Cindy Saban v. Lake Oswego Police Department

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2024
• Docket: 21-36054
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CINDY SABAN; et al., No. 21-36054

Plaintiffs-Appellants, D.C. No. 3:19-cv-01882-JR

v. MEMORANDUM* LAKE OSWEGO POLICE DEPARTMENT; MARK ANDERSON, in his individual capacity,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Marco A. Hernández, Chief District Judge, Presiding

Submitted April 1, 2024** Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and ORRICK,*** District Judge.

The Sabans appeal the district court’s grant of summary judgment in favor

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. of Defendants. The Sabans challenge only the district court’s ruling that Officer

Anderson was entitled to qualified immunity. As the parties are familiar with the

facts, we do not recount them here. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

Where the facts are undisputed—as they are here—qualified immunity is “a

pure question of law.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.

2011) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). “[Q]ualified

immunity protects government officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Even

law enforcement officials who ‘reasonably but mistakenly conclude that probable

cause is present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227

(1991) (per curiam) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

The Sabans argue that Officer Anderson’s affidavit did not establish

probable cause to search their home or vehicle. However, even if the warrant were

invalid, Officer Anderson acted in an objectively reasonable manner. The fact that

Officer Anderson’s supervisor, a deputy district attorney, and a neutral magistrate

approved the warrant application “almost guarantees” the reasonableness of

Officer Anderson’s actions. Armstrong v. Asselin, 734 F.3d 984, 994 (9th Cir.

2 2013); see also Messerschmidt v. Millender, 565 U.S. 535, 546, 553 (2012)

(holding that officers acted reasonably where they “sought and obtained approval

of the warrant application from a superior and a deputy district attorney” before it

was approved by a neutral magistrate).

Nor was the affidavit “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.” Messerschmidt, 565 U.S. at

547 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). We have

previously deemed an affidavit so lacking where the only link to the target

residence was that a man with “a history of drug offenses, was seen at the alleged

locus of [a] drug ring and then at some point, went to [the] residence” in question.

Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1309 (9th Cir. 1994).

Officer Anderson’s affidavit, by contrast, was not so defective on the face of the

warrant itself or nearly so sparse in explaining the connection to the Sabans’

residence. See Armstrong, 734 F.3d at 992.

The Sabans contend that Officer Anderson violated two clearly established

rights. First, they rely on Ybarra v. Illinois, 444 U.S. 85, 91 (1979), for the

proposition that “a person’s mere propinquity to others independently suspected of

criminal activity does not, without more, give rise to probable cause to search that

person.” But the warrant did not authorize the search of any individual, and the

record before us does not contain any evidence that Jeffrey or Cindy Saban was

3 searched during its execution. Thus, the Sabans’ reliance on Ybarra is inapposite.

Second, the Sabans argue that it was clearly established that “relying on

evidence of a prior crime does not amount to probable cause related to a new

crime.” But neither of the child pornography cases they cite—Dougherty v. City of

Covina, 654 F.3d 892 (9th Cir. 2011), and United States v. Weber, 923 F.2d 1338

(9th Cir. 1990)—clearly establish that a search pursuant to a warrant based on an

affidavit that groups together suspected instances of credit card fraud/identity theft

over a two-week period violates the Fourth Amendment. Officer Anderson’s

affidavit sought evidence directly related to a suspected crime committed two

weeks prior and a new crime committed the day before he sought the warrant.

Because prior precedent did not preclude Officer Anderson from reasonably

believing that his conduct was lawful, he is entitled to qualified immunity. See

Kramer v. Cullinan, 878 F.3d 1156, 1163 (9th Cir. 2018).

AFFIRMED.