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Donald Dowell, Cdcr #Aa-2828 v. W.T. Griffin; M. Botkin

November 8, 2011

DONALD DOWELL, CDCR #AA-2828, PLAINTIFF,
v.
W.T. GRIFFIN; M. BOTKIN;
M. ZDUNICH; IVERSON; L. JOHNSON; S. ADAMS; CATHERINE MILLETT,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' JUDGMENT PURSUANT MOTION FOR SUMMARY TO FED.R.CIV.P. 56(c)

(ECF No. 49)

I. PROCEDURAL BACKGROUND

Donald Dowell ("Plaintiff"), a prisoner currently incarcerated at R.J. Donovan Correctional Facility in San Diego, California, is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff claims San Diego Police Department Sergeant Griffin and Officers Botkin, Zdunich, Iverson, Adams, Johnson, and Millett ("Defendants"), all members of the Department's Narcotics "Team 8," violated his Fourth Amendment rights on December 17, 2008 when they detained him and searched his home without a warrant. (Amend. Compl. at 4-10.) While Defendants uncovered drugs, drug paraphernalia and a weapon in Plaintiff's residence, this evidence was suppressed pursuant to CAL. PENAL CODE § 1538.5 during a preliminary hearing held before San Diego Superior Court Judge Charles R. Gill on January 9, 2009 because Defendants' acted upon a faulty assumption that Plaintiff had a "Fourth Waiver."*fn1 As a result, all criminal charges in San Diego Superior Court Criminal Case No. CD217839 related to the unlawful search were dismissed. (Id. at 9-11.) Plaintiff now seeks "unspecified" amounts of general and punitive damages pursuant to 42 U.S.C. § 1983, on grounds that Defendants violated his Fourth and Fourteenth Amendment rights. (Id. at 13, 15, 19.)

Currently before the Court is Defendants' Motion for Summary Judgment filed pursuant to FED.R.CIV.P. 56 (ECF No. 49). Because Plaintiff is now incarcerated (based on a separate criminal conviction)*fn2 and proceeding without counsel, the Court has notified him of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) (ECF No. 50).*fn3 Plaintiff has filed an Opposition to Defendants' Motion (ECF No. 60), and Defendants have filed both a Reply (ECF No. 61), as well as evidentiary objections to evidence submitted by Plaintiff in support of his Opposition (ECF No. 62).

II. FACTUAL BACKGROUND

A. Plaintiff's Claims

On December 17, 2008, Plaintiff alleges he left his residence at 2715 Marcy Street in San Diego in a white Ford truck accompanied by a man named Washington. (Amend. Compl. at 5.) At about the 800 block of 11th Avenue, Plaintiff claims a San Diego Police car pulled behind him directed him to pull over. (Id. at 6.) Plaintiff claims he was "obeying all traffic laws and posted speed limits." (Id.)

When Plaintiff pulled over, Defendant Zdunich asked for his driver's license and told Plaintiff he had a broken taillight and license plate light. (Id.) Zdunich also told Plaintiff he "was listed as a 4th waiver." (Id.) Plaintiff claims he denied having any such waiver. (Id. at 7.) Zdunich then opened the truck door, ordered Plaintiff out of the car, and "conducted an illegal search" of Plaintiff's person whereby he "obtained [Plaintiff's] residence keys from his pocket and $140 [in] U.S. currency." (Id.) Plaintiff claims Zdunich then placed him in the back of the police car where he waited for approximately 45 minutes while Defendant Iverson arrived, took Plaintiff's keys from Defendant Zdunich, and then met with Defendants Griffin, Botkin, and Johnson at Plaintiff's residence where they used his keys to gain entry and conducted an "illegal" search. (Id. at 8-9.)

Plaintiff further claims the evidence found during the search of his home was suppressed by a Superior Court Judge during a preliminary hearing and Case No. CD217839 was dismissed. However, Defendant Millett thereafter "generated a letter to [Plaintiff's] landlord" informing him or her that San Diego Police had "conducted a narcotic investigation at the property," and he was evicted. (Id. at 12.)

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, arguing these actions violated his right to be free from unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments. (Id. at 15.) Plaintiff seeks an unspecified amount of damages based on "economic losses associated with the unlawful search and seizure of his person, residence and vehicles," and "injuries related to the posting of bail" and his family's eviction from their home. (Id. at 14-15, 19.)

