Baldwin v. Placer County , 405 F.3d 778 ( 2005 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MICHAEL W. BALDWIN, DDS;               
    GEORGIA CHACKO,
    Plaintiffs-Appellees,
    v.                           No. 04-15848
    PLACER COUNTY; TRACY GRANT;
    RON GOODPASTER; BRIAN WIGGAM;                 D.C. No.
    CV-01-01177-MCE
    KEVIN BESANA; STEPHEN L.
    OPINION
    D’ARCY; JEFFERY POTTER; PLACER
    COUNTY SHERIFF’S DEPARTMENT;
    REED, Officer,
    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
    Before: John T. Noonan, Sidney R. Thomas, and
    Raymond C. Fisher, Circuit Judges.
    Opinion by Judge Noonan
    4403
    4406              BALDWIN v. PLACER COUNTY
    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.
    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-
    BALDWIN v. PLACER COUNTY                  4407
    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.”
    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-
    4408              BALDWIN v. PLACER COUNTY
    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.
    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
    BALDWIN v. PLACER COUNTY                  4409
    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.
    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.
    4410              BALDWIN v. PLACER COUNTY
    [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, there was no exigency. 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 interests 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, governmental 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.
    [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.
    BALDWIN v. PLACER COUNTY                  4411
    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
    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.
    [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.