Case Information
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA 5 6 DENISE LACY, et al., Case No. 19-cv-02662-JSC
7 Plaintiffs, 8 ORDER RE: DEFENDANTS’ MOTION v. FOR SUMMARY JUDGMENT 9 Re: Dkt. No. 42 CITY OF SAN FRANCISCO, et al., 10
Defendants.
County of San Francisco and San Francisco Police Sergeants Maguire and Hutchings following an August 3, 2017 incident in which Plaintiffs were allegedly subject to an unlawful search and seizure. Defendants’ motion for summary judgment is now pending before the Court. [1] 42.) Having considered the parties’ briefs and having had the benefit of oral argument on (Dkt. No. September 24, 2020, the Court GRANTS IN PART and DENIES IN PART the motion for Denise Lacy and her granddaughter D.G. bring this civil rights action against the City and summary judgment. Plaintiffs have not offered evidence sufficient to show a constitutional violation except with respect to Sergeant Maguire’s seizure of D.G.’s phone.
SUMMARY JUDGMENT EVIDENCE
On August 3, 2017, Denise Lacy drove her grandson Lamonte Mims to his court appearance at the San Francisco Hall of Justice. (Dkt. No. 45-2, Lacy Depo. at 32:4-8. [2] ) Ms. Lacy was accompanied by her granddaughter D.G. who was eight years old. ( . at 32:9-4; Dkt. No. 45-3, D.G. Depo. at 10:15.) When they arrived at the Hall of Justice, Mr. Mims was arrested by Sergeant Maguire and escorted to the homicide office. (Lacy Depo. at 35:15-25; Dkt. No. 45- 1, Maguire Depo. at 9:18-22.) When Ms. Lacy asked Sergeant Maguire why her grandson was being arrested, he would not say. (Maguire Depo. at 9:21-22; Lacy Depo. at 42:19-23.) Instead, Sergeant Maguire asked her if she knew where Mr. Mims’ phone was because he did not have it when he was arrested. (Maguire Depo. at 9:25-10:3.) Ms. Lacy responded that she did not know about a phone. ( Id . at 10:4-7.) Sergeant Maguire then asked Ms. Lacy what vehicle she brought Mr. Mims to court in and when she said a black Lexus, he asked to see the vehicle. (Lacy Depo. at 9:24-10:2.) Ms. Lacy agreed to show him the vehicle. ( Id . at 43:18-22.)
Ms. Lacy, D.G., Sergeant Maguire, and at least two other San Francisco police officers followed Ms. Lacy to her car. [3] When they arrived at the car, Sergeant Maguire asked Ms. Lacy to open the car. (Lacy Depo. at 51:7-9.) Ms. Lacy asked “why? Why do I have to open it? I mean, I thought you had to have a warrant for this kind of stuff.” ( Id . at 51:11-13.) Sergeant Maguire responded that they were looking for a phone and they thought it might be in the car “and that if we were able to obtain a search warrant for the car, we would have to hold the car, put it on hold, and then wait for a search warrant.” (Maguire Depo. at 14:8-12.) He warned her that it could be a “lengthy process” and “the only other way I could do it is with her consent.” ( Id. at 14:12-15.) Ms. Lacy then opened the car. (Lacy Depo. at 52:3.) The officers spent a couple of minutes looking through the interior and the trunk—they did not take anything. ( Id . at 52:8-18.)
After completing the vehicle search, either Sergeant Sullivan or Sergeant Batchelder asked D.G. what her phone number was. (Dkt. No. 45-3, D.G. Depo at 28:23-29:2.) D.G. testified that the officer yelled at her over and over to give her phone number, that she was scared, and that the officer “snatched my phone from me.” ( . at 29:2-5.) According to D.G., after the officer called the phone number she gave him and her phone rang, the officer returned her phone to her. ( Id. at 33:16-20.) Sergeant Sullivan attests that no one yelled at D.G. and that the officers never touched or physically possessed her phone; instead, they asked her for her phone number and verified that it was not the number of the phone they were looking for and that the phone in her hand matched the number she gave (by calling it). (Dkt. No. 46, Sullivan Decl. at ¶ 6.)
