Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted, Nov. 2, 1998.
Appeal from the United States District Court for the Central District of California. Dickran M. Tevrizian, District Judge Presiding.
Before KOZINSKI and KLEINFELD, Circuit Judges, and PANNER , Senior District Judge.
The Honorable Owen M. Panner, Senior United States District Judge for the District of Oregon, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Appellants argue that they established genuine issues of material fact precluding summary judgment. They argue that "Detective Mason deliberately concealed his knowledge of the prior searches and of El Segundo's presence during the October 17, 1995 search in order to insulate El Segundo officers from involvement in instigating the search, and that the confidential informant upon whom Mason purportedly relied was unreliable and engaged in a bogus buy."
We held in Hervey v. Estes, 65 F.3d 784, 789 (9th Cir.1995), that "a plaintiff can only survive summary judgment if the plaintiff can both establish a substantial showing of a deliberate falsehood or reckless disregard and establish that, without the dishonestly included or omitted information, the magistrate would not have issued the warrant."
In the case at bar, appellants have not established that the magistrate would not have issued the warrant, had the information about the prior searches been disclosed. We do not see why disclosure of prior searches, information about the informant, or coordination between the different police departments would have affected issuance of the warrant.
The appellants next argue that there was a genuine issue of fact regarding Officer Howden's stop. He testified that he paced the truck at 45 miles per hour. The only evidence presented by the appellants that the vehicle was not speeding is the testimony of appellant Nicholas Karpinecz that the vehicle was moving at 10 miles per hour "just before he got pulled over." This testimony does not rebut Officer Howden's assertion that the vehicle had been going 45. The driver would naturally decelerate as he was being pulled over.
The possibility that the stop may have been a pretext to examine the equipment in the back of the truck does not render the search a violation of the Fourth Amendment, under Whren v. United States, 517 U.S. 806 (1996).
The Court observed that, "Not only have we never held, outside the context of inventory search or administrative inspection..., that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary." Id. at 812. Thus, the Court held that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Id at 813.
Appellants also argue that there was a genuine issue of material fact regarding the coordinated search by El Segundo and Manhattan Beach police. If there is any issue of fact, it is not material. In United States v. Ewain, 88 F.3d 689 (9th Cir.1996), we held that "[i]nviting another officer [to the search] is not ipso facto improper.... What matters is whether the officers looked in places or in ways not permitted by the warrant." Id. at 694-95. See also United States v. Bowhay, 992 F.2d 229 (9th Cir.1993).
Appellants argue that genuine issues of fact precluded the district judge from granting summary judgment in favor of the City of El Segundo, the City of Manhattan Beach, and El Segundo Police Chief Grimmond. But there was no evidence of an unconstitutional policy or custom under Monell v. Department of Social Services, 436 U.S. 658 (1978). Regardless of whether the departments complied with state procedures for citizen complaints, there is no federal constitutional requirement of such compliance. Chief Grimmond had no "personal involvement in the constitutional deprivation," so he was properly granted summary judgment. Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989).
Appellants argue that the district court abused its discretion in denying their motion to compel disclosure of informants' identities. Appellees' brief does not respond to this argument, so we assume for purposes of discussion without deciding that the district court should have compelled disclosure. But the issue is moot because we affirm the summary judgment. Disclosure would not affect the outcome.
AFFIRMED.