The opinion of the court was delivered by: JOHN RHOADES, Senior District Judge
ORDER RE: SUMMARY JUDGMENT MOTIONS
Death is always and under all circumstances a tragedy, for if it
is not, then it means that life itself has become one.
Letter from Theodore Roosevelt to Cecil Spring Rice
(March 12, 1900)*fn1
This tragic story centers around the investigation into the death of
young Stephanie Crowe in January 1998. Stephanie's murder was
investigated by the Escondido Police Department. The investigation of her
death initially led to the arrest and indictment of
Stephanie's brother, Michael Crowe, and his two friends, Michael
Treadway and Aaron Houser (collectively, "the boys"), all juveniles at
the time. Prior to the boys' trial, potentially exculpatory
evidence was discovered which resulted in the District Attorney dropping
the charges against the boys without prejudice. Currently, a man named
Richard Tuite is on trial for Stephanie's murder.
On the night of January 20, 1998, the police received phone calls that
Tuite, a transient, was bothering people in the vicinity of the Crowe
residence. Witnesses testified at their depositions in this case that the
man they saw appeared drunk or high. See Sharon Thomas
Deposition Transcript ("DT") p. 16:22-24 (Exhibit 2, Plaintiffs' Notice
of Lodgment ("NOL") in Support of Plaintiffs' Opposition to Defendant
City of Escondido's Motion for Summary Judgment ("MSJ")); Sheldon Homa DT
p. 17:12-15 (Exhibit 6, Plaintiffs' NOL in Support of Plaintiffs'
Opposition to Defendant City of Escondido's MSJ). One witness heard Tuite
yell "I'm going to kill you fucking bitch." Sharon Thomas DT p. 18:1-6.
Another witness saw Tuite spinning around in circles. See Dawn
Homa DT p. 51:11-52:2 (Exhibit 7, Plaintiffs' NOL in Support of
Plaintiffs' Opposition to Defendant City of Escondido's MSJ).
Between 7:00 and 8:00 p.m. that night, Tuite entered one house after
the occupant, Dannette Mogelinski, mistaking his knock for that of a
neighbor, invited him in. See Dannette Mogelinski DT p.
27:27-28:13 (Exhibit 3, Plaintiffs' NOL in Support of Plaintiffs'
Opposition to Defendant City of Escondido's MSJ). Tuite repeatedly asked
for Tracy. Mogelinski said she did not know Tracy. Tuite left but then
opened the door and again asked for Tracy. Mogelinski again said she did
not know Tracy, and Tuite left. See id. pp. 32:12-33:28.
Around 9:28 p.m., Gary West, a neighbor of the Crowes, called police to
report a transient who had knocked on his door and said he was looking
for a girl. See Exhibit 11, Plaintiffs' NOL in Support of
Plaintiffs' Opposition to Defendant City of Escondido's MSJ. Escondido
police officer Scott Walters, not a defendant in this action, was
dispatched to the area. While investigating this call, Officer Walters
drove up to the Crowe house. As he explained in his deposition in this
There was a motion light above the garage door
that turned on when I drove up. The door that
was next to the garage door was open. And I
could see inside. There were lights inside the
house. Absolutely nothing unusual at the house.
And the door closed as I pulled up. I couldn't
see who was closing it.
Scott Walters DT p. 49:20-28 (Exhibit 15, Plaintiffs' NOL in
Support of Plaintiffs' Opposition to Defendant City of Escondido's MSJ).
Officer Walters left the Crowe house and indicated in his log that the
transient was "gone on arrival." See id. p. 50:3-5. This was
some time before 10:00 p.m.
Stephanie Crowe was found dead by her grandmother, Judith Kennedy
around 6:30 a.m. on January 21, 1998. An autopsy determined that
Stephanie was stabbed numerous times with a knife with a 5-6 inch blade.
It is undisputed on this record that Stephanie died between 10:00 and
11:00 p.m. on January 20, 1998. See Plaintiffs' Separate
Statement of Undisputed Material Facts in Opposition to Defendant City of
Escondido's MSJ, Fact 17. Paramedics John Peters and Steve Mandich, not
defendants in this action, were the first to respond to the 911 call.
Detective Barry Sweeney, a detective with the Escondido Police Department
and a defendant in this action, arrived on the scene soon after.
Police questioned all of the members of the Crowe household. Michael
Crowe was questioned several times. Before the first questioning of
Michael Crowe, Michael was advised of his Miranda rights.
During this questioning, Michael told Detective Mark Wrisley, a defendant
in this action, and Detective Phillip Han, who is not a defendant in this
action, that he had gotten up at 4:30 a.m. that morning with a headache.
See Transcript of Police Interview of Michael Crowe Taken at
The Polinsky Center, January 22, 1998 pp. 21:23-22:10. He had turned on
his television for light and had walked to the kitchen, where he took
some Tylenol. See id. pp. 22:3-23:12. Michael stated that he
was in the kitchen for approximately 15 minutes, gee id.
p.23:15-17. He stated that when he was in the hallway he could see that
Stephanie's door was closed, as were the other doors. See id.
pp. 22:28-23:5; 24:23-28. By defendants' account, the statement that
Stephanie's door was closed was suspicious because by 4:30 a.m. Stephanie
was dead in the doorway of her bedroom with the door open. See
Phillip Anderson DT pp. 132:26-133:8 (Exhibit 21, Plaintiffs' NOL in
Support of Plaintiffs'
Opposition to Defendant City of Escondido's MSJ). During this
interview, Michael Crowe also stated that Joshua Treadway was his best
On January 22, 1998, Escondido Police Detectives Lanigan and Naranjo,
not defendants in this case, went to the Treadway residence to speak with
Joshua Treadway. The detectives saw a knife in plain view on top of a
couch in the living room. See Lanigan DT pp. 27:13-28:12
(Exhibit E, attached to Memorandum of Points and Authorities in Support
of Escondido Defendants' MSJ or in the Alternative Partial Summary
Judgment, of the Claims Asserted by the Treadway Plaintiffs). When Joshua
was asked who owned the knife, he said it was his brother's; however,
when his brother was questioned about the knife, he stated that it
belonged to Joshua.*fn2 See id pp. 28:13-29:27; 33:4-35:20.
After being questioned two additional times, Michael Crowe was arrested
for Stephanie's murder on January 23, 1998.
On January 26, 1998 Detective Han obtained a search warrant for the
Treadway residence. Probable cause for the warrant was predicated upon
the fact that Michael Crowe had been arrested for the murder, Michael had
stated that Joshua Treadway was his best friend, Michael had called
Joshua Treadway from the police station on the morning of the murder, and
a knife meeting the description of the murder weapon had been seen at the
On January 27, 1998, prior to the execution of the search warrant for
the Treadway residence, Margaret Houser,*fn3 Aaron Houser's mother,
alerted police to the fact that a knife with a 4-5 inch blade which
belonged to her son was missing from his collection. Based on
this information, Detective Han sought and obtained a warrant to
search the Houser residence.*fn4 Defendants also questioned Aaron Houser
that same day. Aaron Houser's questioning lasted approximately 1% hours,
and the focus of the questioning was on Michael's possible involvement in
the murder. Aaron was asked about his friendship with Michael, his
interest in fantasy games, and Michael's personality. Aaron told
detectives that as far as he knew, Michael did not get along with his
parents and that Michael had a "make believe list of people he
would kill." See Transcript of Interrogation of Aaron Houser
dated 1-27-98 pp. 13:12-13; 15:10-21. Aaron was also asked about Aaron's
interest in knives and about the knife that he was missing. Aaron did not
make any self incriminating statements during this interview.
The warrants for the Treadway and Houser residences were executed on
the evening of January 27, 1998. While the warrant for the Treadway
residence was being executed, Joshua Treadway was being questioned by
police. Joshua's interrogation began around 7:00 p.m. During his
questioning, the search of the Treadway residence revealed two knives
under his bed. One had a 5 1/2 inch blade, and the other had a 6 inch
blade. Joshua was then arrested for stealing Aaron Houser's knife. After
being read his Miranda rights, Joshua admitted taking the knife
from Aaron, but denied any involvement in Stephanie's death. However,
over the course of further questioning, Joshua changed his story. He told
defendants that he had gotten the knife from Aaron Houser and that Aaron
had told him it was the knife used to kill Stephanie. Joshua's
questioning ended at approximately 8:15 a.m. on January 28. Joshua was
allowed to go home after the questioning.