Shortly thereafter, Sergeant Maguire radioed something about a “ping” and then he said to Ms. Lacy: “We know it’s in your purse. Where’s the phone?” ( Id . at 52:23-53:16.) Ms. Lacy said “They in my purse, and nobody’s going in there.” ( Id . at 53:17.) According to Ms. Lacy after she said that they could not look in her purse, Sergeant Maguire said “Well, you going to go to jail. I’m going to put your car impound for 30 days, and you’re going to be arrested.” ( Id. at 54:25-55:6.) Ms. Lacy then reached in her purse and handed Sergeant Maguire the phone. ( Id . at 55:9.) Sergeant Maguire’s version of these events differs in that he testified that after he told Ms. Lacy the phone number for the phone they were looking for, she reached in her purse and handed him the phone. (Maguire Depo. at 18:4-11.) He does not recall threatening Ms. Lacy with arrest or the impound of her vehicle. ( . at 18:19-24.) *** Although the Court has pointed out differences in the parties’ version of events, for purposes of this motion the Court draws all reasonable factual inferences from the evidence in Plaintiffs’ favor. Thus, where the facts alleged by Plaintiffs and supported by evidence differ from those of Defendants, the Court relies on Plaintiffs’ version of facts because the question before the Court is whether, drawing all reasonable inferences in the non-moving parties’ favor, the moving
party would nonetheless be entitled to judgment in its favor.
See Anderson v. Liberty Lobby, Inc
.,
DISCUSSION
Defendants moved for summary judgment on all of Plaintiffs’ claims. In their opposition brief, Plaintiffs dismissed their Monell claims and their unlawful detention claims. (Dkt. No. 50 at 6.) The following five Section 1983 claims remain: (1) unlawful search of Ms. Lacy’s vehicle, (2) unlawful search of Ms. Lacy’s purse; (3) unlawful search of Mr. Mims’ phone, [4] (4) unlawful seizure of Mr. Mims’ phone, and (5) unlawful seizure of D.G.’s phone. Defendants insist that they are entitled to judgment in their favor on each of these claims, or alternatively, that the officers are entitled to qualified immunity.
A. Unlawful Search Claims
Plaintiffs insist that Defendants conducted an unlawful search of Ms. Lacy’s car, Mr.
Mims’ phone, and D.G.’s phone. Plaintiffs, however, have pointed to no evidence that Defendants
searched either Ms. Lacy’s purse or Mr. Mims’ phone. First, with respect to Ms. Lacy’s purse,
there is no evidence that anyone searched her purse. To the contrary, Ms. Lacy herself testified
that she “wouldn’t let him reach into [her purse],” and that instead, she reached in and handed the
phone to Sergeant Maguire. (Lacey Depo. at 55:9-10, 67:22-25.) Second, as to Mr. Mims’ phone,
while Plaintiffs argue in their opposition that “Defendants searched through the contents of her
cell phone without [Ms. Lacy’s] consent,” they do not cite to any evidence to support this
statement.
See Keenan v. Allan
,
The Court thus turns to Plaintiffs’ claim that Defendants searched Ms. Lacy’s vehicle without her consent.
1) Consent to Perform Vehicle Search
Warrantless searches “are per se unreasonable under the Fourth Amendment —subject only to a few specifically established and well-delineated exceptions.” Katz v. United States , 389 U.S. 347, 357 (1967) (internal footnote omitted). As relevant here, one of the exceptions is consent: “it is no doubt reasonable for the police to conduct a search once they have been phone”).
permitted to do so.”
Florida v. Jimeno
,
Plaintiffs contend that Ms. Lacy did not consent to the search of her vehicle because (1)
she was not advised of her right to refuse to consent, (2) she was not given a
Miranda
warning,
and (3) she felt intimidated when she questioned the legality of the officers’ search. None of these
factors raise a dispute of material fact as to whether Ms. Lacy consented to the search.
