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Amyra Nicholson, C.W. A Minor By Her Guardian Ad Litem Amyra Nicholson v. City of Bakersfield

December 19, 2011

AMYRA NICHOLSON, C.W. A MINOR BY HER GUARDIAN AD LITEM AMYRA NICHOLSON, R.S.W. A MINOR BY HIS GUARDIAN AD LITEM AMYRA NICHOLSON, AND BRITTANY WILLIAMS,
PLAINTIFFS ,
v.
CITY OF BAKERSFIELD, ET AL.,
DEFENDANTS.



ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 51)

This civil rights lawsuit arises from the search of various individuals, including minors, who were present during the search of a person who was on parole. The active complaint is the Third Amended Complaint. Plaintiffs allege state law claims for assault, battery, false imprisonment, and intentional infliction of emotional distress, *fn1 and federal claims under 42 U.S.C. § 1983 for violation of the Fourth Amendment (unreasonable search and seizure and excessive force) and Monell liability. Defendants now move for summary judgment. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

FACTUAL BACKGROUND *fn2

On June 29, 2008, members of the City of Bakersfield ("the City") police department and the Kern Narcotics Enforcement Team ("KNET") went to 3204 Cornell Street in Bakersfield, California for the purpose of conducting a parole search. See DUMF 1. Defendant Richard Dossey ("Dossey") received information that Plaintiff Amyra Nicholson ("Nicholson") was selling narcotics from a business establishment. *fn3 See PRDUMF 1. Dossey discovered during his investigation of this tip that Marcus Miles ("Miles") lived at 3204 Cornell and was on parole. See id. Miles was on parole for violation of Penal Code § 4573.8 (bringing illegal narcotics into a jail), and had been on parole for violation of Penal Code § 12021(a)(1) (felon in possession of a firearm). See DUMF 2. Miles was also a documented member of a criminal street gang. See DUMF 3. Dossey did not consider obtaining a search warrant in relation to the allegation that Nicholson was selling drugs. See PRDUMF 1.

Police officers arrived in the neighborhood and parked their cars in such a manner as to not alert anyone at 3204 Cornell of their presence. See DUMF 4. Dossey, who was followed by other officers to assist him, approached 3204 Cornell and observed a male lying on the ground underneath the front end of a brown car that was parked in front of the residence. See DUMF's 5, 7. Dossey also observed a white car and a pickup truck in front of the residence, and observed a male and female standing about one foot from one another and leaning against the bed of the truck. See DUMF 6. When they were within 20 feet of the truck, Dossey recognized that the male leaning against the truck was Miles, based on photos that Dossey had seen. See DUMF 8. Dossey also recognized the female as Nicholson from photos he had seen, and later confirmed that the female was Nicholson. See DUMF 9; PRDUMF 9. As the officers approached, Nicholson's purse was on her shoulder. See PRDUMF 10. *fn4

Officer Ursery made contact with Miles and placed him in handcuffs for the safety of the officers. See DUMF 11. Dossey detained Nicholson at the scene as officers ordered her to "stop, freeze." PRDUMF 12. Dossey and Nicholson walked over to the neighbors yard, and Dossey instructed Nicholson to sit down on the curb. See Nicholson Depo. 50:12-23. Nicholson initially refused to sit down because the curb was wet and muddy. See id. at 50:23-51:5. Dossey told Nicholson that she did not have a choice, and that if she refused, he would take her to jail and have Child Protective Services take her children. See id. at 51:6-17. In response, Nicholson sat down. See id. Dossey then told Nicholson that he needed to search her purse, but Nicholson refused. See id. at 53:19-21. Dossey said that he needed to search the purse for weapons, but Nicholson again refused and said that she had no weapons. See id. at 52:21-53:1; see also DUMF 54. Dossey declared and testified that he was concerned that Nicholson had some type of weapon or contraband in her purse. *fn5 See DUMF 15. Dossey then spoke to another officer, *fn6 walked back to Nicholson, leaned down, and told Nicholson that a female officer would be arriving and that everyone was going to be searched, the purse was going to be searched, and Nicholson's children were going to be searched. See Nicholson Depo. 54:1-12. Nicholson said that Dossey could not do that, but as she was protesting, Dossey shoved Nicholson. See id. at 54:13-16. As Dossey shoved and knocked Nicholson back into the grass and mud, he snatched Nicholson's purse from her. See id. at 54:18-55:6. Once Dossey had taken control of the purse, he negated any concerns that he had regarding officer safety in relation to weapons in the purse. See Suppression Hearing Transcript 23:21-24:4. Dossey then took the purse and walked back over to the yard at 3204 Cornell. See Nicholson Depo. at 62:14-15. Dossey opened the purse, emptied the purse upside down, and shook the purse so that the contents of the purse fell to the yard. See id. at 62:17-22. Dossey found inter alia a black cell phone, a blue notebook with "pay and owe" items, one plastic bag that contained numerous 1" x 1" plastic bags with an "S" logo on the side, two razors, $300, and a clear plastic bindle with a white powder believed to be methamphetamine. See PRDUMF's 18, 23. Dossey picked up the bag of methamphetamine and said, "this is what I was looking for." See Nicholson Depo. 63:1-13. *fn7

