Ramirez v. City of Buena Park ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH C. RAMIREZ, a/k/a Joe 
Ramirez,
Plaintiff-Appellant, No. 04-56832
v.
 D.C. No.
CV-03-01754-GLT
CITY OF BUENA PARK; PEDRO
MONTEZ; FRANK HORNUNG, e/s/a OPINION
Hank Hornung; MARC ODOM,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
December 8, 2006—Pasadena, California
Filed March 25, 2009
Before: Alex Kozinski, Chief Judge, Melvin Brunetti and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Brunetti
3795
RAMIREZ v. BUENA PARK 3799
COUNSEL
E. Thomas Barham, Jr. and Shirley A. Ostrow, Law Offices
of Barham and Ostrow, Los Alamitos, California, for the
plaintiff-appellant.
Mitchell E. Abbott, Michael P. Coyne, and Robert C. Ceccon,
Richards, Watson, & Gershon, Los Angeles, California, for
the defendants-appellees.
OPINION
BRUNETTI, Circuit Judge:
On May 2, 2003, Officer Pedro Montez of the Buena Park
Police Department noticed a car parked outside a drugstore.
Montez observed Joseph C. Ramirez in the car’s driver’s seat,
apparently asleep at the wheel. Montez subsequently detained,
searched, and arrested Ramirez for being under the influence
of a controlled substance. Montez and two other officers then
impounded Ramirez’s car for its safekeeping. Montez issued
Ramirez a citation and released him on his own recognizance
after performing additional tests (including a blood test) at the
police station. The blood test later came back negative and no
charges were filed.
Ramirez filed the present 42 U.S.C. § 1983 action against
Montez seeking damages for the detention, search, arrest, and
blood test, and against Montez and the other two officers for
the impoundment of his car. Ramirez also included a Monell
3800 RAMIREZ v. BUENA PARK
claim against Buena Park for the impoundment of his car, and
five state law claims against the defendants.
The defendants filed a motion for summary judgment and
Ramirez filed a partial motion for summary judgment. The
district court granted the defendants’ motion on Ramirez’s
section 1983 and state law claims, and denied Ramirez’s par-
tial motion for summary judgment. Ramirez now appeals. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm
in part, reverse in part, and remand for further proceedings.
I. Factual background
A few minutes before 8:00 p.m. on May 2, 2003, Ramirez
sat parked in his red BMW convertible outside a Rite Aid
pharmacy on Beach Boulevard in Buena Park, California.
Montez was patrolling the area in his patrol car when he
noticed Ramirez’s car with its parking lights on. The parties
dispute many of the facts relating to Montez’s subsequent
detention, search, and arrest of Ramirez.
A. The detention
While still in his patrol car, Montez observed that
Ramirez’s seat was reclined and that Ramirez had his eyes
closed and appeared to be asleep at the wheel. Montez
decided to investigate further because he was aware that sev-
eral grab-and-run type thefts of alcohol had occurred at the
location and that getaway vehicles are commonly used in
thefts and robberies. Montez was also concerned that Ramirez
may have had some medical problem, or may have been phys-
ically impaired.
Montez is certified by The International Association of
Chiefs of Police as a Drug Recognition Expert. Montez
attended an eighty-hour program administered by the Califor-
nia Highway Patrol which included training on the techniques
of drug influence evaluation, recognition of the signs and
RAMIREZ v. BUENA PARK 3801
symptoms of persons under the influence of drugs, and the
physiology and effects of drugs on the body. Montez also
received extensive instruction and demonstrated proficiency
on how to properly conduct vital sign and eye examinations,
and the use of approved field sobriety tests. The training pro-
gram instructed Montez that many drugs, including Central
Nervous System (CNS) stimulants, may significantly increase
respiration; that falling asleep quickly, inappropriately, and
sometimes uncontrollably, is a common side effect of CNS
stimulants; that irritability is a general indicator of CNS stim-
ulant use; that pupil dilation beyond 6.5mm is indicative of
drug use; that the normal adult pulse rate is 60 to 90 beats per
minute and that an elevated pulse is indicative of drug use;
and that distorted time perception is indicative of drug use.
Montez pulled behind Ramirez’s vehicle, got out of his
patrol car, and walked up to Ramirez’s driver’s-side door.