Joshua Treadway was questioned again on February 10, 1998. This time,
over the course of approximately twelve hours, Joshua gave what appeared
to be a detailed account of the events leading up to the murder and
stated that he had acted as a lookout while Aaron and
Michael committed the murder. Joshua's confession, which was ruled
voluntary by the state court trial judge, suggested that Michael killed
Stephanie because he did not like her.*fn5 See Transcript of
Interrogation of Joshua Treadway dated 2-10-98 p. 60:19-20 ("Well, I knew
Michael hated his sister. I knew that he always had a kind of grudge
against her."); p. 305:6-8 ("Well, you know, just Michael started talking
how he didn't really like his sister a whole bunch and he'd really like
to kill her."); p. 358:1-2 ("Just, what I heard was Michael was always
complaining about his sister.").
Joshua Treadway also told police that although he thought that Aaron
and Michael were initially just joking about killing Stephanie, Aaron and
Michael's plan progressed "until it became an actual thing that they had
wanted to do as of the night that it happened." Id. pp. 309:28-310:4. At
some point during the questioning, Joshua was arrested for Stephanie's
On the morning of February 11, 1998, Detective Ralph Claytor, a
defendant in this action, obtained search warrants for the residence and
school locker of Aaron Houser. Those warrants were executed on the
morning of February 11 by defendant Sweeney and Sergeant Phillip
Anderson, also a defendant in this case.
Aaron Houser was arrested on February 11, 1998 and questioned for a
second time. Aaron did not admit involvement in Stephanie's murder.
However, during this questioning, Aaron explained that if he were going
to kill Stephanie, the first thing he would do is tuck the knife in the
back of his pants so that he could easily grab it when he needed it but
so that she could not see it. He "would grab one of her arms and put it
behind her back. And with the other one, I would grab and close her mouth
and nose and pull her chin up. I would pull her back, let go of the arm,
grab the knife and cut her throat like that." Transcript of Police
Interview of Aaron Houser dated 2-11-1998 p. 100:2-8. Aaron then
explained that because of the chance of getting blood on himself, he
would wear sparse clothing, preferably dark clothing so the blood
wouldn't show up easily, "so there is not much of a chance for blood to
get on it or so that it's easy to dispose of and then find a way to get
out of there and clean myself off. Destroy the evidence." Id. pp.
100:13-17; 101:10-14. Aaron said that he would not wear gloves and that
afterward he would take the knife and "fire it" to destroy chemical
evidence and then he would get rid of it. Id. p. 100:18-28.
Aaron also stated that he would choose 2:00 or 3:00 a.m. to commit the
murder because it would be less likely that anyone would be awake.
Id. p. 102:7-16. He stated that he would climb through a small
window "because doors can be locked and can be noisy," as can large
windows. Id. p. 102:17-24. Although a small window might be "a
little noisy," small windows such as bathroom windows are usually locked.
Id. p. 102:20-24. Aaron proceeded to again explain the logistics of how
he would hypothetically kill Stephanie, as set forth in the following
Q. If you went into her room and you saw her,
how would you approach it?
A. Well, at this time she would probably be
sleeping. She was sleeping, I probably would
just try to cut her throat as quickly as
possible without really waking her.
Q. How would you do that?
A. If she was sleeping on her back, I would
with my left hand would cover her
mouth and simultaneously slice her throat
and hold it for awhile until I was sure that
she was dead.
Q. And how would you know?
A. Tension in the muscles. If she was dead, they
would relax. Pulse. Breathing. Eyes. If there
were wide in terror. They would probably be
shivering. Or they would be completely still.
Again, relaxed. . . .
Id. pp. 103:25-104:12.
In late May 1998, the grand jury issued indictments against the boys.
Some time after June 1, 1998, defendant Summer Stephan took over as the
assigned prosecutor. Prior to the boys' trial, drops of Stephanie's blood
were found on Tuite's sweatshirt. The charges against the boys were
dismissed without prejudice.
After the dismissal of the charges against them, the boys and their
family members filed three separate complaints in state court alleging
violations of 42 U.S.C. § 1983 and various state law torts.
Defendants removed the three complaints to federal court in February
1999. On January 3, 2000, the Court issued a fifty four page
order on defendants' motions to dismiss the original complaints. In
that order, the court consolidated the actions and ordered the
plaintiffs to file a Joint First Amended Complaint ("JFAC").
Plaintiffs proceeded to file a JFAC consisting of 64 pages, 240
paragraphs, and 12 claims, 10 of which survived a second round of motions
to dismiss. Named as defendants in the JFAC are Escondido Police Officers
Claytor, Wrisley, Sweeney and Anderson (collectively "the Escondido
defendants") and the City of Escondido. Also named as defendants are
Lawrence Blum, a private psychologist who consulted with the Escondido
Police Department during the investigation, Chris McDonough, a police
officer with the City of Oceanside who participated in the interrogations
of the boys, and the City of Oceanside. In addition, prosecutors Gary
Hoover and Summer Stephan are also named as defendants, although
plaintiffs settled with defendant Hoover prior to the entry of this
order. Finally, plaintiffs named as a defendant the National Institute
for Truth Verification, the manufacturer of a device, known as a "CVSA,"
which is marketed as a "truth verification device" and which was used
during the interrogations of the boys. The court previously ruled on a
motion for summary judgment brought by the National Institute for Truth
Defendants have brought a total of 10 motions for summary judgment
and/or motions for partial summary judgment, which are the subject of the
present order. The court has held numerous hearings and has ordered
numerous supplemental briefs. The papers in this case fill 66 volumes at
the clerk's office. The court has reviewed everything that has been
placed before it, including approximately 40 hours of videotaped
interrogations of the boys, along
with videotaped interviews of Judith Kennedy and Stephen and Cheryl
Crowe. The court h; viewed the actual crime scene photographs as well as
a videotape of the Crowe residence take by the police after the murder.
It cannot be emphasized enough that a review of all of the; materials is
absolutely necessary to gain a true understanding of the actual facts in
this case, for certain of the parties' papers would mislead a reader who
was not thoroughly familiar with the actual evidence of record. The court
notes throughout this order only some of the instances where the evidence
is not as it is portrayed. It is upon the court's thorough examination of
the actual evidence presented, in conjunction with its exhaustive review
of the applicable law, that this decision is based.
The court notes that it has attempted to analyze each claim in detail,
both with respect to the factual predicates of the claim as well as with
respect to the defendants named in the claim. For example, the court has
separately analyzed each of the challenged arrests and searches upon
which the Treadways' and Housers' Fourth Amendment claims are predicated
Similarly, the court has analyzed each of the statements uttered by
defendant Stephan which plaintiffs contend were defamatory. Moreover, it
has separately analyzed the liability of the individual defendants
Blum, McDonough and Sweeney who have filed summary
judgment motions contending that they did not play a sufficient role in
the alleged violations to warrant the imposition of liability. The
structure of the analysis necessarily results in a certain amount of
redundancy, but it is hoped that this manner of analysis will make it
clear to all which clams and which defendants remain in this action as
well as the reason for the court's decision.
When reading this decision, one must keep in mind that this is a
decision regarding whether defendants may be held civilly liable for the
manner in which they conducted the investigation of Stephanie's murder.
The court is deciding whether to grant or deny the motions for summary
judgment. It is not determining who killed Stephanie Crowe, and none of
the statements in this opinion should be considered a commentary
regarding who may or may not be the killer.
Finally, although the court regrets that it may seem to the parties
that the decision was a longtime coming, the words of a great Chicago
trial judge, Judge Prentice Marshall, have
never rung more true: "Please remember that all of these papers
must pass through the very small eye of a very small needle
I. First Claim for Relief Violation of the Fourth
In their first claim for relief, plaintiffs allege that defendants
Blum, Wrisley, Sweeney, Claytor, McDonough and Anderson violated their
Fourth Amendment right to be free of unreasonable searches and seizures
by arresting the boys and conducting searches without probable cause. The
Fourth Amendment to the United States Constitution, applicable to the
states through the Fourteenth Amendment, prohibits searches and arrests
without probable cause. Beck v. Ohio. 379 U.S. 89, 90-91
(1964); McKenzie v. Lamb. 738 F.2d 1005, 1007-1008 (9th
Cir. 1984). "The long prevailing standard of probable cause
protects `citizens from rash and unreasonable interferences with privacy
and from unfounded charges of crime,' while giving `fair leeway for
enforcing law in the community's protection.'" Maryland v.
