Mike Sargeant v. Don Bell ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKE SARGEANT; RYAN FUNKE, No. 17-35531
Plaintiffs-Appellants, D.C. No. 9:15-cv-00116-DLC
v.
MEMORANDUM*
DON BELL, in his individual and official
capacities; LAKE COUNTY SHERIFF’S
DEPARTMENT; LAKE COUNTY; DOES,
John, 1-5, in their individual and official
capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted July 10, 2018**
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and MARQUEZ,*** District
Judge.
*
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 Rosemary Marquez, United States District Judge for
the District of Arizona, sitting by designation.
In this action asserting claims under the Montana Constitution and 42 U.S.C.
§ 1983, Mike Sargeant and Ryan Funke appeal from the grant of summary
judgment to Lake County, Montana; the Lake County Sheriff’s Department; and
Lake County Sheriff Don Bell. As the parties are familiar with the facts, we do not
recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Recounting both documentary evidence and the statements of over a
dozen named, credible witnesses, the warrant application contained ample,
particularized allegations raising a “fair probability” that unlawfully possessed
animal parts would be found in Sargeant and Funke’s homes in violation of
Montana Code Annotated § 87-6-202. United States v. Grubbs, 547 U.S. 90, 95
(2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also Ewing v. City
of Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009).
2. The warrant was also sufficiently particularized. By directing officers to
seize only those wildlife mounts that could reasonably be believed to be those that
the Farrars identified in their witness statements, the warrant both (1) provided an
“objective standard[] by which executing officers [could] differentiate items
subject to seizure from those which [were] not” and (2) cabined the universe of
mounts subject to seizure to those for which probable cause existed—i.e., those
which the Farrars had identified as having likely been taken unlawfully. United
States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). Because the warrant
2
“provide[d] . . . guidelines to distinguish items used lawfully from those the
government had probable cause to seize,” id. at 964, the warrant was sufficiently
particular under both the Fourth Amendment and the Montana Constitution, see
State v. Cotterell, 198 P.3d 254, 267 (Mont. 2008).
AFFIRMED.
3