United States v. 2005-08-08 | 04-15848 | BALDWIN VPLACER COUNTY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MICHAEL W. BALDWIN, DDS;
GEORGIA CHACKO,
Plaintiffs-Appellees, No. 04-15848
v. D.C. No.
PLACER COUNTY; TRACY GRANT; CV-01-01177-MCE
 RON GOODPASTER; BRIAN WIGGAM; ORDER AND
KEVIN BESANA; STEPHEN L. AMENDED
D’ARCY; JEFFERY POTTER; PLACER OPINION
COUNTY SHERIFF’S DEPARTMENT;
Officer REED,
Defendants-Appellants. 
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
March 18, 2005—San Francisco, California
Filed April 19, 2005
Amended August 8, 2005
Before: John T. Noonan, Sidney R. Thomas, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Noonan
10193

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COUNSEL
David K. Huskey, Auburn, California, for the defendants-
appellants.
J. David Nick and Paul R. Turley, San Francisco and Oak-
land, California, for the plaintiffs-appellees.
Kate Wells, Santa Cruz, California, for plaintiff-appellee
Georgia Chacko.
ORDER
The opinion filed on April 19, 2005 is amended as follows:
At slip op. p. 4410, l. 3-4, change sentence to read: “On the
conceded facts before us, whatever exigency existed was
insufficient to justify the batteries.”
At slip op. p. 4410, at the end of the first paragraph ending
“a practicing dentist and his wife.”, add “We conclude that
‘the law at th[e] time [of the search] . . . clearly establish[ed]
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that the officer’s conduct could violate the Constitution.’
Brosseau v. Haugen, 125 S.Ct. 596, 599 (2005).”
At slip op. p. 4411, at the end of the second paragraph end-
ing “bleached out.”, add a new paragraph.
The County invokes a fundamental case on the
Fourth Amendment, Franks v. Delaware, 438 U.S.
154 (1978). Franks does permit a court to purge the
false statements and to sustain the warrant if the
unpurged residue would justify it. But what will sus-
tain the warrant must already be within it. The
County is pointing to evidence not cited in the war-
rant. That evidence cannot sustain the warrant. See
United States v. Davis, 714 F.2d 896, 899 (9th Cir.
1983) (under Franks, “[t]he fact that probable cause
did exist and could have been established by a truth-
ful affidavit does not cure the error.”).
With this amendment, the panel has voted to deny the peti-
tion for rehearing. Judges Thomas and Fisher have voted to
deny the petition for rehearing en banc and Judge Noonan has
so recommended.
The full court has been advised of the petition for rehearing
en banc, and no active judge has requested a vote whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing is DENIED and the petition for
rehearing en banc is DENIED.
The panel will not entertain any new petitions for rehearing
or petitions for rehearing en banc.
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OPINION
NOONAN, Circuit Judge:
Placer County and several of its police officers (collec-
tively, the County) have taken this interlocutory appeal from
the district court’s denial of their motion for qualified immu-
nity in this 42 U.S.C. § 1983 action brought by Michael Bald-
win and Georgia Chacko (the plaintiffs). On the basis of the
facts conceded as undisputed by the County for purposes of
this appeal, we hold that the County violated established con-
stitutional rights of the plaintiffs and that qualified immunity
was properly denied.
FACTS
On September 22, 1998, Jeff Potter, an officer of the mari-
juana eradication team (MET) of the County’s Sheriff Depart-
ment, applied for a search warrant for the residence of
Michael Baldwin and Georgia Chacko, then Baldwin’s wife.
The affidavit stated that on July 16, 1998, Deputy Mark Reed
had told Sergeant Kevin Besana that “a citizen informant” had
told him that Michael Baldwin, a dentist, was “possibly grow-
ing marijuana.” The date when this information was given and
the date when Baldwin was possibly growing marijuana were
not stated in the affidavit. Potter stated that Besana had passed
this tip to him and that four days after receiving it, he con-
firmed Baldwin’s office address as a dentist and obtained the
registration number of his car; Potter used the car registration
to confirm the informant’s statement as to Baldwin’s home
address. A check of DMV records showed Baldwin to be 35
years-old, 5′ 9″, weighing 165 pounds and Georgia Chacko to
be 34 years-old, 5′ 5″, weighing 125 pounds.