Pringle. U.S. , 124 S.Ct. 795, 798 (2003) (quoting
Brinegar v. United States, 338 U.S. 160, 176 (1949)).
Searches and arrests without probable cause give rise to a cause of
action for damages. See McKenzie. 738 F.2d at 1007 (arrests
without probable cause give rise to a § 1983 damages action);
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics. 403 U.S. 388, 395 (1971) (constitutional damage
action for unlawful arrest under color of federal law); Mendocino
Envtl. Ctr. v. Mendocino County. 192 F.3d 1283 (9th Cir. 1999)
(§ 1983 damage action arising out of unlawful searches and
Defendants Blum, McDonough and Sweeney have each filed individual
motions for summary judgment challenging the claims of all three sets of
plaintiffs on the grounds that they were not sufficiently involved in the
challenged searches and seizures to justify the imposition of § 1983
liability for the alleged Fourth Amendment violations. In addition,
defendant Sweeney joins with defendants Wrisley, Claytor, and Anderson in
seeking summary judgment with respect to the Treadways' and Housers', but
not the Crowes', Fourth Amendment claims on qualified immunity grounds.
A. Defendant Blum's Motion for Summary Judgment
It is undisputed that defendant Blum, a psychologist in private
practice, did not physically participate in the arrests of the boys or
the searches of their residences. See Plaintiffs' Responses to Blum's
Separate Statement of Undisputed Material Facts in Support of MSJ p. 2
¶ 1; p. 8, ¶ 10. Rather, the Escondido defendants, who were
undisputedly acting under color of state law, conducted the searches and
arrests. See King v. Massarweh, 782 F.2d 825, 828-829 (9th Cir.
1986) (plaintiffs' injuries were clearly the result of state action where
state police officers conducted the arrests and searches). Where, as
here, a plaintiff seeks to hold a private individual liable under §
1983 and the alleged constitutional injury is "clearly the result of
state action," the relevant inquiry is not whether the private actor
acted "under color of state law" but rather whether the private actor "is
sufficiently connected with the clear state action in this case to have
caused these acts to occur within the meaning of section 1983." Id. at
828-9. In other words, "[i]n order for a private individual to be liable
for a § 1983 violation when a state actor commits the challenged
conduct, the plaintiff must establish that the private individual was the
proximate cause of the violations." Franklin v. Fox.
312 F.3d 423, 445-446 (9th Cir. 2002).
In order to demonstrate that a private party was the proximate cause of
the plaintiff's constitutional injuries, a plaintiff must demonstrate
that the private party had control over the state officials' decision to
commit the act alleged to have violated the plaintiff's constitutional
rights. See Franklin. 312 F.3d at 446 (`" [A]bsent some showing
that a private party had some control over state officials' decision [to
commit the challenged act], the private party did not proximately cause
the injuries stemming from [the act].'") (quoting King. 782
F.2d at 829); see also Arnold v. International Business Machines
Corp.. 637 F.2d 1350, 1356-6 (9th Cir. 1981) (private party
defendants entitled to summary judgment where plaintiff presented no
evidence that defendants had "some control or power over" the state
actors or that the defendants "directed" the state actors to take action
against him). Here, there is absolutely no evidence that defendant Blum
had any control over the other defendants' decision to conduct the
challenged searches and arrests. Accordingly, as a matter of law,
defendant Blum did not
proximately cause any Fourth Amendment violation and thus is
entitled to summary judgment with respect to the Fourth Amendment claims
of all three boys.
B. Defendant McDonough's Motion for Summary Judgment
The following facts are undisputed:
Defendant McDonough is a police officer with the City of Oceanside.
Defendant McDonough was trained on the use of a "truth verification
device" known as a "CVSA." On January 22, 1998, defendant McDonough
responded to a call by the Escondido Police Department requesting that he
conduct a CVSA examination on plaintiff Michael Crowe. Prior to January
22, 1998, defendant McDonough had never personally met defendants
Claytor, Wrisley or Anderson and had only spoken with Barry Sweeney
regarding past robbery cases. See Plaintiffs' Opposition to
Defendant Chris McDonough's Separate Statement in Support of Motion for
Summary Adjudication/Judgment as to All Claims Asserted by Plaintiffs
Michael Crowe, Aaron Houser and Joshua Treadway p. 3, ¶ 4. This was
the first time that defendant McDonough assisted another agency with the
CVSA. Id. p. 5, ¶ 16.
Defendant McDonough questioned Michael Crowe on January 22, 1998 and
utilized the CVSA device. Id. p. 6, ¶ 23. Afterward, defendant
McDonough did not advise or recommend a course of action; specifically,
he did not advise or recommend that Michael be arrested. Id. p. 7, ¶
27. Defendant McDonough was not at the Escondido Police Department
between January 22, 1998 and January 27, 1998. Id. p. 8, ¶ 31.
Defendant McDonough was not present for, nor was he consulted regarding,
the January 23, 1998 questioning of Michael. Id. p. 8, ¶ 30.
Defendant McDonough did not arrest Michael and was not present when
Michael was arrested on January 23, 1998. Id. p. 6, ¶ 22. Defendant
McDonough did not participate in a search of the Crowe property, nor
did he "suggest, advise or counsel any law enforcement officer to search
any portion of the Crowe property." Id. p. 5, ¶¶ 19, 20.
On January 28, 1998, defendant McDonough received a telephone call
requesting that he assist the Escondido Police Department by
administering a CVSA test on plaintiff Joshua Treadway. Id. p. 8, ¶
32. At that time, Joshua had already been placed under arrest by the
Escondido Police Department for stealing a knife. Id. p. 8, ¶ 35.
Defendant McDonough did
not participate in the search of the Treadway residence on January
27, 1998, nor was he consulted regarding the search. Id. p. 10, ¶¶
44, 45. Defendant McDonough did not "suggest, advise, or counsel any law
enforcement agency to search the Treadway residence." Id. p. 10, ¶
Defendant McDonough was not present when plaintiff Aaron Houser was
interviewed on January 27, 1998, nor was he consulted regarding the
interview of Aaron on that date. Id. p. 11, ¶ 49, 50.
Defendant McDonough "responded to the Escondido Police Department again
on February 10, 1998" to question plaintiff Joshua Treadway. Id. p.
11, ¶ 51. Defendant Claytor made the decision to administer the CVS A
to Joshua on February 10, 1998. Id. p. 11, ¶ 52. Although the reason
why is disputed, it is undisputed that defendant McDonough suggested that
Joshua be allowed to go home after the February 10, 1998 questioning. Id.
p. 12, ¶ 54.
The decision to arrest plaintiff Aaron Houser was made by defendants
Claytor and Anderson and another officer named Bass. Id. p. 12, ¶ 56.
On February 11, 1998, defendant McDonough "responded to the Escondido
Police Department to question Aaron Houser." Id. p. 12 ¶
58. The decision to administer the CVSA to Aaron was made by defendant
Claytor. Id. p. 13, ¶ 60. Defendant McDonough did not arrest Aaron,
and Aaron was already under arrest by the time defendant McDonough
arrived at the Escondido Police Department on February 11, 1998. Id. p.
13, ¶¶ 62, 69. Defendant McDonough did not participate in a search of
the residences of Margaret Houser or Gregg Houser, and defendant
McDonough did not suggest, advise or counsel any law enforcement agency
to search those residences. Id. p. 14, ¶¶ 67, 68.
Although it is undisputed that defendant McDonough did not directly
participate in the challenged arrests or searches, plaintiffs seek to
hold defendant McDonough liable under a conspiracy theory. Plaintiffs
speculate*fn7 that it was Tuite who closed the door as Officer
Walters sat in his patrol car outside the Crowe residence and that
had Officer Walters gotten out of his car to investigate the closing
door, Stephanie's murder would have been prevented. Accordingly,
plaintiffs contend that defendants entered into a conspiracy to protect
Officer Walters and the Escondido Police Department from criticism.
