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Garcia v. City of Merced

September 25, 2009

JOHN GARCIA, PLAINTIFF,
v.
CITY OF MERCED, CITY OF MERCED POLICE DEPARTMENT, BUREAU OF NARCOTICS ENFORCEMENT SPECIAL AGENT SUPERVISOR ALFREDO CARDWOOD, ET AL., DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

DEFENDANT ALFREDO CARDWOOD'S MEMORANDUM DECISION RE MOTION FOR SUMMARY JUDGMENT OR PARTIAL ADJUDICATION (Doc. 58)

I. INTRODUCTION

Plaintiff John Garcia, an attorney, brings this action under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. His suit arises from, but is not limited to, a warrant that was executed on February 6, 2006 for the search of his law office in Merced, California. The warrant culminated the Merced Multi-Agency Narcotic Task Force's investigation into allegations that John Garcia was smuggling narcotics into the Merced County Jail. Based on information from Robert Plunkett, an inmate at Merced County Jail, the Task Force conducted a "reverse sting" operation whereby Task Force Agents observed Plaintiff receive, inspect, and transport approximately fourteen grams of methamphetamine Plunkett offered to Plaintiff. Following the sting, Task Force Agents obtained a warrant to search 655 West Nineteenth Street, Merced, California, the law offices of John Garcia. The warrant was based on the oral affidavit of Deputy Sheriff John Taylor and Special Agent Alfredo Cardwood and was authorized by Judge Frank Dougherty of the Merced Superior Court.

On March 13, 2007, Plaintiff filed a Complaint against Defendants City of Merced; City of Merced Police Department;*fn1 California Bureau of Narcotics Enforcement Special Agent Alfredo Cardwood ("Cardwood"); County of Merced; Merced County Sheriff's Department; Merced County Deputy Sheriff John Taylor ("Taylor"); Merced County District Attorney's Office; and Merced County District Attorney Gordon Spencer ("Spencer"). Agent Cardwood and Deputy Taylor are sued in their individual capacities. The County of Merced is sued as a municipal entity that acts by and through its individual deputies.

The First Cause of Action alleges assault against all Defendants; the Second Cause of Action alleges battery against all Defendants; the Third Cause of Action alleges false arrest and imprisonment with a warrant against all Defendants; the Fourth Cause of Action alleges defamation by slander against Cardwood;*fn2 the Fifth Cause of Action alleges a violation of Title 42, United States Code, Section 1983 against all Defendants.*fn3

Before the court for decision is Cardwood's motion for summary judgment or, in the alternative, summary adjudication. Cardwood is a Special Agent for the California Department of Justice, Bureau of Narcotic Enforcement.

II. FACTUAL BACKGROUND*fn4

Plaintiff is an experienced criminal defense attorney. For the past twenty years, Plaintiff represented criminal defendants in Merced County, including Alfonso Robledo, an inmate at Merced County Jail in early 2006.

Defendant Alfredo Cardwood is a special agent with the State of California Department of Justice, Bureau of Narcotics Enforcement ("BNE"). The BNE has nine regional offices and numerous regional task forces located throughout California, including the Merced Multi-Agency Narcotic Task Force. Special Agent Cardwood was the supervising agent in charge of the Merced Multi-Agency Narcotic Task Force. (Cardwood Dec. ¶ 4.)

Defendant County of Merced is a public entity organized under California law. Merced County Sheriff's Department is a department of the County of Merced, with the responsibility to maintain and administer law enforcement in Merced County. Defendant John Taylor is a deputy with the Merced County Sheriff's Department, who acted as the Task Force's primary case agent.

Defendant Merced County District Attorney's Office was established by the Constitution of the State of California, Government Code Section 26500, to provide prosecution and enforcement services in adult and juvenile criminal matters for Merced County. At all relevant times, Gordon Spencer was the District Attorney for Merced County.

In early 2006, Doug Jensen, Commander of the Merced County Sheriff's Department, contacted Deputy Taylor with information about a contraband smuggling operation at the County Jail. (Taylor Dep. 11:12-11:22.) Jensen told Taylor that an inmate named Robert Plunkett ("Plunkett"), told one of his Sergeants, Sergeant Pace, that a local attorney was smuggling contraband into the jail. (Id. at 11:23-11:25.) Plunkett told Sergeant Pace that the smuggling operation involved an attorney named "John Garcia." (Id.)