On September 16, 1998, so the affidavit continues, Potter
searched the trash at Baldwin’s home address. He found
“marijuana leaves and stems recently cut from a mature mari-
juana plant. The marijuana was fresh green and still moist.”
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He also, he said, had found “marijuana seeds and a hydro-
ponic grow rock. There were also two black 1/2 gallon plant-
ing pots commonly used in indoor marijuana grows and four
packages of ‘rain drop’ irrigation equipment commonly used
in indoor marijuana grows.” He concluded on the basis of his
specific training in the investigation of narcotics and his ten
years of experience in approximately three hundred narcotics
cases that “[t]he items found in the trash inspection reveal an
ongoing criminal activity to grow marijuana indoors.” He also
concluded that “it is common for persons involved in the cul-
tivation of marijuana to also be involved in the sale of mari-
juana.” Potter sought a warrant listing the documents and
property he expected to find; he did not mention guns. On
September 23, 1998, a state court judge issued the search war-
rant that Potter sought.
According to the plaintiffs’ evidence, the only marijuana in
their trash searched by Potter were blackened bits of mari-
juana wrapped in a paper towel, the remnants of smoked mar-
ijuana. They bolster their claim of falsity in Potter’s affidavit
by thirteen declarations from other individuals whose trash
was searched by MET. In each instance MET officers swore
they found “marijuana leaves and stems recently cut from a
mature marijuana plant” and that “the marijuana was fresh
green and still moist.” In each instance, these thirteen individ-
uals swore they placed no marijuana or products of marijuana
in their trash.
The Baldwins’ further evidence is that the “rain drop” irri-
gation equipment was only for outdoor landscaping and that
this fact should have been obvious to a trained narcotics
investigator. The equipment included a sprinkler spraying
water up to 14 feet, a soaker hose, and 6″ heavy duty support
stakes; none of these items are used in an indoor grow. The
two black gardening pots pointed to no illegal activity. The
“grow rock” in Potter’s affidavit was, the plaintiffs also state,
a lava rock with no implication of criminal activity.
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In the early dawn of the day that Potter obtained the war-
rant, according to the sworn declaration of Michael Baldwin,
a group of five officers including Potter entered Baldwin’s
home “para-military style” without knocking. Officer Reed
encountered Baldwin as Baldwin came into the house from
the back door. Reed pointed his gun at him and ordered him
to lie down. Baldwin complied with the order. Reed “then
pushed his gun at the rear of [Baldwin’s] head and placed his
knee in the small of [Baldwin’s] back, all the while pressing
a loaded firearm against the back of [Baldwin’s] head.” Bald-
win was terrified that the gun would go off.
According to the sworn deposition of Georgia Chacko, she
was clothed only in a T-shirt and cotton briefs and just getting
up to start her day when she opened her bedroom door to be
confronted by a flashlight in her face and fingers sharply pok-
ing five to seven times at her throat and forcing her back into
the bedroom. A voice told her to get on the floor. A gun was
pointed at her, then brought into contact with her head for 30
seconds. She got on the ground. The unidentified gunman
kneed her in the small of her back and handcuffed her. The
gunman was Potter.
PROCEEDINGS
On October 12, 2001, the plaintiffs filed their first amended
complaint. The County moved for summary judgment on the
ground of the qualified immunity of the officers. On April 2,
2004, the district court denied the motion, ruling that triable
material issues of fact existed as to the plaintiffs’ claims of
excessive force, judicial deception, and conspiracy by the
MET team, all in violation of 42 U.S.C. § 1983; state law
claims similarly remained open to credibility determinations
by a jury.
The County appeals.
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ANALYSIS
[1] Jurisdiction. Where there is a dispute as to material
issues of fact, we have no jurisdiction. Johnson v. Jones, 515
U.S. 304, 313 (1995). On the face of the district court’s deci-
sion finding disputed facts, we are prevented from proceeding
further. The County avoids dismissal, however, by stating that
it “accepted the Baldwins’ evidence for purposes of summary
judgment, thereby obviating any alleged factual disputes” and
that therefore “no factual disputes preclude appellate jurisdic-
tion over this interlocutory appeal.” The appeal is directed
only to denial of immunity if the plaintiffs’ facts are accepted;
so the appeal is directed to appealable issues of law. Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985). Although the defen-
dants have found it hard to stick to their concession and occa-
sionally appear to dispute the facts, we take them at their
word and for this appeal accept only the plaintiffs’ version of
what happened. The facts for this appeal are not alleged, they
are admitted. Consequently, we have jurisdiction.