As other officers approached the front of 3204 Cornell, several young people (i.e. Plaintiffs Brittany Williams ("Williams") and R.S.W.) exited the residence, and were later identified as Nicholson's children. See DUMF 21; PRDUMF 21. Plaintiff C.W. was inside the home asleep, but at some point came outside and was placed with the Williams and R.S.W. The names and ages of the children were obtained, but they were not handcuffed at any time. See DUMF 22; PRDUMF 22. Officers were watching over the children to ensure that the children would not leave. See Dossey Depo. 32:8-11; Pflugh Depo. 33:11-34:10.

Dossey then confirmed with Miles that he was residing at 3204 Cornell, and directed the other officers to conduct a parole search of the residence. See DUMF 24. Miles was in fact on parole at the time of the search, and one of Miles's parole conditions was that he was subject to search without a warrant. See DUMF 50. Nicholson was married to Miles at the time of the search, and all of the Plaintiffs were residing with Miles at 3204 Cornell. See DUMF's 51, 52.

At some point, Officer Lynn Martinez ("Martinez") arrived at the scene. A sergeant had radioed for a female officer to respond to the scene. See PUMF 13. When Martinez arrived, it appeared to her that Dossey was "more or less in charge of what was going on, so he directed [her] as to what he needed [her] to do." Martinez Depo. 24:1-6. Dossey directed Martinez to conduct a search of Nicholson, and directed her to the other females that were present. See id. at 29:13-18. Martinez testified that Dossey requested that she conduct "a search of a - - a patdown search of Amyra Nicholson." Id. Martinez testified that she had very little recollection of the events in question, she recalls conducting at least one other search, but cannot recall any specifics such as where the searches were performed. See id. at 36:7-38:14. Martinez did testify, however, that she did not remove Nicholson's clothing. See id. at 41:10-22.

Nicholson testified that a female police officer took her inside the house and inside the bathroom. See Nicholson Depo. 75:3-4. In the bathroom, the officer turned Nicholson around, spread Nicholson's legs apart, pushed Nicholson's head slightly forward, and then raised Nicholson's shirt up. See id. at 75:5-12. Nicholson said that she did not have underclothes on, but the officer continued to raise Nicholson's shirt. See id. at 75:12-19. Nicholson told the officer that the officer could not "do that," and the officer replied that this had nothing to do with her (the officer), that the officer was called out to do a search and that she was doing what she was called out to do. See id. 75:20-76:1. Nicholson protested that there was a hospital down the street that they could go to, and that the officer could not take Nicholson's clothes off. See id. at 76:1-4. The officer replied that Nicholson had to be searched, that the officer was called out to search, and that everyone was being searched. See id. at 76:5-7. The officer then raised Nicholson's shirt and felt underneath Nicholson's breasts. See id. at 76:8-17. The officer then pulled Nicholson's shorts down, which caused Nicholson to start to cry. See id. 76:17-24. The officer then searched around Nicholson's waist, buttocks, and vaginal areas, and then pulled Nicholson's pants back up and took her outside. See id. at 76:25-77:11.