According to Montez—as related in his March, 2004 deposi-
tion and in a declaration made in September of 2004 and
attached to the defendants’ motion for summary judgment—
after reaching the driver’s-side door, he observed Ramirez for
three to five seconds. During this time, Montez claims
Ramirez’s eyes were closed and that he appeared to be breath-
ing rapidly, as if he had been exercising. Montez estimated
that Ramirez took “[a]bout 10, 12” breaths during this three-
to-five-second period. Montez also illuminated Ramirez’s
chest/waist area with his flashlight, observed Ramirez’s hands
in his front by his waist area, and then knocked on the win-
dow. According to Montez, Ramirez opened his eyes, looked
at him and either opened the window or the driver’s door
slightly. Montez claims that Ramirez appeared irritable and
aggressive and assertively asked if it was necessary to knock
on his window. Montez told Ramirez that he was checking on
him and asked what he was doing. Ramirez responded that he
was tired and was taking a nap. According to Montez,
Ramirez’s pupils appeared to be dilated beyond the normal
range. Montez began to suspect that Ramirez might be under
the influence. Still not satisfied as to what Ramirez was
3802 RAMIREZ v. BUENA PARK
doing, Montez asked him to get out of the car to further inves-
tigate. Ramirez complied. At this point, Montez observed that
Ramirez’s keys were in the ignition.
According to Ramirez, he had been sleeping about twenty
to twenty-five minutes when Montez knocked on his window.
Ramirez also claims he was not breathing rapidly when Mon-
tez first observed him. Although he was asleep at that time
and therefore could not have been aware of his breathing pat-
tern, Ramirez relies on Montez’s police report dated May 3,
2003 to support this claim. Ramirez notes that Montez’s
police report describes the events of May 2, 2003 chronologi-
cally, and that in the report, Montez “noticed Ramirez had
dilated pupils and appeared to be breathing fast,” only after he
“tapped the driver’s seat window, and Ramirez opened his
eyes and looked at [him].” After being startled by the knock-
ing on his window, Ramirez slightly opened his door to talk
to Montez. According to Ramirez, Montez’s first questions
were about drinking or doing drugs. Ramirez responded that
he did not drink or do drugs. Although Ramirez’s counsel
conceded at oral argument that Ramirez’s response “could be
accurately characterized as testy,” Ramirez claims that he was
neither irritable nor aggressive when he “calmly but firmly
asked [Montez] if this was a standard procedure to go around
banging on glass windows of persons that are sitting or sleep-
ing in their cars.” Montez responded by clenching his teeth,
staring at Ramirez “with an extreme hard look,” and exclaim-
ing, “Okay we were going to do this the easy way. I would
have asked a couple questions and you would have been on
your way. But now we will do it the hard way. Get out of your
car!” Startled and very frightened, Ramirez complied. Fur-
thermore, Ramirez contends that Montez could not have seen
his pupils from where Montez was standing while Ramirez
was still seated in his vehicle. Although Ramirez could not
see into his own eyes, he offered photographic evidence, pro-
duced after the fact, to show the unlikelihood Montez was
able to see his pupils during the initial encounter. Construing
these facts in the light most favorable to Ramirez, we must
RAMIREZ v. BUENA PARK 3803
assume Montez was unable to sufficiently see Ramirez’s
pupils. This, however, does not mean we assume Ramirez’s
pupils were not dilated, but rather that his pupil dilation is not
a factor to be considered in the reasonable suspicion and prob-
able cause determination.
B. The pat-down search
According to Montez, he performed a pat-down search for
officer safety once Ramirez stepped out of his car. Montez
testified that he tapped Ramirez’s outer garments to make
sure there were no bulges or weapons concealed. Montez did
not mention the pat-down search in either his police report or
his declaration in support of the defendants’ motion for sum-
mary judgment. Montez testified that he did not include the
pat-down search in his police report because it was “some-
thing that [he] would recall, so [he] . . . didn’t put it in there.”
According to Ramirez, once he was out of his vehicle Mon-
tez ordered him to put both hands on top of the car. Montez
proceeded to search Ramirez, which included reaching into
his pockets. Ramirez did not consent to the search.
C. The arrest and impoundment
According to Montez, after performing the pat-down search
he took Ramirez’s pulse and found it to be 132 beats per min-
ute. Montez also administered a field sobriety test called the
“Romberg test.” The Romberg test evaluates an individual’s
internal clock by asking the individual to estimate the passing
of thirty seconds while standing with his eyes closed and his
head tilted back. It is within the acceptable margin of error for
an individual to take between twenty and forty seconds to
estimate the passing of thirty seconds. According to Montez,
Ramirez took forty-five seconds to estimate the passing of
thirty seconds. As a precaution, Montez also requested that a
follow-up officer respond because once out of his vehicle,
Ramirez appeared to be irritable and confrontational. Accord-
3804 RAMIREZ v. BUENA PARK
ing to Montez, because Ramirez had exhibited several classic
signs of being under the influence of a controlled substance,
including apparent uncontrollable sleepiness, irritability, rapid
breathing, dilated pupils, markedly elevated pulse and dis-
torted time perception, along with the lack of any medical
explanation for his symptoms, he arrested Ramirez for viola-
tion of California Health and Safety Code § 11550.1
According to Ramirez, after the pat-down search, Montez
demanded to know what kind of drugs he was doing.
