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KEANE v. McMULLEN
ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, Plaintiffs,
v.
SETH M. McMULLEN, PAUL ACCORNERO, and JOHN SILVA, Defendants.
Case No. C 07-4894 SBA.
United States District Court, N.D. California, Oakland Division.
August 13, 2012.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Dkt. 160SAUNDRA BROWN ARMSTRONG, District Judge. Plaintiffs Robert Carl Patrick Keane ("Keane") and his girlfriend, Chieko Strange ("Strange"), bring the instant Bivens1 and civil rights action under 42 U.S.C. § 1983 against Seth McMullen ("McMullen"), a Special Agent ("SA") with the United States Drug Enforcement Agency ("DEA"), and City of Petaluma Police Officers John Silva ("Silva") and Paul Accornero ("Accornero"). Plaintiffs allege that their constitutional rights were violated when Defendants raided their home in Mill Valley, California, on December 19, 2006, under the erroneous belief that they were involved in marijuana trafficking or distribution. Plaintiffs previously reached a settlement with Accornero, leaving McMullen and Silva as the only remaining Defendants. The parties are presently before the Court on Defendants McMullen and Silva's motion for summary judgment. Dkt. 160. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS the motion with respect to Plaintiffs' claim for judicial deception against Silva, and DENIES the motion in all other respects. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b). I. BACKGROUND A. FACTUAL SUMMARY 1. Discovery of Package Containing Marijuana
1. Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971).
2. At the time of the incident, Keane was 51 years-old, and Strange was around 65 years-old. Keane Decl. Ex. C; McMullen Depo. at 299:15-19.
3. At some point during the search, Accornero entered with a drug sniffing dog and threatened that the dog was trained to "tear shit up." Keane Decl. ¶ 35. This placed Keane in fear for his personal safety as well as Strange and the well-being of their two pet dogs, which were in the house. Keane Decl. ¶ 35; Strange Decl. ¶ 16.
4. A judicial deception claim is distinguishable from a "garden variety" claim that a warrant, on its face, lacked probable cause. Chism, 661 F.3d at 386. In a garden variety claim, "the arresting officer enjoys qualified immunity unless the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Id. (internal quotations and citation omitted). Here, the FAC alleges that the search warrant affidavit "showed a reckless disregard for the truth in light of the information then known to SILVA and McMULLEN." FAC ¶¶ 43(c), 48(c). The Court therefore construes Plaintiffs' claim as one based in judicial deception.
5. In a footnote in their reply, Defendants assert that the Court should disregard Mr. Levine's opinion allegedly "because it is neither scientific nor reliable." Defs.' Reply at 7 n.2. Defendants provide no analysis or argument to support this conclusory assertion. In addition, to the extent that Defendants are taking the position that the Court should not consider Mr. Levine's declaration, they should have filed a separate objection or motion to strike, rather than making passing reference to his declaration in a footnote.
6. Defendants do not address the second prong germane to a judicial deception claim; to wit, that but for the misinformation and/or omissions, the magistrate would not have found probable cause to issue the warrant. Chism, 661 F.3d at 386. Their failure to do so, standing alone, is fatal to their qualified immunity defense. See Indep. Towers of Wash., 350 F.3d at 929 ("Our circuit has repeatedly admonished that we cannot `manufacture arguments for an appellant' and therefore we will not consider any claims that were not actually argued in appellant's opening brief.") (quoting in part Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)). Nevertheless, it is clear that Plaintiffs have made a sufficient showing on this prong to avoid summary judgment. As noted, the only connection between Plaintiffs' address and the package containing marijuana was that Plaintiffs' address was listed on the package as the return address. It is highly unlikely whether that evidence would have been found to be sufficient to establish probable cause, given that drug traffickers do not list their correct name and actual return address on a package containing drugs. Levine Decl. ¶¶ 11-12.
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