Plaintiffs alternatively characterize the conspiracy as a "scheme to
blame and punish the boys,"*fn8 a conspiracy "to coercively interrogate,
arrest and incarcerate" the boys,*fn9 a "conspiracy to wrongfully
convict and incarcerate the boys for Stephanie's murder,"*fn10 and a
conspiracy "to coercively interrogate, arrest and incarcerate Michael
Crowe along with two of his friends, Joshua Treadway and Aaron
Houser. . . ."*fn11
As Judge Posner explained in Jones v. City of Chicago.
856 F.2d 985, 992 (7th Cir. 1988), in a § 1983 constitutional
tort case, "the function of conspiracy doctrine is merely to yoke
particular individuals to the specific torts charged in the complaint."
To be liable based upon participation in a conspiracy, "each participant
in the conspiracy need not know the exact details of the plan, but each
participant must at least share the common objective of the conspiracy."
United Steelworkers of Am. v. Phelps Dodge Corp. 865 F.2d 1539, 1541 (9th
Cir. 1989) (en banc)): see also Gilbrook v. City of
Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove a
conspiracy, a plaintiff must demonstrate the existence of `"an agreement
or `meeting of the minds' to violate constitutional rights.'" United
Steelworkers. 865 F.2d at 1540-1 (quoting Fonda v. Gray.
707 F.2d 435, 438 (9th Cir. 1983)). The evidence of the agreement or
"meeting of the minds" must be `"concrete.'" Radcliffe v. Rainbow
Constr. Co., 254 F.3d 772, 782 (9th Cir. 2001) (quoting United Steel
Workers. 865 F.2d at 1540-1, 1543), Nonetheless, the evidence of such an
agreement or "meeting of the minds" may be circumstantial rather than
direct. See Gilbrook. 177 F.3d at 856-57 ("A defendant's
knowledge of and participation in a conspiracy may be inferred from
circumstantial evidence and from evidence of the defendant's actions.").
For example, a showing that the alleged conspirators have committed acts
that "are unlikely to have been undertaken without an agreement" may
allow a jury to infer the existence of a conspiracy. Kunik v. Racine
County. 946 F.2d 1574, 1580 (7th Cir. 1991).
Certainly, given the extent of defendant McDonough's participation in
the interrogations of the boys, a reasonable factfinder could find that
there was a "meeting of the minds" between defendant McDonough and the
other defendants regarding the coercion of a confession from the boys.
However, to hold defendant McDonough liable under a conspiracy theory for
searches and arrests which he did not direct or execute, plaintiffs must
demonstrate that he shared the common objective of the larger conspiracy
alleged by plaintiffs: a conspiracy to wrongfully prosecute and convict
the boys. See Plaintiffs' Memorandum of Points and Authorities
in Opposition to Defendant Chris McDonough's Motion for Summary
Adjudication/Judgment as to all Claims by Michael Crowe, Aaron Houser and
Treadway p. 13:24-25. (referring to "defendants' conspiracy to
wrongfully convict and incarcerate the boys for Stephanie's murder");
United Steelworkers. 865 F.2d at 1541 (to be liable under a
conspiracy theory, "each participant in the conspiracy need not know the
exact details of the plan, but each participant must at least share
the common objective of the conspiracy") (emphasis added).
Although, as noted supra, "[a] defendant's knowledge of and
participation in a conspiracy maybe inferred from circumstantial evidence
and from evidence of the defendant's actions," Gilbrook. 177
F.3d at 856-7, there is absolutely no concrete evidence, circumstantial
or otherwise, from which an inference can be drawn that defendant
McDonough was a member of such a broad conspiracy. Defendant McDonough
did not work for the Escondido Police Department, did not have a prior
personal or professional relationship with any of the defendants, was
requested by the Escondido Police Department because of his training with
the CVSA device, and undisputedly did not participate in any of the
searches or arrests or in any of the decisions to search or arrest.
Moreover, even if a factfinder were to find that defendant McDonough
participated in the coercion of confessions from the boys, in light of
all of the facts, the act of coercing a confession is not the type of act
that is "unlikely to have been undertaken without an agreement" to
violate the boys' constitutional rights on the larger scale alleged by
plaintiffs. Kunik, 946 F.2d at 1580.
Because there is absolutely no basis for inferring that defendant
McDonough, a police officer with the City of Oceanside, joined a
conspiracy whose objective was, as alleged by plaintiffs, to wrongfully
prosecute and convict the boys in order to protect the Escondido Police
Department from criticism, defendant McDonough is entitled to summary
judgment with respect to all of the Fourth Amendment claims asserted by
C. Defendant Sweeney's Motion for Summary Judgment
Defendant Sweeney moves for summary judgment with respect to the boys'
claims that they were arrested in violation of the Fourth Amendment on
the ground that he "did not conduct any of the interrogations that led to
the arrest of the boys and he "did not arrest any
of them and was not involved in the decision to arrest them."
Memorandum of Points and Authorities in Support of Defendant Barry
Sweeney's MSJ or in the Alternative, Partial Summary Judgment p. 8:12-14.
Similarly, he moves for summary judgment with respect to plaintiffs'
claims that the searches were not supported by probable cause on the
ground that he did not obtain the search warrants. See Memorandum of
Points and Authorities in Support of Defendant Barry Sweeney's MSJ or in
the Alternative, Partial Summary Judgment p. 8:20. However, Sweeney fails
to address the conspiracy allegations leveled against him. Accordingly,
defendant Sweeney's individual motion for summary judgment is denied with
respect to plaintiffs' Fourth Amendment claims.
D. The Escondido Defendants' (Claytor, Wrisley, Anderson and
Sweeney) Motion for Summary Judgment
The Escondido defendants move for summary judgment with respect to the
Treadways' and Housers' Fourth Amendment claims on qualified immunity
grounds. Curiously, with respect to the Houser plaintiffs' Fourth
Amendment claims, the Escondido defendants nowhere argue that there was
probable cause for Aaron Houser's arrest and the searches of the Houser
residence and Aaron's locker, while with respect to the Tread way
plaintiffs' claims, they give only lip service to the argument that there
was probable cause for the searches and seizures. Because Supreme Court
case law dictates that the first step in determining whether a defendant
is entitled to qualified immunity is to determine whether there has been
a constitutional violation, see Saucier v. Katz.
533 U.S. 194, 201 (2001), the court will determine whether the arrests and
searches were supported by probable cause despite defendants' failure to do
so. See Doe v. Lebbos, 348 F.3d 820, 828 (9th Cir. 2003) ("We note
that the parties did not brief the issue of whether Herrera's alleged
actions, if proven, violated a constitutional right. We are obligated
under Saucier, however, to address this issue at the outset of
our qualified immunity analysis.").
Qualified immunity "is an immunity from suit rather than a
mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to trial."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, "[t]he
question of immunity is not to be
`routinely place[d] . . . in the hands of the jury.'"
Lindsey v. Shalmy, 29 F.3d 1382, 1384 (9th Cir. 1994) (quoting
Hunter v. Bryant. 502 U.S. 224, 227 (1991)). That the issue of
qualified immunity is not to be routinely placed in the hands of a jury
was re emphasized by the United States Supreme Court in
Saucier. In that case, the Supreme Court disapproved of the
Ninth Circuit's former practice of denying summary judgment "any time a
material issue of fact remains" because such a practice "could undermine
the goal of qualified immunity to `avoid excessive disruption of
government and permit the resolution of many insubstantial claims on
summary judgment.'" Saucier. 533 U.S. at 202 (quoting Harlow v.
Fitzgerald. 457 U.S. 800, 818(1982)).
Thus, after Saucier, whether a defendant is entitled to
qualified immunity is a two step inquiry. In the first step, the
court considers whether a constitutional right was violated by the
officer's conduct, viewing the facts regarding the officer's conduct in
the light most favorable to the plaintiff. See Graves v. City of
Coeur D'Alene. 339 F.3d 828, 846 (9th Cir. 2003); Saucier.
533 U.S. at 201. The second step is to determine whether the law
governing the officer's conduct "`was clearly established.'"
Graves. 339 F.3d at 846 (quoting Saucier. 533 U.S. at 201).
"Whether the law was clearly established is a pure question of law for
the court to decide." Carnell v. Grimm. 74 F.3d 977, 978 (9th
Cir. 1996). The clearly established inquiry, "it is vital to
note, must be undertaken in light of the specific context of the case,
not as a broad general proposition. . . . "
Saucier. 533 U.S. at 201 (emphasis added). Thus, "[t]he
relevant, dispositive inquiry" is "whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he
confronted." Id. at 202. "The inquiry is not `whether another reasonable
or more reasonable interpretation of events can be construed . . .
after the fact.'" Reynolds v. County of San Diego.