Deputy Taylor began a formal investigation into the smuggling operation, without apprising Garcia of the events and occurrences related to his investigation. (Cardwood Dec. 4.) Deputy Taylor interviewed Plunkett multiple times in late January and early February. Plunkett informed Taylor that Alfonso Robledo ("Robledo"), a fellow inmate at Merced County Jail, told him that he obtained drugs through his attorney, John Garcia. According to Plunkett (via Robledo), Garcia would bring the drugs to their attorney-client meetings, disguised in a Bugler cigarette package. Garcia would give the Bugler package containing the drugs to Robledo, who would return to his cell with the Bugler package. According to Taylor, Plaintiff's versions of the smuggling ring were consistent.

Taylor met with Plunkett between three and ten additional times over the next twenty days. Plunkett provided further details of the alleged smuggling, including that certain nonviolent offenders smuggled contraband into the Jail while on a "pass" from the facility. (SUF 14.) These individuals would obtain the contraband and either place it in one of their body cavities and/or hand it off to Garcia, who would bring it into the Jail at a later date. (SUF 14.) Plunkett also told Taylor that the alleged members of the smuggling ring included Robledo, Garcia, Sylvia Brown, a friend of Robledo's, and two private investigators working for Garcia, Augustine Provencio and Greg Hassen.

Deputy Taylor sought corroboration for Plunkett's statements concerning the smuggling ring, including the identities of the alleged participants and the basis for Plunkett's knowledge. Deputy Taylor researched jail records and confirmed that inmate Robledo was in custody at the Merced County Jail on various drug-related offenses and that Robledo and Plunkett shared a housing unit. (SUF 18-19.) Deputy Taylor also checked John Garcia's criminal record, confirming that Garcia had a history of drug-related violations. (SUF 20.)

Deputy Taylor checked for Plunkett's name in a computer database of unreliable informants, maintained by narcotics officers who were given unreliable tips. Plunkett's name was not in the database. Deputy Taylor also discovered Sylvia Brown's phone number in one of Robledo's previous bookings. According to Taylor, Plunkett's information was credible. Agent Cardwood was familiar with the steps Deputy Taylor took to build the case. (Cardwood Dec. ¶ 4.)

The Task Force then planned a reverse-sting operation to confirm Plunkett's statements and determine whether or not Garcia was smuggling contraband into the Jail. In early February 2006, Agent Taylor obtained methamphetamine from the Merced County evidence department for the reverse-sting operation. After the Court granted the order to obtain the methamphetamine, it was placed in a Bugler brand cigarette package. (Cardwood Dec. ¶ 5.) According to Taylor and Cardwood, the methamphetamine was clearly visible upon opening the Bugler package. (Cardwood Dec. ¶ 5.)

On February 6, 2006, Agent Taylor and another Task Force Agent met with Plunkett, searched his person for illegal contraband or narcotics, and upon finding none, the officers gave Plunkett the methamphetamine. Plunkett was fitted with both a "wire" and a digital recorder. The sting operation required Plaintiff to contact John Garcia at the Merced County Superior Courthouse, giving him the Bugler tobacco pouch. Plunkett would tell Garcia that he was on a "pass" from Sandy Mush Correctional Facility and that the package was for Robledo. Agent Cardwood personally monitored the wire during the reverse-sting operation.*fn5 (SUF 32.) In addition to audio surveillance, Agent Cardwood was stationed in a vehicle near Plaintiff's office and had a clear view to monitor the interaction between Plaintiff and Plunkett. (Cardwood Dec. ¶ 6.)

Plunkett proceeded to the Merced County Superior Court and approached John Garcia in one of the courtrooms. Plunkett told him that he was a friend of one of Garcia's clients, Alfredo Robledo. Plaintiff gave Plunkett a business card and told him to contact his office. Plunkett then left the courtroom.

Approximately one hour later, Plunkett approached Garcia outside the courtroom and told him he had a package for Garcia. Plaintiff instructed Pluckett to drop it off at his office. Garcia then went back inside the courtroom. A short time later, Pluckett approached Garcia outside the courthouse, telling him that he could not locate his office. As they walked toward Garcia's office, Plunkett told Garcia that he was on an afternoon pass from Sandy Mush and knew Robledo. Plunkett then produced the Bugler tobacco pouch containing the methamphetamine and handed it to Garcia. (SUF 31.) Garcia took the Bugler tobacco pouch from Pluckett and continued walking to his office. (SUF 31, 33, 37.) Plaintiff possessed the Bugler package containing the methamphetamine when he entered his office building. (SUF 38.)