B. Defendants' Claims

On December 17, 2008, Defendants Griffin, Botkin, Zdunich, Iverson and Johnson were all members of the San Diego Police Department's "Team 8," an anti-narcotics unit assigned to the downtown area. (Griffin Decl. ¶¶ 5-6; Botkin Decl. ¶¶ 5-6; Zdunich Decl. ¶¶ 4, 9-10; Iverson Decl. ¶¶ 3-4, Johnson Decl. ¶¶ 5-6.) Griffin, Botkin, Zdunich, Iverson and Johnson all claim Plaintiff "is a well-known drug dealer in the downtown area," and that he, in fact, had been arrested ... by members of Team 8 in the summer of 2008 for selling cocaine." (Griffin Decl. ¶ 8; Botkin Decl. ¶ 8; Zdunich Decl. ¶ 8; Iverson Decl. ¶ 8, Johnson Decl. ¶ 8.)

Sometime in November 2008, "Team 8 members received a tip that Plaintiff was dealing marijuana and assaulting and robbing downtown residents." (Griffin Decl. ¶ 9; Botkin Decl. ¶ 9; Zdunich Decl. ¶ 7; Iverson Decl. ¶ 7, Johnson Decl. ¶ 9.) Griffin, Botkin and Johnson also "learned that [Plaintiff's] car (or his wife's car) was used in these incidents. (Griffin Decl. ¶ 9; Botkin Decl. ¶ 9; Johnson Decl. ¶ 9.)

"Officer Matthew Botkin headed up the investigation into Plaintiff's illicit activities." (Griffin Decl. ¶ 10; Johnson Decl. ¶ 10.) "Because of [his] knowledge of Plaintiff's penchant for illegal activities," Botkin "ran a Fourth Amendment Waiver Search on December 4, 2008 [i]n the SD-Law Database," which is maintained by the California Superior Courts. (Botkin Decl. ¶ 10.) Botkin, Griffin, Zdunich, Iverson and Johnson all claim police "rely on this database to determine whether or not a certain person is subject to a Fourth Waiver." (Griffin Decl. ¶ 10; Botkin Decl. ¶ 10; Zdunich Decl. ¶ 8; Iverson Decl. ¶ 8, Johnson Decl. ¶ 10.) Botkin specifically claims to have "received specific training regarding County Computers and the SD-Law Database," which covered "County computer systems that contain criminal information, criminal history and court information." (Botkin Decl. ¶ 3; Defs.' Notice of Lodgment in Supp. of Mot. for Summ. J. [ECF No. 49-12] Rep.'s Tr. dated Jan. 5, 2009 "1538.5 Hearing" in People v. Dowell, San Diego Superior Court Case No. CD217839 ("Defs.' Ex. 2") at 22.) Griffin, Botkin, Zdunich, Iverson and Johnson all also allege to have personally accessed the SD-Law Database "approximately" or "well over" 1,000 times in each of their careers. (Griffin Decl. ¶ 10; Botkin Decl. ¶ 10; Zdunich Decl. ¶ 8; Iverson Decl. ¶ 8, Johnson Decl. ¶ 10.)

Botkin claims that his December 4, 2008 search of the SD-Law Database "showed that Plaintiff had a Fourth Waiver." (Botkin Decl. ¶ 11; Defs.' Notice of Lodgment in Supp. of Mot. for Summ. J. ("Ex. 1") [ECF No. 49-11].) When Botkin "entered Plaintiff's date of birth and other information" and "hit 'return,'" "Plaintiff's name came up several times on the computer screen." (Botkin Decl. ¶ 12; Defs.' Ex. 1 at 2; Defs.' Ex. 2 at 23.) On the second screen, captioned "RI01 Result," and dated 12/4/2008, Plaintiff's name and date of birth appears twice, once with a notation reading "HAS 4TH WAIVER." (Defs.' Ex. 1 at 3.) On the third screen, also dated 12/4/2008 and captioned "DA09 Result," however, Plaintiff's name and date of birth again appears above a list of what appear to be various criminal cases numbers. At the top of this list, there is a notation reading "4TH EXPIRE." (Id. at 4.) Botkin, however claims only to have seen the "wording which said "HAS 4TH WAIVER" and "did not see any expiration date listed" when he searched the database on December 4, 2008. (Botkin Decl. ¶ 12; Defs.' Ex. 2 at 23.) During Plaintiff's suppression hearing, Botkin testified that if a person's Fourth Waiver has expired, the SD-Law Database "will show [the] expiration date if you click on the link to the specific case that the Fourth waiver has been assigned." (Defs.' Ex. 2 at 36.) He further testified that "the only thing that [he] did different[ly] on [December 17, 2008] was that [he] looked at all [Plaintiff's] court cases ... to determine why [the database] no longer showed a valid Fourth waiver." (Id.)