84 F.3d 1162, 1170 (9th Cir. 1996), overruled on other grounds by
114 F.3d 999 (9th Cir. 1997) (quoting Hunter. 502 U.S. at 228). "If
the law did not put the officer on notice that his conduct would be
clearly unlawful, summary judgment based on qualified immunity is
appropriate." Saucier. 533 U.S. at 202.
In the Fourth Amendment context, it is "inevitable that law enforcement
officials will in some cases reasonably but mistakenly conclude that
probable cause is present," and "in such
cases those officials like other officials who act in ways they
reasonably believe to be lawful should not be held personally
liable." Anderson v. Creighton. 483 U.S. 635, 641(1987). As the
Ninth Circuit aptly noted in Smiddy v. Varney, 665 F.2d 261
(9th Cir. 1981), "[i]t is necessary that police officers be immune when
they reasonably believe that probable cause existed, even though it is
subsequently concluded that it did not, because they `cannot be expected
to predict what federal judges frequently have considerable difficulty in
deciding and about which they frequently differ among themselves.'"
Id. at 266 (quoting Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics. 456 F.2d 1339, 1349 (2d Cir. 1972)
(Lumbard, J., concurring)). Thus, a police officer is entitled to
qualified immunity from suit for damages arising out of a Fourth
Amendment violation if a reasonable officer possessing the same facts as
the defendant officer could have reasonably believed that the search or
arrest was supported by probable cause even if a court later determines
it was not. See Bilbrey v. Brown. 738 F.2d 1462, 1467 (9th Cir.
1984) ("Appellees could therefore qualify for immunity from damages if
they reasonably, but mistakenly, believed that they had reasonable cause
or probable cause to search appellants."); Forster v. County of
Santa Barbara. 896 F.2d 1146, 1147-1148 (9th Cir. 1990) (finding an
officer is "qualifiedly immune from a suit for damages . . . unless `a
reasonably well trained officer in [his] position would have known that
his affidavit failed to establish probable cause and that he should not
have applied for the warrant'") (quoting Malley v. Briggs.
475 U.S. 335, 345 (1986)).
Importantly, a police officer's subjective intent is irrelevant to the
qualified immunity analysis. See Anderson. 483 U.S. at 641
("The relevant question in this case, for example, is the objective
. . . question whether a reasonable officer could have believed
Andersen's warrantless search to be lawful, in light of clearly
established law and the information the searching officers possessed.
Anderson's subjective beliefs about the search are irrelevant.").
Moreover, for summary judgment purposes, "[t]he fact that an expert
disagrees with the officer's actions does not render the officer's
actions unreasonable." See Reynolds. 84 F.3d at 1170; see
also Billington v. Smith. 292 F.3d 1177, 1189 (9th Cir. 2002).
1. January 26 Search of the Treadway Residence (1747 Jeffrey
Detective Han obtained a search warrant for a search of the Treadway
residence on January 26 and executed the warrant on January 27 at
approximately 8:30 p.m. The following facts were included in the
affidavit in support of the search warrant:
Stephanie Crowe was stabbed to death. Her wounds
were consistent with being stabbed with a knife
with a 5-6 inch blade. Defendant Claytor told
Detective Han that when he interviewed Michael
Crowe on January 26, 1998, Michael Crowe said
that Joshua Treadway was his best friend.
Defendant Claytor t9ld Detective Han that
Michael Crowe called Joshua Treadway from the
police department and told him that Stephanie's
body had been found. Det. Lannigan told
Detective Han that he had interviewed Joshua
Treadway at his residence on January 22 and saw a
knife at the residence in the living room on the
couch. The knife had a black leather
wrapped handle with a hand guard and a 5-6 inch
blade, Michael Crowe was arrested and charged
with Stephanie's murder on January 23.*fn12
Probable cause to search exists when, given the totality of the
circumstances, it is fairly probable that contraband or evidence of a
crime will be found in the place to be searched. See United States
v. Ocampo, 937 F.2d 485
, 490 (9th Cir. 1991); see also Alabama v.
White. 496 U.S. 325
, 330 (1990) ("We have held that probable cause means
`a fair probability that contraband or evidence of a crime will be
found.'") (quoting Illinois v. Gates. 462 U.S. 213
(1983)). The evidence must simply demonstrate a "probability" of criminal
activity, not a prima facie showing, and the evidence "need not be
admissible, but only legally sufficient and reliable."
Franklin. 312 F.3d at 438.
Based on the fact that Michael Crowe had been arrested for Stephanie's
murder, that Joshua Treadway was Michael's best friend, and that
Detective Lanigan had seen a knife fitting the description of the murder
weapon at the Treadway residence immediately after the murder, there was
a fair probability that evidence related to the murder would be found in
the Treadway home. However, the constitutionality of a search is not
simply because the facts in the affidavit in support of the warrant
support a finding of probable cause. In determining whether there is
probable cause to search, it is relevant whether the affidavit in support
of the warrant contained material misrepresentations, be it affirmative
misrepresentations or misrepresentations by omission. The issue of the
materiality of alleged misrepresentations, is, at the summary judgment
stage, an issue of law for the court. Hervey v. Estes.
65 F.3d 784, 789 (9th Cir. 1995). Affirmative misrepresentations are material,
and therefore the Fourth Amendment is violated, only if there is no
probable cause absent consideration of the misrepresented facts. See
Franks v. Delaware. 438 U.S. 154, 171-2 (1978). A misrepresentation
based on an omission is material, and therefore the Fourth Amendment is
violated, only where the omitted facts `"cast doubt on the existence of
probable cause.'" United States v. Garza. 980 F.2d 546, 551
(9th Cir. 1992) (quoting United States v. Dennis.
625 F.2d 782, 791 (8th Cir. 1980)). However, even if a plaintiff is able to
demonstrate that a warrant was issued as the result of a material
misrepresentation, a police officer defendant is entitled to summary
judgment on qualified immunity grounds unless the plaintiff can also
demonstrate that the police officer deliberately falsified information
presented to the magistrate or recklessly disregarded the truth. See
Hervey. 65 F.3d at 789 (a defendant police officer is entitled to summary
judgment on qualified immunity grounds unless "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"). Thus, resolution of defendants* summary judgment motion
requires consideration of the alleged misrepresentations identified by
(a) The Location of Stephanie's Body
The Treadway plaintiffs contend that the judge who issued the warrant
for the search of their residence was misled about Michael Crowe's
involvement in the murder, which involvement was material to the issuance
of the warrant for the search of the Treadway residence. In particular,
the Treadway plaintiffs argue that defendants misled the judge about
Michael's involvement by failing to inform the judge about the correct
position of Stephanie's body upon her death. The position of Stephanie's
body was relevant to the question of whether
Michael had told the police the truth when he said that he had
gotten up at 4:30 a.m. to take some Tylenol for a headache and had
noticed that Stephanie's bedroom door was closed Defendants maintain that
Stephanie's door was not closed at 4:30 a.m., but that, in fact,
Stephanie was dead in the doorway to her bedroom with the door open, and
that Michael's statement to the contrary thus directed suspicion toward
him. In fact, defendant Anderson testified at his deposition that part of
the reason why the Escondido defendants believed that probable cause
existed to arrest Michael Crowe was that he said that the door was shut
at 4:30 a.m. while defendants believed that the door was open at that
time and that Stephanie was lying dead in the doorway. See
Phillip Anderson DT pp. 132:26-133:8 (Exhibit 15, Plaintiffs' NOL in
Support of Plaintiffs' Opposition to Defendant City of Escondido's MSJ).
Plaintiffs, however, contend that Stephanie died inside her bedroom with
the door closed and that, therefore, Michael told the truth when he said
that Stephanie's door was closed when he got up at 4:30 a.m. According to
plaintiffs, defendants knew that Stephanie died inside her bedroom and
should have presented this fact to the judge when obtaining the warrant
Plaintiffs contend that the omission of this fact in the warrant was
In determining the materiality of this alleged omission, the proper
focus is not on the actual position of Stephanie's body but rather on the
facts that defendants had in their possession regarding the position of
Stephanie's body. See Sheik Abdi v. McClellan.