Ramirez again told Montez that he did not use drugs or drink
alcohol. After ordering Ramirez to hold out his left arm, Mon-
tez held Ramirez’s left wrist for about fifteen seconds while
he looked at his watch. According to Ramirez, he explained
to Montez that many times he worked about seventy-five to
eighty hours a week as the owner of an Outback Steakhouse
in Buena Park, that he was simply resting in the parking lot
because he was very tired, and that his home was located a lit-
tle over a mile away. According to Ramirez, Montez then had
him sit in the backseat of the patrol car while Montez used the
car’s computer console. Ramirez claims that Montez then
ordered him out of the car and administered three field sobri-
ety tests: the Romberg test, the finger to nose test (which
required Ramirez to extend his arms parallel to the ground, to
tilt his head back, and to touch his nose with alternating index
fingers), and the pupil measurement test. According to
Ramirez, he performed the finger to nose test perfectly. Mon-
tez then handcuffed Ramirez and placed him in the back of
the patrol car.
In response to Montez’s request for a follow-up officer,
Buena Park police officers Frank Hornung and Marc Odom
arrived at the scene. Upon their arrival, Montez asked
Hornung and Odom to store Ramirez’s vehicle for safekeep-
1
Section 11550 prohibits persons from either using or being under the
influence of certain enumerated controlled substances. Cal. Health &
Safety Code § 11550.
RAMIREZ v. BUENA PARK 3805
ing, and they did so pursuant to California Vehicle Code
§ 22651(h)(1).2
Montez then transported Ramirez to the police station
where he conducted further tests in an effort to determine
what class of drug (or drugs) Ramirez may have taken. Mon-
tez testified that it was at the police station that he first mea-
sured Ramirez’s pupils with a pupilometer. After
administering the tests, Montez “opined” that Ramirez was
under the influence of a CNS stimulant. Montez then ordered
a blood test. Montez issued Ramirez a citation and released
him on his own recognizance. The blood test later came back
negative.
II. Standard of review
In the defendants’ motion for summary judgment, they
argued that Montez, Hornung, and Odom were qualifiedly
immune from Ramirez’s section 1983 claims, that Buena Park
was entitled to judgment on Ramirez’s unlawful seizure claim
(for the impoundment), and that they were entitled to judg-
ment on Ramirez’s state law claims. The district court con-
cluded that Montez was entitled to qualified immunity for his
detention, search, and arrest of Ramirez, that the defendants
were entitled to judgment on Ramirez’s unlawful seizure
2
Section 22651 provides in pertinent part:
A peace officer . . . or a regularly employed or salaried employee,
who is engaged in directing traffic or enforcing parking laws and
regulations, of a city, county, or jurisdiction of a state agency in
which a vehicle is located, may remove a vehicle located within
the territorial limits in which the officer or employee may act,
under the following circumstances:
....
(h)(1) When an officer arrests a person driving or in control of
a vehicle for an alleged offense and the officer is, by this code
or other law, required or permitted to take, and does take, the per-
son into custody.
3806 RAMIREZ v. BUENA PARK
claim, and that there were no triable issues of material fact on
Ramirez’s state law claims.
We review a district court’s grant of summary judgment de
novo. Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th
Cir. 2007). We also review a district court’s decision as to
whether an officer’s actions are entitled to qualified immunity
de novo. Id. We evaluate separately the applicability of the
qualified immunity defense to each of Ramirez’s constitu-
tional claims. See Bingham v. City of Manhattan Beach, 341
F.3d 939, 948 (9th Cir. 2003) (officer entitled to qualified
immunity for arrest though not for initial traffic stop).-
III. Qualified immunity
[1] “Qualified immunity is ‘an entitlement not to stand trial
or face the other burdens of litigation.’ ” Saucier v. Katz, 533
U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)). We evaluate a defendant’s qualified immu-
nity defense using a two-step inquiry. Id. However, the
Supreme Court recently held that this two-step inquiry is no
longer “an inflexible requirement.” Pearson v. Callahan, 129
S. Ct. 808, 818 (2009) (explaining “that, while the sequence
set forth [in Saucier] is often appropriate, it should no longer
be regarded as mandatory”). It is within our “sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Id.Under Saucier’s first prong, we consider whether, “[t]aken
in the light most favorable to the party asserting the injury,
. . . the facts alleged show the officer’s conduct violated a
constitutional right.” Saucier, 533 U.S. at 201. Where dis-
puted issues of fact remain, we view the facts in the light most
favorable to Ramirez, the non-moving party. See Beier v. City
of Lewiston, 354 F.3d 1058, 1063 (9th Cir. 2004). “If no con-
stitutional right would have been violated were the allegations
RAMIREZ v. BUENA PARK 3807
established, there is no necessity for further inquiries concern-
ing qualified immunity.” Saucier, 533 U.S. at 201.
