Rodis personally,

encountering him at activities associated

with the elementary school that both Barry’s

and Rodis’s children attended. Also, Rodis in-

formed Liddicoet prior to his arrest that he

was a public figure, and that he lived and

14

worked within two blocks of the store. Liddi-

coet told him she knew who he was and that

he “should be ashamed” of himself.

Id. at 12.

The Ninth Circuit also concluded that “even

without the knowledge of Rodis’s identity and local

ties, based on the totality of the other relevant facts,

no reasonable or prudent officer could have concluded

that Rodis intentionally and knowingly used a coun-

terfeit bill.” Jd. at 13. In effect, the police officers

ignored all of the evidence indicating the Respondent

did not intend to pass counterfeit currency and ar-

rested him.

Despite these reasonable findings of the court,

Petitioners insist that the Ninth Circuit decision is in

tension with this Court’s holding that “an officer is

not required to investigate every claim of innocence

and every potential defense ‘such as lack of requisite

intent’ before making an arrest.” Pet. 15. Only Baker

v. McCollan, 443 U.S. 137 (1979), was cited by the

Petitioners to this contention and no other Supreme

Court case.

However, even in Baker, this Court never dero-

gated the need to satisfy probable cause as to the

intent element prior to effecting an arrest. In fact,

there is no language in Baker that suggests that

police officers are completely relieved of the need to

have reasonable basis for probable cause as to the

intent element; likewise, none of the cases cited by

Petitioners hold that police officers can ignore the

15

abundant evidence of a person’s innocence and still

arrest said innocent person.

Moreover, the facts of Baker are hardly compara-

ble to the instant case because Baker was a narrowly

decided case of mistaken identity, in which the plain-

tiff was arrested because his brother, who had an

outstanding warrant of arrest, had been masquerad-

ing as the plaintiff himself by using a duplicate of

plaintiff’s driver’s license, identical to the original in

every respect except that plaintiff’s brother’s picture

graced it instead of the plaintiff’s. Baker, 443 U.S. at

140. Hence, given the totality of circumstances in

that case, the Court ruled that the plaintiff was

detained pursuant to a warrant which conformed

to the constitutional requirements of the Fourth

Amendment. Jd. at 144. Because the same cannot be

reasonably said in the instant case, Petitioners did

not have probable cause and therefore cannot be

granted immunity from suit.

II. REVIEW IS ALSO NOT WARRANTED BE-

CAUSE THERE IS NO CONFLICT AMONG

THE CIRCUITS OVER WHETHER PROB-

ABLE CAUSE AS TO THE INTENT ELE-

MENT HAS TO FIRST BE PRESENT

BEFORE AN INDIVIDUAL MAY BE AR-

RESTED FOR SUSPECTED VIOLATION OF

18 U.S.C. SECTION 472.

Petitioners contend that this Court should grant

review to resolve a conflict in the appellate courts on

whether probable cause as to the intent element

16

is necessary in order to make an arrest. Pet. 13.

Petitioners also claim that the Ninth Circuit’s deci-

sion in Respondent’s case conflicts with its “own past

rulings, which have strongly implied that evidence of

intent beyond the passing of the bill is not required

for counterfeiting arrests.” Jd. at 14.

No such conflict exists, whether within the Ninth

Circuit or among the circuits. What does exist is a

consistent misreading of the holdings because Peti-

tioners overlook the totalities of circumstances in

each of the cases they cited, and in none of the cases

cited by Petitioners was there an abundance of evi-

dence, as in the present case, which indicated that

the suspect did not have any intention to pass coun-

terfeit currency.

A. Probable cause as to the intent ele-

ment existed in the out-of-circuit cases

cited by Petitioners.

A review of the out-of-circuit cases cited by Peti-

tioners reveals that the factual contexts and the

totalities of circumstances in these cases support the

conclusion that probable cause as to the intent ele-

ment in fact existed. Further, none of the cases cited

by Petitioners set forth facts similar to the ones cited

by the District Court in its opinion which pointed to

the innocence of Respondent. Thus, Respondent’s case

is easily distinguishable from the cited cases, as

follows:

17

(a) U.S. v. Everett, 719 F.2d 1119 (11th Cir.

1983). Petitioners are pinning their argument

strongly on this 1983 case where the defendant

“appeals from judgments of conviction on four counts

of conspiracy to pass counterfeit currency, passing

counterfeit currency, possessing counterfeit currency,

and concealing counterfeit currency.” Jd. at 1120.