37 F.3d 1240, 1246 (7th Cir. 1994) ("In recognition of the endless scenarios
confronting police officers in their daily regimen, courts evaluate
probable cause `not on the facts as an omniscient observer would perceive
them but on the facts as they would have appeared to a reasonable person
in the position of the arresting officer seeing what
he saw, hearing what he heard.") (quoting Mahoney v. Kesery,
976 F.2d 1054, 1057 (7th Cir. 1992)); see also Anderson. 483
U.S. at 641 (in determining whether a police officer is entitled to
qualified immunity from suit for damages arising out of a search or
arrest, the court must consider what facts the defendant officer
possessed, and then determine whether a reasonable officer possessing
the same facts as the defendant officer could have believed that the
search or arrest was supported by probable cause).
On this record, it is undisputed that Stephanie died between 10:00 and
11:00 p.m. See Plaintiffs' Separate Statement of Undisputed
Material Facts in Opposition to Defendant City of Escondido's MSJ, Fact
17. Moreover, it is undisputed that Stephanie's bedroom door opens into a
small alcove directly across from Michael's bedroom door. Although a
cliche it may be, the old saying "a picture is worth a thousand words"
still applies. The court has viewed the crime scene photographs, and in
those photographs Stephanie is lying in the doorway of her bedroom,
i.e., the lower half of Stephanie's body is inside the bedroom
while her head is clearly outside the bedroom, and the door is very
clearly open. John Peters, one of the paramedics who first arrived on the
scene, testified in his deposition that he found Stephanie in the
position that she is shown in the crime scene photographs. See
Peters DT p. 48:6-8 (Exhibit M, attached to Response of Defendant Barry
Sweeney to Plaintiffs' Supplemental Reference to the Evidence in
Opposition to MSJ or in the Alternative, Partial Summary Judgment). Steve
Mandich, another paramedic on the scene with Peters, similarly testified
at his deposition that the crime scene photographs accurately reflect his
memory of where he saw Stephanie's body upon his arrival.*fn13
See Mandich DT p. 49:1-19 (Exhibit N, attached to Response of
Defendant Barry Sweeney to Plaintiffs' Supplemental Reference to the
Evidence in Opposition to MSJ or in the Alternative, Partial Summary
Judgment). It is further undisputed that defendant Sweeney arrived on the
scene after Peters and Mandich, and therefore defendant Sweeney
necessarily viewed Stephanie's body in the same position in which it was
viewed by Peters and Mandich in the doorway. Moreover, it is
without doubt that it would be physically impossible for the door to be
closed with Stephanie's body in the position reflected by the
photographs, and no reasonable factfinder could possibly find
otherwise. Thus, given the undisputed time of Stephanie's death,
unless Stephanie's body was moved between the time that it was discovered
by Judith Kennedy and the time Stephanie was viewed by Peters, Mandich
and Sweeney and defendants knew or had reason to know that the body
was moved, defendants could not have known or had reason to know
that Stephanie was not lying in the doorway of her bedroom when Michael
got up to go to the kitchen at 4:30 a.m. Without such knowledge,
defendants cannot be held liable for basing their probable cause
determination on Stephanie's body being in the doorway of her bedroom.
See Sheik Abdi. 3 7 F.3d at 1247 (explaining that the
test for probable cause "is an objective one-it is `what the police know,
not whether they know the truth, that matters'") (quoting Gramenos
v. Jewel Companies. Inc.. 797 F.2d 432, 439 (7th Cir. 1986)).
Having carefully combed the voluminous record, the court concludes that
no reasonable factfinder could find that defendants knew or had reason to
know that Stephanie's body was moved and therefore was not lying in the
doorway at 4:30 a.m. as it was at the time the crime photos were taken.
First, there is no evidence in the record suggesting that any of the
members of the Crowe family moved Stephanie's body between the time it
was discovered and the time that the paramedics arrived or, more
importantly, that they informed defendants or anyone associated with the
investigation that they had moved the body. In fact, Judith Kennedy
specifically testified at her civil deposition that she did not move
Stephanie's body. See Judith Kennedy DT p. 16:1-4 (Exhibit D,
Response of Defendant Barry Sweeney to Plaintiffs' Supplemental Reference
to the Evidence in Opposition to MSJ or in the Alternative, Partial
Summary Judgment). Moreover, Cheryl Crowe drew a diagram of the crime
scene for defendant Sweeney which a reasonable officer could interpret as
showing Stephanie's body in the doorway of her bedroom with the door
open. See Exhibit K, attached to Response of Defendant Barry
Sweeney to Plaintiffs' Supplemental Reference to the Evidence in
Opposition to MSJ or in the Alternative, Partial Summary Judgment.
Based upon the above facts, a reasonable factfinder could reach but one
conclusion: when defendant Sweeney viewed the body, it was in the same
position as when Peters and Mandich viewed the body, which was in the
doorway of the bedroom, a position inconsistent
with the door being closed. Accordingly, regardless of whether the
door was actually open or closed at 4:30 a.m. when Michael Crowe went to
the kitchen, on this record, a reasonable police officer could have
believed that the door was open and that Stephanie was lying in the
doorway, and, thus, a reasonable officer would have been justified in
pursuing an investigation and obtaining warrants based on this belief.
See Sheik Abdi. 37 F.3d at 1247 (explaining that the
test for probable cause "is an objective one-it is `what the police know,
not whether they know the truth, that matters'") (quoting
Gramenos. 797 F.2d at 439).
Plaintiffs' arguments to the contrary notwithstanding, Judith Kennedy's
statements to Wrisley during her January 21 interview cannot reasonably
be interpreted as putting defendants on notice that in fact the door to
the bedroom was closed when Stephanie was found. Specifically, the court
notes the following colloquy, which occurred between defendant Wrisley
and plaintiff Kennedy:
W: When you got up due to the alarm and you went
out and you found Stephanie in the doorway I
K: Uh huh[yes]*fn14
W. Did you go into her room at all?
K: No, I just stepped inside and I saw her
laying there and I thought this is
something's wrong here. . . .
Having reviewed this portion of the videotape, it is clear that
Kennedy did not correct defendant Wrisley when he referred to Stephanie
being "in the doorway" and that Kennedy answered "no" to the question of
whether she went into Stephanie's room. It is undisputed that, unlike
Michael Crowe's bedroom door, Stephanie Crowe's bedroom door did not open
directly into the main hallway, but opened into a small alcove that
connected Stephanie's bedroom to the main hallway. Thus, it was entirely
reasonable for defendant Wrisley to
believe that Kennedy was referring to "stepping inside" the alcove
and not Stephanie's bedroom. In addition, even assuming that Ms.
Kennedy's cryptic statement to defendant Wrisley could be interpreted as
a statement that the door was closed, this statement would have been
immaterial to the judge's probable cause determination given all of the
evidence regarding the position of Stephanie's body which suggested that
the door was not closed and the absence of any evidence that the body had
Moreover, Judith Kennedy's later testimony at Michael's 707 hearing and
at her deposition in this case that the door to Stephanie's bedroom was
closed does not change the analysis. This testimony is inconsistent with
her prior statements to police as well as with all of the physical
evidence, and, in any event, this testimony came after the challenged
searches and arrests and therefore this information was not in
defendants' possession at the time of the challenged searches and
Finally, no reasonable factfinder could find that defendant Sweeney's
admission in his deposition that Fire Department Captain Keck wrote a
report stating that Stephanie's head was inside the doorway of her
bedroom establishes that defendants knew or had reason to know that
Stephanie's door was closed at 4:30 a.m. See Sweeney DT p.
575:3-9 (Exhibit 1, [Houser] Plaintiffs' NOL in Support of Plaintiffs'
Opposition to Defendant City of Escondido's MSJ). First, plaintiffs fail
to note that Sweeney also testified that Captain Keck admitted that this
statement was inaccurate. Second, there is no evidence in the record
suggesting that Captain Keck had first hand knowledge of where
Stephanie's body was found so that it would have been reasonable for
defendants to take into account Keck's account of the position of the
body. Third, there is no evidence that defendants had knowledge of Keck's
report at the time of the challenged searches and arrests.