First, officers are not required to “inform citizens of their right to refuse when seeking
permission to conduct a warrantless consent search.”
United States v. Drayton
,
Second, because Ms. Lacy was “was not under arrest at the time consent was given []
Miranda
warnings were not necessary.”
United States v. Torres-Sanchez
,
Third, Plaintiffs’ duress argument fares no better. While Ms. Lacy testified that Sergeant
Maguire “demanded” she open the vehicle, she also testified that he did not yell or raise his voice
and that she voluntarily opened the vehicle door and consented to the search. (Lacy Depo. at
43:25 (“he did not yell”); 45:6 (“he was not yelling”); 45:18-19 (“a demand”). Sergeant Maguire
testified that he told Ms. Lacy that he could get a warrant to search the vehicle, but after he said
that it would be a lengthy process, she unlocked the door and consented to the search. (Maguire
Depo. at 14:16-24.)
See United States v. Chan-Jimenez,
B. Unlawful Seizure claims
1) Mr. Mims’ Phone Seizure Plaintiffs insist that the seizure of Mr. Mims’ phone was unreasonable because Ms. Lacy did not consent to producing the phone and instead produced it under threat of her arrest and the impounding of her vehicle. While Defendants dispute Ms. Lacy’s version of the events and contend that she did consent to providing Mr. Mims’ phone, for purposes of this motion they accept her version of facts as true and maintain that consent was not required because the exigent circumstances exception applies.
“The exigent circumstances exception allows warrantless searches and seizures when an
emergency leaves police insufficient time to seek a warrant. Under this exception, for example, the
police need not wait to get a warrant if there is an urgent need to provide aid or if there is concern
evidence might be destroyed in the time it would take to get a warrant.”
Recchia v. City of Los
Angeles Dep’t of Animal Servs
.,
(1) whether the police had probable cause to believe that the
defendant’s residence contained evidence of a crime or contraband; (2) whether the police had good reason to fear that, unless restrained,
the defendant would destroy the evidence or contraband before the police could return with a warrant; (3) whether the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy; and (4) whether the police imposed the restraint for a limited period of time—in other words, whether the time period was no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.
United States v. Song Ja Cha
,
24
21, 71:16-25.) These facts are sufficient to establish that the police had probable cause to seize the 25
phone.
See United States v. Cervantes
,
26
27
probable cause to search if “there is a fair probability that contraband or evidence of a crime will be found in a particular place, ‘based on the totality of circumstances.’”) (internal citation omitted).
Second, the Court considers whether the police had good cause to fear that the evidence
might be destroyed before they returned with a warrant.
See Riley v. California
,
Fourth, the Court looks at the duration of the seizure. “An unreasonable delay between the
seizure of a package and obtaining a search warrant may violate the defendant’s Fourth
Amendment rights. The touchstone is reasonableness.”
United States v. Sullivan
,
Considering the totality of the circumstances after drawing all reasonable inferences in Ms. Lacy’s favor, Defendants have met their burden of demonstrating that the exigent circumstances exception applies as a matter of law to justify the warrantless seizure of Mr. Mims’ phone. The motion for summary judgment as to the seizure of Mr. Mims’ phone is granted.