Under Saucier’s second prong, we ask “whether the right
was clearly established.” Id. To be “clearly established,” the
“ ‘contours of the right must be sufficiently clear that a rea-
sonable official would understand that what he is doing vio-
lates that right.’ ” Id. at 202 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). The dispositive inquiry is
“whether it would be clear to a reasonable officer that his con-
duct was unlawful in the situation he confronted.” Id. “If the
officer’s mistake as to what the law requires is reasonable, . . .
the officer is entitled to the immunity defense.” Id. at 205.
A. The detention
Ramirez first argues that his initial detention violated the
Fourth Amendment because Montez did not have reasonable
suspicion to order him to step out of his car. “The Fourth
Amendment prohibits ‘unreasonable searches and seizures’ by
the Government, and its protections extend to brief investiga-
tory stops of persons or vehicles that fall short of traditional
arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002);
United States v. Willis, 431 F.3d 709, 714 (9th Cir. 2005). In
such cases, the Fourth Amendment is satisfied if the officer’s
action is supported by reasonable suspicion. Arvizu, 534 U.S.
at 273. While reasonable suspicion requires “considerably less
than proof of wrongdoing by a preponderance of the evi-
dence,” an officer must be able to articulate facts creating
grounds to suspect that criminal activity “may be afoot.”
United States v. Sokolow, 490 U.S. 1, 7 (1989); United States
v. Hartz, 458 F.3d 1011, 1017 (9th Cir. 2006). We consider
“the totality of the circumstances-the whole picture” when
evaluating reasonable suspicion. Sokolow, 490 U.S. at 7.
In this case, because the parties do not dispute that a seizure
occurred for Fourth Amendment purposes when Montez
ordered Ramirez out of his car, we evaluate the detention’s
3808 RAMIREZ v. BUENA PARK
constitutionality by considering the totality of the circum-
stances at that point. See id. at 7-8. “[I]n justifying the particu-
lar intrusion the police officer must be able to point to specific
and articulable facts which, taken together with rational infer-
ences from those facts, reasonably warrant that intrusion.”
Terry v. Ohio, 392 U.S. 1, 21 (1968). Taking the facts in the
light most favorable to Ramirez, when Montez ordered
Ramirez out of his car he knew the following: a few minutes
before 8:00 p.m., Ramirez sat parked outside a drugstore with
his parking lights on; Ramirez’s seat was reclined; Ramirez
had his eyes closed and appeared to be asleep at the wheel;
Ramirez appeared to be breathing rapidly; and Ramirez gave
a “testy” response when Montez tapped on his window.
Although each fact, standing alone, is completely legal,
“[c]onduct innocent in the eyes of the untrained may carry
entirely different ‘messages’ to the experienced or trained
observer.” United States v. Bernard, 623 F.2d 551, 560 (9th
Cir. 1980) (quotation marks and citation omitted). To Montez,
who had eighty hours of training in drug influence recogni-
tion, these facts taken together amounted to reasonable suspi-
cion that Ramirez was under the influence of illegal
stimulants.
[2] In fact, it is highly unusual to find someone asleep
behind the wheel of a parked car, with its parking lights on,
outside a drugstore at 8:00 p.m. The Fourth Amendment was
not implicated when Montez approached Ramirez’s driver’s-
side door, knocked on his window, and asked if he was will-
ing to answer a few questions. United States v. Washington,
490 F.3d 765, 770 (9th Cir. 2007). The additional facts Mon-
tez learned shortly thereafter supported his suspicion that
Ramirez may have been under the influence of a controlled
substance. First, the fact that stimulant use can cause uncon-
trollable sleepiness remains undisputed. Uncontrollable sleep-
iness is consistent with sleeping at an unusual place and time
without bothering to turn off the parking lights. Moreover, it
is also undisputed that irritability and rapid breathing are
characteristic of illegal stimulant use. Although Ramirez
RAMIREZ v. BUENA PARK 3809
claims he was not breathing fast, this mere assertion cannot
create a disputed issue. He offers no evidence to the contrary,
but instead attempts to point to a contradiction in Montez’s
declaration and police report. Montez, however, did not con-
tradict himself; his declaration says Ramirez was breathing
quickly while sleeping, and his police report confirms the
quick breathing, without specifying when it began. Further-
more, nobody disputes that Ramirez’s breathing was “abnor-
mal[ly]” fast after he woke up. As a result, we must accept
Montez’s assertion that Ramirez was breathing quickly while
asleep.
