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August 25, 1994

CLYSLY DESALES, et. al., Plaintiffs,
JEFFREY WOO, et. al., Defendants.

The opinion of the court was delivered by: MARILYN HALL PATEL

 Plaintiffs Clysly Desales, Cayetano Desales and Maria Patria Desales brought this action against defendants Jeffrey Woo, Ronald Lam and Armando Acuna, police officers at San Francisco State University, alleging violation of their civil rights under 42 U.S.C. § 1983. Now before the court is plaintiffs' motion for summary judgment on the issue of liability or, alternatively, summary adjudication of the issues. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.


 Sometime between 9:50 and 10:05 a.m. on October 29, 1992, plaintiff was approached by defendant police officers in front of his locker in the gym locker room. At the time, plaintiff was changing from swim trunks to street clothes. Defendant Woo ushered plaintiff away from the locker and defendant Acuna handcuffed plaintiff behind his back. Plaintiff was then walked by defendants to a nearby office, where defendant Woo read plaintiff the Miranda warnings. Plaintiff did not waive his Miranda rights.

 At approximately 10:20 a.m., defendants asked plaintiff to sign a consent to search form authorizing defendants to search his gym locker, his car and his residence. Plaintiff signed the release and defendants searched his gym locker and car. In addition, they searched plaintiff's room, which was in the house of his parents, plaintiffs Cayetano and Maria Patria Desales. Plaintiffs allege that defendants searched the entire first floor of the home, while defendants maintain that only plaintiff Clysly Desales' room was searched.

 While plaintiff was in custody, he requested permission to make a phone call but was refused. He was also handcuffed for much of the time he was in custody. Plaintiff alleges that he was handcuffed the entire time he was in custody, except for a few minutes when he was uncuffed to sign the release form. Defendants maintain that plaintiff was uncuffed when he entered the office and when he signed the consent form and that he was re-cuffed for the search of his car and his room. *fn3"

 No firearm was found during the searches. Plaintiff was released by defendant Woo at approximately 12:00 noon.


 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted:

against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the initial burden of identifying portions of the record which show that the nonmoving party has disclosed no "significant probative evidence tending to support the complaint." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). The burden then shifts to the nonmoving party to "go beyond the pleadings, and by [its] own affidavits, or by the 'depositions, answers to interrogatories, or admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

 The court's function on a motion for summary judgment is not to make credibility determinations. Anderson, 477 U.S. at 249. The inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion.


 There are six major issues to be considered: 1) whether plaintiff Clysly Desales was arrested or detained; 2) whether the arrest was illegal, if plaintiff was in fact arrested; 3) whether plaintiff's consent to search was tainted by the arrest, if the arrest was illegal; 4) whether the search violated the Fourth Amendment, if plaintiff's consent to the search was invalid; 5) whether Cayetano and Maria Patria Desales have standing to sue; and 6) whether defendants can assert an affirmative defense of qualified immunity.

 Neither party disputes that defendants were acting in their capacity as police officers employed with the San Francisco State University Police Department when they committed the acts which constitute the basis of this action. Therefore, they were acting under "color of law" for the purposes of section 1983. *fn4"

 I. Arrest or Detention

 A. Seizure

 Plaintiff alleges that he was unconstitutionally "seized" by defendant in violation of the Fourth Amendment because that seizure amounted to an arrest for which defendants had no probable cause. In evaluating whether a police stop is in fact a seizure, the "essential inquiry is whether the person stopped reasonably believed that he or she was not free to leave." Morgan v. Woessner, 997 F.2d 1244, 1253 (9th Cir. 1993) (quoting United States v. Patino, 649 F.2d 724, 726-27 (9th Cir. 1981)), cert. dismissed, Searle v. Morgan, 126 L. Ed. 2d 640, U.S. , 114 S. Ct. 671 (1994). The inquiry is "largely a factual one which depends on the totality of the circumstances." Morgan, 997 F.2d at 1253. In the instant case, plaintiff has declared that he understood he was not free to leave the custody of the defendants. Clysly Desales Dec. P 5.

 The court finds that such a belief was reasonable as a matter of law. Plaintiff was handcuffed soon after being approached by the defendants and, even accepting defendants' version of the facts, was handcuffed for most of the approximately two hours that he was in police custody. During that time, he was read the Miranda warning, informed that he was suspected of possessing a firearm, denied a request to make a phone call, transported in the rear of a police car while his car and home were searched, and held in custody at the campus police station. Under such circumstances, it was more ...

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