Here, the Eleventh Circuit did say that “[tJhe passing

of a counterfeit note coupled with an identification of

the person who passed the note furnishes probable

cause,” but the opinion also mentioned that “appel-

lant and another individual, who were seated at the

same table in a lounge, each passed $50.00 bills

which were identified by a deputy sheriff to be coun-

terfeit.” Id. (italics added). Thus, even though the two-

paragraph opinion is bereft of facts, it is reasonable to

conclude that the appellate court, not wishing to

disturb the judgments of conviction, simply deferred

to the factual conclusions of the trial court and

therefore did not see it necessary to elaborate any

further. However, the plural word “bills,” along with

the conspiratorial impression that may be evoked in

any reasonable person by witnessing two individuals

each passing $50 bills in a lounge, plus the conclusive

identification by the deputy sheriff of these bills to be

counterfeit, distinguish Everett from Respondent’s

case.

(b) U.S. v. Hernandez, 825 F.2d 846 (5th Cir.

1987). In this case, the officers accosted Hernandez

and his companion after being tipped off by a vendor

in a carnival who earlier refused to change a $20 bill

18

he suspected of being counterfeit. Jd. at 848. How-

ever, the officers had numerous reasonable bases for

probable cause and effecting a subsequent arrest

because (a) initially, “[aJs the officers approached,

Hernandez and his companion started away”; (b)

when one of the officers conducted a pat-down search,

felt “a crumpled piece of paper” in Hernandez’s

pocket, and asked what it was, “Hernandez replied

that it was nothing and twice refused to show the

paper”; and (c) when the officer reached into the

pocket, he “retrieved a black and white mimeograph

copy of a twenty dollar bill.” /d.

(c) U.S. v. Allison, 616 F.2d 779 (5th Cir. 1980).

The two arrestees in this case, Allison and Freedman,

were also convicted of possession of counterfeit bills.

Id. at 781. The Fifth Circuit pointed out that

“(ajlthough mere possession of counterfeit money is

not a crime, when possession is coupled with reliable

information that the possessor has attempted to pass

the bill as genuine, the officer in the field is justified

in concluding that an offense has been committed.”

Id. at 782. In its decision to affirm Allison’s convic-

tion, the court concluded that the police officer had

probable cause to arrest because the arrestee exhib-

ited not just one but three counterfeit $20 bills, and a

subsequent search of his car’s trunk yielded a travel

shaving kit containing 117 counterfeit $20 bills. /d.

(d) Marks v. Carmody, 234 F.3d 1006 (7th Cir.

2000). This case was not a case involving counterfeit

currency; instead, it involved two competing travel

19

agency operators who decided initially to merge their

operations but because of some disagreement involv-

ing unpaid tickets and commissions, ended up termi-

nating the merger, with one party filing a criminal

complaint against the other (Marks) for fraud stem-

ming from Marks’ issuance of checks returned for

insufficient funds. Jd. at 1007-1008. In Marks’ suit

against the officers who arrested him, the court ruled

that “even though it was not prepared to hold that

there was probable cause for the arrest, the two

officers were entitled to qualified immunity on this

record” because the arrest came after several months

of investigation by the detective in this case who had

his legitimate reasons to believe that there was

indeed fraud involved and therefore reasonably

thought arresting Marks was lawful. Jd. at 1009.

B. Probable cause as to the intent element

existed in the Ninth Circuit cases cited

by Petitioners.

Petitioners’ contention that the Ninth Circuit’s

own past rulings “have strongly implied that evidence

of intent beyond the passing of the bill is not required

for counterfeiting arrests” (Pet. 14) is similarly ne-

gated by the factual contexts and the totalities of

circumstances in the circuit cases they cited which

suggest that probable cause existed as to the intent

element, as follows:

(a) U.S. v. Ford, 461 F.2d 534 (9th Cir. 1972).

This is another case of a defendant appealing a

20

conviction involving counterfeit currency. with the

appellate court affirming the trial court judgment.

The counterfeit bill fell out of defendant's clothing

during a pat-down search for weapons after defen-

dant, who “matched the storekeeper’s description,”

was stopped by a cruising officer who responded to

a storekeeper’s report that defendant had earlier

attempted to negotiate counterfeit currency. I/d.

