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Estate of Brown v. Lambert

United States District Court, S.D. California

June 23, 2017

THE ESTATE OF KEVIN BROWN by its successor in interest Rebecca Brown, and REBECCA BROWN, an individual, Plaintiffs,
v.
MICHAEL LAMBERT, an individual, MAURA MEKENAS-PARGA, an individual, and DOES 2-50, Defendants.

          AMENDED ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          HON. DANA M. SABRAW UNITED STATES DISTRICT JUDGE.

         This case stems from the 1984 murder of 14 year old Claire Hough. Claire's body was found in the early morning hours at Torrey Pines State Beach. She had been brutally beaten, strangled to death, and mutilated with a knife. The case was reopened after having gone unsolved for decades. Through advancement in DNA technology the San Diego Police Department (“SDPD”) Crime Lab was able to perform further tests in 2012. DNA from a convicted rapist, Ronald Tatro, was found in blood from the victim's clothing. In addition, a combined sperm fraction taken from a vaginal swab from the victim's body revealed trace amounts of semen from a second individual, Kevin Brown, who was a former longtime employee of the Crime Lab and employed by the Lab at the time of Claire's murder.

         Plaintiffs claim Brown's DNA was present through an obvious case of cross contamination, likely due to now-outdated standards used in the Lab in the 1980s when swabs were air dried in the open and DNA science was not developed. Plaintiffs point out that it was common practice at that time for Lab employees to use their own semen samples or samples from their coworkers for testing reagents in the Lab and, as a result, several Lab employees believed the positive hit on Brown's DNA was due to cross contamination. Plaintiffs contend Defendant Michael Lambert obtained a warrant to search Brown's residence by misrepresenting and omitting these and other material facts in an affidavit submitted to a state judge in support of the application for a search warrant. Plaintiffs allege that after Defendants obtained the warrant, they engaged in a dragnet search of Brown's home and put extreme pressure on an emotionally fragile Brown, ultimately resulting in a number of constitutional violations and Brown's death by suicide.

         Before the Court are Defendants' motion for summary judgment and Plaintiffs' motion for partial summary judgment. Defendants seek summary judgment on each of Plaintiffs' claims, while Plaintiffs seek partial summary judgment on two of their claims. The motions came on for hearing on April 21, 2017. Eugene Iredale appeared and argued for Plaintiffs, and Catherine Richardson appeared and argued for Defendants.[1]

         The Court issued its original Order on the parties' motions on May 25, 2017. In that Order, the Court denied Defendants' motion and granted in part and denied in part Plaintiffs' motion. Specifically, the Court granted Plaintiffs' motion on their third claim for unlawful seizure beyond the scope of the warrant and denied the motion on Plaintiffs' fourth claim.

         Twelve days after the Order was issued, Defendants filed a Notice of Interlocutory Appeal. The following day, June 7, 2017, Plaintiffs filed an ex parte motion to certify the appeal as frivolous. The Court held a hearing on that motion on June 9, 2017, and at that hearing set a further briefing schedule on the motion. After those further briefs were submitted, the Court held another hearing during which Defendants agreed to withdraw their Notice of Appeal to allow the Court to address the important issues raised in the parties' supplemental briefs and discussed at the hearings. This order addresses those issues.

         I.

         BACKGROUND

         Following the discovery of Claire's body, an autopsy was conducted by a pathologist from the San Diego County Coroner's Office. The pathologist concluded the cause of death was manual strangulation, and noted a deep laceration to Claire's throat, blunt force injuries to her face, and stab wounds to her chest and genitalia. Her entire left breast had been amputated, and her mouth was filled with sand. Numerous items of evidence were collected from the scene, many of which were stained with blood. (Pls.' Opp'n to Defs.' Mot., Ex. 15, Evidence Screen at 3-4, 6-9.[2]) Other items of evidence were swabbed to detect the presence of semen. (Id. at 3, 6.) Vaginal, anal and oral swabs were also taken from the victim.[3] (Id. at 1.) The autopsy, which was performed the day after Claire's body was discovered, found “[n]o spermatozoa” on the oral, anal and vaginal smears taken from the victim. (Pls.' Opp'n to Defs.' Mot., Ex. 12 at 4.)

         Following the initial investigation, no eyewitnesses were identified, few leads were developed, and Claire's case went cold for nearly two decades. The case was revisited several times by the SDPD Cold Case Team. Finally, in 2012 a Detective from the Cold Case Team submitted a lab request to reexamine the physical evidence in the case with the hope that new DNA technology would yield positive results. The Detective specifically requested the SDPD Crime Lab reexamine the vaginal swabs, a towel recovered from the scene and Claire's clothing.

