Cindy Saban; v. LAKE OSWEGO POLICE DEPARTMENT; MARK ANDERSON, in his individual capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY SABAN; et al.,
Plaintiffs-Appellants,
v.
LAKE OSWEGO POLICE DEPARTMENT;
MARK ANDERSON, in his individual
capacity,
Defendants-Appellees.
No. 21-36054
D.C. No. 3:19-cv-01882-JR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernández, Chief District Judge, Presiding
Submitted April 1, 2024**
Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and ORRICK,*** District
Judge.
The Sabans appeal the district court’s grant of summary judgment in favor
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
FILED
APR 3 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of Defendants. The Sabans challenge only the district court’s ruling that Officer
Anderson was entitled to qualified immunity. As the parties are familiar with the
facts, we do not recount them here. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
Where the facts are undisputed—as they are here—qualified immunity is “a
pure question of law.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.
2011) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). “[Q]ualified
immunity protects government officials ‘from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Even
law enforcement officials who ‘reasonably but mistakenly conclude that probable
cause is present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227
(1991) (per curiam) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
The Sabans argue that Officer Anderson’s affidavit did not establish
probable cause to search their home or vehicle. However, even if the warrant were
invalid, Officer Anderson acted in an objectively reasonable manner. The fact that
Officer Anderson’s supervisor, a deputy district attorney, and a neutral magistrate
approved the warrant application “almost guarantees” the reasonableness of
Officer Anderson’s actions. Armstrong v. Asselin, 734 F.3d 984, 994 (9th Cir.

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2013); see also Messerschmidt v. Millender, 565 U.S. 535, 546, 553 (2012)
(holding that officers acted reasonably where they “sought and obtained approval
of the warrant application from a superior and a deputy district attorney” before it
was approved by a neutral magistrate).
Nor was the affidavit “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.” Messerschmidt, 565 U.S. at
547 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). We have
previously deemed an affidavit so lacking where the only link to the target
residence was that a man with “a history of drug offenses, was seen at the alleged
locus of [a] drug ring and then at some point, went to [the] residence” in question.
Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1309 (9th Cir. 1994).
Officer Anderson’s affidavit, by contrast, was not so defective on the face of the
warrant itself or nearly so sparse in explaining the connection to the Sabans’
residence. See Armstrong, 734 F.3d at 992.
The Sabans contend that Officer Anderson violated two clearly established
rights. First, they rely on Ybarra v. Illinois, 444 U.S. 85, 91 (1979), for the
proposition that “a person’s mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable cause to search that
person.” But the warrant did not authorize the search of any individual, and the
record before us does not contain any evidence that Jeffrey or Cindy Saban was

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searched during its execution. Thus, the Sabans’ reliance on Ybarra is inapposite.
Second, the Sabans argue that it was clearly established that “relying on
evidence of a prior crime does not amount to probable cause related to a new
crime.” But neither of the child pornography cases they cite—Dougherty v. City of
Covina, 654 F.3d 892 (9th Cir. 2011), and United States v. Weber, 923 F.2d 1338
(9th Cir. 1990)—clearly establish that a search pursuant to a warrant based on an
affidavit that groups together suspected instances of credit card fraud/identity theft
over a two-week period violates the Fourth Amendment. Officer Anderson’s
affidavit sought evidence directly related to a suspected crime committed two
weeks prior and a new crime committed the day before he sought the warrant.
Because prior precedent did not preclude Officer Anderson from reasonably
believing that his conduct was lawful, he is entitled to qualified immunity. See
Kramer v. Cullinan, 878 F.3d 1156, 1163 (9th Cir. 2018).
AFFIRMED.

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