[3] Montez therefore could legally detain Ramirez by
ordering him out of his vehicle to further investigate. Having
concluded that Montez’s detainment of Ramirez did not vio-
late the Fourth Amendment, the district court properly granted
Montez summary judgment on this claim. Saucier, 533 U.S.
at 201 (“If no constitutional right would have been violated
were the allegations established, there is no necessity for fur-
ther inquiries concerning qualified immunity.”).
B. The pat-down search
[4] Ramirez next argues that the pat-down search violated
the Fourth Amendment because Montez did not have reason
to believe that he was armed and dangerous. Under the Fourth
Amendment, a search for weapons is permissible “for the pro-
tection of the police officer, where he has reason to believe
that he is dealing with an armed and dangerous individual.”
Terry, 392 U.S. at 27; see also Ybarra v. Illinois, 444 U.S. 85,
93-94 (1979) (“The ‘narrow scope’ of the Terry exception
does not permit a frisk for weapons on less than reasonable
belief or suspicion directed at the person to be frisked . . . .”).
“Nothing in Terry can be understood to allow a generalized
‘cursory search for weapons’ or indeed, any search whatever
for anything but weapons.” Ybarra, 444 U.S. at 93-94.
A wide variety of factors support a reasonable belief that an
individual is armed and dangerous. These include an officer’s
3810 RAMIREZ v. BUENA PARK
observation of a visible bulge in an individual’s clothing, see
United States v. Alvarez, 899 F.2d 833, 839 (9th Cir. 1990);
sudden movements or repeated attempts to reach for an object
not immediately visible, see United States v. Flippin, 924
F.2d 163, 164-66 (9th Cir. 1991); and the nature of the sus-
pected crime, see United States v. Mattarolo, 209 F.3d 1153,
1158 (9th Cir. 2000). However, facts merely establishing that
if an individual were armed he would be dangerous are insuf-
ficient if there was no reason to believe that the individual
actually was armed. See United States v. Flatter, 456 F.3d
1154, 1157 (9th Cir. 2006).
[5] Montez’s only justification for the pat-down search of
Ramirez is a conclusory reference to “officer safety.” Montez
has not alleged any specific facts that would establish reason-
able suspicion that Ramirez was armed and dangerous. See
Terry, 392 U.S. at 27. On the contrary, Ramirez was coopera-
tive. He complied with Montez’s request that he exit his vehi-
cle, and there is no evidence he did so in a furtive manner.
There is nothing in the record to suggest Ramirez made any
abrupt movements or that he attempted to reach for anything
upon exiting his vehicle. He also cooperatively submitted to
the search of his person, albeit without his consent. Montez
testified that he tapped Ramirez’s outer garments “to make
sure” there were no bulges or weapons concealed, but does
not allege that he observed a visible bulge or weapon on
Ramirez. Unless an officer can point to specific facts that
demonstrate reasonable suspicion that the individual is armed
and dangerous, the Fourth Amendment tolerates no frisk.
Knowles v. Iowa, 525 U.S. 113, 117-119 (1998).
[6] Being “testy” and suspected of illicit drug use does not
support a finding that Ramirez had a weapon. Although the
nature of the suspected crime itself does at times provide the
requisite amount of reasonable suspicion to conduct a pat-
down search of a detained individual, see Mattarolo, 209 F.3d
at 1158, this court has never held that mere suspicion of drug
use alone provides the basis for a Terry frisk. Indeed, to hold
RAMIREZ v. BUENA PARK 3811
that the pat-down here was consistent with the strictures of the
Fourth Amendment would be to hold that a Terry frisk of a
person is justified any time an officer believes an individual
is under the influence, even though the officer lacks a reason-
able suspicion that the person is armed and dangerous. Such
a holding would be in direct conflict with Terry and its prog-
eny, and would destroy the necessary distinction between the
stop and frisk. “Each element, the stop and the frisk, must be
analyzed separately; the reasonableness of each must be inde-
pendently determined.” United States v. Thomas, 863 F.2d
622, 628 (9th Cir. 1988). Because Montez could not have rea-
sonably suspected Ramirez had a weapon, we hold his pat-
down of Ramirez violated the Fourth Amendment.