         Criminalist David Cornacchia conducted the DNA analysis of this evidence, along with other items of evidence from the case. (Pls.' Opp'n to Defs.' Mot, Ex. 25.) Non-sperm fractions of blood stains on Claire's jeans identified Tatro as a match. (Id. at 4.) Tatro was also identified as a possible contributor to non-sperm fraction stains on Claire's underwear. (Id. at 6.) In addition, DNA analysis of a sperm fraction of the combined vaginal swab extracts returned a hit to Brown.[4]

         At the time of Claire's murder, Brown was thirty-two (32) years old, single, and worked as a criminalist in the SDPD Crime Lab. At that time, it was common practice for male criminalists working in the Lab to use their own semen samples or samples from their male coworkers to test the reliability of reagents used in detecting the presence of acid phosphatase, an enzyme present at high levels in sperm, and in microscopic examinations to identify sperm. (Pls.' Opp'n to Defs.' Mot., Ex. 14 at 27; Ex. 18 at 15; Ex. 19 at 19; Ex. 20 at 14.)

         Around the time Cornacchia reported the results of his DNA analysis, Defendant Lambert, a detective with the SDPD, began investigating Claire's murder. In the course of that investigation, Lambert read Claire's case file and discussed the case with numerous witnesses, including Cornacchia, John Simms, James Stam, Jennifer Shen and a number of other individuals who previously worked with Brown in the Crime Lab. Brown left the Crime Lab in 2002, after many years of service. (Defs.' Mot., Ex. T at 24.)

         Simms tested some of the evidence from Claire's case shortly after the murder. At his deposition in this case, Simms testified he told Defendant Lambert there was a possibility he “could have done” something while “working on the evidence that might have resulted in possible contamination” of the evidence with Brown's semen sample, “that there was a possibility.” (Pls.' Opp'n to Defs.' Mot., Ex. 14 at 76.) (See also Id. at 87 (stating Simms told Lambert he had “concerns about a breach of protocol that [he] may have committed that might have led to possible contamination.”))

         Stam, one of Brown's former supervisors in the Crime Lab, also testified in his deposition in this case that he told Defendant Lambert he believed “contamination” was a more likely explanation as to why Brown's DNA was found on the evidence from the Hough case. (Pls.' Opp'n to Defs.' Mot., Ex 18 at 26.) He tried “to convince Detective Lambert that you need to look at the contamination first. That needs to be the No. 1 thing. You need to eliminate that 100 percent and then maybe go on with the rest of it.” (Id. at 30.)

         It is unclear when Defendant Lambert had these conversations with Simms and Stam. However, Cornacchia testified at his deposition in this case that he informed Lambert about the male criminologists' practice of using their own semen samples no later than November 2013, before Lambert applied for the search warrant in this case. (Pls.' Opp'n to Defs.' Mot., Ex. 24 at 59) (stating no later than November 2013, Cornacchia “discussed with Detective Lambert issues concerning the presence of semen samples from analysts in the lab being something that happens.”)

         On January 3, 2014, Defendant Lambert applied for a search warrant for Brown's home, which Brown then shared with his wife Rebecca Brown and Rebecca's mother and brother. In the search warrant affidavit, Lambert recounted the facts surrounding Claire's murder and the initial investigation. (Defs.' Mot., Ex. C.) He also recounted the cold case investigations that began in 1996. He also went over DNA evidence and analysis, in general. Absent from the affidavit, however, was any discussion of the now-outdated lab practices in 1984, which were considerably different from 2012 practices when the DNA analysis in this case was conducted.

         The affidavit then turned to the DNA analysis of the evidence in Claire's case, and explained that through that analysis, two suspects were identified. The first was Tatro. Lambert set out Tatro's criminal history prior to Claire's murder, which included convictions for rape and battery, and stated after Claire's murder, Tatro was also convicted of the attempted rape of a teenage girl in La Mesa, California. Tatro was also a person of interest in the February 1984 murder of prostitute Carol Defleice.[5] The second suspect identified through the DNA analysis was Brown. As noted, Brown was identified through analysis of a combined sperm fraction (where DNA is extracted from sperm cells) from the vaginal swab taken from the victim.

         In the affidavit, Lambert stated Brown was a former employee of the SDPD Crime Lab, but he failed to inform the judge of the male lab employees' practice of using their own semen samples or samples from their coworkers in testing reagents in the Lab. Rather than raising the possibility that the vaginal swab may have been contaminated in the Lab by Brown's semen sample, Lambert stated Jennifer Shen, then the manager of the Lab, stated, “BROWN had no access to the evidence in the HOUGH murder” and “that cross contamination is not possible.” (Defs.' Mot., Ex. C at 17.) This statement was made despite numerous documented instances of contamination in the Crime Lab. (Pls.' Opp'n to Defs.' Mot. at 19-22) (listing twenty (20) instances of cross contamination)). Lambert also failed to disclose to the judge that the autopsy analysis of the vaginal swab in 1984 was negative for sperm.