The record reflects considerable dispute over whether Garcia opened the Bugler package while he and Pluckett were walking to Garcia's office. Agent Cardwood maintains that Plaintiff opened the Bugler package, looked inside, closed the package, and walked to his office. (SUF 34, 35.) Cardwood declares that the methamphetamine was directly underneath the flap, clearly visible to anyone who opened it. (SUF 36;) Agent Carlisle and Plunkett also observed Garcia look inside the tobacco pouch during the exchange. (Taylor Dec. ¶ 22.)

According to Plaintiff, he told Pluckett that, "if there's anything in here besides tobacco, you take it back to Sylvia or wherever you got it." Plaintiff maintains that he did not open the tobacco pouch during the exchange nor did he open it while walking to his office.

When Plaintiff and Plunkett arrived at the office, Plaintiff placed the Bulger package on his secretary's desk. Plaintiff's investigator, Provencio, was present in the office. Plunkett stayed in the office only a few moments before leaving. He contacted Agent Taylor and told him that Plaintiff took the Bugler pouch into the office and handed it to his secretary. (Taylor Dec. ¶ 21.)

Plaintiff's other investigator, Hassen, arrived shortly after Plunkett left. Garcia and his investigators opened the tobacco pouch, discovering the methamphetamine. Garcia then instructed Provencio to flush the methamphetamine down the toilet. Provencio did so and then discarded the bag into the bathroom trash can. Garcia then left his office in a black Volvo.

After driving one mile, Garcia's Volvo was stopped by a City of Merced Police patrol vehicle. (SUF 39.) A total of three officers, including Cardwood, were present when Plaintiff was stopped leaving his office. (Cardwood Dec. ¶ 10.) Agent Cardwood approached Garcia's stopped vehicle, directing him to exit the vehicle and proceed to the sidewalk. (Cardwood Dec. ¶ 10.) Plaintiff was handcuffed and searched. (SUF 40.) Plaintiff was then transported back to his office for questioning. (SUF 41.) Plaintiff's office was "frozen" pending the issuance of a search warrant, ensuring that no one entered or exited the building.

Garcia was not threatened during the vehicle stop and there was no physical contact other than the brief search. At no time did the Task Force Agents tell Plaintiff he was under arrest. The entire stop took less than half an hour.

While Plaintiff was transported back to his office, Agent Cardwood and Deputy Taylor sought a search warrant from Superior Court Judge Frank Dougherty. (SUF 41-42.) In a verbal search warrant application, under penalty of perjury, Cardwood and Agent Taylor testified to the investigation and their observations during the reverse-sting operation. (Id.) Judge Dougherty found probable cause to issue the search warrant based on the fact that Plaintiff had taken possession of the methamphetamine. (Id.) The search warrant authorized a search of Plaintiff, Plaintiff's vehicle and Plaintiff's office to allow, in part, the recovery of the methamphetamine. (Id.) Judge Dougherty appointed a Special Master, Gerald Brunn, to be present during the search.*fn6

Plaintiff's allegations focus on Agent Cardwood's and Deputy Taylor's alleged misrepresentations and omissions to Judge Dougherty supporting Deputy Taylor's Oral Affidavit. According to Plaintiff, Agent Cardwood's observation that Garcia opened the bugler pouch is a total fabrication. Plaintiff maintains that while he accepted the Bugler pouch from Plunkett, he did not open the flap. Plaintiff also accuses Deputy Taylor of misrepresenting and omitting material facts, specifically, omitting Mr. Plunkett's extensive criminal history, bearing on his credibility. Agent Cardwood and Deputy Taylor maintain that all of the information they provided to Judge Dougherty on February 6, 2006 was accurate and true. (Taylor Dec. ¶ 24; Cardwood Dec. ¶ 14.)

The search of Garcia's office revealed a plastic baggie containing a small amount of methamphetamine in the bathroom area and a small amount of methamphetamine residue in the main office. (SUF 45.) Six packages of "Bugler" brand tobacco and one ziplock bag of tobacco were found in the top drawer of Garcia's desk. (SUF 45.) A one pound scale, similar to the kind used to weigh drugs, was found on Garcia's desk.*fn7 (SUF 45.)