[7] Having determined the existence of a constitutional vio-
lation, we consider whether the right violated was clearly
established at the time of its occurrence. Saucier, 533 U.S. at
201-202. At the time of Ramirez’s pat-down, it was clearly
established that every pat-down is unreasonable unless it is
supported by the officer’s reasonable suspicion that the person
to be frisked is armed and dangerous. Terry, 392 U.S. at 27.
Based on the complete lack of evidence that would support a
reasonable suspicion Ramirez had a weapon, and Montez’s
wholly inadequate justification for the search, we conclude
that it would have been clear to a reasonable officer that a pat-
down of Ramirez was unlawful in this situation. As a result,
Montez is not entitled to qualified immunity on the pat-down
issue. Furthermore, there remains a factual dispute as to
whether Montez impermissibly searched inside Ramirez’s
pockets. This disputed issue of fact also precludes the grant
of summary judgment in Montez’s favor.
C. The arrest
[8] Ramirez next argues that his arrest violated the Fourth
Amendment because it was not supported by probable cause.
Montez arrested Ramirez pursuant to Cal. Health & Safety
Code § 11550, which prohibits persons from either using or
3812 RAMIREZ v. BUENA PARK
being under the influence of certain enumerated controlled
substances. The Fourth Amendment requires police officers to
have probable cause before making a warrantless arrest. See
Michigan v. Summers, 452 U.S. 692, 700 (1981); United
States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). “Proba-
ble cause to arrest exists when officers have knowledge or
reasonably trustworthy information sufficient to lead a person
of reasonable caution to believe that an offense has been or
is being committed by the person being arrested.” Lopez, 482
F.3d at 1072 (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)).
While conclusive evidence of guilt is not necessary to estab-
lish probable cause, “[m]ere suspicion, common rumor, or
even strong reason to suspect are not enough.” McKenzie v.
Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984) (citing Henry v.
United States, 361 U.S. 98, 101 (1959)).
After Montez ordered Ramirez out of his car, he learned a
few additional facts before placing him under arrest. First,
knowing that the normal adult pulse rate is sixty to ninety
beats per minute and that an elevated pulse rate is indicative
of drug use, Montez found Ramirez’s pulse to be 132. Sec-
ond, Ramirez told Montez that many times he worked about
seventy-five to eighty hours a week as the owner of an Out-
back Steakhouse in Buena Park, and that he was resting in the
parking lot because he was very tired, despite having slept 6
hours the previous night, and despite being only a little over
a mile from his home. Third, knowing that distorted time per-
ception is indicative of drug use, Montez observed Ramirez
take forty five seconds to estimate the passing of thirty sec-
onds during the Romberg test. Fourth, Ramirez performed the
finger to nose test perfectly.
Ramirez argues that his pattern of working long hours,
which he conveyed to Montez, sufficiently explained why he
was sleeping in his car. Furthermore, according to Ramirez,
he was not irritable or aggressive, not antagonistic, and spoke
calmly but firmly. Ramirez claims that his pulse was elevated
because he was “startled” by Montez knocking on his window
RAMIREZ v. BUENA PARK 3813
and ordering him out of his car. Ramirez also contends that
Montez could not have seen his pupils from where Montez
was standing during the initial detention. And, Montez testi-
fied that the first time he measured Ramirez’s pupils with a
pupilometer was at the police station.
“ ‘As a corollary . . . of the rule that the police may rely on
the totality of facts available to them in establishing probable
cause, they also may not disregard facts tending to dissipate
probable cause.’ ” Lopez, 482 F.3d at 1073 (quoting Bigford
v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)). Therefore,
Ramirez’s perfect performance of the finger to nose test is rel-
evant when considering the importance of his alleged dis-
torted time perception. See Caballero v. City of Concord, 956
F.2d 204, 207 (9th Cir. 1992) (noting evidence did not clearly
establish probable cause where parties disputed performance
on sobriety tests). However, in considering the totality of the
circumstances, Ramirez’s innocent explanations for his odd
behavior cannot eliminate the suspicious facts from the proba-
ble cause calculus. Rarely will a suspect fail to proffer an
innocent explanation for his suspicious behavior. “The test is
not whether the conduct under question is consistent with
innocent behavior; law enforcement officers do not have to
rule out the possibility of innocent behavior.” Thomas, 863
F.2d at 627 (quoting United States v. Sutton, 794 F.2d 1415,
1427 (9th Cir. 1986)) (internal quotation marks omitted).