         Defendant Lambert then recounted in the affidavit his investigation into Brown, which revealed that prior to getting married and while working in the Lab, Brown talked about going to strip clubs. Lambert also recounted Brown's nickname in the Lab was “Kinky, ” and other lurid stories about Brown from his coworkers. Lambert then concluded, based on the 2012 DNA analysis of the vaginal swab, that “Kevin BROWN had sexual intercourse with 14 year old Claire HOUGH.” (Id. at 29.) Despite failing to find any evidence linking Tatro and Brown, the affidavit identified Brown as a suspect in Claire's murder, together with Tatro.[6] Lambert stated, “I believe the sexual intercourse Brown had with Claire [] was not consensual and appears to be contemporaneous to the murder.” (Id. at 30-31). Lambert's theory was that Brown and Tatro were “the perpetrators, acting in concert, in the commission of the sexual assault, mutilation, and murder of Claire HOUGH, ” (id. at 4), and stated the search warrant was an “attempt to obtain information to link” Brown and Tatro. (Id.) Lambert also sought the warrant “to find evidence that Kevin Brown is following this case, and another similar 1978 murder of a teenage girl Barbara NANTAIS.” (Id. at 3.)

         The search warrant affidavit requested permission to seize ten (10) categories of evidence, including: (1) "Newspaper clippings or any other print news relating to the murders of Claire HOUGH and/or Barbara NANTAIS[, ]" (2) "Address books, diaries/journals, hand written in nature[, ]" (3) "San Diego Police Department Crime Case Reports and/or Arrest Reports relating to Sexual Assaults[, ]" (4) "Magazine, videos, … books photographs or other written or photographic evidence depicting or related to teenage or preteen pornography, rape, bondage, and sadomasochism[, ]" (5) "Receipts for storage facilities including offsite storage, safety deposit boxes and 'cloud' storage[, ]" and (6) "Photographs, disposable cameras, negatives, photographic film that relate to Claire HOUGH, Ronald TATRO, James ALT, or Barbara NANTAIS." (Id. at 2-3.) Lambert also requested permission to seize "Papers, documents and effects tending to show dominion and control" over the premises, (id. at 2), though it was well known the Browns lived in the home. (Pls.' Opp'n to Defs.' Mot., Ex. 27 at 91.) Lambert presented his affidavit in support of the warrant to a district attorney, who reviewed it and did not offer any changes or corrections. (Defs.' Mot., Ex. G at 117.) Based on Lambert's affidavit, the judge issued the warrant.

         The warrant was executed six days later on January 9, 2014. On that day, prior to executing the warrant, the officers scheduled to participate in the search attended a meeting at police headquarters. (Pls.' Opp'n to Defs.' Mot., Ex. 27 at 95.) During that meeting, Lambert conducted a search warrant briefing during which he told the detectives he wanted them to seize every videotape in the house. (Pls.' Mot., Ex. 5 at 96.)

         It is unclear what time the search began and what time it ended. It is also unclear how many officers were involved in the search.[7] However, the evidence reflects Defendant Lambert participated in the search as did Defendant Maura Mekenas-Parga, another SDPD Detective, (Pls.' Opp'n to Defs.' Mot., Ex. 27 at 95), and that they both made decisions about what items would be seized. (Pls.' Opp'n to Defs.' Mot., Ex. 29 at 44-45.) Defendant Mekenas-Parga testified at her deposition in this case that it was her understanding the warrant allowed for the seizure of all photographs the officers deemed as "possible evidence." (Id. at 53.) She also testified the warrant allowed the officers to seize "all VCR tapes." (Pls.' Mot., Ex. 4 at 78-79.) Mekenas-Parga testified her reading of the warrant allowed for seizure of "anything recording." (Id. at 80.) According to Mekenas-Parga, "any cell phone in the house could be seized, " "any thumb drive in the house could be seized." (Id. at 84.) Mekenas-Parga also testified "any newspaper article, regardless of what it said or the date … was legitimately subject to seizure[.]" (Id. at 113.) Notably, Mekenas-Parga did not "review any of the items in” certain boxes “to see if they could be removed and left because they had nothing to do with anything permitted to be seized in the warrant[.]" (Id. at 89.) She also did not review any of the photo albums before they were removed from the house. (Id. at 91.)