2) D.G.’s Phone Seizure Plaintiffs also contend that Defendants’ seizure of D.G.’s phone was unreasonable because she did not consent to the seizure and she did not feel free to leave while Sergeant Maguire had her phone. Defendants dispute that any officer had physical possession of the phone at any time, but argue for purposes of the motion that even if Defendants seized the phone, such seizure was justified by the exigent circumstances exception for the same reason as for Mr. Mims’ phone. The problem with Defendants’ argument is that unlike with Mr. Mims’ phone, they have not identified evidence that supports a finding that it was reasonable for them to believe that the phone in D.G.’s hand was Mr. Mims’ phone. The phone in Ms. Lacy’s purse started vibrating after the officers called or “pinged” Mr. Mims’ phone number. (Dkt. No. 45-2 at 53:15-16, 54:4-21.) In contrast, with respect to D.G.’s phone, the officers yelled at her to provide her phone number, which made her scared so she could not remember the number; when she finally told the officers her phone number, they called it, and the phone in her hand started ringing at which point the officer snatched it from her. (Dkt. No. 45-2, Lacy Depo. at 63:14-64:3; Dkt. No. 45-3, D.G. Depo. at 28:25-29:5, 33:16-20.) The officers had no reasonable basis to seize the phone from D.G. after she had told them her phone number, they dialed the number she gave them, and the phone in her hand started to ring. At that point, the officers did not have probable cause to believe that the phone in D.G.’s hand was Mr. Mims’ phone; instead, the only reasonable inference was that the phone had a number different from Mr. Mims’ phone and thus was not the phone they were seeking. At oral argument, Defendants argued that it was enough that they knew based on the geolocation warrant that the phone was pinging every 15 minutes in Plaintiffs’ vicinity. Not so. The officers must have probable cause to believe that the item seized contained evidence of a crime—once they discovered that the phone was not Mr. Mims’ phone, and instead, was the phone of an eight-year old girl, they had no reason to seize the phone. See Kentucky v. King , 563 U.S. 452, 460 (2011) (noting that the exigent circumstances doctrine allows for a warrantless seizure “to prevent the imminent destruction of evidence ”) (emphasis added); Texas v. Brown , 460 U.S. 730, 749–50 (1983) (“[I]f there is probable cause to believe [a container] contains contraband ... [t]he item may be seized temporarily” while officers seek a warrant to search it).
Accordingly, accepting Plaintiffs’ version of events, Defendants have failed to show that the exigent circumstances exception justified Sergeant Maguire’s warrantless seizure of D.G.’s phone. However, because there is no evidence that Sergeant Hutchings was involved in the seizure, summary judgement is granted on this claim as to him.
C. Qualified Immunity
Defendants argue that even if the seizure of D.G.’s phone violated the constitution, they
are nonetheless entitled to qualified immunity. “In determining whether an officer is entitled to
qualified immunity, we consider (1) whether there has been a violation of a constitutional right;
and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.”
Lal v. California
,
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is GRANTED as to the unlawful search claims and the unlawful seizure of Mr. Mims’ phone claim. It is also GRANTED as to Sergeant Hutchings on the unlawful seizure of D.G.’s phone claim. The Court DENIES summary judgment on Sergeant Maguire’s alleged seizure of D.G.’s phone.
Defendants’ administrative motion to file the warrants related to the criminal investigation under seal is GRANTED. (Dkt. No. 55.)
The pretrial and trial dates are VACATED.
The Court will hold a further case management conference with parties at 1:30 p.m. on November 12, 2020. An updated statement is due one week in advance. The parties should be prepared to discuss whether they would be amenable to a virtual jury trial given that trial in this case should last about one to two days at most and given that it is uncertain when an in-person trial would commence. IT IS SO ORDERED.
Dated: October 5, 2020 JACQUELINE SCOTT CORLEY United States Magistrate Judge
Notes
[1] All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 4 & 16.)
[2] Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.
[3] Sergeant Maguire testified that he was accompanied by Sergeant Sullivan and Sergeant 27 Batchelder. (Maguire Depo. at 10:25-11:10.) Plaintiffs’ opposition brief argues that six officers followed Plaintiffs to Ms. Lacy’s vehicle, but the record citation does not indicate the number of 28 officers. (Dkt. No. 50 at 2 (citing Lacy Depo 45:15-22, 46:8-14).)
[4] The Court refers to the phone that was found in Ms. Lacy’s purse as Mr. Mims’ because there is 27 no dispute that while Ms. Lacy owned the phone, Mr. Mims was the person using the phone. (Dkt. No. 45-2, Lacy Depo. at 30:9-15 (“the phone that he was using the months 28 before the incident”); 70:10-13 (“I knew what phone they wanted. I knew they wanted Lamonte
[5] Sergeant Maguire testified that after he told Ms. Lacy the phone number of the phone he was 28 looking for, she reached in her purse and handed him the phone. (Maguire Depo. at 18:4-16.)