Similar to their championing of Everett, Petitioners

are pinning their interpretation of probable cause on

this case because it is but a conclusory, two-

paragraph opinion which, as the Ninth Circuit opin-

ion in Respondent’s case noted, “is so lacking in

factual background, that what the panel deemed

sufficient for probable cause is unknown.” Pet. App.

17. However, even with the minimal facts in Ford,

Respondent’s case is distinguishable because the

record reveals that, unlike in Ford, (1) the Walgreens

manager who summoned the officers for assistance

was simply uncertain about the authenticity of the

bill; (2) at least two of the officers whe responded at

the scene thought the Respondent's bill in fact looked

genuine; and (3) the officers knew Respondent per-

sonally and were aware that he was a lawyer and an

elected public official. Further, none of the evidence in

the Ford case tended to show the innocence of the

person being arrested. Thus, to decide the questions

presented before this Court in favor of Petitioners

purely based on their interpretation of the two-

paragraph opinion in Ford is to condemn the doctrine

of probable cause to meaninglessness. It is difficult to

imagine that the Ford court really meant this to be

21

so; if it were, ali opinions after Ford involving coun-

terfeit currency cases would all just consist of “© two

conclusory paragraphs similarly devoid of otheer

relevant facts and legal discussions.

(b) U.S. v. Blum, 432 F.2d 250 (9th Cir. 1970).

The defendant in this case was appealing a conviction

after he was arrested without a warrant by a Louisi-

ana State Trooper who had earlier heard a radio

broadcast from the police captain of a small Louisiana

town urging officers to be on the lookout for a white

male driving a convertible with California plates and

believed to have tendered counterfeit bills at a local

gas station. Jd. at 252. A subsequent search of defen-

dant’s vehicle resulted in the seizure of “a canvas bag

containing about $15,000.00, a gun, ammunition, polo

shirt, cap, glasses and a sock.” Id. at 253. As the

Ninth Circuit noted in the opinion, “Blum is easily

distinguishable” from Respondent’s because “numer-

ous facts — such as the suspect fleeing the scene and

the fact the suspect lived outside the state — could

have been enough to create a ‘fair probability’ he

passed counterfeit bills.” Pet. App. 16 n.5. Addition-

ally, the court noted that “Blum is an old case, and

since it was decided (nearly forty years ago), we have

made clear that (1) ‘the key element of section 472 is

the specific intent to defraud,’ and (2) ‘when specific

intent is a required element of the offense, the arrest-

ing officer must have probable cause for that element

in order to reasonably believe that a crime has oc-

curred.’” Jd. (citations omitted).

22

(c) Bates v. U.S., 352 F.2d 399 (9th Cir. 1965).

Bates was appealing the conviction of two counterfeit-

ing counts but the Ninth Circuit affirmed after hold-

ing that the officer who had arrested Bates had

probable cause because plaintiff's “automobile car-

ried out-of-state license plates and was _ distinct

in model and color,” and “(t]he officer already had

reliable information that the vehicle fitted the de-

scription of one which, very shortly before, had been

entered by a person who had passed counterfeit

money at a store in the near vicinity.” Jd. at 400. The

court went on to say that “[olf course, at the time of

the arrest, the circumstances pointing to Bates as a

participant in counterfeit transactions were not iron

clad, but they certainly pointed an accusing finger at

him — enough for probable cause.” /d.

(d) U.S. v. Mayo, 394 F.3d 1271 (9th Cir. 2005).

In Mayo, the court ruled that the police, which found

stolen mail in defendant’s car, had reasonable bases

to detain defendant for suspicion that he committed

or participated in a crime because (a) there were

earlier reports of suspicious activity, possibly involv-

ing narcotics, near the motel where defendant was

arrested; (b) defendant was using a car with a stolen

registration sticker on a license plate; (c) defendant

tried to use someone else’s credit card to rent a motel

room; and (d) officers at the scene smelled chemical

odor associated with methamphetamine. /d. at 1275-

1276. However, Petitioners’ reliance on this case

is misplaced because in concluding that the arrest

was constitutional, the court specifically reiterated

23

the standard for probable cause — i.e., “whether,

under the tocality of the circumstances, a prudent

officer would have believed that there was a fair

probability that the suspect committed a crime.” Jd.

at 1276 (citation omitted).

