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applying only qualified immunity to claims that social workers submitted a petition containing material misrepresentations and omissions in support of a warrant to take custody of a minor child
Summary of this case from Olvera v. County of SacramentoOpinion
No. 09-16339.
Argued and Submitted July 13, 2010.
Filed July 26, 2010.
Robert Powell, Douglas D. Durward, Esquire, Dennis Raymond Ingols, Law Offices of Robert R. Powell, San Jose, CA, for Plaintiffs-Appellants.
Gregory J. Sebastinelli, Esquire, Melissa Kiniyalocts, Santa Clara County Counsel's Office, San Jose, CA, for, Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, Senior District Judge, Presiding. D.C. No. 5:03-cv-03767-RMW.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appellant Lori Beltran, individually and as Guardian Ad Litem for Appellant Coby Beltran, appeals the district court's decision granting summary judgment in favor of Santa Clara County social workers Emily Tjhin and Melissa Suarez in this 42 U.S.C. § 1983 action. The Beltrans claim their civil rights were violated when Tjhin and Suarez obtained a judicial warrant to take protective custody of Coby based on a petition that the Beltrans allege contained material misrepresentations and omissions. During the proceedings below, Tjhin and Suarez maintained that they were entitled to qualified immunity for their actions to secure the protective custody warrant and the district court so held. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
To prevail on summary judgment and defeat Tjhin's and Suarez's assertions of qualified immunity the Beltrans must (1) make a substantial showing that the challenged warrant petition contained misrepresentations or omissions that were deliberate falsehoods or demonstrated a reckless disregard for the truth and (2) the misrepresentations or omissions were material because probable cause could not be established without them. Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002); Liston v. County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997); Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995).
"We . . . review de novo the application of qualified immunity." Hervey, 65 F.3d at 788. De novo review is applied to the ultimate determination of whether misrepresentations or omissions in a warrant affidavit are material and thereby negate probable cause. Greene v. Camreta, 588 F.3d 1011, 1035 (9th Cir. 2009). Assuming the warrant affidavit was revised as the Beltrans urge, we ask whether the revised application establishes probable cause as a matter of law. See Liston, 120 F.3d at 973-74.
The Beltrans contend on appeal that nine omitted categories of fact render the protective-custody warrant petition misleading and nine statements constitute misrepresentations. We do not address whether these alleged misrepresentations and omissions constitute a "substantial showing" of deliberate falsity or reckless disregard for the truth, however, because this case can be resolved by determining the materiality of the alleged misrepresentations and omissions, assuming the Beltrans could establish them to the satisfaction of a reasonable factfinder. We agree with the district court that the statements and omissions are not material because, after amending the warrant to omit the alleged misrepresentations and add the alleged omissions, see Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009), probable cause still exists.
Our conclusion is not altered by the Beltrans' complaint that the warrant petition relies on hearsay because we have stated before that "the Fourth Amendment allows for a determination of probable cause based on hearsay testimony," Peterson v. California, 604 F.3d 1166, 1171 n. 4 (9th Cir. 2010), and government officials "may rely on hearsay and other evidence that would not be admissible in a court to determine probable cause," Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir. 2006).
Finally, the Beltrans misunderstand the context of the "telling the total story" language that originates in this Court's decision in United States v. Stanert, 762 F.2d 775 (9th Cir. 1985). The Beltrans seek to expand the scope of this language to require that a warrant affidavit include any information a plaintiff deems favorable to his or her cause. In the Stanert decision, however, we were referring to nothing more than the simple fact that an affidavit can deceive a judge not only by containing express misrepresentations but also by omitting information that renders an otherwise truthful statement to be false or misleading, in which case the omitted information has prevented the "total story" from being "told." 762 F.2d at 781. We previously have stated that "the omission rule does not require an affiant to provide general information about every possible theory, no matter how unlikely, that would controvert the affiant's good-faith belief that probable cause existed. . . ." United States v. Craighead, 539 F.3d 1073, 1081 (9th Cir. 2008); accord United States v. Johns, 948 F.2d 599, 606 (9th Cir. 1991).