[2] Excessive force. The County argues that “objectively
reasonable” officers could have believed that “the exigency of
the entry” justified the batteries on the plaintiffs. On the con-
ceded facts before us, whatever exigency existed was insuffi-
cient to justify the batteries. Baldwin was a practicing dentist.
Nothing in the record indicates that the officers had reason to
believe that he would resist or flee. The officers had stated no
belief that the plaintiffs would be armed; they mentioned no
criminal history or conspiracy that could have justified such
a belief. They had no reason not to identify themselves before
giving orders to the plaintiffs. Invading a home in the early
morning, they have stated no fact justifying their batteries.
They violated the civil right of the plaintiffs to be free from
battery by gun-wielding officers, a right established in this
circuit since 1984. McKenzie v. Lamb, 738 F.2d 1005, 1010
(9th Cir. 1984) (Kennedy, J.). Potter’s fingers at the throat of
Baldwin’s wife constitute a separate battery that a reasonable
officer would know was excessive. The governmental inter-
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ests in using handcuffs are at their maximum when “a warrant
authorizes a search for weapons and a wanted gang member
resides on the premises.” Muehler v. Mena, 125 S. Ct. 1465,
2005 WL 645221 at *4 (March 22, 2005). Conversely, gov-
ernmental interests are at a minimum when the searchers
assert no belief that weapons will be found and no belief other
than that the occupants of the house are a practicing dentist
and his wife. We conclude that “the law at th[e] time [of the
search] . . . clearly establish[ed] that the officer’s conduct
could violate the constitution.” Brosseau v. Haugen, 125 S.Ct.
596, 599 (2005).
[3] Judicial Deception. The Fourth Amendment is the
guarantee of every citizen that his home will be his castle,
safe from the arbitrary intrusion of official authority. It is no
barrier at all if it can be evaded by a policeman concocting a
story that he feeds a magistrate. This obvious truth is met by
the County with the argument that we should redact Potter’s
affidavit, purge it of its lies, and find what remains sufficient
to justify the issuance of the warrant. See Liston v. County of
Riverside, 120 F.3d 965, 972 (9th Cir. 1997). Objectively, the
County adds, there was enough to justify a search. Its argu-
ments are unpersuasive.
First, when Potter’s lies are taken out, what is left is an
unidentified citizen at an unidentified date telling a sheriff’s
deputy of marijuana growing at an unidentified time; also the
presence of a rock and two pots, the uses of which are ambig-
uous. No magistrate could have authorized a search on this
basis, essentially amounting to an informant’s tentative tip.
[4] Second, the County shifts its ground in arguing that
“objectively” — that is, not within Potter’s affidavit — there
were facts justifying the search: .08 grams of burnt marijuana,
“virtually unrecognizable as marijuana,” are conceded to have
been in the trash by the plaintiffs. The County cites in support
of its argument Devenpeck v. Alford, 125 S. Ct. 588 (2004),
holding that not the officer’s motive in making an arrest but
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the objective circumstances are to be considered by a court
judging the officer’s action. Devenpeck does not speak to our
case. Here, it is what facts were alleged to induce the magis-
trate to act. Plainly, Potter’s lies were substantial in moving
the magistrate. The force of the lies on the mind of the magis-
trate cannot be bleached out.
The County invokes a fundamental case on the Fourth
Amendment, Franks v. Delaware, 438 U.S. 154 (1978).
Franks does permit a court to purge the false statements and
to sustain the warrant if the unpurged residue would justify it.
But what will sustain the warrant must already be within it.
The County is pointing to evidence not cited in the warrant.
That evidence cannot sustain the warrant. See United States
v. Davis, 714 F.2d 896, 899 (9th Cir. 1983) (under Franks,
“[t]he fact that probable cause did exist and could have been
established by a truthful affidavit does not cure the error.”).
[5] The plaintiffs’ established civil rights were violated by
presentation of the false affidavit. Liston, 120 F.3d at 972-73.
Qualified immunity was rightly denied.
[6] Conspiracy. Conspiracy to violate a citizen’s rights
under the Fourth Amendment by lying to the magistrate is
evidently as much a violation of an established constitutional
right as the perjury itself. Whether there is sufficient evidence
of the conspiracy is for a jury to decide. No immunity exists
for the conspiracy.
AFFIRMED.
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