Metropolitan News-Enterprise


Friday, May 6, 2011


Page 3


Officers Immune From Liability For Arrest of Merced Attorney, Ninth Circuit Panel Says


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that police officers had probable cause to arrest a Merced lawyer on suspicion of smuggling methamphetamine into the Merced County Jail to one of his clients.

Although attorney John Garcia was not prosecuted for the offense for which he was arrested, the three-judge panel said officers Alfredo Cardwood and John Taylor did not violate Garcia’s constitutional rights in taking him into custody. The appellate court accordingly reversed the decision of U.S. District Judge Oliver W. Wanger of the Eastern District of California finding the officers potentially liable for violations of 42 U.S.C. § 1983.

The officers began investigating Garcia after receiving a report from a jailhouse informant describing an elaborate method of smuggling methamphetamine to prisoners.

According to the informant, one of his fellow inmates, Alfonso Robledo, told him he had an attorney, identified as Garcia, who was prepared to accept drugs from the informant for delivery to Robledo in jail. The drugs were to be concealed in a Bugler tobacco pouch.

The officers then confirmed that the informant had an in-custody relationship with Robledo, that Robledo was in jail on drug charges and that Garcia was Robledo’s attorney.

At the officers’ request, the informant also made a monitored phone call to the woman he identified as being Garcia’s usual source of methamphetamine and told her he had gotten some drugs for Robledo, half of which were for Garcia, and the other half he would keep for himself. The woman responded that this was acceptable.

The officers then obtained approval to conduct a “reverse sting” operation, equipping the informant with a Bugler tobacco pouch containing methamphetamine for delivery to Robledo, via Garcia. They saw Garcia accept the pouch from the informant and take it to his law office, which was later searched with a warrant supervised by a special master.

Under these circumstances, Judge Stephen S. Trott said in his decision for the appellate panel, “there can be no doubt that Garcia’s acceptance of the Bugler tobacco pouch from a person known to him to be a fellow inmate of his client, to be delivered to that client in jail, served unmistakably, without any more, as adequate confirmation and corroboration of the informant’s detailed information.”

Trott noted that “Garcia was neither a green attorney nor one familiar only with civil practice,” and at the time of his arrest, had been practicing criminal law in Merced and Modesto for 20 years.

He remarked that “anyone familiar with the system” would know that it is unlawful to deliver even tobacco to an inmate in the jail where Robledo and the informant were housed, and “to accept jail contraband from one inmate who was out on a pass for delivery to another in custody raises unmistakable red flags.”

Once Garcia accepted the pouch, Trott said the officers “clearly had probable cause both to arrest Garcia and to support their application…for a search warrant for Garcia’s office” and the probable cause “was not just that Garcia knowingly possessed the methamphetamine in the prepared pouch, but that he was actively involved in smuggling a controlled substance and contraband into the jail.”

He concluded that “[t]he mistake made by the district court in its analysis of probable cause was to use Garcia’s subsequent self-serving denial that he knowingly accepted methamphetamine in the pouch as a reason, in a qualified immunity context, to conclude that probable cause at the time of Garcia’s arrest was a disputed factual issue.”

Since probable cause “cannot be defeated by a defendant’s subsequent denial in court that he had the knowledge or the intent required for a conviction,” Trott said the officers were “plainly entitled to qualified immunity from Garcia’s unlawful arrest claim.”

Judges John T. Noonan and Diarmuid F. O’Scannlain joined Trott in his decision.

The case is Garcia v. County of Merced, 09-17188


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