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CROWE v. COUNTY OF SAN DIEGO

February 17, 2004.

MICHAEL CROWE, et al, Plaintiffs;
v.
COUNTY OF SAN DIEGO, et al., Defendants



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 Page 2 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.

  FACTUAL BACKGROUND

  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 case: Page 3

 
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' Page 4 Opposition to Defendant City of Escondido's MSJ). During this interview, Michael Crowe also stated that Joshua Treadway was his best friend.

  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 Treadway residence.

  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 Page 5 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 Page 6 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 murder.

  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 Page 7 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 colloquy:
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. Page 8

  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 Verification.

  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 Page 9 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 Page 10 never rung more true: "Please remember that all of these papers must pass through the very small eye of a very small needle — me."*fn6

  ANALYSIS

 I. First Claim for Relief — Violation of the Fourth Amendment

  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 seizures).

  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. Page 11

  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 Page 12 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 Page 13 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, ¶ 46.

  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 Page 14 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 Page 15

  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 Joshua Page 16 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 plaintiffs.

  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 Page 17 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 Page 18 `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 Page 19 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). Page 20

  1. January 26 Search of the Treadway Residence (1747 Jeffrey Avenue)

  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, 238 (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 conclusively established Page 21 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 plaintiffs.

  (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 Page 22 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 material.

  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). Page 23

  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 Page 24 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 Page 25 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 guess there —
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 Page 26 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 been moved.

  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 arrests.

  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 Page 27 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). Page 28

  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 Lombardi:
[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 Crowe residence.

  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, Page 29 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 Page 30 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 Page 31 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 Boys

  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. Page 32 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.

  (f) Conclusion

  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 on the Page 33 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 plaintiffs' rights.

  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 statements,
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. Page 34

  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. Page 35

  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. Page 36

   Accordingly, the Escondido defendants are entitled to summary ...


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