Based on his December 4, 2008 SD-Law Database records search, "coupled with the fact that Plaintiff was out on bond while he was awaiting trial," and the "illegal activities reported to Team 8 by an informant," Botkin advised Griffin, Johnson, Zdunich and Iverson on December 17, 2008 that Plaintiff "had a Fourth Waiver," and they "had to stop [his] criminal activity." (Botkin Decl. ¶ 11; Griffin Decl. ¶¶ 10-11; Johnson Decl. ¶¶ 10-11; Zdunich Decl. ¶¶ 8-9; Iverson Decl. ¶¶ 8-9; Defs.' Ex. 2 at 32-34.) Griffin, Johnson, Zdunich and Iverson all "relied on the representations of Officer Botkin," and "did not conduct [their] own search[es] of the SDLaw Database" because they had "no reason to doubt [him]," and the information was "coupled with the fact that Plaintiff was out on bond while he was awaiting trial" as well as informant tips to Team 8 that Plaintiff was engaging in "illegal activities." (Griffin Decl. ¶ 11; Johnson Decl.¶ 12; Zdunich Decl. ¶ 9; Iverson Decl. ¶ 9; Defs.' Ex. 2 at 8-9.)

Thus, on December 17, 2008, members of Team 8, including Botkin, Griffin and Zdunich specifically, met at the substation "sometime between 2:00 and 3:00 in the afternoon" to discuss Plaintiff's status. (Defs.' Ex. 2 at 13, 16, 33-34, 37.) At that time, Botkin directed Zdunich, who was a "uniformed scoop officer" to detain Plaintiff "and conduct a 4th waiver search of his person." (Zdunich Decl. ¶¶ 9-10; Defs.' Ex. 2 at 12, 34.) Zdunich was "specifically looking" for Plaintiff while on patrol, and at approximately 5:34 p.m., Officer Adams, another member of Team 8 and someone who had "participated in [Plaintiff's previous] arrest for possession of cocaine for sale in the summer of 2008," observed Plaintiff driving a white pickup truck and called Officer Zdunich in to make a traffic stop. (Adams Decl. ¶ 3; Defs.' Ex. 2 at 14.)

In addition to being told by Botkin that Plaintiff had a Fourth Waiver, Zdunich claims he also observed the white truck Plaintiff was driving "had a cracked right taillight," which is a Vehicle Code violation. (Defs.' Ex. 2 at 8-9; Zdunich Decl. ¶ 10.) Zdunich pulled Plaintiff over, asked for his drivers' license, ordered him out of the car, and because he believed Plaintiff had a Fourth Waiver, "searched him," "took his house keys off of him, [and] placed him in the back of [his] car." (Defs.' Ex. 2 at 9-10.) Zdunich claims it was Botkin who "advised [him] to obtain Plaintiff's house keys so certain members of Team 8 could search his residence for drugs, drug paraphernalia and weapons," and Griffin who "told [him] to detain [Plaintiff] until another officer could come and take [Plaintiff's] keys. (Zdunich Decl. ¶ 11; Griffin Decl. ¶ 11; Botkin Decl. ¶ 13; Defs.' Ex. 2 at 9.)

"About 10 minutes into the stop," Officer Iverson arrived, "retrieved Plaintiff's keys" from Zdunich and took them to Plaintiff's residence on Marcy Avenue at Botkin's request. (Iverson Decl. ¶¶ 11-12; Zdunich Decl. ¶ 12; Botkin Decl. ¶ 15; Defs.' Ex. 2 at 11.) Zdunich detained Plaintiff in the back of his patrol car for 45 minutes "until Sergeant Griffin advised [him] ... to arrest [Plaintiff] and take him back to the substation." (Defs.' Ex. 2 at 11.)

Meanwhile, at Plaintiff's Marcy Street residence, Defendants Botkin, Griffin and Johnson "knocked on the door and there was no answer." (Griffin Decl. ¶ 14; Botkin Decl. ¶ 16; Johnson Decl. ¶ 16.) Defendant Iverson claims once it "appeared no one was at the residence, [she] opened the front door" using Plaintiff's keys. (Iverson Decl. ¶ 13.) Defendant Iverson then "stood guard near the doorway to prevent something unexpected from occurring," but did not otherwise "participate in the actual search of [the] residence." (Id.; Griffin Decl. ¶¶ 14-15; Botkin Decl. ¶ 17; Johnson Decl. ¶ 16.) At the time, Griffin, Johnson and Botkin all "felt there was no need to seek a warrant because time was of the essence and [they] believed that Plaintiff had a Fourth Waiver." (Johnson Decl. ¶ 14; Griffin Decl. ¶ 12; Botkin Decl. ¶ 14.)