         In all, the officers seized fourteen (14) boxes from the Browns' home. (Defs.' Mot., Ex. O.) The items seized included: (1) "Papers Christmas Letter w/cabin info folder[, ]" (2) "Binder 'chemical imbalance' mental health problems[, ]" (3) Kevin Brown's SDPD badge, (4) seven boxes of photos, journals, books, photo albums, paperwork, (5) other loose photos and photo albums, (6) a "callback roster from June 1998 for" SDPD, (7) handwritten cards, (8) notebooks, (9) a drama program from Mater Dei dated March 1, 2013, [8] (10) a file folder titled, "Apple Products, " (11) a file folder titled, "Business Folder, " and (12) a file folder titled "Divorce Annulments[.]" (Defs.' Mot., Ex. E.) (See also Decl. of Rebecca Brown in Supp. of Pls.' Mot., Exs. A-B.)

         Detective Lambert testified he completed his review of the evidence seized from the Browns' home approximately three months after the seizure, or in April 2014. (Defs.' Mot., Ex. G at 127.) None of the evidence he reviewed “had any probative value to prove that Kevin Brown had committed the” murder of Claire Hough. (Id.) Nevertheless, Lambert did not return the property to the Browns at that time. (Id.) Instead, Rebecca Brown began inquiring of Lambert about the return of their property. She specifically asked about her computer, which was returned to her two weeks thereafter. (Defs.' Mot., Ex. H at 126.) Approximately three months after that, she inquired of Lambert when the rest of their property would be returned. (Id. at 127.) Lambert's response was, “it's all coming back soon[.]” (Id.)

         After another month passed without the return of their property, Rebecca Brown again phoned Defendant Lambert to inquire. (Pls.' Opp'n to Defs.' Mot., Ex. 32 at 73.) As before, Lambert told her they would “be getting it all back soon.” (Id.) The Browns believed that once their property was returned, “that it would be over.” (Id. at 75.) Kevin Brown, in particular, was “fixated on the issue of the return of the property.” (Id.) “He started putting a calendar in his closet in June when the detective said, it's coming back soon. So he would mark off each date until it was going to happen.” (Id. at 76.)

         After the search was conducted, and while the Browns were waiting for the return of their property, Kevin Brown began experiencing increased anxiety. (Id. at 43.) Brown first began suffering from anxiety disorder in high school. (Id. at 36.) His insomnia worsened. (Id.) Rebecca Brown testified that her husband was depressed. (Id. at 46.) “He had difficulty getting out of bed. He lost 25 pounds. His hands started shaking. He started looking older. He had me take him to Urgent Care a couple of times because he was anxious.” (Id.) On September 26, 2014, Rebecca Brown came home from work and found her husband in bed. (Id. at 62.) She said he “was groggy. There was a bullet on the floor next to the bed, and he said he'd written me a letter.” (Id. at 62-63.)

         After the September 26, 2014 incident, Rebecca Brown's brother John Blakely removed all the guns from the Brown household because “it was clear to [him] that something bad was happening” with them. (Defs.' Mot., Ex. Q at 16.) That was the second time Mr. Blakely removed the guns from the house after the search warrant was executed. (Id.) Mr. Blakely informed Defendant Lambert he had removed the guns from the house, and did so again after the incident on September 26, 2014. (Id.) Later that week, Lambert went to Rebecca Brown's workplace to conduct a welfare check on her. Brown testified that during that meeting, she told Lambert her husband “might kill himself.” (Id. at 107.) Lambert denies Rebecca Brown shared that concern with him. (Defs.' Mot., Ex. G at 148.) Less than one month later, Kevin Brown committed suicide by hanging himself from a tree at Cuyamaca State Park. (Third Am. Compl. (“TAC”) ¶ 244.)

         On July 16, 2015, Rebecca Brown filed the present case on behalf of herself and Kevin Brown's Estate. A Second Amended Complaint (“SAC”) filed on October 5, 2015, named only Lambert as a Defendant, and alleged claims for (1) execution of a warrant obtained in violation of Franks v. Delaware, (2) execution of an overbroad warrant, (3) seizure of property beyond the scope of the warrant, (4) wrongful detention of, and refusal to return, seized property, (5) wrongful death under 42 U.S.C. § 1983, and (6) deprivation of right of familial association. On June 8, 2016, Plaintiffs filed the TAC, which realleges the claims in the SAC and adds Maura Mekenas-Parga as a Defendant.

         II. DISCUSSION

         As stated above, both sides move for summary judgment in this case. Plaintiffs move for partial summary judgment on claims three and four only, and Defendants move for summary judgment on all of Plaintiffs' claims.

         A. ...


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