where he was read his Miranda rights. Because plaintiff was handcuffed and accompanied by three officers, it was reasonable for him to believe that he was under arrest. See, e.g., Robertson, 833 F.2d at 780 (petitioner detained at gunpoint for five to fifteen minutes had been arrested).
In Dunaway, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), the Supreme Court found that a petitioner who was not questioned briefly where he was found but rather taken to a police car, driven to a police station, read his Miranda rights and questioned in an interrogation room had been arrested. Dunaway, 442 U.S. at 212. Such actions by the police were in contrast to the types of intrusions which were determined to be Terry stops. Id. at 210-12 (citing Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972) (weapons frisk on basis of reasonable suspicion held to be Terry stop)); Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977) (order to get out of car after lawful stop for traffic violation and frisk for weapons after bulge observed in jacket constituted Terry stop)). In Dunaway, moreover, the petitioner was not handcuffed when he was taken to the police station for questioning, while the police in the instant case handcuffed plaintiff almost immediately after approaching him and kept him handcuffed until he was released to sign the consent form. Defendants can point to no case authority in which facts even approaching those at issue here have been held to constitute a Terry stop.
Defendants contend that there are material issues of fact as to whether the detention constituted an arrest which preclude this court from granting summary judgment on this issue. According to defendants, both the fact that plaintiff was a college student who invoked his Miranda rights and requested that the officers move his car so that it would not get a parking ticket raise a genuine issue of fact as to whether plaintiff could reasonably have thought he was being arrested or merely detained for the search. The court finds these arguments to be unavailing. Neither of those facts, when considered against the backdrop of the other undisputed facts noted above, is sufficient to raise a genuine issue for trial as to whether plaintiff was detained as opposed to arrested. In fact, plaintiff's refusal to waive his Miranda rights and his request that defendants move his car tend to point in the other direction, suggesting that he thought himself to be under arrest and unable to get to his car in time to move it.
The Dunaway Court concluded that "detention for custodial interrogation -- regardless of its label -- intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." Dunaway, 442 U.S. at 216. The facts here clearly constitute a Dunaway "custodial interrogation" that implicates Fourth Amendment protections. Plaintiff was taken into police custody and questioned about the alleged firearm. Defendant Woo himself acknowledged that plaintiff was "in custody." Yourke Dec. 2, Ex. 1 (Woo Dep. at 46:9-46:25). The court finds, therefore, that plaintiff was detained for a custodial interrogation which amounted to an arrest.
II. Legality of the Arrest
In order to satisfy the requirements of the Fourth Amendment, an arrest without a warrant must be supported by probable cause to believe that the arrestee has committed a crime. Henry v. United States, 361 U.S. 98, 102, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959). In the instant case, it is undisputed that defendants did not have a warrant to arrest plaintiff. Therefore, the arrest made by defendants must have been supported by probable cause in order to be legal. "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." Id. The facts and circumstances must be based on "reasonably trustworthy information" known to the officers. United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988). In addition, probable cause requires "both a reasonable belief that an offense has been or is about to be committed and that the suspect is the criminal." Id. at 1296.
Defendants arrested plaintiff pursuant to information provided by an unnamed and unidentified informant. The information given by the tipster was uncorroborated by other evidence. In determining whether an informer's tip provides probable cause sufficient to warrant an arrest, a court must engage in a totality of the circumstances analysis. Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). Among the relevant factors to be considered are the reliability, veracity, and the basis of knowledge of the informant. Id.; see also Delgadillo-Velasquez, 856 F.2d at 1297.