Brittany Williams's testimony was similar to Nicholson's testimony. Williams testified that a female police officer grabbed Williams and said that she had to search. See Williams Deposition at 30:21-22. The officer took Williams inside the house and into the bathroom. See id. at 32:6-11. The officer shut the door and put on gloves. See id. at 32:18-20. The officer patted down Williams. See id. at 33:2-4. The officer then stuck her hand inside Williams's bra and rubbed across Williams's chest. See id. at 33:8-9. The officer then patted Williams's pockets and then tugged Williams's pants and underwear down. See id. at 33:18-34:5. The officer ran her hand from the rectal to the vaginal areas of Williams. See id. at 34:6-8. The officer then told Williams that Williams could pull up her pants, asked Williams how far along in the pregnancy she was, and then walked her outside. See id. at 34:16-22. Williams testified that the officer went back inside the house with C.W. between two and five minutes after having exited the house with Williams. See id. at 35:1-16.

C.W. testified that she had to use the restroom and that the female officer went inside with her. See C.W. Depo. 44:10-15. C.W. believed that someone had told the officer that she needed to use the restroom and that the officer was taking her inside to use the restroom. See id. at 44:16-45:2. C.W. and the female officer went into the house and into the restroom together. See id. at 46:1-15, 47:9-11. The female officer stood about a foot away from C.W., and told C.W. to completely undress and not to flush. See id. at 47:21-48:11, 50:15-16. C.W. used the restroom and removed all of her clothing, including her bra and underwear. See id. at 47:24-49:11. The female officer searched C.W.'s clothes, but never touched C.W. See id. at 49:25-50:12. The female officer asked C.W. to spin around. See id. at 50:13-16. The female officer later checked the toilet, flushed the toilet, told C.W. to get dressed, and then C.W. and the officer went back outside. See id. at 50:23-51:20.

R.S.W. testified that Williams had told the female officer that R.S.W. needed to use the restroom. See R.S.W. Depo. at 34:16-19. R.S.W. told the officer that he needed to use the restroom, and the officer responded that she would take R.S.W. to the house. See id. at 34:20-35:5. R.S.W. had seen the female officer take Nicholson, Williams, and C.W. into the house. See id. at 35:9-21. R.S.W. and the female officer went into the house, and the female officer told R.S.W. to wait outside of the bathroom door. See id. at 38:16-19. The female officer then called a male officer over. *fn8 See id. at 38:21-22. The female officer told the male officer to watch R.S.W. use the restroom. See id. at 39:5-9. The male officer and R.S.W. went into the restroom, and the male officer told R.S.W. to give him all of his (R.S.W.'s) clothes and for R.S.W. to turn around in a circle. See id. at 39:15-23. R.S.W. used the restroom and then took off all of his clothes and turned around in a circle. See id. at 40:20-41:13, 42:10-14. The male officer never physically touched R.S.W. See id. at 41:14-15. After R.S.W. had turned around, the male officer looked at R.S.W.'s clothes and then gave the clothes back to R.S.W. See id. at 41:21-42:14. R.S.W. put on his clothes, and the male officer called the female officer back to the restroom. See id. at 42:15-18. The female officer returned to the restroom and then took R.S.W. back outside to his family. See id. at 42: 25-43:1.

Dossey was the case agent for the search of the residence. See DUMF 39; PUMF 1. As case agent, it was Dossey's duty to establish protocols for the search, to obtain all the background information for the location where the search would be conducted, to assign officers particular duties during the search, to conduct a briefing prior to the search, and to accomplish a majority of the reports involved in the case. PUMF 2. Officers Slayton, Ursery, and Martin searched the residence. See DUMF's 32, 41, 43. In the course of searching the residence and the vehicles in front of the residence, officers found plastic baggies in a bedroom, drugs, a cell phone, and about $2,000.00. See DUMF 47. Based on the items discovered in the residence and in the search of the purse, Dossey believed that Nicholson possessed methamphetamine for purposes of sales. See DUMF 48. Dossey did not believe that any of the "kids" at the front of the house presented any threat to either him or the other officers, and he also had no reason to believe that the "kids" were harboring contraband. See Dossey Depo. 45:25-46:7.

Sgt. Matt Pflugh ("Pflugh") was a sergeant for the KNET team. See Pflugh Depo. 14:6-22. Pflugh's duties in general were to supervise the individuals who were assigned to the KNET team, which of course required that he know what the individual members of KNET were doing. See id. Pflugh also had the responsibility to approve search warrants, approve arrests, and to supervise officers whenever he and the other officers were out on a KNET function. See id. at 16:4-6. Pflugh did not direct Martinez to search Nicholson. See id. at 35:6-8. While Pflugh was standing in the residence's front yard, he saw Martinez take Nicholson into the house. See id. at 35:9-14. Pflugh understood that Martinez was going to search Nicholson. *fn9 See id. at 35:15-17. Pflugh testified that, in June 2008, the pertinent policy and procedure on strip searches required Pflugh to authorize a strip search in writing. See id. at 35:18-23.

SUMMARY JUDGMENT FRAMEWORK

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).

The opposing party's evidence is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 573 F.3d 1040, 1058 (9th Cir. 2009); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

DEFENDANTS' MOTION

I. 7 Bakersfield Police Officers

Defendants Ryan Slayton, Kyle Ursery, Joseph Cooley, Jeffrey Martin, Ronnie Dulan, Joshua Finney, and Scott Tunicliffe all maintain that they did not search or touch any of the Plaintiffs. See DUMF's 25-33, 36-38, 41-45. Plaintiffs agree and state that all but Joseph Cooley ("Cooley") should be dismissed. See Opposition at 1:25-2:5. In light of Plaintiffs' concession and the evidence produced, see DUMF's 25-33, 41-45, the Court will grant summary judgment in favor of Defendants Ryan Slayton, Kyle Ursery, Jeffrey Martin, Ronnie Dulan, Joshua Finney, and Scott Tunicliffe.

Plaintiffs' omission of Cooley from the agreed dismissal appears to be an oversight because Cooley is never mentioned in Plaintiffs' opposition. Moreover, Plaintiffs admit that: (1) Cooley detained Michael Holmes (the individual who was working on the vehicle in front of the residence); and (2) Cooley did not search inside of the home and did not interact in any way with Nicholson, Williams, C.W., or R.S.W. See PRDUMF 36-38. Plaintiffs have shown no basis for holding Cooley liable. In essence, Plaintiffs agree that Cooley did not violate any Fourth Amendment rights, and did not assault, batter, falsely imprison, or inflict emotion distress upon them. Therefore, summary judgment in favor of Cooley on all claims alleged against him is appropriate. See PRDUMF 36-38; Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005).

II. Fourth Amendment -- Search of Nicholson's Purse Defendants' Argument *fn10

Dossey argues that Nicholson was in possession of her purse when the officers were approached her and Miles. Dossey was concerned that Nicholson might have had a weapon inside her purse which could be used to harm him and the other officers. Gang members often possess and conceal weapons and will use women and children in furtherance of this practice. Nicholson had a lowered expectation of privacy because she lived with a parolee. Since Miles was subject to parole searches, and Dossey reasonably suspected that Miles had hidden a weapon or contraband in Nicholson's purse, Dossey could search the purse. Thus, the search of the purse was reasonable in light of the circumstances.

Plaintiffs' Opposition

Nicholson argues that Dossey is relying on the ability to conduct a parole search of Miles and Nicholson's proximity to Miles to justify the search of the purse. However, it is well established that propinquity alone does not create probable cause. A mere marriage relationship and physical proximity did not provide probable cause to search the purse or to detain any of the Plaintiffs. Further, any safety concerns that Dossey may have had about the purse were completely negated when he took control of the purse. The search and the detention were unreasonable.

Legal Standard

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "A person has an expectation of privacy in his or her private, closed containers," United States v. Davis, 332 F.3d 1163, 1167 (9th Cir. 2003), and "a purse is a type of container in which a person possesses the highest expectations of privacy." United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993). "In the ordinary case, the [Supreme] Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant . . . ." United States v. Place, 462 U.S. 696, 701 (U.S. 1983). That is, the Fourth Amendment "generally requires that police officers obtain a search warrant before searching a suspect's person or property." United States v. Morgan, 799 F.2d 467, 468-69 (9th Cir. 1986). While warrantless searches are generally per se unreasonable, there are "a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). "Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the [Supreme] Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present." Place, 462 U.S. at 701.

Pursuant to Terry v. Ohio , when an officer has "reasonable suspicion" that a person who is lawfully detained is carrying a weapon, including a weapon in a personal container such as a purse, then the officer may conduct a pat down search or a limited search for weapons. See United States v. Orman, 486 F.3d 1170, 1173-74 (9th Cir. 2007); United States v. Flippin, 924 F.2d 163, 165-167 (9th Cir. 1991). Reasonable suspicion is present when "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. 1, 27 (1968); Orman, 486 F.3d at 1176. Reasonable suspicion is an objective inquiry, see Orman, 486 F.3d at 1176, and is "based on specific and articulable facts." Flippin, 924 F.2d at 166. Numerous factors may establish reasonable suspicion, including but not limited to, an observation of a visible bulge in clothing, sudden movements or repeated attempts to reach for an object not immediately visible, or the nature of the suspected crime. Ramirez v. City of Buena Park, 560 F.3d 1012, 1022 (9th Cir. 2009). However, the "'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on the premises where an authorized . . . search is taking place." Ybarra v. Illinois, 444 U.S. 85, 94 (1979); Ramirez, 560 F.3d at 1022. That is, "[p]ersons detained during a search for evidence cannot be searched according to Ybarra simply because they are there." United States v. Vaughan, 718 F.2d 332, 335 n.7 (1983); see Marks v. Clarke, 102 F.3d 1012, 1029 (9th Cir. 1996). "Unless an officer can point to specific facts that demonstrate reasonable suspicion that the individual is armed and dangerous," then a Terry search or pat down is improper. Ramirez, 560 F.3d at 1022.

Discussion

There is no dispute that Dossey searched Nicholson's purse without a warrant. Therefore, the search was unreasonable unless there is an exception to the warrant requirement. See Place, 462 U.S. at 701.

Dossey argues that he had probable cause to believe that contraband was in the purse. However, assuming that Dossey had probable cause to believe that Nicholson was secreting contraband in the purse, Dossey would have only been permitted to seize the purse, and he would not have been permitted to search it. See Place, 462 U.S. at 701. In order to search the purse, Dossey was required to obtain a search warrant after seizing the purse. See id. Since Dossey failed to do this, probable cause for contraband does not justify the search. See id.

Dossey also argues that he was concerned about officer safety and that Nicholson's purse may have contained a weapon. A Terry search or pat down may entail a search of a personal container, such as a purse, if an officer has reasonable suspicion that a suspect is armed. *fn11 See Flippin, 924 F.2d at 166. Dossey indicates that his concern over officer safety stemmed from Miles's past narcotic and weapons charges, Miles was a known gang member, people who sell illegal drugs are often armed to protect themselves and their drugs, and gang members and those who sell drugs often hide drugs and weapons in the purses of women because they feel officers are less likely to search a woman's purse. See Doc. No. 51-1 at 11:17-14; Doc. No. 58 at 11:8-9. This evidence is insufficient to establish reasonable suspicion because it is mainly directed at Miles and not at Nicholson. While Miles may have been a known gang member, there is no evidence that Nicholson was actively involved in Miles's gang. There is no evidence that Miles's gang was known to use women or women's purses to hide weapons, or that Miles was himself known to hide contraband or weapons in women's purses. *fn12 Further, all prior criminal offenses related to Miles, and there is no evidence tying Nicholson to those prior offenses. Relatedly, there is no evidence that Miles was currently dealing drugs even though he was on parole for a drug related offense. It is true that Dossey had received a tip that Nicholson was selling drugs at a local business. However, the tip related to drug sales at a business, not at the residence, and the tip did not mention Nicholson being armed. *fn13 See PRDUMF 1. Further, there is no evidence that Dossey observed bulges in Nicholson's purse, and Nicholson was simply wearing the purse when the officers arrived. There is also no evidence that Miles made any movements or gestures towards the purse. Simply put, Dossey has failed to identify specific, articulable facts that relate to Nicholson. Because Dossey has not articulated a reasonable suspicion that Nicholson was armed, a Terry search of the purse was not appropriate. *fn14 See Ybarra, 444 U.S. at 94; Ramirez, 560 F.3d at 1022; Flippin, 924 F.2d at 166; Vaughan, 718 F.2d at 335.

Finally, Dossey argues that Miles was subject to a parole search condition, there was probable cause to believe that Miles had hidden either contraband or a weapon in Nicholson's purse, and Nicholson had a reduced expectation of privacy because she lived with Miles. In essence, Dossey argues that the parole search condition on Miles extended to Nicholson and her purse. The Court is not convinced by this arguments.

First, the Court does not see probable cause or reasonable suspicion to believe that Miles had placed anything in Nicholson's purse. *fn15 It is true that Miles was subject to a parole search, was a known gang member, and had previously been convicted of weapons and drug related crimes. It is also true that Dossey knew that people who sell drugs sometimes hide weapons in purses. However, other than these past events and generalizations, there is nothing to link Miles to any current illegal activity or expressly to the purse. Nicholson was wearing the purse when the officers arrived. There is no evidence that Miles reached for, handled, or otherwise made any gestures relative to the purse. There is also no evidence that Miles was known to hide drugs in women's purses. Dossey has not established probable cause or reasonable suspicion to believe that Miles secreted contraband or weapons in Nicholson's purse.

Second, the only authority cited by Dossey in relation to this issue is in his reply brief. Dossey cites People v. Sanders , 31 Cal.4th 381 (2003). In Sanders , the California Supreme Court acknowledged that "Sanders had a reduced expectation of privacy because she was living with a parolee subject to a search condition . . . ." Sanders, 31 Cal.4th at 330. However, the remainder of the quote is instructive: ". . . but she 'need not anticipate that officers with no knowledge of the probationer's existence or search condition may freely invade their residence in the absence of a warrant or exigent circumstances." Id. (quoting People v. Robles, 23 Cal.4th 789, 799 (2000)) (emphasis added). Dossey is relying on a portion of a Sanders out of context. Sanders involved the search of an apartment, it did not involve the search of a person or a purse that was on the person. Sanders , as well as the case it relied upon, Robles , stand for the proposition that people who cohabitate with those subject to a probation or parole search term have a reduced Fourth Amendment expectation of privacy in their shared residence. See id.

Nevertheless, it has been recognized that when executing a parole or probation search, officers may look into closed containers that they reasonably believe are in the complete or joint control of the parolee/probationer. See People v. Baker, 164 Cal.App.4th 1152, 1159 (2008) (citing People v. Woods, 21 Cal.4th 668, 682 (1999)); People v. Boyd, 224 Cal.App.3d 736, 749 (1990)); People v. Smith, 95 Cal.App.4th 912, 917-20 (2002); People v. Veronica, 107 Cal.App.3d 906, 909 (1980). Accordingly, if the evidence shows that Miles had joint control of the purse with Nicholson, then the search of the purse would be proper. See id. However, Nicholson was wearing the purse when Dossey arrived. There is no evidence that Miles utilized the purse, controlled the purse, made any movements towards the purse, or had any kind of ownership interest in the purse. It appears obvious that the purse was Nicholson's. Without any evidence that Dossey knew that Miles had at least joint control over the purse, the search of Nicholson's purse cannot be justified by Miles's parole condition. See Baker, 164 Cal.App.4th at 1159-60; People v. Montoya, 114 Cal.App.3d 556, 562 (1981) ("[T]he reasonable expectation of privacy possessed by a nonparolee cannot be invaded through an overbroad parole search."); Veronica, 107 Cal.App.4th at 909.

Viewed in the light most favorable to Nicholson as the non-moving party, the evidence indicates that Dossey's search of Nicholson's purse violated the Fourth Amendment.

III. Fourth Amendment -- Force Used To Obtain Nicholson's Purse Defendant's Argument *fn16

Dossey argues that, at most, the force used constituted incidental contact when Nicholson refused to relinquish the purse. Dossey needed to search the purse to ensure that there were no weapons that could be used against the officers at the scene. While the force was incidental, it was ...


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