[9] Bypassing the constitutional question in the qualified
immunity analysis, we exercise our discretion in reaching
Saucier’s second prong first, see Pearson, 129 S. Ct. at 818,
as it will “satisfactorily resolve” the arrest issue without hav-
ing “unnecessarily to decide difficult constitutional ques-
tions.” See Brosseau v. Haugen, 543 U.S. 194, 201-202
(2004) (Breyer, J., concurring) (urging the Court to reconsider
Saucier’s mandatory, two-step protocol). Therefore, in deter-
mining whether the right here was clearly established, we ask
“whether it would be clear to a reasonable officer [in Mon-
tez’s shoes] that his conduct was unlawful in the situation he
3814 RAMIREZ v. BUENA PARK
confronted.” Saucier, 533 U.S. at 202. The qualified immu-
nity test gives “deference to the judgment of reasonable offi-
cers on the scene.” Id. at 205 (emphasis added). We conclude
that the objective facts known to Montez when he ordered
Ramirez out of his car (apparent uncontrollable sleepiness,
irritability, rapid breathing), together with the information
Montez obtained after Ramirez was out of his car (elevated
pulse rate and distorted time perception), could lead a reason-
able officer confronted with the same situation to believe
probable cause existed to arrest Ramirez.
[10] At the time of Ramirez’s arrest, it was clearly estab-
lished that every arrest “is unreasonable unless it is supported
by probable cause.” Summers, 452 U.S. at 700. While the “ex-
istence of probable cause necessarily turns upon the particular
facts of the individual case, and prior decisions generally are
of little help in deciding a specific case,” John v. City of El
Monte, 515 F.3d 936, 941 (9th Cir. 2008), we conclude that
a reasonable officer in Montez’s position would not have
clearly known that his conduct was unlawful under these cir-
cumstances. See Saucier, 533 U.S. at 202. Although we do
not decide whether the facts allege a constitutional violation,
we do find that Montez’s actions were reasonable in light of
the qualified immunity analysis. Thus, Montez is entitled to
summary judgment on this issue.
D. The impoundment
[11] Ramirez next argues that Montez, Hornung, and
Odom’s impoundment of his car was an unreasonable seizure
under the Fourth Amendment. “The impoundment of an auto-
mobile is a seizure within the meaning of the Fourth Amend-
ment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th
Cir. 2005). While Section 22651 authorizes an officer to
remove a vehicle in the control of a person arrested, an
impoundment pursuant to the authority of a “state statute does
not, in and of itself, determine the reasonableness of the sei-
zure under the Fourth Amendment.” Id. at 864. “ ‘The ques-
RAMIREZ v. BUENA PARK 3815
tion in this [c]ourt upon review of a state-approved search or
seizure is not whether the search (or seizure) was authorized
by state law. The question is rather whether the search was
reasonable under the Fourth Amendment.’ ” Id. at 865 (quot-
ing Sibron v. New York, 392 U.S. 40, 61 (1968)).
[12] “ ‘A seizure conducted without a warrant is per se
unreasonable under the Fourth Amendment-subject only to a
few specifically established and well delineated exceptions.”
Id. at 862 (quoting United States v. Hawkins, 249 F.3d 867,
872 (9th Cir. 2001)). Montez testified that Ramirez’s car was
taken for “safekeeping” after he was arrested, and when asked
whether the “only reason that [he] wanted [Ramirez’s car]
removed was for safekeeping,” Montez testified, “Correct.”
Therefore, the relevant exception is the “community caretak-
ing” doctrine, which allows police officers to “impound vehi-
cles that ‘jeopardize public safety and the efficient movement
of vehicular traffic.’ ” Miranda, 429 F.3d at 864 (quoting
South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976)).
[13] “Whether an impoundment is warranted under this
community caretaking doctrine depends on the location of the
vehicle and the police officers’ duty to prevent it from creat-
ing a hazard to other drivers or being a target for vandalism
or theft.” Miranda, 429 F.3d at 864. Here, Montez’s concern
that Buena Park might be held liable if Ramirez’s car was
stolen, vandalized, or some harm came to it was reasonable.