In the first bedroom, Botkin, Griffin and Johnson found a "small amount of marijuana individually packaged" and citation from the San Diego Harbor Patrol, which listed Plaintiff's name, address and date of birth "in the center of an entertainment system or center." (Defs.' Ex. 2 at 24; Botkin Decl. ¶ 18; Griffin Decl. ¶ 16; Johnson Decl. ¶ 17.) Next to the citation, and six "individually packaged baggies of marijuana," which weighed approximately 31.93 grams, Defendants Botkin, Griffin and Johnson found a "functioning and operating" digital scale, which tested positively for cocaine residue. (Defs.' Ex. 2 at 26.) "On the other side of the room, in a set of drawers, [Botkin] [also] found a loaded .25 caliber Phoenix Arms/Raven Model semi-automatic handgun." (Id. at 25.) Botkin, Griffin and Johnson also claim to have found a "a large sum of money" which they returned to Plaintiff's wife when she returned home from work during the search. (Botkin Decl. ¶ 18; Griffin Decl. ¶ 16; Johnson Decl. ¶ 17.)

While at Plaintiff's residence, Sgt. Griffin claims to have heard Officer Botkin ask Officer Adams "to re-check the database to confirm [Plaintiff] was still on probation and subject to a Fourth Waiver." (Griffin Decl. ¶ 18.) Griffin claims he "had the team stop their searching pending this confirmation." (Id.) Adams told Griffin, Botkin and Johnson that "the computer system now indicated [Plaintiff] was not on probation any longer." (Id.) Therefore, Griffin, Botkin and Johnson "terminated [the] ... search." (Id.) However, based on the evidence confiscated, Griffin "advised" Zdunich, who was still detaining Plaintiff in his patrol car, "to arrest [him] and take him back to the substation." (Defs.' Ex. 2 at 11; Botkin Decl. ¶ 19; Griffin Decl. ¶ 17; Johnson Decl. ¶ 18.)

At the Central Division Police Substation, Griffin claims yet another officer, whom he and Botkin believe was Zdunich, "ran another search of the SD-Law Database." (Griffin Decl. ¶ 18; Botkin Decl. ¶ 20.) Botkin also checked the database after the search. (Botkin Decl. ¶ 21.) Griffin, Botkin and Johnson were all "stunned to learn that on December 17, 2008," the day they searched Plaintiff's residence, that "the SD-Law Database ... reflected that Plaintiff's Fourth Waiver was [either] 'Expired,'" had "disappeared," or was "no longer ... in the ... database." (Griffin Decl. ¶ 19; Botkin Decl. ¶ 21; Johnson Decl. ¶ 19; Iverson Decl. ¶ 15.) Griffin and Botkin "realized at that time that [they] had made [a] mistake." (Griffin Decl. ¶ 20; Botkin Decl. ¶ 18.) Botkin admits he "should have checked prior to the search to determine whether Plaintiff still had a Fourth Waiver" and that he should not have "relied on [his] December 4, 2008 search of the SD-Law Database as an initial premise for [the December 17, 2008] search." (Botkin Decl. ¶ 22.) For his part, Griffin also admits he also "should have checked [him]self prior to the search to determine whether Plaintiff still had a Fourth Waiver." (Griffin Decl. ¶ 20.) Instead, Griffin, Johnson, Zdunich and Iverson all "relied on Botkin's December 4, 2008 search of the ... database and his representations that Plaintiff had a Fourth Waiver." (Griffin Decl. ¶¶ 11, 20; Johnson Decl. ¶¶ 10-11, 20; Zdunich Decl. ¶¶ 8-9, 16; Iverson Decl.¶¶ 8-9.)

Plaintiff "remained in jail pending a Penal Code § 1538.5 [suppression] hearing related to his [December 17, 2008] arrest." (Defs.' P&As in Supp. of Mot. for Summ. J. at 8.) Both Officers Zdunich and Botkin testified during that hearing, and on January 5, 2009, the evidence seized during the December 17, 2008 search of Plaintiff's residence was ordered excluded. (Defs.' Ex. 2 at 47.) San Diego Superior Court Judge Gill determined that while Officer Zdunich's initial stop of Plaintiff was reasonable "based on the officer's testimony" that Plaintiff had a broken taillight, the 45-minute extension of the detention was unreasonable because Plaintiff in fact, did not have a Fourth Waiver. Judge Gill further found "there was a lack of good faith reliance" on Officer Botkin's December 4, 2008 search of the SD-Law Database to justify the search of Plaintiff's home because even if one "assumed that on December 4, 2008, there was a Fourth Waiver," there was nevertheless a "period of almost two weeks before the [December 17, 2008] search ... with no additional checking" or confirmation of Plaintiff's status. (Id. at 39, 43-44.)

Consequently, the charges against Plaintiff related to his December 17, 2008 arrest were dismissed in the interest of justice. (Defs.' Ex. 2 at 44.)

III. DEFENDANTS'MOTION FOR SUMMARY JUDGMENT

A. FED.R.CIV.P. 56 Standard ...


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