Following the search, Agent Cardwood and Deputy Taylor removed Garcia's handcuffs and advised him of his Miranda rights. (SUF 48.) Cardwood and Taylor interviewed Garcia for approximately one hour.*fn8 (SUF 49.) Garcia was then released. (SUF 49.) Garcia was not arrested, charged, or prosecuted in connection with the criminal investigation. (SUF 50-52.)

III. PROCEDURAL HISTORY

On March 13, 2007, Plaintiff filed a complaint in the Superior Court, County of Merced, against the County of Merced, Merced County Sheriff's Department, Deputy Taylor, District Attorney Gordon Spencer, Special Agent Cardwood, City of Merced, and Merced City Police Department.*fn9 Plaintiff alleged defendants were liable under state law theories of assault, abuse of process, and defamation by slander.

Plaintiff filed his first amended complaint on March 21, 2007, his second amended complaint on April 5, 2007, and his third amended complaint on May 23, 2007. Unlike his previous complaints, Garcia's third amended complaint included a cause of action for violation of federal civil rights pursuant to 42 U.S.C. 1983. On June 15, 2007, the case was removed to federal court.*fn10 (Doc 1.)

On August 20, 2007, Plaintiff filed a Fourth Amended Complaint against Defendants. Plaintiff alleged defendants were liable under 42 U.S.C. 1983 for unreasonable search and seizure (Count V); under the California Constitution for unlawful search and seizure (Count VI); and state law claims for assault and battery, false arrest and imprisonment, abuse of process, and defamation by slander (Counts I-IV). Agent Cardwood and Deputy Taylor were sued in their individual capacities and the County of Merced was sued as a municipal entity that acts by and through its individual deputies. (Doc. 15.)

Defendants Merced County, Sheriff's Dept., Taylor and Spencer filed their supplemental brief on the motion to dismiss the Fourth Amended Complaint on September 4, 2007.*fn11 (Doc. 19.) Defendant Cardwood filed his supplemental briefing supporting the motion to dismiss on September 10, 2007. (Doc. 20.) Plaintiff filed his opposition to Defendants' motions on October 2, 2007. (Doc. 23, 24.) Defendants' motions were granted, in part, on January 10, 2008, although John Garcia was permitted leave to amend. (Doc. 34.)

Plaintiff filed his Fifth Amended Complaint ("5thAC") on January 30, 2008. (Doc. 35.) The First Cause of Action alleges assault against all Defendants; the Second Cause of Action alleges battery against all Defendants; the Third Cause of Action alleges false arrest and imprisonment with a warrant against all Defendants; the Fourth Cause of Action alleges defamation by slander against Cardwood;*fn12 the Fifth Cause of Action alleges a violation of Title 42, United States Code, Section 1983 against all Defendants.

Defendants Merced County, Sheriff's Dept., Taylor and Spencer filed their answer on February 19, 2008. (Doc. 36.) Defendant Cardwood filed his answer on February 26, 2008. (Doc. 37.)

Defendant Cardwood filed this motion for summary judgment, or in the alternative, summary adjudication on May 5, 2009. (Doc. 58.) Defendant seeks judgment on the grounds that Plaintiff cannot 1) establish his federal constitutional claims, 2) overcome the defense of qualified immunity. Defendant also argues the state law claims should be dismissed because the deputies 3) acted lawfully, and 4) Plaintiff lacks evidence to create a genuine issue of material fact.

Plaintiff filed his opposition to summary judgment or, in the alternative, summary adjudication on July 1, 2009. (Doc. 73.) Plaintiff opposes summary judgment on grounds that triable issues of material fact exist as to his constitutional claims and state law theories. Plaintiff argues that Cardwood unlawfully searched and seized him in violation of is Fourth Amendment rights, relying on Agent Cardwood's and Deputy Taylor's alleged misrepresentations and omissions to Judge Dougherty. Plaintiff further contends that neither the County of Merced nor the individual defendant deputies are entitled to qualified immunity or any protections under the California Government Code.

IV. LEGAL STANDARDS.

A. Standard of Review.

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).

Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (noting that a party moving for summary judgment on claim as to which it will have the burden at trial "must establish beyond controversy every essential element" of the claim) (internal quotation marks omitted). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts ...


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