There is nothing in the record indicating when Ramirez could
return to the drugstore to retrieve his car. Leaving Ramirez’s
car in the drugstore parking lot would have made it an easy
target for vandalism or theft. Therefore, we conclude that the
officers’ impoundment of Ramirez’s car for its “safekeeping”
was reasonable under the community caretaking doctrine. See
Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4
(9th Cir. 1993) (“[I]t was not unreasonable for the arresting
officers to protect the car from vandalism or theft by having
it towed” from a parking lot.); United States v. Jensen, 425
3816 RAMIREZ v. BUENA PARK
F.3d 698, 706 (9th Cir. 2005) (officer’s concerns about van-
dalism were reasonable).
[14] Having concluded that the officers’ impoundment of
Ramirez’s car did not violate the Fourth Amendment, the dis-
trict court properly granted the officers summary judgment on
this claim. Saucier, 533 U.S. at 201 (“If no constitutional right
would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified
immunity.”).
E. The blood test
The district court also granted summary judgment to the
defendants on Ramirez’s claim that the blood test performed
at the police station following his arrest constituted an unrea-
sonable search. Because Ramirez does not address this issue
in his opening brief, we deem it waived. See Outdoor Media
Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir.
2007) (“Generally, the federal courts deem waived any argu-
ments that are not raised and presented in the parties’ opening
briefs.”). Therefore, we affirm the district court’s grant of
summary judgment to the defendants on this claim.
IV. Municipal liability
[15] Ramirez next argues that Buena Park is also liable for
the impoundment of his car because it had an unconstitutional
policy and because it failed to train its officers. However, hav-
ing concluded that the officers’ impoundment of Ramirez’s
car was reasonable under the community caretaking doctrine,
Buena Park may not be held liable under section 1983. Tatum
v. City and County of San Francisco, 441 F.3d 1090, 1100
(9th Cir. 2006) (absent a constitutional deprivation city could
not be held liable under section 1983); see also Orin v. Bar-
clay, 272 F.3d 1207, 1217 (9th Cir. 2001) (“A § 1983 action
against a city fails as a matter of law unless a city employee’s
conduct violates one of the plaintiff’s federal rights.”). There-
RAMIREZ v. BUENA PARK 3817
fore, the district court properly granted Buena Park summary
judgment on this claim.
V. State law claims
Ramirez’s complaint also alleges state law claims for false
arrest/imprisonment, trespass to personal property, intentional
infliction of emotional distress, negligence, and battery. In
their Motion for Summary Judgment, the defendants argued
that they were entitled to summary judgment on each these
claims. Ramirez did not address his state law claims in either
his Motion for Partial Summary Judgment or in his Opposi-
tion to Defendants’ Motion for Summary Judgment. Now on
appeal, Ramirez argues that the district court erred when it
granted the defendants summary judgment on all of his state
law claims.
[16] “ ‘It is a general rule that a party cannot revisit theories
that it raises but abandons at summary judgment.” Davis, 478
F.3d at 1058 (quoting BankAmerica Pension Plan v. McMath,
206 F.3d 821, 826 (9th Cir. 2000)). “ ‘A party abandons an
issue when it has a full and fair opportunity to ventilate its
views with respect to an issue and instead chooses a position
that removes the issue from the case.’ ” Id. (quoting McMath,
206 F.3d at 826). Here, because Ramirez abandoned his state
law claims by not addressing them in either his Motion for
Partial Summary Judgment or his Opposition to Defendants’
Motion for Summary Judgment, he waived his challenge to
the district court’s order. Therefore, we affirm the district
court’s grant of summary judgment to the defendants on
Ramirez’s state law claims.
VI. Evidentiary objection
Ramirez now also argues that the district court should not
have admitted portions of certain declarations into evidence.
While Ramirez objected to the declarations’ admission, the
district court never ruled on the objections, and Ramirez never
3818 RAMIREZ v. BUENA PARK
requested a ruling on the objections. Therefore, we do not
consider Ramirez’s evidentiary objection. See Marbled Mur-
relet v. Babbitt, 83 F.3d 1060, 1066-67 (9th Cir. 1996) (evi-
dentiary objection waived when district court does not rule on
objection and no ruling requested by objecting party).
VII. Conclusion
For the forgoing reasons, we reverse the district court’s
grant of summary judgment to Montez with respect to
Ramirez’s section 1983 claim for the unlawful pat-down
search, and remand. We affirm the district court’s grant of
summary judgment to the Montez with respect to Ramirez’s
detention and arrest. We also affirm the district court’s grant
of summary judgment to the defendants with respect to the
impoundment of Ramirez’s car and the blood test.
We also affirm the district court’s grant of summary judg-
ment to the defendants on all of Ramirez’s state law claims.
Finally, we deem Ramirez’s evidentiary objection waived.
AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings consistent with this
opinion.