In view of the above, a reasonabie person,

police officer or not, would find the totalities of the

circumstances in the cases cited by Petitioners easily

distinguishable from Respondent’s case because the

officers who arrested Respondent knew him, were

aware of his standing in the community as an elected

public official, and did not really have any factual

basis to have any reasonable suspicion that he was

trying to pass a counterfeit bill. Thus, in the absence

of a concrete or mature conflict in the circuits, the

question presented does not warrant this Court’s

review.

Ill. GRANTING THE PETITION AND THE

CALENDARING OF THE CASE FOR

ARGUMENT WITH PEARSON IS NOT

WARRANTED BECAUSE SAUCIER AND

PEARSON ARE COMPLETELY DISTIN-

GUISHABLE FROM THE INSTANT CASE.

Petitioners are asking this Court to grant the

petition and calendar the argument together with

Pearson because they contend that “the qualified

immunity issues presented by [Pearson and the in-

stant case] are virtually identical.” Pet. 22 n.3. How-

ever, this contention is without merit. In Pearson, the

24

plaintiff was a suspected drug pusher who was ar-

rested by police officers inside his home without an

arrest or search warrant after he supplied drugs to a

confidential informant in exchange for a $100 bill

which had earlier been marked by the police. The

search of plaintiff and his home yielded a small bag of

methamphetamine, the marked bill and drug sy-

ringes. The issue before the Tenth Circuit was

whether the arresting officers were entitled to quali-

fied immunity because of the Fourth Amendment’s

“consent-once-removed” doctrine which applies “when

an undercover officer [broadened by other circuits to

also include informants] enters a house at the express

invitation of someone with authority to consent,

establishes probable cause to arrest or search, and

then immediately summons other officers for assis-

tance.” Callahan v. Millard County, 494 F.3d 891, 896

(10th Cir. 2007), rev’d sub nom. Pearson v. Callahan,

No. 07-751 (2008).

In granting certiorari in Pearson, the Court

directed the parties to argue the question of whether

the Court’s decision in Saucier v. Katz, 533 U.S. 194

(2001), should be overruled. However, Saucier is

likewise easily distinguishable from Respondent’s

case. The plaintiff in Saucier, the president of a group

called “In Defense of Animals” who had earlier en-

tered a military base with a protest banner concealed

under his jacket, was rushed by military police offi-

cers when he “removed the banner from his jacket,

started to unfold it and walked toward the fence and

25

the speakers’ platform” where then-Vice President Al

Gore was speaking. Id. at 197-198. He was subse-

quently taken to a military van, shoved or thrown

inside, driven to and held at a military police station

for a brief time, and then released. Jd. at 198. He

sued the military officers who arrested him, allegedly

for excessive force. Id. at 199.

Clearly, the facts and circumstances in Respon-

dent’s case are totally different. Even without regard

to the decisions reached by all the courts which tried

the cases as well as the eventual! decision of this

Court, any reasonable person can sympathize with,

and raise obvious and legitimate arguments in favor

of, the arresting officers in both Pearson and Saucier.

On the other hand, Respondent did not do anything

remotely unlawful. Respondent’s only fault for being

arrested was for tendering a 1985 series $100 bill

which he acquired in the regular stream of commerce

and which in fact turned out to be genuine. The

officers who responded to the scene knew Respondent

to be a lawyer and a prominent figure in the city’s

political arena. They also knew him to be among the

leading figures in his ethnic community, that he lived

and worked in the immediate neighborhood of the

store. They arrested him nonetheless after ignoring

an abundance of evidence which tended to show that

he did not intend to pass counterfeit currency.

It is clear from the record that Respondent in fact

is the one who has probable cause for suspecting that

there may have been other motivations for the con-

duct of at least one of the Petitioners. Respondent is

26

seeking to prove this and the Court should let the

trial court proceed with its task and not allow Peti-

tioners to hide hehind the shield of qualified immu-

nity. By invoking qualified immunity, Petitioners are

effectively urging this Court to disregard the law’s

requirement of them to exercise commonsensical

prudence and reasonableness. Thus, adopting Peti-

tioners’ interpretation of qualified immunity will

effectively afford petitioners absolute immunity for

arrests involving, at the very least, suspected viola-

tors of 18 U.S.C. § 472.

IV. PUBLIC POLICY CONSIDERATIONS MILI-

TATE STRONGLY AGAINST GRANTING

THE PETITION.

Section 472’s language specifically contains the

phrase “intent to defraud” as an element of the crime.