The court finds that, as a matter of law, there was not probable cause to arrest plaintiff. It is undisputed that police never spoke with the informant, nor knew anything about him beyond what they were told by Balakovich. Balakovich himself did not report overhearing the conversation; therefore any information the police relied upon was at least secondhand. At no time did the informant name plaintiff; rather the informant told Balakovich in their second conversation that one of the suspects used locker number 291. Nor, from the facts before this court, does it appear that Balakovich did anything to verify the information. Defendants seem to assert that because the tipster was a student, he was reliable. However, they fail to point out why his status as a student confers upon him any special reliability. As was the case in Delgadillo-Velasquez, "the reliability of the confidential informant was untested, and thus the tip was unreliable." Delgadillo-Velasquez, 856 F.2d at 1297. Furthermore, the tip was unreliable because, among other things, the officers "conducted virtually no independent investigation to validate the tip" except to observe that the locker fee card showed that locker number 291 belonged to Clysly Desales. Id.
Defendants maintain that there is no evidence that the informant gave the tip other than out of his concern for the safety of himself and other users of the gym. That allegation may be true, but it does not vouchsafe the reliability of the uncorroborated tip of an unnamed source. The inquiry is whether or not there was evidence attesting to the reliability and veracity of the informant, not whether there was an absence of evidence attesting to the unreliability or suspect motive of the informant. See, e.g., Gates, 462 U.S. at 238; Delgadillo-Velasquez, 856 F.2d at 1297.
Defendants offer no other evidence that there was probable cause to arrest plaintiff; indeed defendant Woo testified in his deposition that he did not believe that he had probable cause to arrest the plaintiff. Yourke Dec. 1, Ex. 1 (Woo Dep. at 23:12-23:17). Rather, because defendants maintain that the seizure of plaintiff was a Terry stop which required only a reasonable suspicion of criminal activity and not an arrest which required probable cause, they argue in their papers that the tip from the informant was sufficient to create a reasonable suspicion which would justify a Terry stop. However, they offer no genuine issues of material fact as to probable cause for arrest which would preclude this the court from granting summary judgment on this issue.
Therefore, the court finds that as a matter of law, defendants violated plaintiff's Fourth Amendment rights by arresting him without probable cause.
III. Consent to Search
Because the court has found that the arrest was illegal, it remains to be considered whether plaintiff's consent to the police search of his gym locker, car and room was valid. It is undisputed that the searches were not conducted pursuant to a valid search warrant. There are, therefore, two issues to be considered: 1) whether plaintiff's consent was voluntary for Fifth Amendment purposes; and 2) if so, whether plaintiff's consent to search, though voluntary, was nonetheless constitutionally tainted by the illegal arrest.
A. Voluntariness Under the Fifth Amendment
The threshold question is whether plaintiff's consent was voluntary for Fifth Amendment purposes. In determining whether a confession (and by extension, a consent) is voluntary, a court must look to the "totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); see also Delgadillo-Velasquez, 856 F.2d at 1299 (applying standard of Schneckloth to consent).
Here, plaintiff does not allege that he was threatened or coerced by the officers into signing the consent to search form. See Delgadillo-Velasquez, 856 F.2d at 1299. He also does not allege that the defendants physically harmed him in order to convince him to sign the consent to search. Although plaintiff had never had any previous contact with the police, he was a twenty-one year-old college senior who had the presence of mind to turn down a Miranda waiver and ask the officers about moving his car. He has testified that although he was "extremely intimidated," he complied with the request because he knew he had "nothing to hide." Clysly Desales Dec. P 11. For these reasons, the court finds that plaintiff's consent passes the threshold requirement of voluntariness for Fifth Amendment purposes.
B. Validity Under the Fourth Amendment
The fact that consent to search is voluntary under Schneckloth "does not mean that it is untainted by a prior illegal arrest." Delgadillo-Velasquez, 856 F.2d at 1299. In Brown v. Illinois, the Supreme Court developed a four-part test to determine whether a confession given after illegal police conduct is free of constitutional taint. 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). This test also applies to a consent to search given after illegal police conduct. Delgadillo-Velasquez, 856 F.2d at 1299 (citing United States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981)). In order to decide whether a consent to search is constitutionally tainted by an illegal arrest, a court must consider:
(1) whether Miranda warnings were administered prior to the consent; (2) the temporal proximity of the arrest to the confession [or consent]; (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct.