United States District Court, E.D. California
ORDER RE: MOTIONS IN LIMINE
ANTHONY W. ISHII, District Judge
Gary Willis ("Plaintiff") was a registered occupant of the E-Z 8 Motel in Bakersfield, CA on March 27, 1996. Police received reports of heavy traffic from that room and were informed it was registered under Plaintiff's name. The Defendants are four law enforcement officers form different departments who were sent to investigate: Bakersfield Police Officer Joseph Mullins, Bakersfield Police Officer Silvius, Kern County Deputy Sheriff Hood, and California State Parole Officer Diane Mora. Defendant Mullins consulted a list of parolees generated by the California Department of Corrections and distributed to local police departments on a roughly monthly basis ("Parole Roster"). He presented the Parole Roster to Defendant Mora; she confirmed the Parole Roster indicated that Plaintiff was on parole (based on 1987 convictions and a 1994 parole revocation) and subject to search. After announcing their presence and entering the motel room, Defendants found two individuals inside, Plaintiff and Kathleen Moye. Also visible were a knife, a syringe, and a briefcase. Defendants announced the commencement of a parole search. Plaintiff informed Defendant Mullins he was no longer on parole and provided his parole discharge card. Defendant Mora left to seek telephone confirmation of Plaintiff's parole status. In fact, Plaintiff had been discharged from parole nine months prior. While the call was taking place, Defendant Mullins detained Plaintiff outside the motel room while Defendants Silvius and Hood talked with Ms. Moye inside the room. Ms. Moye admitted to recently using methamphetamine, stated that she put a speed pipe in the briefcase, and consented to search of the briefcase. Defendant Mullins brought Plaintiff back into the room. Defendants Mullins, Silvius, and Hood opened the briefcase and found methamphetamine, speed pipes, syringes, set of scales, small plastic bags, spoons, and pay-owe sheets. At some point, Defendant Mora returned and informed Defendant Mullins that Plaintiff was not on parole. Defendants arrested Plaintiff and Ms. Moye.
Plaintiff made a motion to suppress evidence, which the California trial court denied. Based on evidence found within the motel room, Plaintiff was convicted of possession of methamphetamine for sale (Cal. Health & Safety Code § 11378) and possession of narcotics paraphernalia (Cal. Health & Safety Code § 11364). He ultimately served six years in state prison. On appeal, the Fifth District Court of Appeal found the entry unconstitutional and the good faith exception to the exclusionary rule inapplicable, but nonetheless affirmed the denial of suppression based on the finding that the officers had sufficient probable cause to search the briefcase based on Ms. Moye's statements to Defendant Silvius. The Fifth District's rationale was that the "freeze" in search was a reasonable response to the uncertainty concerning Plaintiff's parole status. People v. Willis , 71 Cal.App.4th 530, 541 (Cal.Ct.App. 1999). On appeal, the attorney general conceded that the Fifth District's rationale for denying the motion to suppress was erroneous. People v. Willis , 28 Cal.4th 22, 25 (Cal. 2002). The California Supreme Court overturned Plaintiff's conviction on June 3, 2002, finding that evidence from the search must be suppressed as the good faith exception did not apply. People v. Willis , 28 Cal.4th 22, 38 (Cal. 2002). Plaintiff was released on August 31, 2002.
Thereafter, Plaintiff filed a civil suit based on a number of causes of action. The procedural history of this is elaborate. In the last dispositive order, this court found summary adjudication on the following issues:
1. Defendants' initial entry into the motel room violated Plaintiff's Fourth Amendment rights. Qualified immunity can not be determined at this time. Summary judgment on the unconstitutional entry Section 1983 claim is DENIED.
2. Defendants' seizure of Plaintiff while determining his parole status violated Plaintiff's Fourth Amendment rights. Qualified immunity applies. Summary judgment on the unconstitutional seizure Section 1983 claim is GRANTED in favor of Defendants.
3. The search of the briefcase based on Ms. Moye's consent did not violate Plaintiff's constitutional rights. Summary judgment on the unconstitutional search Section 1983 claim is GRANTED in favor of Defendants.
4. Plaintiff's arrest based on the evidence found in the briefcase did not violate Plaintiff's constitutional rights. Summary judgment on the unconstitutional arrest Section 1983 claim is GRANTED in favor of Defendants.
5. Defendants actions in supporting Plaintiff's criminal prosecution do not constitute malicious prosecution. Summary judgment on the malicious prosecution Section 1983 claim is GRANTED in favor of Defendants.
Doc. 260, August 16, 2011 Order, 21:25-22:11. Qualified immunity can not be determined at this point because there is insufficient evidence as to the reasonableness of Defendants' reliance on the Parole Roster. At this point, the only causes of action that remain are a violation of 42 U.S.C. §1983 claim and conspiracy to commit the same. As a Fourth Amendment violation has been established, whether Defendants' actions were reasonable is central the question to be resolved. The trial will focus on whether qualified immunity should apply to the initial entry and damages if qualified immunity is denied.
Plaintiff has filed three motions in limine ("MIL"). Docs. 286, 287, and 288. Defendants Silvius and Mullins have filed eleven MIL. Doc. 289. Defendant Mora has also filed eleven MIL. Doc. 290. Defendant Hood joins in the other Defendants' MIL. Docs. 291 and 292. A hearing was held on March 10, 2014 to discuss the MIL and certain mechanics of the trial.
II. Legal Standard
Motions in limine may be "made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States , 469 U.S. 38, 40 n.2 (1984). Fed. Rule Evid. 403 states generally that, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." "Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States , 469 U.S. 38, 41 n.4 (1984). The parties must abide by the court's rulings but may ask for reconsideration as trial progresses. "[A] ruling on a motion in limine is essentially a preliminary opinion that falls entirely within the discretion of the district court. The district court may change its ruling at trial because testimony may bring facts to the district court's attention that it did not anticipate at the time of its initial ruling." United States v. Bensimon , 172 F.3d 1121, 1127 (9th Cir. 1999), citing Luce v. United States , 469 U.S. 38, 41-42 (1984).
A. Structure of the Trial
At the pretrial conference held on August 24, 2012, the parties discussed how to resolve the question of qualified immunity at trial and whether to phase the trial. No firm decision was made at that time.
With regards to dealing with qualified immunity, the issue was discussed at the hearing on March 10, 2014. The options are to give the question to the jury or to craft a special verdict that asks the jury to answer a series of limited factual questions. Plaintiff, Defendants Silvius and Mullins, and Defendant Mora have all submitted proposed jury verdicts. Docs. 308; 310, Part 1; and 312. Each party proposes to ask the jury if each Defendant acted in a reasonable fashion; if the answer is in the negative, the jury is directed to find the amount of damages suffered. Thus, it appears that the parties are prepared to give the entire question of qualified immunity to the jury. The court will proceed based on that assumption.
With regards to phasing the trial, the issue was also explored at the hearing on March 10, 2014, with an eye towards minimizing potential prejudice. To that end, the trial will be bifurcated with a qualified immunity and compensatory damages first phase and a punitive liability and damages second phase
B. Plaintiff's MIL
1. To exclude from trial any and all evidence of, reference to, comment or argument on, and examination of witnesses with respect to Plaintiff's criminal convictions.
2. To exclude from trial any and all evidence of, reference to, comment or argument on, and examination of witnesses with respect to evidence relating to the requirement that Plaintiff register as a sex offender, the terms and conditions of his parole, and materials relating to the 1994 parole revocation, as irrelevant, prejudicial, and inadmissible character evidence.
3. To exclude from trial any and all evidence of, reference to, comment or argument on, and examination of witnesses with respect to any of the events, including the arrest of Plaintiff, the search of his briefcase and of the motel room, that took place after the initial entry into the motel room, since the constitutionality of the entry itself is the only issue remaining in this case.
Plaintiff's MIL are addressed as a whole as they are closely intertwined and center around the issue of relevance. The convictions Plaintiff seeks to exclude are: (1) a 1983 conviction for assault with a deadly weapon under Cal. Penal Code § 245; (2) two 1987 convictions under Cal. Penal Code § 288(b), lewd and lascivious conduct with person under fourteen years old, and Cal. Penal Code § 136.1(c)(1), conduct accompanied by force or threat of force; (3) two 2007 convictions under Ariz. Rev. Stat. § 13-3821 under which plaintiff was required to register as a sex offender based upon his two 1987 convictions and Ariz. Rev. Stat. § 13-3824, failure to register; and (4) a 2010 conviction under Ariz. Rev. Stat § 13-2503A.2, escape in the second degree. Plaintiff was subject to a term of parole as a result of the 1987 convictions. In 1994, he violated the terms of his parole and was imprisoned for twelve months. Thereafter, his parole ended before the March 27, 2994 incident giving rise to this suit.
This is an extremely narrow case. The base issue of compensatory liability centers on whether Defendants have qualified immunity for mistakenly entering under the auspices of parole search. In prior dispositive motions, Defendants only justified their entry as a parole search. See Doc. 141, Part 1, Defendants Silvius's and Mullins's Brief for Summary Judgment, 13:21-28; Doc. 143, Defendant Mora's Brief for Summary Judgment, 5:10-13. Based on these representations, the court found that "Based solely on their belief that Plaintiff was a parolee subject to a search condition, Defendants entered the motel room without Plaintiff's consent.... Defendants entered to search the premises without a warrant. There was insufficient evidence to justify the entry based on exigent circumstances. As Plaintiff was not subject to a search condition, the entry violated the Fourth Amendment." Doc. 172, September 25, 2007 Order, 26:14-22. The Ninth Circuit concurred in finding "questions of fact exist as to whether Mora's mistake that Willis was on parole was reasonable" and "no urgency existed in Agent Mora's situation to excuse her failure to confirm Willis's parole status." Doc. 195, February 24, 2009 Ninth Circuit Order, 2-3. Defendants may not offer Plaintiff's sex offender status, failure to register, general criminal history, and circumstances indicating possibility of drug dealing as independent rationales for Defendants' entry with respect to qualified immunity. This case should center on Defendants' knowledge of the Parole Roster and its possible flaws: "In this case, the parties have not clarified how the Parole Roster was compiled. The parties have not provided details about how the Parole Roster dealt with parolees soon to be discharged....there is no indication whether individuals who were to be discharged from parole that month were included on the Parole Roster or whether they were excluded from the list. Further, there is no record of what the Defendants knew or were told about the Parole Roster with regard to that class of individuals"; "Qualified immunity thus boils down to whether it was reasonable for Defendants to rely on the information contained in the Parole Roster in order to determine if an individual is subject to a parole search condition." Doc. 172, September 25, 2007 Order, 33:10-16 and 30:4-6. The specific circumstances surrounding Plaintiff (events of March 27, 1996 and his criminal history) have only limited relevance to determining qualified immunity as the question turns on Defendants' knowledge of the reliability or unreliability of the Parole Roster.
Plaintiff argues that all evidence regarding the events of March 27, 1996 after the entry is irrelevant as "whether it was reasonable to conduct a parole search based upon an outdated parole roster occurred before the entry into the motel room, and nothing that occurred after the initial entry is relevant to that issue." Doc. 288, Plaintiff's MIL, 5:7-11. Defendants Silvius and Mullins argue that evidence of the methamphetamine found in the briefcase "supports the fact that the defendants had been dispatched there in the first place, supports the actions taken by the defendants, and supports the fact that the defendants entered the motel room in the first place. In the absence of the admission of this evidence, the defendants would unquestionably be prejudiced because the jury would be left with the incorrect assumption that the defendants were unfairly targeting the plaintiff for an improper purpose. The contraband in the motel room validates the defendants' being at the motel room in the first place." Doc. 298, Defendants Silvius' and Mullins's Opposition, 7:27-8:4. Defendants' argument that what was found in the room retroactively justifies the bad entry in the first place is rejected. Qualified immunity deals with what an officer actually knew at the time he/she took action that constitutes the violation. See Anderson v. Creighton , 483 U.S. 635, 641 (1987) ("in light of clearly established law and the information the searching officers possessed").
Some explanation of Plaintiff's past and the fact that he had been on parole are necessary to explain why Plaintiff was first put on the Parole Roster in the first place. However, the full circumstances of Plaintiff's criminal history need not be presented to a jury. The fact that Plaintiff was convicted of a crime in 1987 is relevant as it gives rise to his being on parole. However, the fact that it was a sex crime is not relevant. The status of sex offender is extremely prejudicial. See Romanelli v. Suliene , 615 F.3d 847, 850 (7th Cir. 2010) (district court excluded conviction for "failure to report as a sex offender, finding that the probative value was outweighed by the potential for unfair prejudice"); Vega v. Rell, 2013 U.S. Dist. LEXIS 169952, *5 (D. Conn. Dec. 3, 2013) ("Public sentiment toward drug and sex offenders is among the most vehemently negative. In view of the absence of any showing of relevance, this evidence can only be expected to create a serious risk that a jury would be unfairly prejudiced"). Plaintiff's sex offender and registration status is not relevant to this case. Additionally, Plaintiff's 1994 parole revocation is not relevant unless it changed the end date of Plaintiff's parole.
However, Plaintiff may open the door to questioning on Plaintiff's criminal history and parole violation if his argument makes them relevant. For example, if Plaintiff were to suggest that being on parole nearly ten years after a conviction is a circumstance that should have lead Defendants to question Plaintiff's parole status, then Defendants would be allowed to explain how his criminal background supports their inference that a long term of parole was appropriate and unsurprising.
Plaintiff seeks compensatory damages for the six years he spent in prison before the California Supreme Court overturned his conviction. Plaintiff argues "But for the unlawful entry into plaintiff's motel room, plaintiff would not have been arrested, prosecuted, convicted, and incarcerated for six years, before his conviction was reversed. Put another way, without the unlawful entry, the arrest, prosecution, conviction, and incarceration of plaintiff would not, indeed, could not, have happened. Evidence that as a direct result of the unlawful entry, plaintiff was arrested, that he was prosecuted, convicted, and spent six years in prison and that the conviction was reversed by the Supreme Court of California, is highly relevant to plaintiff's damages for emotional distress and the probative value of such evidence far outweighs any prejudice to the defendants." Doc. 294, Plaintiff's Opposition, 2:17-24. As the Western District of Washington has recently reiterated, "courts have uniformly rejected application of the exclusionary rule in § 1983 cases." Smith v. Kelly, 2013 U.S. Dist. LEXIS 153172, *28 (W.D. Wash. Oct. 24, 2013), citations omitted. "[C]onstitutional tort liability under § 1983 is limited to the kind of injury that the constitutional right at issue was designed to prevent. Victims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy-including (where appropriate) damages for physical injury, property damage, injury to reputation, etc.; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution." Townes v. City of New York , 176 F.3d 138, 148 (2nd Cir. 1999), citations omitted. Plaintiff's damages are extremely limited. In the context of entry, compensation is available for "actual injuries (i.e., physical pain and suffering, mental anguish, etc.) with respect to the illegal entry." Estate of Sowards v. City of Trenton , 125 Fed.Appx. 31, 36 (6th Cir. 2005). Even nominal damages must be specifically requested and instructed on. See Miller v. Albright , 657 F.3d 733, 738 (8th Cir. 2011).
In the first phase of trial, if Plaintiff tries to argue that his reputation was damaged by the entry, he may open the door for Defendants to bring in evidence of Plaintiff's criminal history. In libel cases, "Evidence of a tarnished reputation is admissible and should be considered as a factor to mitigate the level of compensatory damages." Marcone v. Penthouse Int'l Magazine for Men , 754 F.2d 1072, 1079 (3rd Cir. 1985). An argument for mental anguish damages may similarly open up the case to all events of March 27, 1996 as the circumstances surrounding the moment causing anguish become relevant for damage calculations. See Fragoso v. Builders FirstSource Southeast Group LLC, 2011 U.S. Dist. LEXIS 19529, *5 (D.S.C. Feb. 25, 2011) ("Plaintiff's claim for emotional distress entitles Defendant to discover evidence of alternate or multiple sources of possible emotional distress to Plaintiff, including fear of deportation, the unavailability of legal employment, and the fear of arrest by law enforcement"); Biggs v. Dupo , 892 F.2d 1298, 1305 (7th Cir. 1990) ("we require that a plaintiff show demonstrable ...