In summary, the relevant issue here is not whether Stephanie's door was
open at 4:30 a.m., and nothing in this opinion is to be construed as a
finding regarding the position of the door at that time. Rather, the
relevant issue here is whether a reasonable police officer could have
believed that the door to Stephanie's bedroom was open at 4:30 a.m. and
that she was
lying dead in the doorway at that time, and, thus, whether a
reasonable officer could have therefore believed that Michael Crowe, who
stated that the door was closed, was lying and possibly involved in
Stephanie's murder. On these facts, it was entirely reasonable for
defendants to believe that the door to Stephanie's room was open at 4:30
a.m. and that she was lying dead in the middle of the doorway, and no
reasonable factfinder could find otherwise. Accordingly, defendants
cannot be held liable for failing to inform the judge that Stephanie died
in her bedroom with the door closed because, regardless of where
Stephanie actually died and the actual position of the door when she
died, there is no basis for concluding that defendants recklessly
disregarded the truth when they pursued warrants based on the assumption
that Stephanie died in her doorway with the door open and that Michael
Crowe was lying about seeing the door closed at 4:30 p.m. See
Hervey. 65 F.3d at 789 (a defendant police officer is entitled to
summary judgment on qualified immunity grounds where the omission of
information was not the result of a deliberate falsehood or a reckless
disregard of the truth).
(b) Tuite's "Involvement" in Stephanie's Murder
The Treadway plaintiffs also contend that defendants omitted material
information from the warrant application when they failed to include
information regarding Tuite's "involvement" in Stephanie's murder. This
argument fails because the only information regarding Tuite's
possible*fn15 involvement in Stephanie's murder which
defendants possessed at the time of the challenged searched and
seizures was so speculative that this information did not negate the
existence of probable cause for the challenged searches and arrests.
See United States v. Bishop. 264 F.3d 919, 924 (9th Cir. 2001)
("It is well settled that the determination of probable cause is
based upon the totality of the circumstances known to the officers at
the time of the search.") (emphasis added); see also Grant v.
City of Long Beach. 315 F.3d 1081, 1091 (9th Cir. 2002).
When ruling on a motion for summary judgment on qualified immunity
grounds, the materiality of the information in the police officer's
possession is an issue for the court, and questions should be resolved in
favor of the police officer. See Lombardi v. City of El Cajon.
117 F.3d 1117, 1126 (9th Cir. 1997). As the Ninth Circuit explained in
[P]articularly where omissions are involved,
materiality may not have been clear at the time
the officer decided what to include in, and what
to exclude from, the affidavit. In such cases,
when it is not plain that a neutral
magistrate would not have issued the warrant,
the shield of qualified immunity should not be
lost, because a reasonably well trained
officer would not have known that the
misstatement or omission would have any effect
on issuing the warrant.
Id. at 1126 (emphasis added). It is undisputed that Tuite had been
seen in the area on the night of the murder and that various individuals
had called the police to report Tuite because he was knocking on people's
doors looking for a woman named Tracy and did not appear to have any
legitimate business in the area. According to some witnesses, Tuite
appeared drunk or high and agitated. See Sharon Thomas DT p.
16: 22-24; Sheldon Homa DT p. 17:12-15. One witness saw Tuite spinning in
circles. See Dawn Homa DT pp. 51:11-52:2 The court will assume
for purposes of this motion that at all relevant times, defendants were
aware of Tuite's activities on the night of the murder. Clearly, Tuite's
activities in the neighborhood would not "cast doubt" on the existence of
probable cause to search the Treadway residence, and therefore would not
be material, without additional evidence somehow linking Tuite to the
In an attempt to show such a link, plaintiffs point to the fact that
Officer Walters, who again is not a defendant in this lawsuit, saw the
door to the Crowe house close between 9:30 and 9:56 p.m. on the night of
the murder after responding to a neighbor's call regarding Tuite.
According to plaintiffs, given Tuite's activities in the neighborhood and
"the known [self reported] whereabouts of everyone in the Crowe
house at that time, the only reasonable inference is that Tuite closed
the laundry room door." See [Houser] Plaintiffs' Points and
Authorities in Support of Opposition to Escondido Defendants' MSJ p. 5,
n. 4. Therefore,
plaintiffs contend, reasonable officers would not have sought
warrants to search plaintiffs' residences (or, had they done so, would
have informed the judge about Tuite's "involvement" in Stephanie's
murder) and also would not have arrested the boys.
The inference that it was Tuite who was closing the door to the Crowe
residence when Officer Walters saw the door closing was not necessarily
the only inference a reasonable police officer or judge could draw at the
time of the challenged searches and seizures. Given Tuite's behavior as
described by witnesses, Tuite would not necessarily be the most likely
suspect in a murder committed between 10:00 and 11:00 p.m. inside a house
inhabited by six people and a dog.*fn16 Moreover, as set forth
supra, the police had reason to believe that Michael had lied
regarding not seeing Stephanie's body at 4:30 a.m. and therefore had no
reason to focus their suspicion on Tuite. In addition, the police had
seen a knife matching the description of the murder weapon in the
Treadway residence. Finally, a reasonable officer investigating this
murder was not required to believe the Crowe families' statements that
none of them closed the door. In sum, at the time of the challenged
searches and arrests, there was nothing more than pure speculation
linking Tuite to the murder.*fn17 Because the facts defendants had in
their possession regarding Tuite's activities on the night of the murder
would not have cast doubt on the existence of probable cause, the Fourth
Amendment was not violated by the failure to include this information in
the warrant application. See Garza. 980 F.2d at 551. Moreover,
this information did not negate the existence of probable cause to arrest
Joshua Treadway and Aaron Houser.
As an aside, plaintiffs heavily criticize defendants for not more
actively pursuing Tuite
as a suspect; however, "[t]he police have no affirmative obligation
to investigate a crime in a particular way. . . . " Gini v. Las
Vegas Metropolitan Police Dept., 40 F.3d 1041, 1045 (9th Cir. 1994).
Moreover, the Constitution does not require that police officers
thoroughly pursue all possible leads before arresting a suspect. See
Sheik Abdi. 37 F.3d at 1247 ("Though we have suggested that
evidence of interviews and investigations may be a relevant factor in a
probable cause analysis, it is not in any way a prerequisite to a finding
of probable cause,") (internal citation omitted'): see also Gomez v.
Atkins. 296 F.3d 253, 262 (4th Cir. 2002) ("While officers `may not
disregard readily available exculpatory evidence . . . the failure to
pursue a potentially exculpatory lead is not sufficient to negate
probable cause.'") (quoting Wadkins v. Arnold, 214 F.3d 535,
541 (4th Cir. 2000)); Brodnicki v. City of Omaha.
75 F.3d 1261, 1264 (8th Cir. 1996) (police are not required to investigate
alibi of individual before using individual's statement as the basis for
probable cause to arrest another; officers are "not required to conduct
a mini trial" before making an arrest).
In any event, Tuite was questioned regarding the murder, and his
clothes were taken from him. Although plaintiffs contend that defendants
ignored blood evidence on Tuite's clothes, one should note that Joshua
Treadway's own criminal defense attorney, Mary Ellen Attridge, testified
in her deposition that she did not see blood evidence on the shirt when
she looked at it. See Mary Ellen Attridge DT p. 39: 2-12
(Exhibit 7, NOL of Exhibits in Support of Defendant Summer Stephan's
MSJ/Special Motion to Strike/Request for Attorneys Fees and Costs).
Finally, even if defendants were negligent in failing to more
vigorously pursue Tuite as a suspect, negligence, even gross negligence,
does not support a § 1983 claim. See Davidson v. Cannon.
474 U.S. 344, 347-48 (1986); Jones. 856 F.2d at 992.
(c) The State of the Windows and Doors
The Treadway plaintiffs contend that defendants omitted material
information when they failed to inform the magistrate that some of the
windows and doors were unlocked. That certain windows and doors were
unlocked is not inconsistent with the boys being involved in
the murder and does not necessarily point to Tuite being involved
in the murder. Accordingly, had this information been included in the
affidavit, it would not have "cast doubt" on the existence of probable
cause to believe the murder weapon would be found in the Treadway
residence, and therefore this omission was not material.*fn18 See
Garza. 980 F.2d at 551.
