Monday, December 12, 2011
Ninth Circuit Panel Revives Rights Suit Attacking Search Warrant
Judges Say Omission of Material Information From Affidavit May Have Been Intentional or Reckless
By KENNETH OFGANG, Staff Writer
A civil rights action by members of a Santa Barbara County family, who claim that a police detective obtained a warrant to search their home by intentionally omitting to advise the magistrate that the suspect wasn’t living there because he was incarcerated, was reinstated Friday by the Ninth U.S. Circuit Court of Appeals.
Senior Judge Michael Daly Hawkins, writing for the court, said the plaintiffs—Javier Bravo Sr., his wife Hope Bravo, and their 8-year-old granddaughter—presented sufficient evidence for a jury to conclude that the omission was deliberate, and that the ensuing raid violated their Fourth Amendment rights.
The Bravos sued the cities of Santa Maria and Santa Barbara, along with Santa Barbara County and several individual officers, after officers executed the warrant in the early morning hours of April 26, 2006. They claim they were terrorized by members of a Santa Barbara Police Department SWAT Team who set off “flash-bang” grenades, entered their home after no more than a perfunctory knock on the door, and forced them to lie flat on the ground.
The officers, according to the warrant, were there to search for weapons or other evidence tying Javier Bravo Jr. to a recent drive-by shooting into a local home, occupied by former members of the Tangas gang who were trying to disassociate themselves.
The Bravo home is located in Tanglewood, an unincorporated area just outside Santa Maria. The Santa Maria Police Department was investigating the drive-by shooting, linked to members of the gang, but could not executed the warrant by itself.
The officers planned to execute the warrant at several locations at once, which was beyond the capability of the Santa Barbara Sheriff’s Office—which has jurisdiction over Tanglewood—so Santa Barbara SWAT agreed to assist.
The Bravos told the officers that the younger Bravo was in state prison. After reading a letter he had recently written from there, the SWAT officers left and turned the scene over to the Santa Maria officers, who took some letters and photographs.
The individual defendants moved for summary judgment on grounds of qualified immunity, while the county and cities did so on the grounds that they had not adopted or implemented any policy or practice resulting in a violation of the plaintiffs’ civil rights.
The moving papers cited the deposition of Santa Maria Det. Louis Tanore, who prepared the warrant affidavit. He said that he had seen Javier Bravo Jr.’s “rap sheet” but could not recall whether he specifically saw an entry that would have alerted him to the fact that Bravo was six months into a two-year prison term.
Even if he had noticed, he testified, it was not something he “would check into.” Another detective, Eligil Lara, said he called the Sheriff’s Office, consistent with department practice, to ascertain whether the subjects of the warrant were in custody.
Lara said he was told that there was no record of Bravo being incarcerated. Another subject was in custody, and his name was removed from the warrant application, Lara said.
The plaintiffs countered with evidence that there was no record of any such phone call from Lara, and that even if such a call had been made, there would have been no record of Bravo being in prison because the sheriff’s database only identifies local jail inmates, not those in state prison. There was no evidence that anyone associated with the defendants made any other effort to determine the custodial status of Bravo or any other subject.
U.S. District Judge Florence-Marie Cooper of the Central District of California, since deceased, ruled that the Santa Barbara officers lacked qualified immunity because they violated Fourth Amendment rights clearly established under the “knock-and-announce” cases.
Cooper, however, ruled that all other individual defendants had qualified immunity and that none of the public entity defendants were liable. The Santa Barbara defendants subsequently settled with the plaintiffs.
The Ninth Circuit panel Friday affirmed the judgment in favor of the county defendants, but reversed as to the Santa Maria defendants.
Hawkins said the district judge was correct in concluding that there was probable cause to believe that Bravo’s last-known address was his parents’ residence, that he was active in the Tangas gang, and that the gang’s practice of storing weapons at the homes of members not otherwise linked to crimes under investigation made it likely that evidence related to the shooting would be found there.
But Cooper erred in holding that the omission of Bravo’s custody status was immaterial, as well as in ruling that there insufficient evidence of intentional or reckless conduct by Tanore, Hawkins said.
For the warrant to be valid, Hawkins explained, there had to be probable cause to believe that Javier Bravo Jr. was currently residing in the house, or that evidence related to the shooting would be found there even if he wasn’t. “The generalized statements in the affidavit that it is ‘common’ for families of gang members to assist other members of the gang are insufficient to support probable cause to search the Bravos’ home,” the jurist stated, noting that there was no evidence that anyone else in the house was a gang member.
Even if issuance of a warrant would have been justified regardless of the younger Bravo’s status, Hawkins went on to say, nighttime service was not.
“A nighttime incursion by a SWAT force is a far more serious occurrence than an ordinary daytime intrusion pursuant to a regular warrant and therefore requires higher justification beyond mere probable cause to search,” the judge said. “Were this not the case, then any showing of probable cause to search would justify nighttime intrusion by a team of SWAT officers.”
Tanore’s admission that he reviewed the rap sheet, determined that Bravo had been convicted of a felony, and might have seen the entry referring to the prison sentence, imposed only months earlier, created a reasonable inference that the omission of that information from the affidavit was either deliberate or reckless, Hawkins concluded.
On remand, Hawkins said, the district judge must determine whether the Santa Maria officers involved in the execution of the warrant can be held liable for the manner in which the warrant was executed, or whether their lack of control over the SWAT team is exculpatory.
But the summary judgment in favor of the county defendants was proper, the judge explained, because the deputies were not integral participants in the search. And without a finding of individual liability, there can be no finding of liability on the part of the county itself, he said.
Judge Stephen Reinhardt and visiting District Judge Brian M. Cogan of the Eastern District of New York concurred in the opinion.
Attorneys on appeal were Donald W. Cook and Robert Mann for the plaintiffs, Richard R. Terzian of Burke, Williams and Sorensen for the Santa Maria defendants, and Chief Deputy County Counsel Jake Stoddard and Deputy County Counsel Jordan Sheinbaum for the county defendants.
The case is Bravo v. City of Santa Maria, 09-55898.
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