Thursday, February 21, 2019
Memorandum Opinion Affirms Denial of Summary Judgment to El Monte Detective Who Apprehended Man Based on Being a Light-Skinned Bald Man—as Described by Informant—With a Criminal Record
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of summary judgment, sought on the ground of qualified immunity, to an El Monte police detective who arrested a light-skinned bald man for illegal sales of firearms in response to a report by an alleged confidential informant of such activity by a man of the arrestees description.
On the same day he received the report from the informant, according to the account of defendant Ray Larriva, he encountered plaintiff Timothy Sharp at the location where he had been told the illegal sales were being made.
However, he did not arrest Sharp until a year later, after learning that Sharp had been arrested 15 years earlier for unlawful sales of fireworks. The outcome of that earlier proceeding was not known.
Yesterday’s memorandum opinion, affirming an order by District Court Judge Andre Birotte Jr. of the Central District of California, declares:
“Larriva first contends that he had—or reasonably believed that he had—probable cause to arrest Sharp for possession of illegal fireworks for sale and for assault on a police officer. But. the facts taken ‘in the light most favorable to the plaintiff’,’…establish only that Sharp had limited access to the property where illegal fireworks were found, another person at that property admitted to the offense Larriva was investigating, Larriva arrested that person (who was later charged with the offense), and Sharp had a prior arrest for a fireworks violation. These facts are insufficient under controlling Supreme Court precedent to establish either probable cause or a reasonable belief that probable cause existed.”
The opinion cites the U.S. Supreme Court’s 1964 decision in Beck v. State of Ohio where it was held that police—who had received a confidential tip, knew what the suspect looked like, and were aware that the person they were arresting had a criminal record—lacked probable cause to make a warrantless arrest.
At oral argument in Pasadena on Nov. 9, Circuit Judge Andrew D. Hurwitz declared that the fact situation in the matter before the panel was “exactly the facts” in Beck.
Questioning by Hurwitz
Hurwitz engaged in intensive, and at points acerbic, questioning of Larriva’s attorney, Daniel Phillip Barer. Alluding to the detective’s initial appearance at the scene where suspected sales of fireworks were transpiring, he queried:
“Does he have probable cause at that point to arrest the first bald man that he sees?”
He asked later:
“What if he had found five bald men? Could he have arrested all of them?”
Barer had spoken only one word—“reasonable”—when Hurwitz interrupted and declared:
“Your view is that reasonable detectives could have arrested every bald men they saw.”
The lawyer said it would be arguable that they could.
Hurwitz hypothesized that a suspect had been described as a Hispanic, of heavy build, 50-foot, eight-inches in height, and inquired:
“So, could you just look at the criminal records and find all heavy Hispanics, five-foot-eight and arrest them all?”
The judge indicated skepticism as to whether a confidential informant actually existed, given that no mention of such an informant surfaced prior to a deposition of Larriva.
Informant’s Tip Ignored
As it turned out, the tip from the alleged informant was not considered by the panel. A footnote in yesterday’s opinion says:
“Larriva claims that it is uncontested that a confidential informant told him that he purchased the fireworks at the location at which he first met Sharp from someone who was ‘bald’ and ‘light-skinned,’ a description that Sharp matched. But. Larriva did not include the alleged statement either in his police reports or in his report to the prosecutor who filed charges. Nor did he arrest Sharp, who met that description, when first confronting him at the location where the fireworks were sold. And, Larriva first disclosed the existence of the alleged statement in his deposition: it is not supported by any other record evidence….Because we must take the evidence currently in the record in the light most favorable to Sharp, the alleged statement by the informant plays no role in our decision today.”
Joining Hurwitz on the panel were Ninth Circuit Judge Johnnie Rawlinson and Eighth Circuit Judge Michael J. Melloy, sitting by designation.
The case is Sharp v. Larriva, 17-56362.
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