(d) Joshua Treadway's Alibi
The Treadway plaintiffs' argument to the contrary notwithstanding, it
is immaterial to the probable cause analysis whether Joshua Treadway had
an alibi for the time of the murder given that the issue is whether there
was probable cause to search the Treadway residence for the murder
weapon, which could have been given to Joshua Treadway some time after
the murder.*fn19 Moreover, the Treadway plaintiffs admit that the
defendants were not aware at the time of the January 27 search that
Joshua had an alibi.*fn20
(e) The Existence of the Alleged Conspiracy to "Frame " the
Finally, the Treadway plaintiffs cannot survive summary judgment by
arguing their Fourth Amendment rights were violated because the state
court judge was not informed of the alleged "conspiracy to frame Michael
and Joshua for Stephanie's murder." Treadway Plaintiffs' Points and
Authorities in Opposition to Escondido Defendants' MSJ p. 27:7-8.
Assuming the existence of such a conspiracy, because the test for
qualified immunity is an objective one, "the officers' subjective intent
or beliefs are essentially irrelevant. . . . " Alford v.
Haner, 333 F.3d 972, 977 (9th Cir. 2003); see also
Anderson. 483 U.S. at 641 (officer's subjective belief about the
search is irrelevant to qualified immunity analysis); Crawford
El v. Britton. 523 U.S. 574, 588 (1998) ("A defense of
qualified immunity may not be rebutted by evidence that the defendant's
conduct was malicious or otherwise improperly motivated. Evidence
concerning the defendant's subjective intent is simply irrelevant to that
defense."). Given the evidence implicating Michael Crowe and the fact
that a knife fitting the description of the murder weapon was seen after
the murder at the house of Michael Crowe's best friend, Joshua Treadway,
the existence of such a conspiracy would, under these facts, not have
cast doubt on the existence of probable cause to search the Treadway
residence and therefore would have been immaterial to the judge's
determination that there was probable cause to issue the warrant.
In conclusion, given that a knife fitting the description of the murder
weapon was seen in the residence of Joshua Treadway, Michael Crowe's best
friend, and given that the evidence in defendants' possession suggested
that Michael lied about Stephanie's door being closed at 4:30 a.m. and
therefore was involved in the murder, there was a fair probability
evidence of the murder would be found in the Treadway residence. This
conclusion is not altered by consideration of the additional "evidence"
identified by the Treadway plaintiffs. As explained, supra,
there was no reason for defendants to inform the judge that Stephanie's
body was fully inside her bedroom at the time of her death because all of
the information in defendants' possession suggested otherwise. There was
no reason to inform the judge about Tuite's activities on the night of
the murder because defendants did not, at the time, have in their
possession sufficient information suggesting that he was involved in
Stephanie's murder. There was no reason to inform the judge that some of
the windows and doors were unlocked because such information was not
inconsistent with the boys being involved in the murder. There was no
reason to inform the magistrate judge that Joshua Treadway had an alibi
night of the murder because it was possible that the knife was
given to him at some later time. Finally, even if a conspiracy to "frame"
the boys existed, the existence of such a conspiracy would not have
influenced the judge's decision to issue the warrant because whether
there is probable cause to search depends upon the objective facts, not
on an officer's subjective motives.
Accordingly, there was probable cause to support the search of the
Treadway residence, and defendants did not violate the Treadway
Moreover, even if it were determined that there was not probable cause,
defendants would be entitled to summary judgment under the second prong
of the Saucier test, as a reasonable officer could have
believed that it was constitutionally permissible to seek a warrant in
light of the facts known to these defendants. As the Ninth Circuit
explained in Lombardi, 117 F.3d at 1126, doubt regarding the
materiality of omitted information should be resolved in favor of the
police officer. Specifically, the Ninth Circuit explained that, although
in Hervey the police officer's conduct was "outrageous" and
probable cause was clearly lacking without the police officer's false
in other cases, particularly where omissions are
involved, materiality may not have been clear at
the time the officer decided what to include in,
and what to exclude from, the affidavit. In such
cases, when it is not plain that a neutral
magistrate would not have issued the
warrant, the shield of qualified immunity
should not be lost, because a reasonably well
trained officer would not have known that
the misstatement or omission would have any
effect on issuing the warrant.
Lombardi. 117 F.3d at 1126 (emphasis added). Here, it is
far from plain that the judge would not have issued a warrant for the
search of the Treadway home had he been informed of the actual
information in defendant's possession which was omitted from the
affidavit in support of the application for the warrant, detailed
supra, as opposed to the information alleged by plaintiffs to
have been omitted.
Accordingly, the Escondido defendants are entitled to summary judgment
with respect to this claim.
2. January 27 Search of the Houser Residence
On January 27, 1998, Detective Han sought and obtained a warrant to
search the Houser residence after Margaret Houser, Aaron Houser's mother,
alerted police to the fact that a knife with a 4-5 inch blade which
belonged to her son was missing from his collection. The warrant was
sought prior to the time that the knives were found under Joshua
Treadway's bed. Detective Han executed the warrant. The affidavit in
support of the warrant included the following information:
Defendant Claytor told Detective Han that
multiple stab wounds were found on Stephanie's
body and those wounds were consistent with a 5-6
inch knife blade. Through interviews, the
investigation revealed that Michael Crowe and
Aaron Houser are friends. On 1-22-98, detectives
Lanigan and Naranjo interviewed Aaron Houser at
his residence. Aaron told Detective Naranjo and
Lanigan that he and Michael had been friends for
over a year and had mutual interest in computer
games and in medieval fantasy role play games as
well as in weapons, including swords, knives,
dirks and daggers. Aaron told the detectives
that Michael Knew that he had a medieval sword
and knife collection but that he had never lent
Michael any of his collection. On 1-27-98,
Detective J. Lanigan received a telephone call
from Margaret Houser, Aaron's mother. Margaret
Houser told Detective Lanigan that Aaron had
checked his medieval sword and knife collection
and that one of the knives was missing. The
missing knife was described as being stainless
steel in color, with black plastic inserts on
the handle and a 4-5 inch blade that came to a
point and was sharpened. The knife was further
described as having a hand stop and has
indentations to facilitate a firmer grip.*fn21
Based on these facts, a reasonable officer could have believed that
there was probable cause to search the Houser residence, and a state
court judge so found. Thus, the issue again is whether defendants
deliberately or recklessly disregarded the truth by misrepresenting or
omitting information from the affidavit and whether it is plain that
without the dishonestly included information, or with the
dishonestly omitted information, the judge would not have issued
the warrant. See Garza. 980 F.2d at 551; Franks. 438
U.S. at 171-2; Hervey, 65 F.3d at 789. The Houser plaintiffs
fail to explain how that standard is met here.
Although the Houser plaintiffs contend that defendants could not rely
on Joshua Treadways' confession, there is nothing to suggest that Joshua
Treadway's confession was used to establish probable cause to search the
Houser residence on January 27. Moreover, as the court has already
discussed, at the time this warrant was obtained, the police had
information suggesting Michael's involvement in the murder, and the
evidence against Tuite was not so strong as to cast doubt on Michael's
involvement. Therefore, the information regarding Tuite's activities was
not material to the state judge's decision to approve the warrant, and
the Houser plaintiffs' Fourth Amendment rights were not violated by the
omission of such information.
The Houser plaintiffs assert as a statement of fact that "Sweeney lied
and orally reported that the doors and windows of the Crowe house were
locked." However, no reasonable factfinder could conclude from reading
the portion of the record cited to by the Houser plaintiffs (Sweeney DT
pp. 10:3-9; 28:9-20; 38:4-8; 142:17-143:4; 144:7-12 (Exhibit 14, [Houser]
Plaintiffs' NOL in Support of Plaintiffs' Opposition to Defendant City of
Escondido's Motion for Summary Judgment)) that defendant Sweeney lied and
orally reported that the doors and the windows of the Crowe house were
locked. Moreover, in any event, even if defendant Sweeney lied about the
state of the windows and doors, as stated supra, the fact that
some of the windows and doors were unlocked was not inconsistent with the
boys' involvement in the murder and therefore would not have "cast doubt"
on the existence of probable cause.
In conclusion, the search of the Houser residence was supported by
probable cause and therefore the Houser plaintiffs' Fourth Amendment
rights were not violated. Alternatively, defendants would be entitled to
summary judgment under the second prong of the Saucier test, as
it would not have been clear to a reasonable officers in possession of
the same information as defendants that it was constitutionally
impermissible to obtain a warrant to search the Houser residence for the
murder weapon by including only the facts included by Detective Han.
Accordingly, the Escondido defendants are entitled to summary ...