The phrase is critical because it modifies several

verbs that follow it, including “passes,” “utters,”

“publishes,” “sells,” “attempts to pass,” “keeps in

possession,” among others. 18 U.S.C. § 472. It is easy

to see why evidence pertaining to this element should

not be dispensed with in making arrests pursuant to

the statute.

» (<3

Petitioners, however, wish to diminish the :mper-

tance of the phrase and argue that “[jJust as a fact-

finder may infer from the fact that a person is driving

a stolen vehicle that he did, in fact, steal the vehicle,

a factfinder may infer from the fact that a person

attempted to pass a counterfeit bill that he intended

27

to defraud the person to whom he passed the bill.”

Pet. 15 n.2. However, comparing the two acts — driv-

ing a stolen vehicle vs. attempting to pass a suspected

(a modifier Petitioners consistently drop) counterfeit

bill — is like comparing a dog to an ant; quite simply,

the two are completely different animals.

Unlike the second act, the first act — driving a

stolen vehicle — requires from a suspect a more crea-

tive imagination in order to come up with a reason-

able excuse to a questioning police officer, and

chances are, the police officer will have sufficient

probable cause to make an arrest. After all, unlike

bills, cars are not what one would consider fungible,

disposable or indistinguishable from the others.

Unlike bills which fit easily in wallets and pockets,

cars are bulky and difficult to hide. Unlike bills, cars

have glove compartments where proofs of purchase,

registration papers and insurance are stored. And not

to belabor the point, cars, though fast in the high-

ways, cannot even compare with bills when the

velocity at which the latter change hands in the

regular course of business is taken into account.

And this is really where the crux of the difference

lies: unlike a regular person who uses cash daily, a

typical driver does not wake up and drive a different

car each day. A typical driver does not have multiple

cars which all look alike. A typical driver does not

transact and/or exchange cars on a daily basis,

whether with friends, family, vendors, banks, or

machines like ATMs.

28

Respondent’s case raises the question of whether

it is acceptable for officers to arrest an individual

purely because, in the conduct of his daily affairs, he

acquired what to him was a regular bill (but appar-

ently suspicious-looking to a store cashier) which he

then used to complete a regular commercial transac-

tion. It also raises the question of whether police

officers ean disregard circumstances which negate the

possibility of any crime being committed by the

suspect, arrest him purely on the aforementioned

basis, and, in the process, dispense, maliciously,

negligently, recklessly or otherwise, with the princi-

ples of reasonableness, probable cause and criminal

intent.

The opinion of the Ninth Circuit zeroed in on this

issue quite succinctly:

Without at least some evidence regarding the

knowledge or intent elements of the crime,

probable cause is necessarily lacking. To hold

otherwise would render any individual vul-

nerable to arrest who unknowingly, through

the normal stream of commerce, comes to

possess or use a counterfeit bill, even if other

circumstances suggest that a crime has not

been committed. This is not and cannot be

the law.

Pet. App. 13.

Thus, if validated by this Court, Petitioners’

interpretation of the relevant law carries worrisome

public policy implications. Counterfeit currency

arrests will be fraught with risks of abuse by police

29

officers. It is also not difficult to imagine that an

ordinary citizen knowledgeable about this particular

application of the law may use his knowledge to get a

fellow citizen arrested under the malicious pretext

that the latter was passing what “appeared” to be a

counterfeit bill. Indeed, this cannot and should not be

the law.

Lastly, Petitioners’ contention that the Ninth

Circuit’s holding “creates significant practical prob-

lems for enforcement of the counterfeiting laws” (Pet.

16) is exaggerated and the Court should not be per-

suaded for the simple reason that this contention is

belied by the new SFPD policy issued shortly after

the incident which now requires the officers investi-

gating counterfeit currency incidents to conduct an

investigation into the element of intent. The new

SFPD policy is an implicit admission that conducting

an investigation into the element of intent is in fact

reasonable and conforms to the Fourth Amendment’s

constitutional protection against unreasonable

searches and seizures.

30

CONCLUSION

Petitioners are wrong on the merits and have

forwarded no persuasive argument for granting

review. The petition for a writ of certiorari should be

denied.

Respectfully submitted,

LAWRENCE W. FASANO, JR.

720 Market St., Penthouse Suite

San Francisco, CA 94102

Telephone: (415) 956-8800

Facsimile: (415) 956-8811

Counsel for Respondent

Rodel E. Rodis

July 2008